Contemporary armed conflicts are characterized by an increase in violence against civilians by both states and armed non-state actors (ANSAs). According to the latest United Nations figures, more than 65 million people have been displaced by conflict, violence or persecution and more than 20 million people, including 1.4 million children, are on the brink of famine in Nigeria, Somalia, South Sudan and Yemen. The majority of these conflicts involve one or several ANSAs. It is therefore urgent to address the lack of compliance by these non-state actors with the applicable international norms.
Case law and current practice have confirmed that international humanitarian law (IHL) applies to ANSAs that are parties to armed conflicts. Whether ANSAs also have human rights obligations remains controversial. It is nevertheless increasingly recognized that they might be accountable under human rights law when they exercise de facto governmental authority over a given population. The precise human rights norms (such as the right to freedom of expression or freedom of religion) that would be applicable in these cases have yet to be identified. Irrespective of the applicable legal framework, concerns and specific characteristics of ANSAs are rarely taken into account when drafting the norms. Given the prevalent state-centred paradigm of public international law, ANSAs are not entitled to ratify the relevant international treaties, and are generally precluded from participating as full members of any treaty drafting body. Similarly, states being the main subjects of international law, customary international law is predominantly formed by their practice and ‘opinio juris’. While there are many factors that explain the violation of any norm, an important one is the prevalent ‘top-down’ approach of the international legal system, which is employed to impose IHL and human rights obligations on ANSAs – thus leading to poor implementation of the rules.
This project aims at compiling and analysing the practice and interpretation of selected IHL and human rights norms by ANSAs. It has a pragmatic double objective: first, to offer a comparative analysis of IHL and human rights norms from the perspective of ANSAs, and second, to inform strategies of humanitarian engagement with ANSAs, in particular the content of a possible ‘Model Code of Conduct’.
ANSA practices and views will be collected through available unilateral engagements, public declarations, special agreements and peace treaties. In addition, field research and interviews with selected ANSAs will also be conducted.
This project is conducted in partnership with the Swiss NGO Geneva Call.