Foreign Policy Essay

Can International Humanitarian Law Restrain Armed Groups? Lessons from NGO Work on Anti-Personnel Landmines

By Margarita Konaev, Tanisha Fazal
Sunday, September 30, 2018, 10:00 AM

Editor’s Note: The laws of war are written by and for states, but we want fighters in civil wars to treat civilians well, not use unconventional weapons, respect cultural heritage sites, and otherwise fight in a civilized way. But will fighting groups play by the rules? Margarita Konaev of Tufts and Tanisha Fazal of the University of Minnesota examine the global effort to ban land mines and argue that groups that seek international recognition and have a strong military capacity are more likely to respect international humanitarian law and that better policies can increase the attractiveness of doing so.

Daniel Byman

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According to the International Committee of the Red Cross (ICRC), more armed groups have emerged in the last seven years than in the previous 70. This increase, driven in part by the factionalization and splintering of more mature groups, presents a serious challenge for humanitarian organizations that work with these non-state actors to ensure respect for the laws of war. This issue is a particularly tricky one in the realm of civil wars, because much of what is considered to be the core of codified international humanitarian law (IHL) was originally written to govern wars between states, not within them. And while both states and armed non-state groups are technically bound by IHL, only states can formally become parties to treaties such as the 1949 Geneva Conventions.

How, then, might these armed groups be persuaded to abide by the laws of war? More practically, which groups are most persuadable when it comes to complying with IHL?

In a forthcoming article in the Journal of Global Security Studies, we approach these questions by asking why some armed groups are more likely than others to commit to the laws of war, specifically by promising to stop using anti-personnel (AP) landmines. We find that strong secessionist groups in particular are more inclined to respect certain humanitarian norms by renouncing the use of these indiscriminate and illegal weapons.

Secessionist groups need the international community’s support to obtain international recognition. As such, they face a particularly strong incentive to show that they are both willing and able to abide by the rules that govern relations between independent states, including those on the means and methods of warfare. But military calculations also affect armed groups’ decisions regarding compliance with IHL. And it is mostly those groups with a sizable army and sufficient resources to acquire more sophisticated and effective weapons that can afford the military costs of foregoing AP mines.

 

Reorienting the Laws of War

The rules of IHL applicable to civil wars are enshrined in both treaty and customary law. Taken together, Common Article 3 of the 1949 Geneva Conventions and the 1977 Second Additional Protocol to the 1949 Conventions prohibit conflict parties from targeting civilians in civil wars, and set specific standards for the protection of children, political prisoners, the wounded and sick, and medical and religious personnel. Certain IHL treaties, including the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons and the Convention of Cultural Property in the Event of Armed Conflict, also apply in these settings.

Although the international conventions and treaties that codify the laws of war are negotiated, written, and can formally only be signed by states, some non-state actors have expressed an interest in making a public and official commitment to abide by IHL. For example, the Provisional Government of the Algerian Republic and the State of Palestine communicated their desire to accede to the Geneva Conventions and the Additional Protocols directly to Switzerland, which houses the official depository of these instruments. The Swiss government, however, did not accept their petitions because they were not recognized states. The reality is that while armed non-state groups are technically bound by IHL, they generally have little say in the development or interpretation of these laws, and they cannot formally become a party to these treaties.

The surge in civil wars at the end of the Cold War highlighted the deeply problematic nature of this gap in the laws of war. Since then, a number of NGOs have increasingly engaged armed groups through a variety of methods, including dialogue, advocacy, negotiations, training, and capacity-building, with the overarching goal of enhancing their knowledge of and compliance with IHL.

One such NGO is Geneva Call. Founded in 2000, the organization traces its roots to the International Campaign to Ban Landmines (ICBL)—a coalition of NGOs and civil-society actors whose efforts ultimately produced the Ottawa Convention (formally known as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction). With over 80 percent of the world’s countries now parties to the treaty, the Ottawa Convention has been a major success. Nonetheless, landmines remain a serious problem in more than 60 countries around the globe and, according to Landmine Monitor 2017, recent years have witnessed an “exceptionally high” number of people injured and killed by AP mines and other explosive remnants of war. 

While the ICBL sought the complete prohibition and elimination of AP mines, it soon became clear that these weapons cannot be eradicated unless armed groups also renounce their use. But because the Ottawa Convention was a treaty among states, it did not apply directly to armed groups. Geneva Call was established to fill this gap by serving as a depository for unilateral declarations and commitments made by non-state actors on the issue of AP mines.

Under the banner of promoting respect by armed non-state actors for international humanitarian norms, Geneva Call has engaged in dialogue with over 100 armed groups in 25 countries. The NGO’s unique approach centers on the promotion of Deeds of Commitment—an innovative instrument that presents a public platform for armed groups to commit to specific humanitarian norms. In addition to the deed of commitment focusing on anti-personnel landmines, which we examined, Geneva Call’s programming also addresses child soldiering and sexual violence in wartime.

 

The Political and Military Calculations of Secessionist Armed Groups

We found that strong secessionist groups were more likely to sign Geneva Call’s Deed of Commitment Banning AP Mines than both relatively weak secessionist groups and those armed groups fighting for a non-secessionist agenda. What sets secessionists apart from other armed groups is the need for international recognition to fulfill their ultimate goal of establishing an independent state. This is why secessionists “pay close attention to signals sent by major countries and organizations that indicate how they should behave.” At times of violence and conflict, one key signal is to abide by the laws of war.

Secessionist groups are less likely to resort to terrorism, directly target civilians, use indiscriminate violence that results in mass civilian casualties, or recruit child soldiers, and more likely to allow the ICRC access to detainees than groups with other political aims. Secessionist groups have also proved especially skilled at ‘rebel diplomacy’—publicly promoting their governance accomplishments and actively courting third-party support. Some groups, including the SPML/A (which led the independence movement in South Sudan), the POLISARIO in Western Sahara, and Somaliland have even hired consultants like Independent Diplomat to help advance their foreign-policy goals.  

Still, not all secessionist groups are equally likely to sign the Deed of Commitment Banning AP Mines. This is because military calculations can weigh just as heavily on armed groups’ decisions to relinquish these weapons as political ones. 

Often referred to as the ‘poor man’s weapon,’ AP mines are cheap, easily accessible, low-technology weapons that can help armed groups moderate the power asymmetries that characterize most civil wars. For weak armed groups in general and weak secessionists in particular, landmines can therefore appear indispensable—whether it is because they help defend against government attacks, or allow the groups to control territory, resources, or the local population. In all, we found that stronger secessionists were almost 60 percent more likely to sign the Deed of Commitment Banning AP Mines than weaker secessionist groups.

 

What Can We Learn from Geneva Call’s Work?

Geneva Call’s experience working on the issue of AP mines offers lessons for armed groups, states, and humanitarian organizations. 

Armed Groups: Secessionist groups that sign Geneva Call’s Deed of Commitment in the hope that ‘good behavior’ will result in international recognition will almost certainly be disappointed. But there are other tangible benefits to signing. Most practically, Geneva Call is part of the broader ICBL network that helps allocate funding for clearance and demining efforts, as well as assistance to victims. In areas such as Iraqi Kurdistan, for example, where there is “at least one landmine for every person in the region,” signing the Deed of Commitment is a pragmatic way to secure international assistance for mine action.

More broadly, abiding by IHL can help buttress armed groups’ domestic legitimacy. This, in turn, could strengthen their bargaining position vis-à-vis the government when it comes to power-sharing negotiations or territorial autonomy arrangements short of independence. 

States: Under IHL, states are obligated to allow humanitarian organizations such as the ICRC access to their populations in order to deliver life-saving services and assistance. But with NGOs such as Geneva Call, which do not directly offer humanitarian relief, access is a matter of state discretion. Turkey, for example, has consistently denied Geneva Call access.

Although states typically have political and military reasons for restricting or denying NGOs access to rebel-held areas, doing so could very well backfire. For example, to the extent that governments value the safety of their citizens and the economic productivity of agricultural lands, grazing grounds, and other areas contaminated by mines, refusing Geneva Call entry to parts of the country that need demining and victim assistance undermines these values.

Consider also that today’s civil wars are increasingly likely to end in negotiated agreements that often entail a prolonged process of trust-building measures. Granting access to organizations like Geneva Call to educate and train armed groups about their obligations under international law on issues such as AP mines, protection of children in armed conflict, and sexual violence is a step from which both sides stand to gain.

Limiting access also makes it more difficult for NGOs like Geneva Call to monitor compliance. For some armed groups, the absence of a neutral monitor is a major concern. The Free Aceh Movement (GAM) in Indonesia, for example, decided not to sign the Deed of Commitment Banning AP Mines because the government wouldn’t allow verification missions; GAM feared that they would not be able to disprove any allegations of non-compliance. Similar situations have occurred in Chechnya and Turkey.

By keeping Geneva Call out, governments create situations in which armed groups benefit politically from demonstrating interest in complying with IHL without verifiably paying the military costs of doing so. The risk of political blowback from this decision is especially high in secessionist conflicts in which armed groups can leverage the government’s strained relationship with NGOs like Geneva Call to attract support from the international community.

Humanitarian Organizations and NGOs: Both ICRC and Geneva Call approach the process of engaging armed groups as a long-term dialogue that encourages these actors to respect, internalize, and eventually follow the values IHL represents on the battlefield. Such socialization strategies tend to work best with armed groups that have clear political ambitions and an interest in improving their domestic and international image. Focusing on political incentives alone, all secessionist groups fit the bill. But taking military constraints into account, it makes sense that weak and strong secessionists think and behave differently. Strategies for engaging armed groups should therefore pay closer attention to the interaction between political and military factors rather than view these issues as separate.

Finally, there is a great deal of evidence that armed groups that have signed the Deed of Commitment Banning AP Mines show very high levels of compliance with their obligations: sharing details about the numbers and types of mines in their arsenal; showing progress in stockpile destruction and mine action; and reporting instances of possible violations. Geneva Call’s accomplishments should therefore be viewed as part of a larger set of IHL ‘success stories,’ helping push back against the skepticism that dominates today’s debates about the impact and relevance of IHL in modern civil conflicts.