Editor’s Note: This article is part of the Armed Groups and International Law Symposium, building on the volume edited by Katharine Fortin and Ezequiel Heffes.
Considering that an estimated 64 million people currently live under the exclusive control of armed non-State actors (ANSAs) exercising State-like control and government functions, it is remarkable that legal scholarship has focused so little on their civilian and political institutions. This is particularly unusual when one considers that outside the discipline of law, a whole field of “rebel governance” scholarship has emerged analyzing the formal and informal structures and practices that ANSAs often develop when they control territory and provide public services to the civilian population. This scholarship points out that in many instances armed groups are more than simply military entities. They have government ministries (e.g. of religion, health, taxation, education, agriculture, or extractive industries), legislatures, courts, police forces, schools, media outlets, and universities.
The existence of the civil and political wings of ANSAs raise multiple legal questions in international law, which are tragically relevant in the many conflicts around the world today (e.g. Gaza, Yemen, Syria, and Myanmar). They pertain to understandings of armed groups’ legal personality, the classification of armed conflicts and – perhaps most importantly – to the rules of targeting under international humanitarian law (IHL). In this post, I draw on a recent book chapter (see here) which addresses several of these questions in detail. Although the chapter was written long before the abhorrent attack by Hamas on Israel on October 7th, 2023, its conclusions are all too pertinent to the subsequent and ongoing Israeli military operations in Gaza and the humanitarian catastrophe unfolding there. This situation vividly demonstrates the devastating consequences of an approach that largely fails to account for the legal relevance of an ANSAs’ civilian and political institutions.
Despite the relative invisibility of armed groups’ non-military components in the case law of the international criminal tribunals on the threshold of IHL applicability, there are several significant legal and policy reasons for armed non-State parties to non-international armed conflicts (NIACs) to be understood as more than their armed forces (i.e. more than the organized armed group) when they are also engaging in governance activities. Most importantly, it is crucial for the success of efforts to engage with armed groups and their members on matters of compliance and to hold them to account when violations occur.
Legal Reasons for Defining Non-State Parties Broadly
It is interesting to reflect on why legal scholarship has focused relatively little attention on ANSAs’ civilian and political institutions. One possible reason is that the “organization criteria” employed for the purposes of IHL conflict classification focuses solely on a group’s military capacity.
IHL’s classification of armed conflict requires consideration of factors related to a group’s: (1) command structure; (2) ability to carry out operations in an organized manner; (3) logistics; (4) discipline and ability to implement the obligations of Common Article 3 (CA3) to the 1949 Geneva Conventions; and (5) ability to speak with one voice (see the International Criminal Tribunal for the former Yugoslavia’s (ICTY) judgment in the Boškoski and Tarčulovski case, paras. 194–206). When these criteria are applied to ANSAs that have both military components and non-military elements, the non-military wings almost inevitably disappear into the background of the analysis because they are less relevant to the legal test.
As a consequence, a focus on civil and political entities has slipped from mainstream legal analysis in recent years, though this was not always the case. The travaux préparatoires of the 1949 Geneva Conventions clearly demonstrate that the drafters of CA3 considered an armed group’s civilian wing to be part of the legal entity forming the non-State “Party” (see here, p. 145-146). Indeed, the idea that an armed group would have a civilian government was not especially controversial at the time, as CA3 was the successor of the belligerency framework, which had required armed groups to have a civilian administration (see here, p. 45-50).
Likewise, there are passages in the travaux of Additional Protocol II (APII) indicating that its drafters understood the treaty to apply to both the military and civilian parts of an armed group (see here p. 323). Although the text of Article 1 of APII – which refers to an armed conflict taking place between the “armed forces of the High Contracting Party” and “organized armed groups” – holds ambiguities, it supports a view that the non-State Party to an APII conflict is broader than the “organized armed group” mentioned in this article. This reading is in line with the ICTY’s case law which finds that the armed forces of the State (rather than the State itself) should be considered as the organized armed group’s natural comparator (Orić Trial Judgement, para. 254).
Further support for this position is found in the International Committee of the Red Cross’ (ICRC) recent Commentary to CA3 which distinguishes between “non-State Parties to a non-international armed conflict” and the “fighting forces” that engage in hostilities on their behalf (see here, para. 568). The Commentary notes that it is the forces fighting on behalf of a non-State Party that “require a certain level of organization,” i.e., not the non-State Party (ibid). Further support for the idea that a non-State Party may be a bigger entity than its armed forces, is found in the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (“Interpretative Guidance”), which is also referenced in the recent commentary to CA3. This indicates that “the armed forces of the States party to a non-international armed conflict are referred to as ‘State armed forces,’ whereas the armed forces of non-State parties are described as “organized armed groups’” (p. 29).
The Interpretative Guidance indicates that it is “crucial” to distinguish between a non-State party to a conflict and “its armed forces (i.e., an organized armed group),” stating that “[a]lthough Art. 1 APII refers to armed conflicts ‘between’ State armed forces and dissident armed forces or other organized armed groups, the actual parties to such a conflict, are, of course, the High Contracting Party and the opposing non-State party, and not their respective armed forces.” (p. 32, n. 48). It goes on to clarify that just as State parties to an armed conflict are comprised of military and non-military parts, non-State parties comprise of both fighting forces and supportive segments of the civilian population, such as political and humanitarian wings. It clarifies that the “term organized armed group refers exclusively to the armed or military wing of a non-State party: its armed forces in a functional sense.” (p. 32).
Policy Reasons for Defining Non-State Parties Broadly
There are some important policy reasons for acknowledging in legal discourse that non-State parties are more than just their military forces. First, the civilian administration or political offices of an ANSA may have an important influence on the organized armed group’s military components. This was noted in the original ICRC Commentary to CA3, which stated that the armed forces of an insurgent group should act under the direction of its organized civil authority (p. 36). This is also true today. It is often the political wing or executive wing of an armed group that signs declarations or agreements on humanitarian issues, sometimes on the military armed group’s behalf or jointly (see for example here).
Second, and as the original ICRC Commentary to CA3 explains, an armed group’s non-military wing may be an important means of achieving accountability over affiliated military elements by providing independent investigatory bodies, oversight or civilian control (see for example here and here). Recent research shows that armed groups with a political wing are more likely to adhere to IHL, than those without one (see Hyeran Jo at p. 239). This is likely because complying with IHL is helpful to such a group’s desire to seek legitimacy in the eyes of their political communities or the international community
Third, an examination of factual situations where armed groups have had strong institutions makes clear that it may well be an armed group’s civilian (or at least non-military) institutions that hold the most sway over the welfare of the civilian population as a matter of fact through the provision of governance functions, such as a police force, the administration of prisons for common crimes such as theft or drug trafficking, education, health, justice, licensing for TV and media, and the regulation of extractive industries. This has been particularly true with armed groups that have comprehensive governance structures and a high number of civilian employees, like the Islamic State in Syria and Iraq, Syrian Salvation Government in Syria or the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka. This factual reality underscores the importance of ensuring that these institutions and their agents are understood as bound by international law, as they have will have responsibility for implementing obligations which require a degree of control over territory. It also underscores that their employees can be held criminally responsible for any violations of this body of law (see for example, ICC’s application for an arrest warrant against the head of Hamas’s political bureau).
A further reason is that at the end of a NIAC, sometimes only a civilian entity is left because the military entity has been demobilized. Laura Íñigo Álavarez has discussed this issue in her study on armed groups and responsibility, citing the Revolutionary Armed Forces of Colombia (FARC-EP), the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (SPLM/A), and the Farabundo Martí National Liberation Front (FMLN) as examples. Understanding a non-State party to a NIAC as comprising both the military and non-military wings makes it easier to argue that any residual civilian entity has continuity of legal personality and can therefore be held responsible for all the acts committed by all organs of the group (for discussions of this issue, see an article by Olivia Herman here).
Armed groups’ Non-Military Components and Targeting
Of course, it is important to be crystal clear that defining a non-State Party widely for the purposes of understanding its IHL and other international law obligations in no way suggests a move to define its armed forces (i.e., the “organized armed group”) more widely for the purposes of the targeting rules under IHL. Indeed, while a review of the case law from the ICTY and the International Criminal Court (ICC) shows that international criminal trial chambers often merge the military wing with the civilian one and discuss the “members” of both, such a loose use of these terms must not be replicated in other areas of law, and especially not in IHL (see here p. 148-153).
In discussions of targeting, it is essential for the protection of the civilian population to determine the clear boundaries of a group’s “armed forces” (i.e., its “organized armed group”) and to distinguish them from any wider elements, such as its political and humanitarian wing, its civilian administration, and supportive segments of the civilian population. In any case, it should be remembered that, for the purposes of targeting, in case of doubt an individual is presumed to be a civilian.
In its Interpretative Guidance, the ICRC was careful to deal with the borderline cases making clear that civilians accompanying or supporting organized armed groups are not considered members of an organized armed group for the purposes of IHL (p. 34-5). It would perhaps have been sensible for the ICRC to have more explicitly stated that persons affiliated with or employed by a group’s civilian and political administration also cannot be considered members of its organized armed group and therefore cannot be targeted unless they are directly participating in hostilities. These may include individuals such as judges, police officers, civil servants, teachers, politicians, and (supportive) members of the civilian population: all of whom retain their civilian status under IHL because they are not members of the armed forces of the non-State Party and are not directly participating in hostilities by carrying out those functions.
The fact that an armed group’s non-military and military wings are part of the same non-State Party also cannot be used to justify dissolving boundaries between an armed group’s military infrastructure and buildings that pertain to the group’s governance. Research shows that armed groups around the world control territory in which courthouses, police stations, legislative buildings, civil registries, hospitals, schools, town halls, and prisons continue to function to different degrees. Legally, these structures cannot be treated as military objectives by virtue of their non-military use, simple connection to a group’s civilian officials, or the broader non-State Party.
There are concerning indications that Israel is not respecting the distinction between Hamas’s civilian and military elements in Gaza, with reports indicating that Israel has targeted Hamas’s police officers (see here and here), courthouses, court records offices, city archives, and the legislative council in the Gaza strip (see e.g., here, here, and here). There are also statements from Israeli officials indicating that Israeli forces are not only conflating individuals in Hamas’s civilian and military wings, but also affiliating the whole civilian population in Gaza with Hamas’s military wing (see e.g., here, paras. 102-107).
Explanations for Relative Invisibility
While there are many explanations, such as IHL’s focus on an armed group’s organization, for why the non-military components of ANSAs have remained largely invisible, it is also worth considering whether the lack of attention might also be part of a wider trend in international law to apply a solely military filter to armed groups and their activities. The application of such a military lens can be discerned in national case law relating to counterterrorism, where courts have been reluctant to acknowledge that an armed group’s operations can ever truly be civilian in character. This is seen in the U.S. Supreme Court’s refusal to accept the notion that there can ever be a “firewall” between a terrorist group’s humanitarian and violent activities (see, e.g., here). It is also seen in case law that deems that persons travelling to provide health assistance to populations living under the control of armed groups are providing material support to the group (see Dustin Lewis and Naz Modirzadeh, p. 8-9). A similar dynamic may be discerned in overly wide definitions of an armed group’s membership, either for targeting or counter-terrorism purposes (see, e.g., OHCHR, Mara Revkin, Fortin, and Jenny Maddocks)
Such approaches are unfortunate for a number of reasons. First, they do they not take due consideration of the complexity of civilian-armed actor relations that is increasingly understood, thanks to emerging scholarship on rebel governance, civilian agency, and civil wars (see, e.g., Zachariah Mampilly, Ana Arjona, and Jana Krause, et al). Second, and as already stated, it is often exactly when armed groups are exercising governance activities that their non-military institutions and activities most need to be seen, understood, and taken into account in legal discourse.
Scholars Sally Merry and Susan Coutin argued that the creation of legal subjects very often matches a power agenda by the makers of international law (see here, p. 3). This power agenda dictates which actors, objects, and qualities are relevant or irrelevant, visible or invisible, and illuminates the priorities and perspectives that are entrenched in international law. They remind us that international law’s blind-spots are often indicative of framings built into its fabric, that exclude, deprioritize, or make invisible certain narratives, individuals, and characteristics that are deemed “outside” the international law project (see also Fleur Johns, p. 11).
This highlights the reality that there are sometimes advantages for States – the makers of international law – when they portray armed groups as purely military in character, as it takes attention away from their own failures of governance in the areas under the armed group’s control. It may be less confronting for States to explain granting armed groups’ international legal personality on the basis of the military challenge that they pose to their sovereignty, than on the basis of the challenge that armed groups may pose on issues of governance. Tendencies to see armed groups as solely military entities may also be seen as part of the dynamic that law professor Frédéric Mégret labels as the “return of the savage” (Mégret). By creating an evaluative lens which solely sees (and then constitutes) armed groups as “savage,” their “otherness” is confirmed. The State is bolstered in a counter-image of nominal civility, giving supposed legitimacy to the use of military force against the armed non-State actor.
Addressing the Risks
When the international legal framework is applied in a way that does not provide due space for an acknowledgment that armed groups are also involved in civilian governance projects at least three clear risks ensue. The first risk is a misdiagnosis of the problem that the existence of such groups represents. For example, in many cases the existence of insurgent groups in a country can be traced to systemic corruption, structural discrimination, or governance failures on the part of the government. The second risk (which is almost an inevitable result of the first risk) is a misdiagnosis of the solution. These kinds of problems or failures will rarely be able to be solved (and may even be exacerbated) by military intervention.
A third risk is that by describing armed groups as purely military entities and not paying sufficient attention to their governance projects, there is also a danger that insufficient attention will be paid to the embeddedness of armed groups in civilian life and what that means from a legal, military, and political perspective. A failure to appreciate the inescapable dependency of civilian populations on armed groups exercising governance can have serious and tragic consequences. It may mean that everyday interactions between armed groups and civilians are taken as evidence of their membership in the armed group (see Fortin). It may also mean that whole civilian populations living under the control of armed groups are seen to be unjustly affiliated with them. The current situation in Gaza is testament to the catastrophic consequences of these lines being disrespected or conflated.
These observations are testament to the intense and urgent need for a much better legal understanding by politicians and lawyers in militaries and counter terrorism of the realities of civilian life in territory under armed group control. It calls for a much more careful use by lawyers and policy makers of the term “organized armed group,” “non-State party,” and “members” so that armed groups’ military wings and civilians wings are not conflated. At an academic level, it calls for more interdisciplinary research on the daily lived experiences of the 64 million people currently under the exclusive control of armed non-State actors exercising State-like control and government functions. The new Beyond Compliance Consortium which the author is a part of is an example of such an endeavor.