States are considered the primary legal entities and subjects of international law with the power and capacity to make treaties, however they can still make agreements with non-state entities, such as NSAGs, international organizations, individuals and people who acquire legal personalities and struggle for equal rights. The legal status of non-state armed groups (NSAGs) in International law is a critical issue due to their involvement in armed conflicts and violations of human rights. Traditionally viewed as illegitimate entities, surrounding interpretations have acknowledged their legal obligations under the International Humanitarian Law (IHL) and International Human Rights Law (IHRL). According to the International Committee of the Red Cross (ICRC), NSAGs include small militias to large groups controlling significant territories. While IHL imposes obligations on NSAGs, particularly through Common Article 3 of the Geneva Conventions, extending IHRL obligations to them has been contentious due to the state-centric origins of IHRL.

However, the purpose of this article is to ascertain the legal personality of an armed group (non-state armed group) in conflict and for this it is important to know what an armed group really is. A non-state armed group (NSAG) lacks any sort of formal recognition as part of a state’s military and operates independently of any state control.[i] If an NSAG functions under strong state influence, its actions may be attributed to that state, weakening its independent legal status. The main question, however, is whether NSAGs can gain legal personality in international law purely through de facto governance, even without formal recognition.

Legal personality of non-state armed groups under International Humanitarian Law

Since at least the early nineteenth century, armed groups recognised as belligerents-and to a lesser extent, insurgents-have been treated as possessing certain rights and duties under international law, effectively making them subjects of international law in response to their forceful assertions of de facto power and authority.[ii] But to gain this international legal personality, an entity must meet several criteria such as  “independence”, ensuring it is not fully subject to a superior authority, thus directly holding rights and obligations. Secondly, “capacity to possess international rights and obligations” to bring claims in front of the court, which certainly requires an organizational structure capable of binding members, as demonstrated by the UN in the ICJ’s Reparations case.

In the Reparations Advisory Opinion, the International Court of Justice (ICJ) emphasized that for the United Nations (UN) (international organisation in this context) to fulfil its objectives, the attribution of international personality is essential, even though it is not explicitly stated in the UN Charter. Furthermore, the ICJ recognized that the UN possesses certain implied powers, which, although not explicitly outlined in its founding treaty, are necessary for the organization to perform its duties effectively. This reflects the idea that legal personality may be inferred from an entity’s functional role and the powers needed to fulfil its responsibilities under international law. Also, the capacity to bring international claims is not essential, as individuals too hold rights without direct claim standing.[iii] Thirdly comes the “actual possession of rights and obligations”, which is confirmed through recognised legal functions, often via treaties or customary law.[iv]

Legal personality of NSAGs can also be connected to the Common Article 3 of the Geneva Conventions and Additional Protocol II through the recognition of their capacity to bear legal obligations under International Humanitarian Law (IHL). The law’s focus remains on prohibiting certain conduct during hostilities but lacks in imposing positive obligations concerning civilian’s welfare, such as ensuring access to food, healthcare, and public order. [v]

Common Article 3(4) of the 1949 Geneva Conventions applies IHL to non-international armed conflicts, mandating humane treatment of persons not engaged in hostilities, prohibiting violence and degrading acts, ensuring care for the wounded, and clarifying that these rules do not alter the legal status of conflict parties. A key feature is its “legal status clause,” which ensures that applying the provision does not affect the parties’ legal status, protecting state sovereignty and avoiding recognition of armed groups.[vi]

The phrase “legal status” raises question about whether it includes “international legal personality”, a concept typically associated with states and international organizations. If armed groups lack this status, some argue that common article 3 impose obligations on states, requiring domestic implementation through national law.[vii] This view suggests armed groups are bound only by domestic law, restricting IHL’s reach. Others counter that applying IHL acknowledges their role in conflicts without legitimizing them. Granting legal personality promotes compliance with humanitarian norms, like individual accountability for war crimes, without conferring recognition.[viii]

One primary reason for including the legal status of the clause was to prevent legitimizing armed groups or their causes, as states feared that recognizing such groups under international law could undermine state authority and imply that armed oppositions was legally acceptable.[ix]

Can legal personality foster IHL compliance among NSAGs?

One prominent argument for IHL’s binding force on NSAG’s rests on the doctrine of legislative jurisdiction. This doctrine says that the state possessing the authority to legislate for all its nationals, can impose obligations arising from international law upon them. Consequently, even when individuals engage in armed conflict against the state or let’s say other groups within its own territory, they remain bound by IHL due to their nationality. However, the argument of “the doctrine of legislative jurisdiction” might be insufficient particularly in the context of conflicts with ethnic, religious, or similar dimensions, where adherence to the state in question might be weak or non-existent (deep-rooted identity based conflicts where groups often perceive themselves as distinct from the state, representing a separate people, community, or cause).

Another argument that NSAGs are bound by IHL is due to their exercise of de facto governmental functions highlighting their capacity to act independently and their aspirations to replace the existing government. By complying with IHL, such groups can enhance their legitimacy in the eyes of the international community. However, even this argument’s applicability is limited because it primarily applies to groups that exert stable control over territory and possess structures mirroring those of the state. This excludes many contemporary NSAGs like insurgents or terrorist organizations with more fluid and decentralised factor that might not meet this threshold, thereby failing to explain their IHL obligations.

The analysis underscores the complexity and limits of the current framework in ensuring NSAGs’ compliance with IHL. With no universally accepted basis for their obligations, and the challenges of asymmetrical warfare, NSAGs often find grounds to justify non-compliance. Moreover, the state-centric paradigm, with its focus on repression, often exacerbates the situation, pushing groups towards further radicalization.

The evolving recognition of armed groups as International legal personality reflects how they have become subjects of international legal obligations. This is also due to their ability to exercise de facto control over territories as stated above. The de facto control theory means the legal personality may be inferred from the actual control exercised by armed groups over specific territories. This theory is further supported by the principle of “effectiveness” which says that international law responds to factual control irrespective of political recognition this is also to deduct the chances of de facto authorities to escape international regulation simply because their legitimacy is contested.

However, even the de facto control theory is not without limitations. It primarily focuses on the legality of actions taken under that authority, rather than the authority itself. This distinction is analogous to the public international law concepts of jus in bello and jus ad bellum.[x]While jus in bello governs the conduct of hostilities, jus ad bellum regulates the justification for resorting to war.[xi] Similarly, the de facto control theory ensures compliance with international law during conflict, irrespective of the legitimacy of the controlling entity.

Engaging with NSAGs for a more humane future

Encouraging NSAGs to express their consent to IHL through the adoption of internal codes of conduct can significantly enhance their ownership of the norms. These codes, while not necessarily replicating IHL perfectly, demonstrates a willingness to engage with humanitarian principles and provide a basis for dialogue and accountability.[xii]

While holding individuals accountable for war crimes is crucial, it is equally important to offer incentives for NSAGs to adhere to IHL. This might involve conditional recognition, access to resources, or support for their political aspirations in exchange for demonstrable commitments to humanitarian principles.

While we consider the concept of NSAG legal personality evolving, these groups particularly those exercising significant control over territory, can be considered subjects of international law at least to a certain extent as this recognition is essential for ensuring accountability for human rights abuses and violations of IHL. However, to strike a balance between acknowledging the reality of NSAG power and avoiding legitimizing their actions the international community should continue to develop an approach that puts emphasis on specific circumstances of each conflict and the varying degrees of control exercised by different NSAGs. The goal here should be to promote the protection of civilians and the observance of IHL, regardless of the legal status of the parties involved therein.

Endnotes

[i] Daragh Murray, Human Rights Obligations of Non-State Armed Groups (Bloomsbury Publishing 2016) 7,8.

[ii] Ibid 26.

[iii] Tom Gal, “The International Legal Status of Armed Groups: Can One  Be Determined Outside the Scope of Armed Conflict?” 322 <https://www.cambridge.org/core/journals/israel-law-review/article/abs/international-legal-status-of-armed-groups-can-one-be-determined-outside-the-scope-of-armed conflict/0F251895FD9792345B9C66ED67DCC195?utm_campaign=shareaholic&utm_medium=copy_link&utm_source=bookmark >accessed December 12, 2024, 326.

[iv] Ibid 327.

[v] Murray (n1)11.

[vi] Murray (n1) 35.

[vii] Ibid.

[viii] Daragh Murray, “International legal personality,” Human Rights Obligations of Non-State Armed Groups (Bloomsbury Publishing 2016).

[ix] Gal (n3) 325.

[x] Murray (n8) 122.

[xi] Ibid.

[xii] Ibid 267.