Understanding Armed Group Obligations Under International Humanitarian Law

When armed conflicts erupt today, the battlefield often involves more than just state armies. Non-state armed groups have become central players in contemporary warfare, raising a fundamental question: how can international law bind entities that never formally agreed to its rules? Understanding the obligations of armed groups under International Humanitarian Law requires examining the complex legal theories that justify imposing humanitarian standards on non-state actors who did not participate in creating these laws.

The foundation: Common Article 3 and Additional Protocol II 🔗

The cornerstone of armed group obligations lies in Common Article 3 of the Geneva Conventions, which applies to non-international armed conflicts. This provision establishes minimum standards of humane treatment that must be respected by “each Party to the conflict,” including non-state armed groups. Additional Protocol II further develops these obligations for groups that meet certain criteria: operating under responsible command, exercising territorial control, and conducting sustained military operations.

These frameworks apply regardless of whether armed groups formally consent to them. Common Article 3 explicitly states that applying humanitarian norms “shall not affect the legal status of the Parties to the conflict,” meaning states can engage with armed groups on humanitarian matters without granting them political legitimacy or recognition.

Why armed groups are bound: competing theoretical approaches 🔗

Legislative jurisdiction theory 🔗

The most traditional explanation holds that armed groups are bound because the state has ratified IHL treaties. Under this doctrine, when a state becomes party to the Geneva Conventions, it accepts these obligations on behalf of all individuals and entities within its territory. The state exercises legislative jurisdiction over everyone under its authority, including armed groups challenging that authority.

This theory faces significant criticism. Armed groups often reject the notion that they should be bound by obligations undertaken by the very state they are fighting against. The theory also struggles to explain why groups exercising effective territorial control, essentially replacing state authority in certain areas, would remain bound by treaties signed by a government they no longer recognize.

International criminal law as binding mechanism 🔗

Another approach focuses on individual criminal responsibility. International jurisprudence recognizes that customary IHL prescribes that all individuals involved in armed conflict must comply with humanitarian rules, regardless of whether they act on behalf of a state or consented to be bound. The Rome Statute and international tribunals can prosecute members of armed groups for war crimes, crimes against humanity, and genocide.

However, this explanation primarily addresses individual accountability rather than group obligations. It doesn’t fully answer why armed groups as entities have IHL obligations before their members commit prosecutable crimes.

De facto control theory 🔗

Perhaps the most compelling explanation comes from the de facto control theory. When armed groups exercise governmental functions and control territory similar to a state, they should be bound by similar obligations. This functionalist approach recognizes that groups performing state-like roles take on corresponding responsibilities under international law.

Groups controlling substantial territory face more extensive obligations, particularly under Additional Protocol II. They may be expected to maintain detention facilities meeting humanitarian standards, establish courts providing judicial guarantees, and facilitate humanitarian access to populations under their control. The principle of effectiveness suggests that international law responds to factual control regardless of political recognition.

The customary international law dimension 🔗

Beyond treaty law, customary international law forms another crucial source of obligations. The ICRC study on customary IHL identified 141 rules (out of 161 total) that apply in non-international armed conflicts and consequently bind armed groups.

The consent problem in customary law 🔗

Applying customary law to armed groups raises theoretical challenges. Traditional conceptions of customary law focus on state practice and opinio juris. Armed groups, not being states, generally do not participate in creating customary norms. This creates a legitimacy deficit: how can entities be bound by law in whose creation they played no part?

Some scholars argue for incorporating armed group practice into customary law formation. Groups that issue codes of conduct, make unilateral declarations of adherence to IHL, or incorporate humanitarian norms into internal regulations demonstrate engagement with humanitarian principles. Considering such practice could partially address the consent issue while potentially enhancing compliance through greater ownership of the norms.

Mechanisms for voluntary acceptance 🔗

IHL provides several mechanisms allowing armed groups to explicitly accept humanitarian obligations, addressing consent concerns while clarifying applicable rules.

Special agreements 🔗

Common Article 3 encourages parties to non-international armed conflicts to conclude special agreements bringing other Geneva Convention provisions into force. These agreements provide formal mechanisms for armed groups to consent to specific IHL obligations without requiring political recognition from states.

Unilateral declarations 🔗

Armed groups may issue unilateral declarations expressing commitment to respect certain humanitarian norms. When made publicly with intention to be bound, these declarations can create binding obligations under international law. Some groups have signed “Deeds of Commitment” with Geneva Call, pledging to respect specific norms like prohibitions on anti-personnel landmines or protection of children.

Practical application and organizational capacity 🔗

The extent of armed group obligations depends on several factors. A group’s level of organization and command structure affects its ability to implement IHL. More organized groups with clear chains of command can more readily ensure compliance through internal regulations and discipline. For loosely organized or fragmented groups, practical implementation presents greater challenges, though basic Common Article 3 obligations still apply regardless of organizational sophistication.

Groups exercising territorial control face heightened responsibilities. IHL continues to apply throughout territory under group control, requiring them to protect civilians, maintain detention standards, and facilitate humanitarian access.

Balancing equality and capacity 🔗

A persistent tension exists between the principle of equality of belligerents and the practical reality that states and armed groups have different capacities. Some scholars propose a sliding scale of obligations, where governments must respect all customary and conventional IHL rules while armed groups are required to comply only according to their abilities. This approach recognizes functional inequality while maintaining core humanitarian protections.

The legitimacy concern 🔗

States often resist engaging with armed groups on legal matters, fearing this confers legitimacy on political claims or methods. However, IHL addresses this by explicitly stating that applying humanitarian norms does not affect parties’ legal status. Recognizing that armed groups have IHL obligations does not validate their political aims or grant them international legal personality beyond what is necessary for humanitarian protection.

What do you think? How can the international community balance the need to bind armed groups to humanitarian standards while addressing their legitimate concerns about participating in laws they did not help create? Does the de facto control theory provide a more convincing foundation than legislative jurisdiction for imposing obligations on non-state actors?

References

1. https://guide-humanitarian-law.org/content/article/3/non-state-armed-groups/
2. https://www.icrc.org/en/article/faq-international-armed-conflict
3. https://gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/challenges/ihl-and-humanitarian-assistance-involving-non-state-armed-groups/
4. https://virtuositylegal.com/subjects-of-law-or-outlaws-the-legal-personality-of-non-state-armed-groups/
5. https://www.cambridge.org/core/books/theory-practice-and-interpretation-of-customary-international-law/practice-of-nonstate-armed-groups-and-the-formation-of-customary-international-humanitarian-law/3041EEFA5B59D7A84EDDABE662491EB4
6. https://www.icrc.org/sites/default/files/topic/file_plus_list/0923-increasing_respect_for_international_humanitarian_law_in_non-international_armed_conflicts.pdf
7. https://www.armedgroups-internationallaw.org/2020/05/19/the-legal-regime-protecting-persons-living-in-territory-under-the-control-of-non-state-armed-groups/