Non-State Actors and
International Humanitarian Law
Charlotte Ku
Prepared for the International Humanitarian Law Workshop
March 1, 2014
1949 Geneva Conventions
Common Article 2: “…the present Convention shall apply
to all cases of declared war or of any other armed
conflict which may arise between two or more of the
High Contracting Parties…”
Common Article 3: “armed conflict not of an
international character occurring in the territory of one
of the High Contracting Parties…”
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1977 Protocols to the 1949 Conventions
Protocol I (173 parties) included a provision to extend coverage of
common Article 2 to “armed conflicts in which peoples are fighting
against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination…”
Protocol II (167 parties) sought to extend coverage of common
Article 3 to “armed forces and dissident armed forces or other
organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations…”
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Graduated List of IHL Regimes
• Disturbances and tensions such as riots
• Armed conflicts “not of an international character”
within the territory of a state
• Armed conflict against colonial domination,
occupation, and racist regimes
• Full international armed conflict and declared war
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Prosecutor v. Tadić
(ICTY 1995)
…an armed conflict exists whenever there is a resort to
armed force between States or protracted armed
violence between governmental authorities and
organized armed groups or between such groups within
a State.
IHL applies from the initiation of such armed conflicts
and extends beyond the cessation of hostilities until a
general conclusion of peace is reached; or, in the case of
internal conflicts; a peaceful settlement is achieved.
IHL….applies in the whole of the territory under the
control of a party whether or not actual combat takes
place there.
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Terrorists as Non-State Actors
1963 Offences and Certain Other Acts
Committed on Board Aircraft
1970 Convention for the Suppression of Unlawful
Seizure of Aircraft
1999 International Convention for the
Suppression of the Financing of Terrorism
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Military Order, 13 November 2001
International terrorists, including members of al
Qaida, have carried out attacks on United States
diplomatic and military personnel and facilities
abroad and on citizens and property within the
United States on a scale that has created a state
of armed conflict that requires the use of the
United States Armed Forces.
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Presidential Memorandum
7 February 2007
…the war against terrorism ushers in a new
paradigm, one in which groups with broad,
international reach commit horrific acts against
innocent civilians, sometimes with the direct
support of states. Our nation recognizes that this
new paradigm – ushered in not by us, but by
terrorists – requires new thinking in the law of
war, but thinking that should nevertheless be
consistent with the principles of Geneva.
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ICRC View
The 1949 Geneva Conventions and the rules of
customary international law were fully applicable
to that international armed conflict, which
involved the U.S. led coalition, on the one side,
and Afghanistan, on the other side.
[As to terrorists]: [o]n the basis of currently
available factual evidence it is doubtful whether
these groups and networks can be characterized
as a ‘party’ to a conflict within the meaning of
IHL.
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Options for Applying IHL to Terrorism
Equate terrorism to armed conflict
Treat terrorism as domestic or even international
crime
Ad hoc determinations based on scale and
location
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2008 ICRC Interpretive Guidance
civilians whose “continuous function is to take
part in hostilities” could be considered
combatants
-- not the same as the traditional uniformed
combatant
-- but also not treated as a protected civilian
However, the level of force could be used against
such individuals should not exceed what is
needed in order to meet a military objective.
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IHL and other Non-State Actors:
The United Nations
1999 United Nations Secretary-General’s Bulletin,
“Observance by United Nations forces of international
humanitarian law”:
the fundamental principles and rules of
international humanitarian law …. are applicable
to United Nations forces in situations of armed
conflict they are actively engaged therein as
combatants… They are accordingly applicable in
enforcement actions, or in peacekeeping
operations when the use of force is permitted in
self-defence.
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IHL and other Non-State Actors:
The United Nations
Peacekeeping Fact Sheet (as of 31 December 2013)
Peacekeeping operations since 1948: 68
Current peacekeeping operations: 15
Uniformed personnel: 97,904
Troops: 83,008
Police: 13,053
Military observers: 1,843
Civilian personnel: 16,822 (as of 31 August 2013)
International: 5,128
Local: 11,694
UN Volunteers: 2,029
Total number of personnel serving in 15 peacekeeping operations:
116,755
Countries contributing uniformed personnel: 122
Total fatalities: 3,186
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IHL and other Non-State Actors:
The United Nations
We will comply with the Guidelines on International
Humanitarian Law for Forces Undertaking United
Nations Peacekeeping Operations and the applicable portions of the Universal Declaration of Human
Rights as the fundamental basis of our standards.
We will never:
Commit any act that could result in physical, sexual
or psychological harm or suffering to members of
the local population, especially women and children
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IHL and other Non-State Actors
• Contractors
• Humanitarian Aid Organizations
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The United Nations
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The United Nations
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