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Reasons why armed groups choose to respect international humanitarian law or not

  • Olivier Bangerter

Abstract

The decision to respect the law – or not – is far from automatic, regardless of whether it is taken by an armed group or a state. Respect for international humanitarian law (IHL) can only be encouraged, and hence improved, if the reasons used by armed groups to justify respect or lack of it are understood and if the arguments in favour of respect take those reasons into account. Among the reasons for respecting the law, two considerations weigh particularly heavily for armed groups: their self-image and the military advantage. Among the reasons for non-respect, three are uppermost: the group's objective, the military advantage, and what IHL represents according to the group.

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1 This fact is too frequently overlooked by those who are trying to end the recruitment of children. Although easier to indoctrinate than adults and less aware of danger, children lack discipline and discernment, both necessary qualities during fighting.

2 Interview with the author, August 2009. For their own safety, most persons who provided information on which this article is based remain anonymous.

3 In this article, we will look at the practice of opposition armed groups (rebels, insurgents, etc.) and of pro-government groups (paramilitary groups, self-defence militias, etc.) that are party to a non-international armed conflict where IHL applies, be it in through treaty law or customary law. Some groups actually respect these norms without linking them to any particular conventions and thus achieve the objective of IHL, which is to protect the victims of armed conflict while taking military necessity into account.

4 ‘The “incentives for armed groups to comply with the law should be emphasized”, including the increased likelihood of reciprocal respect for the law by opposing parties’, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, 29 May 2009, UN Doc. S/2009/277, para. 41 (emphasis added). This is also the conclusion of Hugo Slim, in his excellent book, Killing Civilians: Method, Madness and Morality in War, Hurst and Co., London, 2007.

5 The protection of persons who are hors de combat, and especially prisoners, has had a lower profile. This may be due to the fact that protection of civilians occupies much more space in international discourse also.

6 Mullah Omar's Eid al-Fitr message, 8 September 2010. A translation is available at: http://geopolicraticus.wordpress.com/2010/09/08/mullah-mohammad-omars-eid-al-fitr-address-for-2010/ (last visited 20 October 2011).

7 Some observers have doubts about the authenticity of this text, which was nonetheless published on the Taliban's website, available at: http://alemarah-iea.com/english/index.php?option=com_content&about-civilian-casual&catid=4:statements&Itemid=4, where it is no longer accessible. However, it was mentioned in a report by Jon Boone, ‘Taliban call for joint inquiry into civilian Afghan deaths considered’, in The Guardian, 16 August 2010, available at: http://www.guardian.co.uk/world/2010/aug/16/taliban-afghan-civilian-deaths-nato-un (last visited 12 October 2011). For a critical assessment of the Taliban use of ‘war crimes’ language in their statements on civilian casualties and targeting, see Kate Clark's pieces on the Afghan Analysts Network, in particular ‘Killing civilians: Taleban and international law’, 23 May 2011, available at: http://aan-afghanistan.com/index.asp?id=1733, and ‘The Lahya: Calling the Taleban to account’, July 2011, available at: http://aan-afghanistan.com/uploads/20110704_CKlark_The_Layha.pdf (both last visited 12 October 2011).

8 JEM and SLM-Unity are two opposition groups in Darfur. The full text is available at: http://www.hdcentre.org/files/110708.pdf (last visited 12 October 2011).

9 The same could also be said of some states that have ratified the instruments of IHL without changing what they do in the field.

10 Most other statistics can be suspected of being flawed for several reasons. First, they may be the work of players who have a stake in the conflict; whatever the actual quality of their work, there is always a risk that such reporting is biased, and especially so during the actual conflict. Second, most reporting done during armed conflict is incomplete because of lack of access to some areas of the country and because victims may refuse to talk. Truth and Reconciliation Commissions are not immune to flaws but present the best possible conditions for reporting on violations: the support of former parties, easy access to places and people, and their aim of reconciliation and not settling scores.

11 The Sierra Leone Truth and Reconciliation Commission attributes 60.5% of the violations committed in the country to the Revolutionary United Front (RUF). Witness to Truth: Sierra Leone Truth and Reconciliation Commission Report, Vol. 2, para. 107, available at: http://www.sierra-leone.org/Other-Conflict/TRCVolume2.pdf (last visited 12 October 2011).

12 In Guatemala, the Comisión para el Esclarecimiento Histórico (CEH) attributes 93% of the violations to the government. Guatemala: Memory of Silence, Report of the Commission for Historical Clarification, Conclusions and Recommendations, para. 82, available at: http://shr.aaas.org/guatemala/ceh/report/english/toc.html (last visited 12 October 2011). In El Salvador, the Commission attributes a mere 5% of violations to the Frente Farabundo Martí para la Liberación Nacional (FMLN), while ‘agents of the State, paramilitary groups allied to them and death squads’ are credited with almost 85%. UN Security Council, Annex, From Madness to Hope: The 12-year War in El Salvador, Report of the Commission on the Truth for El Salvador, UN Doc. S/25500, 1993, available at: http://www.derechos.org/nizkor/salvador/informes/truth.html (last visited 12 October 2011). In Timor Leste, the Timor-Leste Commission for Reception, Truth and Reconciliation (Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste, CAVR) attributes 57.6% of the ‘fatal violations’ to the Indonesian army and police and 32.3% to their local auxiliaries. Chega! The Final Report of the Timor-Leste Commission for Reception, Truth and Reconciliation (CAVR), Part 6: ‘The profile of human rights violations in Timor-Leste, 1974 to 1999’, para. 10, available at: http://www.cavr-timorleste.org/chegaFiles/finalReportEng/06-Profile-of-Violations.pdf (last visited 12 October 2011). However, it points out that many violations are carried out by several different groups working together; from its statistics, it may be inferred that it considers some 70% of the violations to be attributable directly or indirectly to government forces.

13 In Peru, 54% of the violations are attributed to the Shining Path movement and around 35% to government agents, according to the conclusions of the Comisión de la Verdad y Reconciliación (Truth and Reconciliation Commission) in its final report, Informe Final, Vol. 1, ch. 3, available in Spanish at: http://www.cverdad.org.pe/ifinal/index.php (last visited 12 October 2011), pp. 181–182.

14 9.8%, according to the report of the Sierra Leone Truth and Reconciliation Commission, above note 11, para. 108.

15 1.5% as opposed to 54%, according to the conclusions of the Comisión de la Verdad y Reconciliación, above note 13, para. 34.

16 The measures that they can take to do so have been described in Bangerter, Olivier, ‘Measures armed groups can take to improve respect for IHL’, in Proceedings of the Roundtable on Nonstate Actors and International Humanitarian Law: Organized Armed Groups – A Challenge for the 21st Century, International Institute of Humanitarian Law, San Remo and Franco Angeli, Milan, 2010, pp. 187212.

17 The applicability of IHL to armed groups is not a straightforward matter, and the legal constructions that achieve that result are not always transparent. Robin Geiss, ‘Humanitarian law obligations of organized armed groups’, in ibid., pp. 93–101.

18 Examples of other causes of non-respect for IHL include ineffective control mechanisms, policy choices (such as allowing fighters to commandeer whatever they want from the population), choices of weaponry, and weak sanctioning mechanisms.

19 Weinstein, Jeremy shows this with regard to the Resistencia Nacional Moçambicana (RENAMO) in his Inside Rebellion: The Politics of Insurgent Violence, Cambridge University Press, Cambridge, 2007.

20 Special Court for Sierra Leone, Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF accused), Case No. SCSL-04-15-T, Judgment (Trial Chamber), 2 March 2009, para. 711, available at: http://www.sc-sl.org/CASES/ProsecutorvsSesayKallonandGbaoRUFCase/TrialChamberJudgment/tabid/215/Default.aspx (last visited 18 October 2011).

21 Veuthey, Michel, Guérilla et droit humanitaire, ICRC, Geneva, 1983, pp. 338339 (emphasis added). For Veuthey, the factors favouring respect for humanitarian law are reciprocity, public opinion, military efficacy, the economy, the return of peace, and ethics (ibid., pp. 339 and 373). Michelle Mack stresses the need for a ‘strategic argumentation’ in favour of respect for the law alongside the use of legal or paralegal instruments, but draws up a slightly different list: military efficacy and discipline, reciprocal respect and mutual interest, reputation, core values, long-term interests, the risk of criminal prosecution, and economic considerations. See Mack, Michelle, Increasing Respect for International Humanitarian Law in Non-international Armed Conflicts, ICRC, Geneva, 2003, pp. 3031.

22 The concept of honour is an example of the way that self-image may be at work. See Ignatieff, Michael, The Warrior's Honor: Ethnic War and the Modern Conscience, Henry Holt and Company, Inc., New York, 1997.

23 At the tactical level, groups wishing to be involved in peace processes sometimes try to develop a cleaner record among their fighters; such a desire may translate into measures intended to improve respect for IHL but also into purges against people whose past acts of violence are deemed by the movement to have become a problem.

24 Speech by Dr. Itto, Geneva, 15 June 2009, attended by the author.

25 Kaguta Museveni, Yoweri, ‘The strategy of protracted people's war: Uganda’, in Military Review, November–December 2008, p. 7 (emphasis added).

26 The values and convictions of a group or an individual are complex and, as we will see below, may also militate against respect for IHL. When there is a clash between several values that are considered important (e.g. between discipline and the desire for vengeance), the superior's order will be decisive.

27 There are exceptions, such as the Shining Path.

28 Mao Tse-Tung's ‘Three main rules of discipline and eight points for attention’ were used in this manner in China, Nepal, Colombia, and the Philippines. The RUF in Sierra Leone copied them, without sharing their ideological basis and without teaching them, but this had no impact in the field, which shows that it is not enough for an armed group to copy a good document issued by another group to improve its practice. There are several versions of this text; our basis here is the standard 1947 version issued by the General Headquarters of the Chinese People's Liberation Army, available at: http://english.peopledaily.com.cn/dengxp/vol2/note/B0060.html (last visited 12 October 2011). On the interdependence between loyalty and rules in the Chinese civil war, see also Tony Balasevicius, ‘Mao Zedong and the People's War’, in Emily Spencer (ed.), The Difficult War: Perspectives on Insurgency and Special Operation Forces, Dundurn Press, Toronto, 2009, pp. 26–28.

29 Letter dated 22 June 2009, cited partially in Human Rights Watch, All Quiet on the Northern Front? Uninvestigated Laws of War Violations in Yemen's War with Huthi Rebels, March 2010, p. 34. The full text can be found at: http://armiesofliberation.com/archives/2009/09/04/houthi-rebels-pledge-to-comply-with-international-law-regarding-prisoners-and-civilians/ (last visited 12 October 2011), but the translation (from the Arabic) is less clear than the version by Human Rights Watch. At the same site, there is a similar text on people detained by the movement.

30 Slim, Hugo and Mancini-Griffoli, Deborah, Interpreting Violence: Anti-civilian Thinking and Practice and How to Argue Against it More Effectively, Centre for Humanitarian Dialogue, Geneva, 2007, p. 25.

31 To deny that violations have occurred or to attribute them to the enemy may also be part of a public relations strategy; however, the dynamics differ fundamentally from what we are referring to here.

32 At this level, Clausewitz's well-known observation is still relevant to internal conflicts: ‘war is a mere continuation of policy’. Karl von Clausewitz, On War, Book 1, ch. 1, section 24, available at: http://en.wikisource.org/wiki/On_War/Book_I#War_is_a_mere_continuation_of_policy_by_other_means (last visited 12 October 2011).

33 This explains why some groups adopt a different approach when negotiations or a peace agreement are/is pending; the case of RENAMO in Mozambique is particularly illustrative. See J. Weinstein, above note 19, p. 186.

34 Near Cali, on 17 September 2000, when the ELN kidnapped around fifty people from two restaurants.

35 Interview with the author, October 2010.

36 Fortunately, there are exceptions: owing to their desire to govern and represent their country in the future, some groups, mostly Burmese armed groups, want to avoid being on this list. In a different instance, the mere mention of the International Criminal Court (ICC) case against Thomas Lubanga induced a small armed group in the Central African Republic to change its practice with regard to the recruitment of minors. Interview with Peter Bouckaert, Emergency Director, Human Rights Watch, New York, 12 January 2011.

37 A state that supports an armed group may also demand a certain type of behaviour, and respect (or lack thereof) for IHL may be part of its demands. There is no documentary evidence of such instances.

38 H. Slim and D. Mancini-Griffoli, above note 30, p. 26.

39 Pillaging is almost always the outcome of individual initiatives and disperses a unit for a certain time, during which it becomes impossible for the commander to control the group. It therefore renders that unit militarily unusable. Moreover, fighters who have had a taste of that ‘freedom’ become very difficult to lead.

40 Mao Tse-Tung, On Guerrilla Warfare, ch. 6, ‘The political problems of guerrilla warfare’, available at: http://www.marxists.org/reference/archive/mao/works/1937/guerrilla-warfare/ch06.htm (last visited 20 October 2011).

41 It was because he had failed to raise such support that Che Guevara met his death in Bolivia.

42 Schlichte, Klaus, In the Shadows of Violence: The Politics of Armed Groups, Campus, Frankfurt/New York, 2010, pp. 41, 9599. More general provision of security also plays a role, most often when the adversary (mostly the government) uses heavy-handed tactics. See Kalyvas, Stathis N., ‘The paradox of terrorism in civil war’, in Journal of Ethics, Vol. 8, 2004, pp. 120121.

43 If active support is not forthcoming, particularly when the local people support its adversaries for ethnic reasons, an armed group may be content to accept their passivity.

44 See above note 28.

45 Prosecutor v. Issa Hassan Sesay et al., above note 20, para. 707.

46 Ann-Kristin Sjöberg has illustrated these mechanisms very well with regard to the use of hostage-taking by groups such as the FARC and the ELN. Ann-Kristin Sjöberg, ‘Challengers without responsibility? Exploring reasons for armed non-state actor use and restraint on the use of violence against civilians’, PhD thesis, Graduate Institute, University of Geneva, 2010.

47 We will deal with specific categories below.

48 This makes pillaging less attractive to a group with limited resources: in the short term, it enables the group to replenish its supplies but locks it into a trial of strength over any future request. It thus becomes increasingly difficult to obtain fewer and fewer resources, an illustration of the law of diminishing returns.

49 The author obtained this information from former commanders and fighters of the Front de Libération Nationale du Tchad (FROLINAT, 1966–1993), the Front Uni pour le Changement Démocratique (FUC, founded in 2005), and the Union des Forces pour la Démocratie et le Développement (UFDD, founded in 2006). Without knowing each other, they all referred to this factor (interviews with the author, August 2009).

50 This can be illustrated by the case of the Ugandan NRA: ‘It was essential for the legitimization and the mobilization of the NRA in the Luwero Triangle for it to impose discipline on its own combatants. The NRA had no permanent sanctuary in inaccessible areas or outside the country to which it could retreat. The NRA's shortage of weapons and its military inferiority, particularly prior to 1985, forced it to make sure that it was tolerated by the people … The NRA could not afford to permit a laissez-faire attitude to combatants who treated the civilians in the war zone in the manner of autocratic or even brutal warlords … Because of the NRA's military weakness, the risk of internal conflict and distrust of ordinary combatants, in December 1981 the NRA leadership issued an extensive code of conduct for the NRA which governed the behaviour of the guerrilla fighters towards civilians and within the guerrilla force itself.’ Frank Schubert, ‘“War came to our place”: Eine Sozialgeschichte des Krieges im Luwero-Dreieck, Uganda 1981–1986’, PhD thesis, University of Hanover, 2005, pp. 275–276. Schubert refers to the first part of the code on p. 277. The code of conduct is available in Amaza Ondoga, Ori, Museveni's Long March from Guerrilla to Statesman, Fountain, Kampala, 1998, pp. 246251.

As another example, several jihadi/takfiri groups have had serious problems when it comes to justifying to Muslim public opinion the death of seemingly innocent people, even more so when these are Muslims. In 1993, the organization Islamic Jihad in Egypt saw public opinion turn against it following the death of a little girl, Shayma Abdel-Halim, in one of its operations.

51 This brings to mind ch. 7 of Sun Tzu (544–496 bc), The Art of War, one of the classics of strategic literature.

52 Mao Tse-Tung, above note 40.

53 These sessions and the way to treat prisoners are dealt with several times in the operational orders reconstituted by Pasang (Nanda Kishor Pun), in Red Strides of the History: Significant Military Raids of the People's War, Kathmandu, 2008.

54 In accordance with the rules of customary law determined by the ICRC's study Rule 8, ‘In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ See Henckaerts, J.-M., ‘Study on Customary International Humanitarian Law’, in International Review of the Red Cross, Vol. 87, No. 857, 2005, p. 198.

55 The saying that ‘men make war because they have a different idea of peace’ takes on its full meaning in this context. The phrase may stem originally from the philosopher Aristotle, who stated that ‘We make war so that we may live in peace’, Aristotle, Nicomachean Ethics, Book 10, 1177b5–6.

56 As recognized by the Libyan National Transitional Council (NTC) in several of its declarations on IHL; see e.g. its statement of 21 August 2011: ‘The guidelines further demonstrate the NTC's commitment to do its best to ensure that those fighting in its name, through adherence to the principles of international humanitarian law, minimize the harm to the Libyan people. This will facilitate the effective reconciliation and reconstruction of our nation once the fighting ends.’ Available at: http://ntclibyaus.files.wordpress.com/2011/08/ntc-ps-laws2.pdf (last visited 12 October 2011), emphasis added.

57 Interview with David Tuck (ICRC), October 2010.

58 Interview with the author, October 2010.

59 Those declarations may have a legal form and refer to the applicable texts and legal provisions, or be far more general; published codes of conduct have the same effect. Some striking examples are UNITA (Angola), SWAPO (Namibia), ANC (South Africa), Mai Mai (Democratic Republic of the Congo, RDC), JEM, SLA-Unity (Sudan), CGSB, FARC, ELN (Colombia), FMLN (Salvador), CPN-M (Nepal), CPP-NPA-NDFP (Philippines), LTTE (Sri Lanka), PLO (Palestine), PKK (Turkey), and Huthis (Yemen). That may also lead to a kind of peer pressure being put on a group wanting to do things well.

60 The Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) between the government of the Philippines and the National Democratic Front of the Philippines (1998) is the best-known agreement still in use that refers to IHL in its entirety. There are also numerous examples of agreements that focus on the protection of civilians, such as the 2009 agreement between the government of the Philippines and the Moro Islamic Liberation Front (MILF) and the 2002 agreement between the government of Sudan and the SPLM. The indirect agreements between Israel and Hezbollah (July agreement of 1993, April agreement of 1996) are a special case, as they apply to the territory of two states.

61 Spared from the Spear: Traditional Somali Behaviour in Warfare, ICRC delegation in Somalia, ICRC, 1998.

62 For example, a witness reported having heard Vojislav Šešelj, the former leader of the Serbian Radical Party (SRS) and of a Serbian paramilitary militia in the early 1990s, tell him that the aim of the war was to drive the Bosnians out of the Greater Serbian territory: ‘“Brothers, Chetniks, Chetnik brothers,” he literally says – had said, “The time has come for us to give the balijas tit for tat.” I will explain. “Balija” is a derogatory word for Muslims. You've probably had the opportunity to hear this word before in prior testimonies. “The Drina, the River Drina … is the backbone of the Serbian state. Every foot of land inhabited by Serbs is Serbian land. Let's rise up, Chetnik brothers, especially you from across the Drina. You are the bravest.” … “let us show the balijas, the Turks and the Muslims,” he said all of those words in one context, “the green transversal, the direction to the east [Turkey]. That's where their place is.”’ International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Vojislav Šešelj, Transcript of the session on 4 February 2009, available at: http://www.icty.org/x/cases/seselj/trans/en/090204ED.htm (last visited 12 October 2011), p. 13994, lines 7–18.

63 The International Criminal Tribunal for Rwanda (ICTR) shed light on the systematic, planned nature of the atrocities perpetrated by the Interahamwe on civilians. See e.g. ICTR, The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Judgement, 6 December 1999, ICTR-96-3, paras. 368–371, available at: http://www.unictr.org/Portals/0/Case/English/Rutaganda/judgement/991206.pdf (last visited 12 October 2011).

64 A. Sjöberg, above note 46, p. 238.

65 Ibid., above note 27, p. 241 (emphasis added).

66 Sierra Leone Truth and Reconciliation Commission, above note 11, Appendix 5: ‘Amputations in the Sierra Leone Conflict’, p. 17.

67 Weapons of mass destruction normally refer to nuclear, bacteriological, or chemical weapons. While they are not forbidden per se, the use of nuclear weapons would most certainly violate the principle of distinction. In addition, international conventions outlaw biological and chemical weapons. See, for instance, the Geneva Protocol of 17 June 1925 for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare; Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Paris, 13 January 1993.

68 Various interviews with the author in 2009 and 2010; this reflects the situation in groups on three continents.

69 Ignorance is not a legally valid defence; it is, however, a major cause of violations, particularly in the complex sphere of the conduct of hostilities.

70 The codes to which I refer are never completely contrary to IHL but contain rules that are compatible with that law as well as provisions that are incompatible with it.

71 A request for protection must usually be accompanied by repentance on the part of the person making the request for a crime that he has committed, thus calling a halt to any form of vengeance.

72 Though surprising to many, the fact remains that prisoners are sometimes referred to as ‘guest’ in Afghanistan, and treated as such.

73 The Pashtunwali is not the only element in Afghanistan and Pakistan that influences the treatment of prisoners; Islam plays a major part as well. For a survey of people's attitudes towards prisoners, see People on War: Country Report Afghanistan, ICRC, Geneva, 1999, pp. 22–26.

74 A high price in terms of reputation may have to be paid for a badly led attack: for instance when a mosque used by insurgents was destroyed on 13 April 2004 by the US army during the first battle of Fallujah.

75 It should be borne in mind that, in most cases, the recruitment of child soldiers is not the outcome of kidnapping, despite the experience in Liberia, Sierra Leone, or northern Uganda. Villages and camps for refugees/displaced persons are places where it is often easier to recruit sizeable numbers of children rather than adult men, who may already be taking part in the fighting, in the town looking for work, in exile, or dead.

76 Singer, Peter W., ‘Western militaries confront child soldiers threat’, in Jane's Intelligence Review, Vol. 17, No. 1, 2005, pp. 813, available at: http://www.brookings.edu/articles/2005/01humanrights_singer.aspx (last visited 12 October 2011).

77 Amin, Mohamed, ‘Uganda's children at war’, in Africa Now, No. 60, April 1986, p. 8.

78 While adding certain conditions, IHL recognizes in Article 44(3) of Additional Protocol I that ‘there are situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant cannot … distinguish himself [from the civilian population]’. That provision only concerns international armed conflicts and wars of national liberation; it shows, however, that the issue had already been understood in 1977.

79 See Thompson, Robert, Defeating Communist Insurgency, Hailer Publishing, St Petersburg, FL, 2005 (first published 1966), p. 55 : ‘The government must have an overall plan. This plan must cover not just the security measures and military operations. It must include all political, social, economic, administrative, police, and other measures which have a bearing on the insurgency’ (emphasis added). More recently, in Afghanistan, members of Operation Enduring Freedom and the ISAF have regularly stated that the key to defeating (a military term) the Taliban is education. See e.g. on the ISAF website in 2010, John T. Stamm, ‘Panjshiris put education first’, available at: http://www.isaf.nato.int/article/news/panjshiris-put-education-first.html (last visited 16 November 2011): ‘“This program serves as an inspiration. Panjshiris understand that education is the key to a more promising future,’ said U.S. Army Lt. Col. Eric W. Hommel, Panjshir Provincial Reconstruction Team commander. “They know that education equals opportunity, and opportunity leads to prosperity and stability. This is how Afghans will defeat the Taliban, by combating ignorance through education”’ (emphasis added).

80 Y. K. Museveni, above note 25, p. 8, states that, although this result must be obtained, it should be done without killing civilians; the thing to do, therefore, is to: ‘scare away government administrators – don't kill civilians! Civilians should not be killed if they are not armed – even if they are for the government – you scare them away, [tell them] “Don't come back here. If we find you here again, you'll see.” The fellow will just run away. You don't have to kill. And that, by the way, is also part of building the prestige of the revolutionary movement. Because the word goes around, “These people are not killers! They could have killed me. They captured me. I was in their control but they told me to go away.” It's very, very important. … You want these people, the administrators, to leave the area so that the government has no control there. That's what you are interested in. You are not interested in killing them, just scare them away.’

81 R. Thompson, above note 79, p. 24.

82 Asymmetry actually works both ways, which is often forgotten. See Y. K. Museveni, above note 25, p. 6: ‘The strategy of a Protracted People's War hinges on two factors. You realize that, strategically, you are strong and the enemy is weak; however, tactically, you are weak and the enemy is strong.’

83 Laqueur, Walter, Guerrilla Warfare: A Historical and Critical Study, Transaction, New Brunswick, NJ, 1998, p. 401.

84 At least in the short term.

85 A. Sjöberg, above note 46, pp. 262–263.

86 See R. Thompson, above note 79, p. 25: ‘This policy of wholesale murder has a further purpose, which can only be described as selective terrorism designed to keep the local population completely cowed … When, during the insurgency period, retribution is coupled with terror, acts are committed whose brutality is hardly credible in a law-abiding western society. On one occasion in Quang Ngai Province, when the Viet Cong regained control over a village which had been in government hands for some time, they seized the headman and his family, disembowelled his wife in front of him, hacked off his children's arms and legs and then emasculated him’.

87 Those dynamics are not new. In reflecting on the communist uprising in Malaysia, Thompson (ibid.) distinguished between blind terror and selective terror: ‘Communists are, however, careful not to undertake general terror against the population as a whole, except in rare instances for a specific purpose, such as the complete destruction of a village (Simpang Tiga in Malaya was an example). Where this has occurred – as in Malaya, when for a period buses were shot up and grenades thrown in cinemas, acts resulting in indiscriminate deaths amongst the local population – the error of these tactics was soon realized. If continued beyond a certain point, general terror may drive the people to support the government. Terror is more effective when selective’.

88 Sierra Leone Truth and Reconciliation Commission, above note 11, Appendix 5, p. 17, para. 91. The identification of the SLA is probably an error on the part of the witness, who appears to have confused the SLA with the AFRC.

89 J. Weinstein, above note 19, p. 300.

90 For the Arabs fighting with Lawrence of Arabia, plunder was part of their traditions and therefore motivations, which ensured that the uprising was never short of combatants but also caused great fluctuation in numbers. The effectiveness of that uprising against the Turks presages the appeal of that method for many contemporary groups.

91 Denying a group any importance and any legitimacy may force it to adopt this strategy, a fact that governments wishing to qualify all armed opposition as ‘criminals’ and/or ‘terrorists’ tend to forget.

92 Thams Olsen, Kasper, Violence against Civilians in Civil War: Understanding Atrocities by the Lord's Resistance Army in Northern Uganda, Conflict Research Group, Working Paper No. 8, Ghent, 2007, pp. 45. The author sheds light on other dynamics of those violations, which make the atrocities committed by the LRA more complex for an external observer.

93 The same applies to a conflict between armed groups. It is important to note that there are also cases in which a party to a conflict commits atrocities in the guise of its adversary; some armed groups have behaved in a similar manner. A documented example is provided by the attack on Guheng Sa-e, headman of a village in southern Thailand: having resisted his attackers, he discovered that two of them – whom he had killed – wore police and army uniforms. He interpreted this as follows: ‘I think they planned to let the Thai authorities take the blame for what happened that night. If they succeeded [in killing me], my death would easily turn moderate people here against government officials’. Quoted in Human Rights Watch, No One Is Safe: Insurgent Attacks on Civilians in Thailand's Southern Border Provinces, Human Rights Watch, 2007, p. 60.

94 See US Army Counterinsurgency Field Manual, FM 3-24, September 2006, pp. 1–9, para. 1–43: In the eyes of some, a government that cannot protect its people forfeits the right to rule. Legitimacy is accorded to the element that can provide security, as citizens seek to ally with groups that can guarantee their safety.

95 Swiss Criminal Code of 21 December 1937 (status as of 1 October 2011), SR 311.0, Article 260 quinquies, in force since 1 October 2003, available at: http://www.admin.ch/ch/e/rs/c311_0.html (last visited 12 October 2011).

96 Ibid., para. 4. Paragraph 3 is another safeguard clause: ‘The act does not constitute the financing of a terrorist offence if it is carried out with a view to establishing or re-establishing a democratic regime or a state governed by the rule of law or with a view to exercising or safeguarding human rights’.

97 Conversation between the author and the foreign secretary of a Burmese armed group, Geneva, 8 December 2010. That group does not feature on the US, European, British, Indian, Russian, Canadian, or Australian lists of terrorists. The remark is therefore not a pro domo plea.

98 In recent years, states and the media have used the word ‘terrorists’ systematically. Far from clarifying the matter, it has helped to cloud the debate and hamper research on insurgencies, to the detriment of response strategies. See Isabelle Duyvesteyn, Non-state Actors and the Resort to Violence: Terrorism and Insurgency Strategies Compared, Harvard Program on Humanitarian Policy and Conflict Research, 2007, available at: http://www.tagsproject.org/_data/global/images/Duyvesteyn.pdf (last visited 12 October 2011). Going beyond labels, acts intended to spread terror are prohibited under IHL. That takes us beyond the adage according to which one man's liberation fighter is another man's terrorist.

99 Albeit real, this cost is often overestimated. The Philippine and Sudanese governments, for instance, signed commitments regarding respect for IHL with some of their adversaries (the NDFP and the SPLM respectively) but continued to fight; their signature did not bring about a magic change of status that would confer ‘legitimacy’ on an armed group. Legitimacy is more aptly derived from a peace agreement or from recognition of the group as the legitimate representative of its cause by international organizations such as the Arab League and the United Nations (as with the Palestinian Liberation Organization (PLO), in 1974 and 1975 respectively), or by states, as with the Libyan NTC in 2011.

100 J. Weinstein, above note 19, pp. 309–310, 331–332, 342.

101 This reasoning can also be applied by people and groups who consider IHL as a good thing. A Hamas representative told Human Rights Watch, ‘If you ask us to comply [with IHL], that is not difficult. Islamic teachings support the Geneva Conventions. They are accepted. When it comes to the other side, if they don't abide, we cannot be obliged to them’. Quoted by Joe Stork, ‘Civilian protection and Middle Eastern armed groups’, in Human Rights Watch, World Report 2010, New York, 2010, p. 38.

102 Muñoz-Rojas, Daniel and Frésard, Jean-Jacques, ‘The roots of behaviour in war: understanding and preventing IHL violations’, in International Review of the Red Cross, Vol. 86, No. 853, 2004, pp. 189206.

103 Under IHL, taking hostages is prohibited, and civilians – especially children and the wounded and sick – are protected.

104 Interview on 31 October 2004 at the Chechenpress agency. It has since been removed from the website; the author has a copy.

105 There are many examples, including among lesser known groups. In an interview, Nawabzada Bramdagh Bugti, head of the Baloch Republican Party, justified the killings of teachers by Balochi insurgents: ‘I do not understand why the Pakistani authorities and the media shout only when one Punjabi teacher or barber is killed. Why not a single word is uttered when Baloch towns after towns are bombarded by the Pakistani authorities? I have said it many times: target killings are a justified reaction of the Baloch against the policies of the Punjabi army’. Interview by Malik Siraj Akbar, available at: http://gmcmissing.wordpress.com/2009/09/10/if-i-compromise-on-baloch-movement-my-followers-will-kill-replace-and-forget-me-says-bramdagh-bugti/ (last visited 12 October 2011).

106 The parties to a non-international armed conflict are not entitled to carry out reprisals. According to Rule 148 of the rules of customary law identified in the ICRC's study, ‘Parties to non-international armed conflicts do not have the right to resort to belligerent reprisals. Other countermeasures against persons who do not or who have ceased to take a direct part in hostilities are prohibited’. See J.-M. Henckaerts, above note 54, p. 211.

107 Remark made to an ICRC delegate in the author's presence, 2009.

108 Hamas provides an example of the possibly defining influence of culture on the choice to respect IHL or not: on 17 March 2007, Ismail Haniya affirmed in front of the Palestinian Legislative Council that Hamas was committed to respecting ‘international law and international humanitarian law insofar as they conform with our character, customs and original traditions’. Text of the National Unity Government programme delivered by the then Prime Minister Ismail Haniya as quoted in the Report of the High Commissioner for Human Rights on the Implementation of Human Rights Council Resolution 7/1, presented at the Eighth Session of the Human Rights Council, 6 June 2008, A/HRC/8/17, para. 6.

109 All these perceptions are worth being discussed and challenged but this is not the appropriate place to do so.

110 There are older examples, especially the FNL (National Front for the Liberation of South Vietnam, better known as the Viet Cong) in South Vietnam (1965) and to a more limited extent the FMLN in El Salvador. The attitude of Pancho Villa when reading a pamphlet on the rules of the Hague Convention would be the archetype of such reasoning: ‘What is this Hague Conference? Was there a representative of Mexico there? Was there a representative of the Constitutionalists there?’ All these examples are quoted by M. Veuthey, above note 21, pp. 24–25. This reluctance to accept IHL as a law not negotiated by armed groups seems quite logical to Western people with a legal training, but is only rarely maintained by today's armed groups. Those who have issues with IHL as such have different reasons.

111 The booklet Beligerancia mentions both elements within a few pages. See FARC, Beligerancia, 2000, pp. 2 and 10, available on various websites, including http://www.abpnoticias.com/boletin_temporal/contenido/libros/Beligerancia__FARC-EP.pdf (last visited 12 October 2011).

112 I use this term for armed radical Islamic groups although it is a form of shorthand: not all Salafis encourage the use of violence and, among those who do, the attitude to attacks on civilians varies, to say the least. For instance, the leaders of the Libyan Islamic Fighting Group (LIFG) published – from their prison – Corrective Studies in Understanding Jihad, Accountability and the Judgment of People, whose content sets it apart from the ideology generally attributed to such groups: ‘There are ethics and morals to jihad, among which are: that the jihad is for the sake of Allah, and the proscription of killing women, children, the elderly, monks, wage earners (employees), messengers (ambassadors), merchants and the like. Also among the ethics and morals of jihad is the proscription of treachery, the obligation to keep promises, the obligation of kindness to prisoners of war, the proscription of the mutilation of the dead and the proscription of hiding spoils from the leader. Adherence to these ethics is what distinguishes the jihad of Muslims from the wars of other nations that do not give any weight to ethics’. See Ali Musawi, Mohamme (transl.), A Selected Translation of the LIFG Recantation Document, Quilliam, 2009, p. 18.

113 The statement was made on 20 November 2007 and is quoted here from the official English translation. Kavkazcenter.com, ‘The official version of Amir Dokka's statement of declaration of the Caucasian Emirate’, 22 November 2007, available at: http://kavkazcenter.com/eng/content/2007/11/22/9107.shtml (last visited 12 October 2011).

114 The original text was taken from a video published on 25 April 2009. For the transcription in English see Kavkazcenter.com, ‘Emir Dokka Abu Usman: “this year will be our offensive year”’, 17 May 2009, available at: http://kavkazcenter.com/eng/content/2009/05/17/10700.shtml (last visited 12 October 2011).

115 See Inspire, No. 4, Winter 2010, p. 20. Shaykh Adil al-Abbab adds that the non-believer may be killed because of his lack of belief, although there are ‘temporary’ exceptions.

116 In this regard there is no uniformity in international law, although the most recent texts tend towards 18 years of age. In particular, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, of 25 May 2000, states that ‘Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years’ (Art. 4, para. 1).

117 Interviews with the author, 2009 and 2010.

118 This topic has been discussed by H. Slim, above note 4, pp. 183–211 and 266–274.

119 See Prosecutor v. Issa Hassan Sesay et al., above note 20, para 709.

120 I have given only two examples. Reference could also be made to the definition of the terms ‘humanitarian’, ‘prisoner’ and ‘hostage’, ‘legitimate military target’, etc.

121 H. Slim and D. Mancini-Griffoli, above note 30, p. 24.

122 Despite the variety of armed groups, reasons to respect or disrespect are not unlimited. Indeed, there exists ‘a deep structure to human conflicts that is masked by observable cultural variation’. See Gould, Roger V., Collision of Wills: How Ambiguity About Social Ranks Breeds Conflict, Chicago University Press, Chicago, 2003, p. 101, quoted and amplified by Kalyvas, Stathis N., The Logic of Violence in Civil War, Cambridge University Press, New York, 2006, p. 9.

123 See J. Weinstein, above note 19, p. 339.

124 Interview with the author, 2010.

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Reasons why armed groups choose to respect international humanitarian law or not

  • Olivier Bangerter

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