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32. The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules
- Author:
- Ezequiel Heffes and Brian E. Frenkel
- Publication Date:
- 12-2017
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- In the last few decades, the role of non-state armed groups has become an essential topic of analysis and discussion to better understand international humanitarian law dynamics. While their increasing importance is uncontroversial, their place and regulation in specific areas of international law still remains unclear or insufficiently explored. Chief among these is the possible non-state armed groups’ international responsibility. Although it is undisputed that some of these entities breach their international law obligations, others seemingly engage with certain rules on the topic. This article addresses some legal consequences of such scenarios. Taking into account the principle of equality of belligerents in non- international armed conflicts, two issues are dealt with: i) the existence of “non- state” organs that could trigger the attribution of violations of international rules to non-state armed groups; ii) possible reparations owed by these non-state entities for their breaches during armed conflicts.
- Topic:
- International Law, Non State Actors, and Armed Conflict
- Political Geography:
- Global Focus
33. Military Statecraft and the Use of Multinational Exercises in World Politics
- Author:
- Kyle J Wolfley
- Publication Date:
- 04-2017
- Content Type:
- Working Paper
- Institution:
- Department of Social Sciences at West Point, United States Military Academy
- Abstract:
- How do major powers use militaries to cope with diverse threats in a complex environment of costly conventional war, emerging power competition, as well as the persistent challenge of violent non-state actors? I argue that multinational military exercises provide a tool for major powers to reduce the unpredictability of non-state threats as well as to weaken other powers through balancing and regime-promotion. The number of multinational exercises has increased substantially since the Cold War, which is puzzling given the end of superpower rivalry and incentives to enjoy the peace dividend. Textual analysis and regressions of over a thousand multinational military exercises from 1980-2016 reveal that major powers reacted to an increase in strategic uncertainty by implementing exercises as a means to combat ambiguous non-state threats. Yet as major power competition becomes more intense, I expect major powers to leverage these same types of exercises to undermine one another.
- Topic:
- Diplomacy, Military Strategy, Non State Actors, and Violence
- Political Geography:
- Global Focus
34. Kidnapped, Trafficked, Detained? The Implications of Non-state Actor Involvement in Immigration Detention
- Author:
- Michael Flynn
- Publication Date:
- 01-2017
- Content Type:
- Journal Article
- Journal:
- Journal on Migration and Human Security
- Institution:
- Center for Migration Studies of New York
- Abstract:
- Global migration challenges are reinforcing long-standing trends that involve shifting immigration control measures beyond national borders and incorporating new actors into detention systems. Proposals to shape migration management policies — including discussions on developing a Global Compact for Migration — recognize the need to involve a range of actors to implement humane and effective strategies. However, when observed through the lens of immigration detention, some policy trends raise challenging questions, particularly those that lead to increasing roles for non-state actors in migration control. This article critically assesses a range of new actors who have become involved in the deprivation of liberty of migrants and asylum seekers, describes the various forces that appear to be driving their engagement, and makes a series of recommendations concerning the role of non-state actors and detention in global efforts to manage international migration. These recommendations include: ending the use the detention in international migration management schemes; limiting the involvement of private companies in immigration control measures; insisting that the International Organization for Migration (IOM) actively endorse the centrality of human rights in the Global Compact for Migration and amend its constitution so that it makes a clear commitment to international human rights standards; and encouraging nongovernmental organizations to carefully assess the services they provide when operating in detention situations to ensure that their work contributes to harm reduction.
- Topic:
- Migration, Non State Actors, Border Control, and Refugees
- Political Geography:
- Global Focus
35. Below the Threshold: The Law Governing the Use of Force Against Non-State Actors in the Absence of a Non-International Armed Conflict
- Author:
- Daniel Hessel, Julia Shu, and Sarah Weiner
- Publication Date:
- 12-2015
- Content Type:
- Working Paper
- Institution:
- Center for Global Legal Challenges, Yale Law School
- Abstract:
- Boko Haram attacks civilians in Nigeria. The Islamic State launches attacks in Paris. Terrorists take hostages at a hotel in Mali. Mexican drug gangs threaten government officials and civilians. Houthi rebels seek to take control of the government in Yemen—and succeed. States increasingly face security threats from non-state actors, which have led states and observers to ask what states can do in response. What legal framework should apply? What constraints do states face? When can states resort to the use of military force to address threats posed to them by non-state actors, either on their own territory or on the territory of another state? The answer to these questions turns on whether the conflict in question rises to the level of a non-international armed conflict (NIAC). Based on the drafting history of international humanitarian law (IHL) governing NIACs, international jurisprudence, recent state practice, and academic commentary, this paper concludes that a NIAC does not exist unless the conflict passes an intensity threshold. In other words, the intensity of the conflict distinguishes generalized violence involving a non-state actor from a NIAC. Once the existence of a NIAC is established, states participating in it will be governed by relevant IHL. But if states are only governed by the IHL applicable to NIACs once an intensity threshold has been crossed, what law applies below that threshold? The answer varies with the circumstances, depending on whether the state is responding to a threat within its own territory or from outside; and if the threat is from outside the state, whether the host state consents to the use of force against the non-state actor. Thus, to answer the question of what law applies before a NIAC is established, this white paper analyzes three different scenarios in which a state contemplates forceful engagement with a non-state actor. Each scenario presumes that t he non- state actor is organized and has engaged in some violence, but that the intensity of the clash has not crossed the intensity threshold and thus has not risen yet to the level of a NIAC. 1. In Scenario One, a state seeks to engage a non-state actor that operates exclusively within the state’s territorial borders. 2. In Scenario Two, an intervening state seeks to engage a non-state actor located in another state, with the consent of the host state. 3. In Scenario Three, an intervening state seeks to engage a non-state actor located in another state, without the consent of the host state. The analysis of each scenario first identifies the authority that governs whether and when the state may initiate forceful engagement with the non-state actor (the “may the state use force” evaluation), then discusses which legal regime governs the scope and nature of the resulting use of force (the “how may the state use force” evaluation). Different legal regimes govern the acting state’s options in each of the scenarios. Although the authority for action differs, the inquiries for Scenarios One and Two are quite similar. In Scenario One, the acting state may engage the non-state actor with force by virtue of its territorial sovereignty. It must act, however, through a domestic law enforcement framework and in compliance with human rights law. In Scenario Two, the acting state derives the authority to use force against the non-state actor from the host state’s consent. However, it may only rely on that consent insofar as it comports with the host state’s human rights obligations under international law. In raising the possibility of one state violating another state’s territorial integrity, Scenario Three raises a different set of questions. The intervening state’s threat or use of force within another state’s territory is only lawful when authorized by the U.N. Security Council or justified under the Charter’s Article 51 self-defense provision. The intervening state’s use of force is accordingly regulated by the traditional IHL of international armed conflict. Where scenarios overlap (when, for example, the intervening state has both consent and Article 51 authority to act), the acting state may rely on more than one source of authority. It must, however, continue to ensure that it has authority to use force and that its use of force comports with the legal framework appropriate for the nature and intensity of the conflict. It is worth noting at the outset that these scenarios highlight developing areas of international law. Some raise questions that have clear answers in existing legal authority, while others contend with more inchoate legal regimes. Where state practice has not yet solidified into definitive international norms, legal ambiguity remains. In such instances, this white paper notes the existence of ambiguity and examines the history, purposes, and principles of relevant legal regimes to proffer answers.
- Topic:
- Military Strategy, Non State Actors, Law, and Conflict
- Political Geography:
- Global Focus
36. State Responsibility for Non-State Actors That Detain In The Course of a NIAC
- Author:
- Emily Chertoff, Lara Dominguez, Zak Manfriedi, and Peter Tzeng
- Publication Date:
- 12-2015
- Content Type:
- Working Paper
- Institution:
- Center for Global Legal Challenges, Yale Law School
- Abstract:
- This white paper addresses three questions that arise when a non-state actor that is receiving assistance from a state actor in a non-international armed conflict engages in detention activities: (1) Under international law, when does a non-state actor have the authority to detain individuals captured in the course of a non-international armed conflict? (2) When does a state providing assistance to a non-state actor become responsible under international law for the non- state actor’s actions? (3) Assuming such responsibility exists, what actions must the state take if it believes the non-state actor may engage in human rights abuses or violations of the law of armed conflict? In response to the first question, neither the Geneva Conventions nor customary international humanitarian law provides a legal basis for non-state actors to detain captured individuals in non-international armed conflicts. However, international humanitarian law also does not expressly prohibit non-state actors from detaining individuals. Instead, it regulates the conditions of detention. If non-state actors comply with Common Article 3 of the Geneva Conventions and relevant provisions of the Second Additional Protocol, detention by armed groups in non-international armed conflict does not violate an explicit provision of international humanitarian law. As long as detention is not arbitrary, internment by non-state actors is also unlikely to constitute the war crime of unlawful confinement. In response to the second question, under agency-based theories of the state responsibility doctrine, actions of non-state actors may be directly attributed to the state if (1) the state exercises either strict or overall control over the non-state actor such that the group operates as a de jure or de facto state organ or (2) the state exercises effective control over a specific operation undertaken by the non-state actor. Additionally, to the extent Common Article 1 requires states to ensure that all parties to an armed conflict respect the Geneva Conventions, it may create an alternative and additional source of state liability for the actions of non-state actors. Finally, in response to the third question, this white paper recommends a series of ex ante and ex post measures states can adopt when engaging with a non-state actor. These include, vetting, training, acquiring written agreements, providing punishment frameworks, and ceasing support when actors commit violations of IHL. Since existing jurisprudence does not contemplate mitigation of state responsibility for the conduct of non-state actors, it is difficult to assess to what extent any of the proposed measures would limit the state’s liability. Nevertheless, states adopting these recommendations will both make violations less likely and be more likely to discharge their duties under international humanitarian and human rights law. By taking ex ante measures designed to prevent violations and creating ex post incentives for non-state partners to comply with IHL norms, states reduce the risk armed groups will engage in detention practices that violate international law.
- Topic:
- International Law, Non State Actors, Humanitarian Intervention, and Armed Conflict
- Political Geography:
- Global Focus
37. Below the Threshold: The Law Governing the Use of Force Against Non-State Actors in the Absence of a Non-International Armed Conflict
- Author:
- Daniel Hessel, Julia Shu, and Sarah Weiner
- Publication Date:
- 12-2015
- Content Type:
- Working Paper
- Institution:
- Center for Global Legal Challenges, Yale Law School
- Abstract:
- Boko Haram attacks civilians in Nigeria. The Islamic State launches attacks in Paris. Terrorists take hostages at a hotel in Mali. Mexican drug gangs threaten government officials and civilians. Houthi rebels seek to take control of the government in Yemen—and succeed. States increasingly face security threats from non-state actors, which have led states and observers to ask what states can do in response. What legal framework should apply? What constraints do states face? When can states resort to the use of military force to address threats posed to them by non-state actors, either on their own territory or on the territory of another state? The answer to these questions turns on whether the conflict in question rises to the level of a non-international armed conflict (NIAC). Based on the drafting history of international humanitarian law (IHL) governing NIACs, international jurisprudence, recent state practice, and academic commentary, this paper concludes that a NIAC does not exist unless the conflict passes an intensity threshold. In other words, the intensity of the conflict distinguishes generalized violence involving a non-state actor from a NIAC. Once the existence of a NIAC is established, states participating in it will be governed by relevant IHL.
- Topic:
- Non State Actors, Military Intervention, Conflict, and International Humanitarian Law (IHL)
- Political Geography:
- Nigeria and Global Focus
38. Common Article 1 and Duty to "Ensure Respect"
- Author:
- Zachary Manfredi
- Publication Date:
- 12-2015
- Content Type:
- Working Paper
- Institution:
- Center for Global Legal Challenges, Yale Law School
- Abstract:
- This paper investigates whether the “to ensure respect” clause of Common Article 1 of the 1949 Geneva Conventions creates third state obligations. Third state obligations could impose both negative and positive duties on states to ensure that other states and some non-state actors comply with the Conventions. This issue has gained salience in light of the imminent publication of new set of commentaries on the Conventions by the International Committee for the Red Cross. The new commentaries will likely suggest that third state obligations under Common Article 1 are robust. This paper assesses the anticipated ICRC position in light of both the drafting history of Common Article 1 and subsequent interpretations by major international tribunals and states. It concludes that Common Article 1 provides for some third state obligations, but that their scope and content remains underspecified and highly contested.
- Topic:
- International Law, Non State Actors, State, International Humanitarian Law (IHL), Geneva Convention, and ICRC
- Political Geography:
- Global Focus
39. Proxy wars in cyberspace: The Evolving International Law of Attribution
- Author:
- Michael N. Schmitt and Liis Vihul
- Publication Date:
- 06-2014
- Content Type:
- Journal Article
- Journal:
- Fletcher Security Review
- Institution:
- The Fletcher School, Tufts University
- Abstract:
- Cyberspace offers a relative degree of anonymity for states to conduct hostile activities against other states, as the challenges of accurate attribution remain a strong barrier to retaliation for these activities. As international law grapples with how to govern this theater of conflict, what should the international community to do if states increasingly turn to using non-state actors as proxies to further cover their tracks? Schmitt and Vihul examine the current legal landscape for such proxy operations.
- Topic:
- Security, International Law, Non State Actors, Cybersecurity, Conflict, International Community, and Cyberspace
- Political Geography:
- Global Focus
40. On the Social Conditions of Governance: Social Capital and Governance in Areas of Limited Statehood
- Author:
- Johannes Kode
- Publication Date:
- 09-2013
- Content Type:
- Working Paper
- Institution:
- Collaborative Research Center (SFB) 700
- Abstract:
- Unlike what Hobbesian theories argue, the provision of governance is not necessarily undermined by a lack of statehood. Empirical findings show that – contrary to many voices in current debates on weak, failing, or failed states – various (non-state) actors provide governance even when statehood is limited. This paper addresses the puzzle of how to account for cases where governance exists although the state cannot or does not provide it. Transferring insights from political sociology to the analysis of such “gov- ernance without the state,” the paper holds that the way societies manage their affairs critically depends on social conditions, which are captured here following social capital theory. Working toward a political sociology of “governance without a state,” this paper links social capital, resulting in interpersonal trust, to social coordination underlying the provision of governance. In this context, governance is interpreted as a collective action game (“governance game”), in which socially embedded (collective) actors are seen as players whose behavior (in particular their decisions to cooperate) depends critically on their social capital endowments. The main argument is that specific types of social capital endowments facilitate – and, thus, explain – specific modes of social coordination in areas of limited statehood. Explorative in nature, con- ceptual and theoretical arguments will be developed that offer new perspectives to explain the variance and mechanisms of governance outside the OECD world.
- Topic:
- Non State Actors, Governance, Social Capital, and Statehood
- Political Geography:
- Global Focus
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