The Pseudo Legal Personality of Non-State Armed Groups in International Law

Abstract

The age of the fragmentation of international law, by definition, has the effect that self-contained legal regimes can develop independently from one another. International Humanitarian Law (IHL) is arguably one such regime. Since the adoption of the two Additional Protocols to the Geneva Conventions in 1977, it has been accepted, and largely considered uncontroversial, that non-state armed groups (NSAG) incur legal obligations in IHL in the international law sphere. However there is no generally agreed basis for such international law obligations. The fact that NSAGs incur such obligations has far-reaching ramifications. The doctrine of equality of belligerents lies at the heart of the jus in bello branch of law, that is to say, the very existence of IHL. It is only logical that the rules of IHL cannot 'apply with equal force to both sides to the conflict, irrespective of who is the aggressor', as this doctrine requires, if only one side to the conflict incurs any legal obligations in terms of IHL. In this contribution legal obligation of NSAGs are considered in the light of a limited legal capacity.

Keywords: non-state armed groups, international humanitarian law, IHL, equality of belligerents