The rising importance of non-state armed groups is heightened by three post-Cold War phenomena: the increased fragmentation of states into smaller self-governing entities, the augmented privatization of warfare, and, by virtue of the expansion of global communication networks, the inflated accountability of states towards non-state actors. This context has influenced significantly the emergence of modern transnational and non-state armed groups (NSAGs) — i.e., groups that use force, flow across state boundaries, utilize global communication and transportation networks, seek international influence, and increasingly undertake military operations against dominant states. The key markers of how contemporary conflict between states and NSAGs varies from classical state-based warfare are to be found primarily in tactical and strategic differences. The increased (quantitative) participation of NSAGs in conflict presents in and of itself a strategic challenge for states. Since the events of September 11, 2001, and their aftermath, Al Qaeda and its associated groups, for example, have decentralized and diversified their activities significantly. Almost systematically, NSAGs have proven through their military aptitude that they can innovate faster than states. It, thus, became a strategic test for states to transform and adapt their intelligence and war-fighting capabilities to face these new contests and such mutation. From the tactical perspective, one of the most important developments is the increasingly unconventional and irregular means and methods used by transnational NSAGs. This is also one of the areas that conventional military forces have struggled to respond to. It is important in this changed context to differentiate between non-state armed groups, acknowledge their complexity and broadened goals, and register the implications of such development for states (which are themselves just as variegated as NSAGS). The ability of an NSAG such as Hezbollah to rely on local support, or at least tolerance, is another important modern-day advantage of armed groups that render conventional military tactics much less effective, if not obsolete in some cases. Such evolution underscores the fact that many an NSAG — whether as sophisticated as Hezbollah or more fluidly organized — is well suited to engaging in protracted conflicts in which no decisive military victory is required.
This policy brief reviews the legal questions associated with the participation of civilians in hostilities. This issue represents a critical challenge to the protection of civilians in current conflicts, particularly when hostilities are conducted in the midst of civilian populations and assets, and when non-state armed groups are engaged as central actors. This issue is also of particular relevance when the hostilities occur under occupation. While international law recognizes a basic right of selfdetermination for populations under occupation, it provides immunity against violence only to those not participating in hostilities. This apparent contradiction is at the core of the debate on the protection of civilians and raises a number of questions about the roles and rights of civilians in armed conflict, as well as the concept of participation in the war effort and the nature of hostilities. Is a member of a militant group necessarily a “combatant”? Can he or she be targeted according to the rules of international humanitarian law (IHL)? Is membership the key criterion, or are the actual acts of the individual the deciding factors of his or her status under the law? How can a civilian maintain or restore his or her protected status? Practitioners face these and related questions when developing policies for civilian protection in the occupied Palestinian territory (OPT). As with all briefs in this series, this paper focuses on providing practitioners with a clear understanding of the legal framework available for protecting Palestinian civilians living in the OPT, as well as the legal regime applicable to both the Israeli military and Palestinian militants when they engage in military operations. This framework is based on IHL (and, in a broader sense, on international human rights law). This note explores the spectrum of opinion (amongst both scholars and practitioners) on the question of the legal implications of civilian participation in hostilities, in particular the legality of targeting civilians who engage in hostilities. It highlights debates ongoing in the field of IHL without attempting to present “correct” answers, with an eye to enhancing practitioners’ understanding of the types of legal rationale used both to limit and allow targeting of civilians who engage in hostilities. Ultimately, the aim of this brief is to strengthen the capacity of professionals to utilize and negotiate with the law while developing strategies to enhance the protection of civilians.
This paper examines the relationship between the legal framework of international humanitarian law (IHL) and civil society actors operating in conflict situations. Attention is paid to assessing the manner in which the latter can play a role in strengthening the humanitarian dimension of the former. Brief introductory comments are warranted so as to situate the debate, in which non-governmental organizations (NGOs) operating in a conflict zone are adopted as the primary unit of analysis. IHL is the field of public international law which regulates the conduct of hostilities, namely restricting the means and methods of warfare available to parties to the conflict, and laying out protections afforded civilians and those no longer taking part in hostilities (hors de combat). State-centric in its development, the central tenets of IHL are found in the Hague Regulations of 1907, the four Geneva Conventions of 1949 and the two Protocols Additional to the Geneva Conventions of 1977. It is the right of sovereign states to decide which treaty-based international legal obligations they adopt regarding the legal regulation of the conduct of armed conflicts, however a number of legal provisions of IHL have attained the status of customary international law, and are thus binding on all parties to the conflict. This raises questions in regards to the status of non-state actors under international humanitarian law. The legal position of such actors, which for the purpose of this paper will focus on international organizations and non-governmental organizations, warrants close examination.
Recent incidents involving private security companies (PSCs) in Iraq have raised questions among governments and international agencies regarding the appropriate legal framework to regulate these organizations as well as to determine both company and employer liability under international humanitarian law (IHL). While the use of PSCs in the Occupied Palestinian Territory (OPT) has remained more limited than in Iraq, the growing presence of PSCs, especially at military checkpoints and crossings, has raised concerns among humanitarian practitioners. The purpose of this policy brief is to assess current uncertainties concerning the legal status of PSCs as they relate to the work of humanitarian agencies, the integrity of military chain of command, and the protection of civilian populations. A central issue lies in determining the extent to which PSC employees are to be considered agents of the Occupying Power and therefore no different, in legal terms, from any member of the Israeli Defense Forces (IDF), or whether they represent a new and separate legal entity whose behavior cannot be directly attributable to the Occupation Power under IHL. For example, what are the legal duties and responsibilities of PSC employees in terms of facilitating humanitarian workers’ access to the occupied population? In the event that PSC employees are involved in military engagements in occupied territory, or if they detain, injure, or kill civilians, what accountability structure applies to their actions? In interviews with humanitarian practitioners in both the UN and the NGO communities, HPCR researchers found that these questions are beginning to trouble those responsible for the coordination and delivery of humanitarian assistance to the Palestinian population.
The debates over the applicability and interpretation of the Law of Armed Conflict (LOAC) are vital to unity of effort as well as clarity of rules in coalition operations. This paper has addressed the key sources of uncertainty underlying how LOAC is and should be applied in coalition operations, focusing first on understanding which legal frameworks apply in particular context of armed conflict. After addressing key current debates over the qualification of conflicts, the paper explores a number of contemporary contexts in which this question of applicability is most salient: intervention in failed state situations and transnational armed conflicts. The paper suggests that resolving this first uncertainty is critical to unity of effort in this increasingly common realm of operations. It then suggests that a number of ongoing questions in the arena of LOAC applicability and interpretation exist where conflicts may be bifurcated and in determining the end of armed conflict. The paper explores the common practice of imposing policy‐based LOAC requirements in coalition situations, and how such practices are relevant to detention policies, command responsibility in situations where multi‐national forces are acting in concert, debates over direct participation of civilians in armed conflict, and the involvement of civilian support personnel in contemporary conflicts.
In the context of increased scrutiny of humanitarian assistance over the past decade, issues around the accountability of international nongovernmental organizations (INGOs) - and the perceived lack thereof - have been discussed widely and frequently. This reflects the recognition of both the increased relevance of INGOs and of the underlying problems associated with their role. Donor agencies in particular have become increasingly concerned with the accountability of the operational agencies they fund, who in return have put in place elaborate evaluation processes and systems. What characterizes these approaches and how are they affecting the ways agencies operate and pursue their humanitarian missions? Were agencies successful in addressing accountability deficits and in correcting the respective incentives towards positive change in humanitarian action? When examining the prevailing practices of major humanitarian INGOs, this research identified not only a general absence of critical self-reflection and meaningful concern over achieved impact, but also a remarkable resistance of the same dilemmas that triggered the call for an ‘accountability revolution’ in the first place. Highlighting considerable weaknesses in the governance of these INGOs, this article confirms also a growing frustration among humanitarian professionals themselves that, while much is measured and evaluated, it is rarely the actual impact of their work. Instead it is apparent that evaluation as it mostly takes place today reflects primarily the needs of donors; is irrelevant for serious organizational learning and programming efforts; adds considerably to the burden of local staff and partners; and does little to shed light on the roles, influence and impact of INGOs as central actors in humanitarian action and protection.
The increase in violent attacks against civilians and non-civilians and the claims made by groups waging such attacks that their acts are legitimate under Islamic law generated wide interest in Islamic ‘laws of war’. This paper attempts to challenge the approach focused on comparison between international humanitarian law (IHL) and Islamic law on the basis of the rules adopted in each system and argues that both legal regimes are governed by certain theoretical and ideological paradigms that are distinct from each other. In order to highlight this difference, the paper examines the different juristic approaches to issues of concern to the jurists and shows how these approaches reflected particular agenda and thus can not be simply compared to rules of IHL, because these are equally governed by other agendas and interests.
A vital component of humanitarian action is the coordination among all actors involved in the delivery of humanitarian assistance. Coordination within this field allows for the most efficient, cost effective, and successful operations possible. Groups seeking access to beneficiary populations often share the same objectives in regards to addressing human need and allaying suffering, but wide variance in such principle elements as organizational structure, technical and/or geographic expertise, mission, mandate, and political interest may hinder or prevent natural coordination on the field. This brief focuses on the dynamics of humanitarian coordination in the context of humanitarian assistance, and the main elements of coordination in the field. For the purposes of this paper, coordination is defined as a “systematic utilization of policy instruments to deliver humanitarian assistance in a cohesive and effective manner.” A leading scholar in the field identifies three basic types of coordination: coordination by command, coordination through consensus and coordination by default; and the distinction between the three is important in discerning both the benefits and challenges offered by different approaches to coordination. While United Nations agencies played a central role in the systemization and institutionalization of the idea of coordination, effective coordination requires multi-sectoral and multifaceted perspectives, as well as a dual approach in which the importance of both operational and strategic coordination are recognized. The principles of humanity, neutrality and impartiality are central to the provision of humanitarian assistance, and as such, warrant consideration in coordination strategies and policies. Other basic principles and elements of humanitarian coordination include strengthening the capacity of local actors, transparency and accountability, and mutual commitment and cooperation between the different actors. There are a variety of existing mechanisms designed to enhance and facilitate coordination between organizations providing assistance in a given context. These mechanisms range in function from enhancing coordination within and among groups to identifying gaps in responses as well as addressing important concerns relating to funding. While there are many challenges to implementation of coordination strategies, as well as concerns regarding the potential for increased bureaucracy in an already complex system, the benefits to coordination can be tremendous. Not only are humanitarian operations improved through the development and implementation of coordination strategies and mechanisms, but, more critically, the beneficiary population also gains from better coordinated activities.