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Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law

Written by  Anthea Roberts & Sandesh Sivakumaran
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International law is no longer conceived of as regulating the rights and obligations of states alone, yet any suggestion that nonstate actors could or should play a role in the creation of international law remains highly controversial. States jealously guard their lawmaking powers as a key attribute of statehood, making them generally resistant to the idea of sharing such powers with any nonstate actors. States are particularly hostile to the possibility of granting nonstate armed groups a lawmaking role, given states’ perceptions of the illegitimacy of and threat posed by such actors. Nonetheless, we argue that it is time to reconsider whether it is possible and desirable for nonstate actors to play a role in the making of international law. In particular, we set out the case for granting nonstate armed groups a limited role in the creation of international humanitarian law.

Recent decades have seen a significant expansion of the international humanitarian rules regulating the conduct of states and armed groups in noninternational armed conflicts. Historically, the principal concern of international humanitarian law was the regulation of inter-state armed conflicts. Until the mid-1990s, only a handful of provisions applied to the actions of states and armed groups in noninternational armed conflicts. Since then, numerous treaties have been drafted or revised to regulate noninternational armed conflicts. Customary international humanitarian law has undergone a similar expansion. Many of the rules that previously governed only states in international armed conflicts now apply to both states and armed groups in noninternational armed conflicts.

But with this growth comes an anomaly. The established doctrine of sources recognizes three sources of international law: treaties, custom, and general principles. Under this doctrine, states, and only states, make international law by entering into treaties or through the recognition of customary rules or general principles based on states’ views and practices. The rationale behind this approach has been simple. Traditionally, only states were seen as having rights, duties, and enforcement capacities under international law. Therefore only states were understood as subjects of international law. At the same time, long-standing notions of voluntarism dictated that international law must be derived from the consent of those it governed. International law was thus understood as the sum total of obligations consented to by states and binding upon those states.

This reasoning does not hold when applied to noninternational armed conflicts. Only states create the international humanitarian law that governs the conduct of both states and armed groups. In international armed conflicts, the practice and views of both parties to the conflict play a role in creating the international law that regulates such conflicts and by which the parties are bound. In noninternational armed conflicts, by contrast, the practice of either some of the parties (if the conflict is between a state and one or more armed groups) or all of the parties (if the conflict is between two or more armed groups) is excluded from consideration. As international humanitarian law now treats nonstate armed groups as subjects rather than mere objects of international law, it is worth questioning whether nonstate armed groups can and should be given a role in the creation of the international law that governs conflicts to which they are parties.

In Part I, we provide a framework for understanding the potential for nonstate entities to play a role in making public international law. The typically accepted dichotomy between states and nonstate entities is unhelpful in analyzing this issue because it reinforces the view that states and only states make international law, while obscuring important differences between various types of nonstate entities. We argue that any normative evaluation of whether nonstate entities should be granted a lawmaking role requires one to adopt an analytical framework that is capable of distinguishing between states, state-empowered bodies (such as the United Nations and the International Court of Justice) and nonstate actors (such as individuals, corporations, and armed groups). Focusing on the last category, we outline a variety of justifications for granting some or all nonstate actors a role in lawmaking. We conclude, however, that whether and how a particular nonstate actor should participate in law creation depends, at least in part, on the advantages and disadvantages of recognizing such a role for that particular type of actor. We argue that this analysis should be judged from the perspective of the international community as a whole rather than from the viewpoint of states alone.

In Part II, we apply this test to determine whether armed groups should be given a role in the creation of international humanitarian law applicable in noninternational armed conflict. This issue has received very little attention to date; no systematic studies have been conducted on the potential costs and benefits of recognizing such a role. Drawing on existing but rarely discussed practices, we argue that recognizing a limited lawmaking role for some armed groups could create significant benefits (such as increasing a sense of ownership and compliance) and that some of the possible costs of doing so have been overplayed (such as inappropriately legitimizing armed groups and affecting their legal status). We do not argue that armed groups should be given the same lawmaking roles as states. Instead, we propose an approach that would accommodate the practices of armed groups within a less statist approach to the doctrine of sources of international humanitarian law. We recognize that any proposal for including armed groups in the process of law creation will be met by a host of theoretical and practical objections. Nonetheless, we set out a lawmaking paradigm that allows for constructive engagement with armed groups without downgrading the standards of international humanitarian law, treating armed groups as akin to states, or granting them a comparable role to states in the creation of international humanitarian law.

Read full article (PDF file, 409 KB)