Academic journal article Texas International Law Journal

Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups

Academic journal article Texas International Law Journal

Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups

Article excerpt

Most armed conflicts today are not between states, but are internal in nature. Since internal conflicts often involve non-state armed groups fighting for national liberation, religious beliefs, or political ideological goals, the conflicts are particularly violent. However, the traditional laws of armed conflict, called international humanitarian law (IHL), provide few regulations for internal conflicts. As a result, parties often evade humanitarian regulation of their conduct.

This paper first discusses the importance of engaging non-state armed groups in IHL processes. Through negotiations, states and armed groups can agree to apply IHL to a conflict, in whole or in part, providing greater protections to vulnerable groups and captured combatants.

Second, it is argued that states are reluctant to talk with armed groups due to a fear that non-violent engagement would legitimize the armed group. States have manifested their worries through less regulation of internal conflicts under IHL. States have traditionally argued that the bases of their worries are the legal consequences of bestowing legitimacy non-state actors.

Most important, this paper examines alternative motivations behind states' refusal to engage non-state armed groups. Although many states claim their worries are based on the legal consequences of recognition, this paper examines possible alternative bases for their fears.

I. INTRODUCTION

Atrocities committed during internal armed conflicts are frequently in the international spotlight. The news media frequently reports stories of civilians massacred,1 reporters taken hostage,2 public-gathering places bombed,3 and humanitarian aid workers assassinated,4 all involving non-state armed groups.5 In fact, since World War II, most armed conflicts have involved domestic hostilities between non-state armed groups and states.6 But the laws that regulate the conduct of the parties during conflicts, embodied in the Geneva Conventions7 and the Additional Protocols to the Geneva Conventions,8 still reflect the state-centric international system.9 Only portions of the laws of war, called international humanitarian law (IHL),10 apply to internal conflicts.11 The parties to internal conflicts often evade the laws of war, leaving vulnerable groups, such as civilians, aid workers, and the wounded, with few protections.12

Even if a conflict does not fall under the purview of IHL, the parties to the conflict can contract to apply all or part of the Conventions throughout the hostilities.13 States and non-state armed groups must engage each other or intermediaries to agree to applicable humanitarian provisions.14 The term "engaging" can refer to several types of contact with armed groups, including advocacy, negotiation, mediation, and liaison interaction.15 The scope of this engagement includes efforts initiated by a state, armed group, or intermediary "to explore, enable, instigate, or sustain opportunities for contact . . . with or between the parties" to the conflict.16 There are several ways of facilitating engagement, including: (1) a state or an NGO pursuing a special agreement with an armed group, such as a memorandum of understanding,17 (2) an armed group signing a unilateral declaration of its intent to adhere to IHL, and (3) the parties concluding a verbal agreement.18 The subject matter may include negotiating ground rules for humanitarian action,19 negotiating humanitarian access,20 or organizing the protection of civilians.21 For the purposes of this paper, engaging can be any formal or informal talks, including bilateral formal negotiations or mid-level commanders negotiating with State officials.

While some states have negotiated with armed groups,22 most states have been reluctant to embrace discussions.23 This paper examines how states' fears of contributing to non-state armed groups' legitimacy have shaped the states' willingness of states to talk with armed groups. …

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