A significant challenge for the protection of civilians during armed conflict is ensuring non-state armed groups (NSAGs) comply with existing humanitarian norms under international humanitarian law (IHL). Robust rules exist that require armed groups to protect civilians, but  they are rarely followed. Upholding IHL standards is a matter of concern for all parties in conflicts, but especially for NSAGs, as they are responsible for a major share of IHL violations in conflict zones today. It is thus imperative to find better ways to engage with NSAGs and guarantee protection for the over 66 million civilians who live in territories controlled by armed groups.

Humanitarian actors already engage with NSAGs to negotiate access to populations in need. However, except for a few armed groups, this engagement is limited to negotiations for guaranteeing safe passage and safe delivery of humanitarian services. In order to persuade NSAGs to comply with IHL, a different type of engagement is needed; one that will translate into express commitments by armed groups to protect civilians at all times. The United Nations could play a more robust role in this regard, and help ensure the commitment of NSAGs to IHL.

UN Engagement with NSAGs

The UN Security Council already has an innovative mechanism in place which allows for engagement with NSAGs that facilitates compliance. For example, Security Council resolutions 1539 and 1612  established a framework for monitoring and reporting grave violations against children’s rights in armed conflict. Within this framework, NSAGs that are identified for recruiting and using child soldiers are listed in the annexes of the UN Secretary-General’s Annual Report on Children and Armed Conflict. Based on this list, UN country teams and peacekeeping missions engage in dialogue with listed NSAGs in order to develop action plans outlining commitments to cease practices that violate children’s rights. NSAGs can only be removed from the secretary-general’s report through the development and successful implementation of these action plans, and are subject to sanctions and other measures if they are non-compliant.

These action plans resemble a bilateral agreement. They are developed through continued dialogue with UN entities, and lay out time-bound steps that NSAGs need to make in order to accomplish the final objective of the agreement. For instance, in 2009, the Moro Islamic Liberation Front (MILF), in conjunction with the UN, developed and signed an action plan which included a roadmap for the group’s complete release of children from its ranks by 2014. According to UNICEF, in the years following the signature of the action plan, MILF’s leadership took significant steps to end the recruitment and use of children in the conflict. The process of negotiating and implementing the action plan resulted in “raised awareness and knowledge, established a system of buy-in and accountability, and ultimately led to the disassociation of 1,869 children previously associated with the MILF.” The group was removed from the secretary-general’s report in 2017 after successfully completing the action plan, and their actions and the ensuing results led the Philippines to adopt a new law in 2019 introducing stronger protections to children in armed conflicts.

The experience with MILF suggests that action plans can be used in other circumstances of humanitarian concern. The UN could adopt this process as a foundation to engage with NSAGs to secure other express commitments for civilian protection, such as refraining from resorting to sexual violence and torture. Previous studies have shown that when NSAGs adopt additional measures to comply with IHL—such as signing a bilateral agreement or including IHL provisions in codes of conduct—it may affect their propensity to engage in harmful acts against civilians. For instance, codes of conduct that include IHL provisions may lead to better compliance on the ground because they are agreed to by the leadership of NSAGs. That was the case in Sudan where, after discussions with the International Committee of the Red Cross in the mid-1990s,  “the Sudan Allied Forces (SAF). distributed a 10-point code of conduct consistent with IHL. The discussions…also led to dissemination sessions and IHL training for the members of the SAF.”

The framework established by Security Council resolutions 1539 and 1612 provides a model for the UN to systematically engage with NSAGs on multiple issues related to civilian protection. The Security Council could replicate the current mechanism to other areas of humanitarian concern, and mandate that UN entities continue to engage with NSAGs to develop comprehensive action plans in more areas. The Security Council could also allow UN entities acting under the framework of resolution 1612 to include in their discussions with NSAGs leadership other potential violations of IHL, and call on member states to consistently allow relevant UN entities to engage with NSAGs present in their territories. Finally, due to the political nature of certain UN operations, the UN would benefit from strengthening its partnership with non-governmental organizations that are currently working with NSAGs. Such organizations could offer support in negotiating action plans with NSAGs in more sensitive political contexts.

Applying Lessons Learned

More direct involvement by the UN can also benefit from what has been learned in engaging with NSAGs on IHL compliance thus far. For example, one of the reasons why NSAGs have such a low record of compliance with IHL is because these groups do not internalize global norms the way states generally do. That happens partly because NSAGs are not included in the process of norm development. Therefore, increasing dialogue and negotiations with NSAGs for the development of certain ”soft law” commitments might help create this missing sense of ownership, which can then influence the degree to which NSAGs internalize, and comply with, IHL rules. A recent study demonstrates that including NSAGs in this way does in fact modify their behavior and improve compliance  with IHL.

Practice also indicates that adopting an inclusive approach when engaging with NSAGs is beneficial. Geneva Call, a humanitarian organization dedicated to promoting IHL among NSAGs, adopts an inclusive and integrated approach and seeks to influence NSAGs’ behavior through “dialogue, persuasion and cooperation rather than denunciation, prosecution and other coercive methods.”

This type of inclusive engagement is controversial, however, and is often blocked because of states’ fears of legitimizing the political goals of NSAGs. UN Secretary-General Antonio Guterres has reported on the difficulties of establishing dialogue with NSAGs for the purposes of developing action plans because of lack of member state support. While the perception of legitimization may be a valid political concern, Common Article 3 of the Geneva Conventions permits and encourages parties to a conflict to make use of special agreements to strengthen compliance with IHL, while clearly asserting that the use of such agreements will not affect the legal status of any of the parties involved. The international community can and should find new ways to resolve this tension, without compromising on guarantees of civilian protection.

The conduct of NSAGs during armed conflicts poses an immense challenge to civilian protection. Current conflicts make it increasingly clear that new ways need to be found to ensure these groups respect IHL. Merely making NSAG’s aware of existing rules is not enough to ensure compliance. Embracing an approach of broader engagement with NSAGs may be an innovative way to move forward. Because of its global presence and political relevance, the UN is strategically positioned to engage with NSAGs in many issues relevant to civilian protection, and should seek to use this advantage to guarantee that the safety of civilians caught in armed conflicts is not compromised.

Luciana Vosniak is currently with the International Peace Institute, where her research focuses on protection of civilians and humanitarian affairs.