PROGRAM ON HUMANITARIAN POLICY AND CONFLICT RESEARCH HARVARD UNIVERSITY
Transnational and Non‐State Actors: Issues and Challenges
Claude Bruderlein Andrew Clapham Keith Krause Mohammad‐Mahmoud Ould Mohamedou Seminar on Transnational and Non‐State Armed Groups convened by the Program on Humanitarian Policy and Conflict Research at Harvard University in cooperation with the Graduate Institute of International Studies (Geneva), and the Radcliffe Institute for Advanced Study at Harvard University, Cambridge, March 9‐10, 2007
TRANSNATIONAL AND NON‐STATE ACTORS: ISSUES AND CHALLENGES
Non‐state armed groups (NSAs) have emerged in recent years as a central topic for policy‐making due to the growing interactions between state and non‐state entities at the regional and international level. With the passing of the Cold War and increasing pressure toward democratization and the respect for human rights, states have been facing mounting pressure from civil society groups and multinational corporations — both of whom challenge the preeminence of state institutions in the direction of public affairs. At times, the non‐state actors have turned violent, engaging in the use of military force to seek greater political influence in national and global affairs.
The rising importance of NSAs is compounded overall by three factors: (i) the fragmentation of states at conflict, (ii) the privatization of warfare in which private entities and networks position themselves as security and military actors, and (iii) the globalization of political and security agendas. These interrelated elements have, importantly, triggered the emergence of transnational NSAs that move across boundaries and use global communication, transportation, and migration networks to seek global influence and increasingly undertake military operations against dominant states. As compared to the role of NSAs in previous decades, during which the armed groups were essentially using military force as an alternative means to democratic change to achieve political goals, most contemporary NSAs are no longer modeled on political resistance movements whose modus operandi was primarily domestic and aimed at national liberation. In many instances, the new groups represent ambitious political actors who already benefit from a significant level of regional or international legitimacy.
As such, many of these entities — like Hezbollah in Lebanon, the Liberation Tigers of Tamil Eelam (LTEE) in Sri Lanka, or the Revolutionary Armed Forces of Colombia, Fuerzas Armadas Revolucionarios de Colombia (FARC) in Colombia — control territory and population the way traditional state would: ensuring public safety (oftentimes in an authoritarian fashion), offering public services (with varying degrees of success), and raising taxes. In some instances, these groups have integrated part of the national governance structure of the state without renouncing their control over autonomous military power (e.g., Hezbollah in Lebanon, Hamas in Palestine). Their goal, however, is no longer limited to taking over government or state institutions. They often aim at the strategic transformation of regional and international affairs along ideological lines where the mainstay of their legitimacy resides (e.g., Maoist groups in Nepal). 1
The ascendancy of NSAs alongside state actors represents a core challenge in terms of international law, and in particular international humanitarian law (IHL) 1 and international human rights law 2 (IHRL). These actors’ (empowered) rise is also a policy‐ making challenge for international agencies and governments. Under the current Westphalian 3 system, legitimacy of international actors resides essentially in their recognition by states as core member of the international system and as bearers of rights and obligations. The equality of member states and their commitment to the principles of the UN Charter in terms of peaceful coexistence and respect for human rights represents the core value of the international system. Supra‐state entities, such as the United Nations and its agencies, or sub‐state private entities, such as the International Committee of the Red Cross (ICRC), may be recognized as derivative of state‐granted mandates. At all times, states remain in control of the international law and policy making processes. Human rights law is being adjusted to ensure that states are held accountable for any unreasonable failure to protect rights from interference by certain non‐state actors. Furthermore, in some jurisdictions, human rights law is now applicable directly against non‐state actors (in particular against the media and certain actors that are fulfilling a public function). Non‐state armed groups, and particularly those operating transnationally across boundaries, are challenging the utility of our focus on states. Over the past years, they have been doing so increasingly. The groups’ continued existence as military and social entities results from the inability of national state, sometimes for decades, to impose the prepotency of state institutions at the national level. The ability of NSAs to deploy state‐ like infrastructure in terms of public services (in health, education, law and order, and so forth) and the legitimacy they come to gain from these activities challenge directly the relevance of the state concerned as the quasi‐exclusive legitimate international actor. In many cases, international agencies or donor governments have had to deploy their activities in areas where an NSA is active. The potential legitimacy thus granted to the NSAs by the mere interaction with international agencies has been raised by the local state (and others) as a major impediment to international development, humanitarian, or security matters. To be certain, the interactions between international actors and NSAs exemplify, and in cases amplify, the de jure disconnect between the international status See Marco Sassòli, “Transnational Armed Groups and International Humanitarian Law”, Occasional Paper No. 6, Program on Humanitarian Policy and Conflict Research, Harvard University, Winter 2006. 2 See Andrew Clapham, Human Rights Obligations of Non‐State Actors, Oxford University Press, 2006. 3 The peace treaties signed on May 15 and October 24, 1648 in the German cities of Münster and Osnabrück, and which ended the Thirty Years’ War and the Eighty Years’ War are regarded generally as the markers of modern international relations. The two conflicts had involved a number of continental European powers (Germany, France, Spain, Sweden, Denmark, and The Netherlands). The Peace of Westaphalia laid the central tenets of the nation‐state system (fixed territorial boundaries, citizenry, national sovereignty, and national armies). 1
of the formal state — in terms of monopoly of force and supremacy of state institutions on a territory and population — and the de facto competition with the NSA‐sanctioned services and resulting informal authority. In addition, the methodology used to support these engagements (negotiation, agreements, new legal regimes) falls evidently outside traditional rules and regulations adopted by international institutions. Unless these agreements have been dictated by humanitarian imperatives to serve the limited and timely interest of protected civilians, states generally resist the emergence of parallel normative framework to the one of the national state. Evidence — in particular their proliferation and diversification — is available that NSAs are here to stay and their interactions with domestic and international actors expected to increase exponentially in the context of peacebuilding and conflict prevention strategies. Field operations have become a fertile, if complex, ground for policy‐making in terms of modes to engage NSAs and the normative value of these engagements. It may be expected that the outcome of these undertakings will slowly but surely change the parameters of the international system giving more salience to local and contextual values of the agendas of these groups. It may be, too, that more such compacts will legitimize national political entities not so much for their capacity of representation in international circles, but for their ability of servicing their constituents’ needs (material, political, indeed spiritual in light of the pregnant religious component). From new actors to new conflicts In such a context, a number of political dilemmas have arisen among decision‐makers within the international community about key issues facing the post‐September 11, 2001 world. Debates raised around the so‐called “War on Terror,” and its relevance under international humanitarian law, have demonstrated the extent to which there are for the time being no dominant views on the challenges to current legal norms. Key legal questions remain including: What are the legal implications of this conflict in terms of the use of force by states and by non‐state transnational armed groups? What law(s) should apply to the conduct of hostilities in such a setting? What are the legal obligations of third states regarding alleged violations of international humanitarian law and international human rights law on their territory? There exist serious discrepancies on how to respond to these, and other, challenging questions. Some argue that the central dilemma is one of enforcement, and that the international community ought to focus on ensuring that existing norms are respected. Others posit that the world is witnessing the emergence of new types of warfare, and that these asymmetric and transnational challenges affect the current corpus of rules,
requiring reconsideration of both the norms and their application to the now variegated situations of armed conflict. In that respect, two major analytical trends have characterized the contemporary study of armed conflicts and warfare. The first carries on the post‐World War II tradition of empirical research by scholars seeking to bring the tools of quantitative social science to bear upon the number and nature of armed conflicts. This body of literature has traced the gradual decline of violent, interstate warfare over the past fifty years, paying particular attention to the rise of colonial wars and wars for national self‐determination. Ultimately, many of these studies have found that the incidence of war is falling at a steady rate in recent years. This has led some academics to develop various theories such as the ‘democratic peace’ and even to call for an ‘end of the history of warfare.’ 4 A second approach to the study of armed conflict focuses instead on qualitative analysis to assess changing nature of warfare and of the actors involved in violent conflicts. This body of literature has begun to trace the rise of new forms of warfare and the emergence of new actors from organized drug cartels to religious fighters, to large‐scale predatory gangs, to transnational armed groups. It is argued that the violent non‐linear, non‐ binary conflicts in which these groups are engaged do not map easily along the state‐ based parameters of traditional conflict studies and cannot be categorized easily under the existing system of state‐based warfare. The quantitative study of traditional armed conflict 5 is still not quite certain how best to ‘code’ contemporary conflicts such as that between Al Qaeda and the United States, or the more general United States‐declared “War on Terror”. This newer literature of qualitative analysis seeks to carefully determine the answer to such questions beyond a post‐Napoleonic period paradigm. 6 Other conflicts such as the regional conflicts in the Caucasus, the ongoing low‐level violence in the Democratic Republic of the Congo, the resurging violence in Afghanistan or the recently‐ended conflict in Sierra Leone pit the armed forces of failed and legitimate states against a bevy of non‐state actors. Where do these ‘new wars’ fit in the calculus of the Westphalian international order, and what are the appropriate policy responses that can be adopted by states and the international community? These dilemmas are empirical in nature as they do not question per se specific legal concepts but question the extent to which current obligations that are otherwise clearly See, in particular, Michael W. Doyle, “Kant, Liberal Legacies, and Foreign Affairs,” Philosophy and Public Affairs 12, 3, Summer 1983, pp. 205‐235 and 12, 4, Autumn 1983, pp. 323‐353; 5 For instance, the Correlates of War project started in 1963 by J. David Singer at the University of Michigan. 6 See, in particular, Herfried Münkler, The New Wars, Polity, 2005; Colin S. Gray, Another Bloody Century: The Future of Warfare, Weidenfield and Nicolson, 2005; and Richard H. Shultz, Jr., and Andrea J. Dew, Insurgents, Terrorists, and Militias: The Warriors of Contemporary Combat, Columbia University Press, 2006. 4
stated in existing treaty laws, are applicable to the post‐9/11 conflicts. As such, these policy challenges can only be resolved through privileged and informed discussions among informed actors on the means and methods to address the new balance of power involved in the new types of conflict, some of whom may include new legal tools in terms of treaty‐making, or policy tools in terms of enforcement and cooperation mechanisms. The present initiative seeks, therefore, to develop and deepen existing research into changes in the nature of armed conflict and the law that regulates armed conflict triggered by the increasingly prominent geopolitical role played by non‐state, and, particularly transnational, armed groups. Specifically, the purpose is to share research internationally on this topic of critical and growing importance to international security and stimulate further discussion among scholars and policy‐makers in order to understand how the strategies employed by transnational and non‐state armed groups, and the response by state actors, are changing the international political order. The initiative seeks to understand three discrete strands of how transnational and non‐ state armed groups are at once evidencing and altering the nature of warfare, and how states are responding to these new developments: ■ metamorphosis of war — How does violent conflict between states and transnational non‐state armed groups differ from more traditional state‐ based warfare? What are the characteristics of asymmetric conflicts? What is the impact of such conflicts on the law of war? How are traditional notions of legal warfare, such as fighting according to the principles of distinction and proportionality, breaking down? What tactical patterns exist in the targeting of civilians, if any, and how can these be remedied? ■ limitations of the current law of war — What means exist under the current law of war for regulating these asymmetric conflicts? How relevant to the monitoring and regulation of these conflicts is the legal definition of an “armed conflict” as delineated under international humanitarian law? In what respects (if any) do transnational and non‐state armed groups heed the limitations on the means and methods of warfare set by the law of war? ■ strategic responses for compliance and international security — What are the challenges that violent conflicts with transnational and non‐state armed groups pose to the international community (including its humanitarian and development dimensions)? What diplomatic, military, and legal responses might be the most effective in coping with the challenges posed by transnational and non‐state armed groups? What options exist for increasing compliance by transnational and non‐state armed groups with the laws of
armed conflict, and with humanitarian and human rights principles more generally? The backbone of this effort is aimed at outlining the current and future nature of armed conflict between states and transnational non‐state armed groups, and exploring the different facets of the body of international law that regulates that warfare. In both cases, the goal is to draw out the implications of and strategies for engaging transnational and non‐state armed groups, in a diverse range of conflict contexts. ____________________________