Incentives, sanctions and conditionality: a new international legal category and incentive?

Soliman M. Santos, Jr. is Regional Focal Point for Asia of the South-South Network (SSN) for Non-State Armed Group Engagement. This proposal was conceived by the SSN, with its preliminary proposal first circulated at Conciliation Resources’ workshop on ‘Engaging Armed Groups in Peace Processes’ in the Philippines in September 2005. The author wishes to acknowledge the incisive and helpful comments of SSN Regional Focal Point for Africa, Lare Okungu, on earlier drafts of this paper.

Non-State Armed Groups Engaged in Peace Processes: a new international legal category and incentive

This paper explores the notion of a new international legal category of ‘Non-State Armed Groups Engaged in Peace Processes’ that could serve as an incentive for peacemaking. It describes some problems with some existing international legal categories for non-state armed groups (NSAGs) and discusses the need for a new category that would encourage and facilitate their engagement in peacemaking initiatives. It concludes by outlining some possible next steps for the further development of this concept towards its adoption as a new international legal category.

A means to counter such a bias would be a system of formally recognizing and rewarding engagement in peace processes. Such a designation could itself become an incentive for NSAGs to engage in peace negotiations by paving the way for other specific benefits like diplomatic recognition and legitimation, security guarantees, rehabilitation and development assistance, and other material or technical support. Such benefits could be made much more deliverable and much less vulnerable through an international system of recognizing engagement in peace processes.

The highest of NSAGs categorized in IHL are the NLMs – movements representing peoples fighting against colonial domination, alien occupation and against racist regimes. They have an international legal personality and this status is based on the right of the peoples that they represent to self-determination. The Palestinian Liberation Organization (PLO), the South West Africa People’s Organization (SWAPO) and others were granted different degrees of observer status in the UN. Eleven NLMs participated (without voting rights) in the 1974-77 Geneva Diplomatic Conference which produced Additional Protocols I & II to the Geneva Conventions.

Beneath NLMs in the IHL categorization are dissident armed forces or other organized armed groups, which, under responsible command, exercise such control over a part of the state’s territory as to enable them to carry out sustained and concerted military operations and to implement Additional Protocol II (on non-international armed conflicts of ‘high intensity’).

Beneath these would be all other organized armed groups engaged in armed conflict but below the said threshold of Additional II, but covered at least by the minimum rules of Common Article 3 of the Geneva Conventions on non-international armed conflicts of ‘low intensity.’

Lower still are bandits, unorganized and short-lived insurrections, or terroristic (terrorists) activities, which are considered outside the scope of armed conflicts and therefore not subject to IHL.

So why is a different categorization required? The international categorization of NSAGs under IHL is based on the level of armed conflict, giving a certain premium to war-making capability like ‘under responsible command,’ ‘exercise such control over a part of the state’s territory,’ ‘able to carry out sustained and concerted military operations,’ and ‘able to implement [the rules of war].’ Why should a premium not be given to peacemaking capability (realized in engagement in peace negotiations). If certain levels of politico-military capability of NSAGs merit entitlement to benefits such as ‘prisoner of war’ status for its captured, then with more reason should peacemaking capability of NSAGs merit correspondingly appropriate entitlements.

The intention here is not to create another layer of IHL categories, but a category quite distinct from the humanitarian regulation of armed conflict – namely the promotion of the peaceful resolution of conflicts. This proposed new international legal category ‘NSAGs Engaged in Peace Processes’ is not meant to supplant the existing IHL categories but may even supplement these in some problem areas. For one thing, IHL categorizations are often the subject of disagreement on the applicable category. For example, the National Democratic Front of the Philippines (NDFP) claims that it is a NLM (ie Additional Protocol I rules applying), but the Philippine government counters that their armed struggle does not even meet the threshold of Additional protocol II, with only Common Article 3 applicable. A new legal category can be used as a factor in determining cases of whether a NSAG falls under a higher or the lower IHL category. The Additional Protocol II requirement of ‘responsible command’ might be shown by the NSAG’s ability to engage in peace negotiations. Or certain interim ceasefire agreements might show certain territorial control or ability to implement IHL. The proposed new international legal category could contribute to a close review or fresh look at IHL with regard to its categories and their interpretation. There may be a need to accommodate new peace-oriented rather than war-oriented experiences as the legal scenario should be dynamic, not static. This underscores complementarity of certain legal frameworks. And in this way, IHL becomes more closely linked to peace as well as human rights.

Aside from IHL, another common categorization of NSAGs relates to the identification of ‘foreign terrorist organizations’ (FTOs) by the US and other world powers, including the European Union. There is still no comprehensive international convention on terrorism or an internationally accepted definition of it. The designation of a group as an FTO is not necessarily a bar to engagement in peace negotiations, though it does erect some significant barriers, as can be seen in the case of the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka 2002-08. Engagement in peace negotiations by groups designated as FTOs, coupled with their practice of armed struggle in accordance with the rules of war, could be a factor in the re-evaluation and possible reconsideration of their FTO designation. Such reconsideration would be a major incentive to the group and would also give some policy primacy to supporting peacemaking rather than counter-terrorism – a shift in emphasis much warranted in places such as the Philippines.

The proposed new international legal category might generate several sub-categories with implications in terms of applicable treatment and rules:

1. Former NSAGs with a peace agreement or settlement undergoing a transition period: eg the Moro National Liberation Front in the Philippines, the Sudan People’s Liberation Movement, the Free Aceh Movement in Indonesia, or the Communist Party of Nepal (Maoist).
2. NSAGs engaged in peace negotiations (whether suspended or not) with a ceasefire: eg the Moro Islamic Liberation Front (MILF) in the Philippines.
3. NSAGs engaged in peace negotiations (whether suspended or not) without a ceasefire: eg the National Democratic Front of the Philippines (NDFP)
4. NSAGs not engaged in peace negotiations which have declared and maintained a ceasefire or are not actively conducting armed struggle: eg some Burmese ethnic armed groups

NSAGs not engaged in peace negotiations and still actively conducting armed struggle would fall outside the proposed new international legal category.

The applicable subcategory of ‘NSAGs Engaged in Peace Processes’ may, of course, change with the course of the peace negotiations. The common ‘on-again, off-again’ scenario or syndrome of peace talks, as well as their often being secret or unacknowledged, would pose a challenge. But once established some recognition of ‘engaged’ status it should remain even if the negotiations were merely suspended with the parties still declaring an interest in the path of dialogue, and especially if a ceasefire continued. However, a ceasefire should not cancel out the applicable categories and rules of IHL, because a ceasefire may yet collapse and armed conflict resume and may be merely tactical ploys by insincere parties.

A legitimate question to raise about any peace process is whether parties are engaging in good faith and not merely to gain tactical advantages over the adversary or to assuage international pressure. There should be safeguards and standards against abuse or exploitation of the international legal status of ‘NSAGs Engaged in Peace Processes.’ It is clear that this new international legal category would be best served by a corresponding international mechanism with such safeguards and standards. This may entail a more formalized UN system of recognizing and endorsing peace processes. This should seek to promote not just more, but better, peacemaking. There would need to be more specific benchmarks for determining the integrity or credibility of the peace negotiations concerned.

An immediate step would be further research into experiential and legal aspects, such as a customary international law-type study or survey on operative rules of law on NSAGs engaged in peace processes derived from state practice (the consistent conduct of states) and opinio juris (acting out of the belief that the law required them to act that way). A fair working hypothesis is that there may already be sufficient state practice and opinio juris to make a case for an emerging international legal category of ‘NSAGs Engaged in Peace Processes,’ even if not yet enough to establish a rule of customary international law.

Though most of the practice involving NSAGs in peace processes is at the national level, there is also significant similar practice in the framework of the UN and other international organizations, notably various resolutions and instruments in support of specific peace processes addressing both the state and the NSAG concerned. Of course, the subject is very much related to the broader question, including its corresponding question about the international legal personality of NSAGs. Relevant to this is the question on whether NSAGs can themselves contribute, through their own practice and belief, to the formation of customary international law.

The main medium- to long-term steps would have to do with gaining acceptance and adoption for such an international legal category of ‘NSAGs Engaged in Peace Processes.’ The impetus will almost certainly have to come from the NGO sector, particularly key individuals, organizations and institutes in conflict resolution and peacebuilding. It would be instructive to learn lessons from experiences in successful international diplomacy actually initiated or catalysed by NGO leaders and networks in the human rights and humanitarian fields. One is the nine-year process that culminated in the 1977 Additional Protocols I & II to the Geneva Conventions, but started with a simple ‘Resolution on Human Rights in Armed Conflicts’ lobbied by Nobel Peace laureate Sean MacBride of the International Commission of Jurists (ICJ) at the 1968 International Conference on Human Rights held in Tehran. Another is the one-year Ottawa Process that culminated in the 1997 Ottawa Treaty banning anti-personnel landmines, the credit for which was given that same year by the Nobel Peace Prize Committee to Jody Williams and the International Campaign to Ban Landmines (ICBL).

Like those processes, any determined initiative and effort toward the adoption of a new international legal category of ‘NSAGs Engaged in Peace Processes’ will have to find the right inter-governmental channels for handling the issue. This has to mainly be the UN because of its mandate to maintain international peace and security and the UN Charter’s Chapter VI on ‘Pacific Settlement of Disputes,’ but of course working through the right division, committee or body. The UN Charter’s Article 13 also provides that ‘The General Assembly shall initiate studies and make recommendations for the purpose of promoting international co-operation in the political field and encouraging the progressive development of international law and its codification.’ At the same time, other inter-governmental organizations and key governments which have themselves mediated, facilitated and otherwise supported various country peace processes can lend the necessary political sponsorship and material support for this effort. Purposive consultations with key players can be undertaken with a view towards a well-designed consultation meeting or conference with prepared studies, papers and drafts for an idea whose time has come.