Challenging the Traditional View that International Law Does not Extend to Non-State Armed Groups. Book Discussion
Source: Ejil Talk
While international human rights law (IHRL) and its numerous enforcement mechanisms have proliferated over the years, millions of people remain beyond its reach. Frequently this is because they live in areas controlled by non-state armed groups, often under difficult and oppressive conditions. Dr. Daragh Murray’s new book “Human Rights Obligations of Non-State Armed Groups” (Hart, 2016) addresses this issue by providing a serious and thought-provoking account of why IHRL binds non-state armed groups, both inside and outside situations of armed conflict.
In times of armed conflict, international humanitarian law (IHL) places important restrictions on organized non-state armed groups to address this problem, but its rules are sparse. Moreover, IHL lacks a strong, universal, and functional international monitoring system. There are also plenty of situations outside of armed conflict, where IHL doesn’t apply, and yet armed groups maintain decisive influence over the lives of people.
Murray’s book, which looks to IHRL for answers, refreshingly challenges the traditional view that IHRL doesn’t bind non-state actors. Far from being an activist’s manifesto or merely providing a wish-list of what law should do to regulate non-state armed groups, Murray goes to great pains to interrogate what more international law, and IHRL in particular, is capable of doing. He does this in a comprehensive manner—drawing on a variety of fields of public international law and capitalizing on the relatively few instances where international law binds non-state actors—to develop a legal theory that he then applies to civil and political rights as well as economic, social, and cultural rights. Murray provides us with a detailed diagram of how IHRL binds non-state armed groups and gives thorough explanations to support what he describes.
Built into his analysis are nuance, pragmatism, and historical references that link his theory to how non-state armed groups operate on the ground. This is the greatest strength of his work. It is also necessary given the uphill battles he faces on three fronts, some of which the book overcomes better than others: Explaining that IHRL can be applied in a practical manner to non-state armed groups; convincing his reader that his theory doesn’t shake the principle of state sovereignty to its core; and demonstrating why more law is a solution.
Murray demonstrates that IHRL is a nimble body of law malleable enough to apply to non-state armed groups. This is legally and strategically important because it responds to the increasingly entrenched (though largely unsupported) criticism that there is no practical way to apply IHRL to situations of armed conflict, be it by states or non-state actors. Murray addresses this critique by convincingly applying IHRL case law, pragmatic reasoning, and various IHRL interpretive paradigms, such as “respect, protect, and fulfil” and “progressive realization.” At the same time he sets limits on just how far he’s willing to contort IHRL. IHRL, he says, “cannot be adapted to the reality of armed groups past its breaking point.”
The book’s pragmatism is further bolstered in two important ways. Firstly, Murray’s theory is not unbound. He concludes that public international law places significant limits on when IHRL binds non-state actors (i.e., IHRL does not bind all non-state actors or every act by non-state armed groups). Secondly, Murray provides interwoven examples of non-state armed groups being compliant, being close to compliant, or acting in ways that show they could be compliant with IHRL. He also provides thoughtful solutions for how non-state actors can observe their IHRL detention and right to health obligations when practical difficulties arise. All of this is aimed at convincing skeptics that, at a practical level, non-state armed groups are capable of complying with IHRL under the right conditions. The section on the obligation to fulfil the right to health provides a particularly dynamic proposal that explains what IHRL expects from non-state armed group as they gain more control over territory and influence.
While the book does a commendable job explaining how non-state armed groups could comply with IHRL, Murray’s biggest challenge is responding to the fact that states closely guard their sovereignty and generally refuse to grant non-state armed groups state-like status, even in places where the state can’t assert its authority.
Throughout his book Murray tries to convince his readers that what he proposes is not as innovative as it sounds. He emphasizes that his proposal does not disrupt the “vertical authority” between state and non-state armed groups (i.e., non-state armed groups under the control of the state) that underpins the principle of state sovereignty. Under his analysis, IHRL kicks in only when a non-state armed group satisfies what he calls the “de facto authority theory” test. This is because, he argues, human rights are not so much attached to the government as they are to the territory or population that they are aimed at protecting.
Murray explains that under his theory armed groups may be bound by international law “in the absence of direct international treaty regulation” when that armed group has established “an independent existence, as demonstrated by the displacement of state authority.” This will arise through the “exercise of exclusive territorial control” and in “less certain conditions, where control is exercised but is not exclusive, an independent existence [of the armed group] may be demonstrated by the commission of internationally prohibited acts coupled with the state’s inability to reasonably impose its will.”
Although Murry assures us that his solution will not tamper with the principle of sovereignty, it remains a distracting obstacle. At the end of book, in the section on the right to health, I found myself returning to the principle of sovereignty and the implications of Murray’s proposal. Murray navigates us through the ways a non-state armed group should administer the right to health, including situations when a non-state armed group is required to accept external health-related assistance under IHRL. Murray points out that an armed group may be “unable to satisfy certain elements of [the obligation to protect the right to health] in the absence of external assistance” and, as a result, might have an obligation to accept the expertise of an external organization such as the World Health Organization.
This immediately left me wondering how Murray would analyze a situation where, on the one hand, IHRL requires an armed group to accept external assistance and, on the other hand, public international law permits a state to refuse such assistance from coming over its boarders. The extraterritorial use of force provides another example worth exploring. If a non-state armed group has de facto authority over a portion of territory on which a foreign state wants to carry out military operations, would the foreign state have to obtain consent from the home state, the non-state actor, or both? These issues of external assistance and foreign relations might be beyond the scope of Murray’s book, but I raise them because at a time of increased international cooperation, binding non-state armed groups to IHRL has consequences that go far beyond the relationship between the home state and a non-state armed group.
The book also leaves me wanting more details on how we could motivate non-state armed groups to comply with IHRL and how to implement and monitor their IHRL obligations. There has been varied success with non-state armed groups complying with IHL. So, why would more law help the situation? Murray deals with these issues only briefly in his conclusion, where he provides a few suggestions for which institutions might be in charge of holding armed groups accountable under their IHRL obligations.
Regardless of whether Murray’s book convinces you of his position, his theory is highly thought provoking, contains rigorous analysis of a complex topic, and makes an important contribution to an issue that is bound to be discussed and developed for years to come. Much is gained even from disagreeing with his views because such disagreements require thoughtful and rigorous argumentation—be it on his analogizing of occupation law, views about IHL’s implied but limited authorization of detention, or a host of other issues that are sure to trigger discussion. Amongst a host of audiences that would benefit from the book, Murray should be required reading for serious human rights students and those concerned with finding legal protections for people suffering under the control or influence of non-state armed groups.