Abstract

In particular, this study paper looks at how non-state actors (NSAs) engage in armed con icts and
the applicability and implementation of international humanitarian law (IHL). The paper begins with
a summary of the development of IHL historically and its application to con icts involving NSAs,
then it explores the classi cation and standards for deciding whether IHL is applicable to NSAs.
The limitations of IHL in controlling NSA behavior, including concerns about compliance,
enforcement, and accountability, are also addressed. The absence of a legal framework and the
di culty in identifying NSAs are just two of the di culties the paper lists when attempting to
apply IHL to NSAs. The article also identi es the shortcomings of IHL in controlling NSA
behaviour and o ers a number of theoretical solutions to these problems.
New legal frameworks for dealing with NSAs are being developed, cutting-edge technologies are
being used for monitoring and enforcing compliance, and partnerships between states,
international organizations, and civil society are being established as some of the solutions that
have been suggested. The paper makes the case that regulating NSA behaviour through IHL
successfully necessitates a multifaceted strategy involving a variety of stakeholders.
This study shows that even though the applicability of IHL to NSAs has been acknowledged, there
are still major obstacles that need to be overcome to guarantee that it is e ectively put into
practise.

Introduction

Non-state actors (NSAs) are groups or individuals who engage in hostilities but are not a liated
with the state's formally acknowledged national government or military forces. Terrorist
organizations, militias, rebel organizations, and other non-state armed groups can all be
constituents of NSAs. These actors are now more common in contemporary con icts, which
makes it particularly challenging to apply international humanitarian law. (IHL).

IHL aims to regulate the conduct of armed con ict by restricting the methods of waging war and
safeguarding both citizens and combatants. The applicability of IHL to NSAs is convoluted,
though. The laws that apply to them may not be adequate to control the behaviour of NSAs
because IHL was traditionally designed primarily for state actors and their armed forces.

IHL application to NSAs is challenging on many levels. To begin with, it is unclear how NSAs are
classi ed under IHL and what criteria are used to determine their legal status. Second, it can be
di cult to monitor NSA compliance with IHL standards because there aren't many e ective
enforcement techniques. Finally, it can be challenging to demonstrate that NSAs were in charge of
IHL violations.

The numerous groups and individuals involved in contemporary con icts, each with a distinct set
of goals, objectives, and organisational levels, make it challenging to apply IHL to NSAs. These
challenges necessitate a multifaceted approach, which includes working with various parties and
developing new legislative frameworks.

I. International Humanitarian Law applicability in areas where armed Non-State Actors exercise de
facto authority

International Humanitarian Law (IHL) is still applicable and provides protection for non-
combatants in situations where non-State actors rule a speci c territory for an extended period of
time during armed con icts.
A con ict's full duration is covered by international humanitarian law (IHL). Even though hostilities
may have stopped or reached a stalemate in protracted con icts, the parties involved may still be
unable to end the con ict peacefully. As the 2015 report by the International Committee of the
Red Cross noted, the applicability of International Humanitarian Law (IHL) in modern armed
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 con icts has been a subject of debate. (ICRC). On this issue, various viewpoints have been
o ered. The International Committee of the Red Cross (ICRC) believes that non-international
armed battles are declared over when hostilities cease and there is little chance that they will
resume. When the control of a speci c territory is still in dispute between the warring groups, this
does not happen very often.
As long as international humanitarian law (IHL) is still in force, it applies to how people who live
under the authority of armed non-state groups are treated. These regulations include crucial
humanitarian protections. The principles of International Humanitarian Law (IHL) apply to all
actions that are connected or related to the armed con ict and are binding upon all parties
engaged in the con ict in areas under the authority of a State or non-State entity involved in a
con ict. The armed con ict must have had a signi cant impact on the actor's capacity, decision,
and goal in order for the act to qualify as having been "shaped by or dependent upon the
environment — the armed con ict — in which it is committed." The nexus provision ensures that,
unless there is a connection between an action and the con ict, the State's relationship with the
populace or among people within the populace is governed only by its obligations under human
rights law. There is a claim that only actions that have a tenuous connection to a non-international
armed con ict would be regarded as pertinent within an area governed by a non-State entity
involved in that con ict. Therefore, non-State armed groups' actions that are primarily intended to
maintain civilian law and order or provide essential services would not be covered by international
humanitarian law (IHL), but rather by other legal systems, like human rights law. The alternative
viewpoint put forth here claims that the current con ict is inextricably linked to the way non-State
armed groups rule over and interact with people who live in areas under their e ective jurisdiction.
The group's ability to rule the people under its control and the means by which it exercises that
rule are both greatly impacted by the existence of armed con ict. Therefore, International
Humanitarian Law (IHL) is relevant and protects people living in areas that are e ectively governed
by non-State armed groups.

II. The scope and limitations of international law's protective provisions

A collection of laws known as international humanitarian law (IHL), also known as the Law of
Armed Con ict or the Law of War, protects people who are not actively engaged in hostilities
during times of war. IHL's main goal is to limit the weapons and tactics used in combat while
minimising pain among civilians in the event of armed con ict. IHL essentially acts as a structure
for controlling how armed con ict is conducted and defending the rights of civilians. A body of
laws known as international humanitarian law (IHL) aims to lessen the e ects of armed combat.
The four universally rati ed Geneva Conventions of 1949, which were created to safeguard people
who are not or are not longer engaging in hostilities, such as civilians and wounded or captured
combatants, are the main instruments of international humanitarian law (IHL). The three Additional
Protocols from 1977 and 2005 also strengthen the Geneva Conventions' basic tenets. These
agreements state that people must be handled with respect and that the parties to the con ict
must take all reasonable precautions to keep them safe. Regardless of whether they have rati ed
the pertinent instruments, the provisions of IHL are enforceable against all parties to an armed
war. Jus ad bellum refers to the legal standards that are taken into consideration before the start
of hostilities. Contrarily, jus in bello, also referred to as International Humanitarian Law (IHL), is the
body of law that governs the conduct of war, independent of the legitimacy of the cause of the
con ict. In today's con icts, the humanization of combat and the protection of civilians have
taken on greater signi cance. These objectives must be accomplished by clearly de ning the
boundaries between legitimate targets and non-combatants as well as by regulating the tactics
and weapons of con ict. Combatant forces must also be held responsible for their deeds and
uphold agreed-upon rights and duties. It is possible to support a more humane approach to
armed con ict and lessen the devastating e ects of war on civilian populations by putting these
measures into practise. Fundamental tenets of the laws of war, which regulate how armed forces
conduct themselves in battle, include distinction, proportionality, and the need for required
precaution to ensure minimal e ects on civilians. The application of force must be proportionate
to the military goal being pursued, and combatants must be careful to di erentiate between
military targets and civilians. Combatants must also take the required safety measures to prevent
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 injury to civilians and civilian property. It is essential to follow these guidelines in order to
safeguard civilians during armed con ict. A body of legal concepts and regulations known as
international humanitarian law (IHL) aims to control how armed con icts are conducted. IHL is
mainly concerned with the regulation of the means and methods of warfare, as opposed to other
legal frameworks that concentrate on the legitimacy of the justi cations for which military
operations are conducted. In other words, rather than focusing on the legitimacy of the
justi cations for military operations, IHL seeks to create norms and standards that regulate how
they may be conducted. This strategy is founded on the understanding that there are boundaries
to the use of force in armed confrontations and that some behaviours are always unacceptable.
The importance of both o cially enacted legislation and customary international humanitarian law
(IHL) is highlighted in the current discourse. The human rights foundation of customary IHL makes
it mandatory even for nations that have not signed the Additional Protocols. This suggests that a
key part of the international law system that oversees armed con icts is customary IHL. The
recognition of basic human rights and the requirement to shield people from the negative e ects
of armed con ict are the foundations for the binding nature of customary IHL. As a result,
customary IHL supports the current IHL legal framework by providing additional sources of legal
norms. IHL, or international humanitarian law, is a body of law designed to control how armed
battles are fought and to safeguard those who are not currently taking part in hostilities. IHL
di erentiates between two types of armed con ict in order to broaden its scope of application and
prevent humanitarian violations at all stages of armed con ict. International armed con icts
(IACs), which involve at least two States, are the rst category. Non-international armed
confrontations (NIACs), which do not pit two States against one another, are the second category.
IHL makes this distinction in order to make sure that its provisions are applicable to a variety of
armed con icts and that all people impacted by armed con ict are given the security it o ers.

III. Challenges Posed in Implementation of International Humanitarian Law upon Non-State Actors

i. Complex socio-political matrix

People a ected by armed con ict have a necessary and inalienable protection thanks to
international humanitarian law (IHL). It emphasises the signi cance of protecting non-combatants'
lives and upholding their humanity while also attending to their urgent humanitarian needs.
Non-state armed groups are required by international humanitarian law to handle civilians living
under their control with humanity and without any form of discrimination. Any form of violent
behaviour against a person's life or bodily safety is prohibited under the aforementioned provision.
Additionally, it forbids plundering and demands that parties to a war respect the religious
convictions and practises of civilians under their control. Additionally, groups must take care to
prevent destroying or damaging cultural property. International Humanitarian Law (IHL)
establishes a foundation for the law that defends people who have lost their liberty and forbids
sentences from being handed down without a fair trial. Additionally, it establishes guidelines for
the management of humanitarian aid for civilians, requires parties to con icts to gather, protect,
and care for the sick and injured, and, as was already mentioned, Additional Protocol II
guarantees children's uninterrupted education.
There are no provisions in the body of International Humanitarian Law (IHL) governing armed
con icts that are not of an international nature that deal with issues like upholding public order
and safety, the potential imposition of taxes, or the creation of laws governing life in the a ected
territory. In situations of non-international armed con ict, the application of international
humanitarian law (IHL) is frequently characterised by a relative absence of speci city or omission
with regard to protecting a variety of other rights, particularly those pertaining to the political,
economic, social, and cultural well-being of the a ected population. Human rights law mainly
addresses issues pertaining to the interaction between citizens and authorities. It is a di cult job
to protect the human rights of people who live in areas that are under the control of armed
groups, both in terms of the legal framework and actual execution.

Ii. Lack of State Practise

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 It is important to emphasise that human rights treaties only impose obligations on States, unlike
International Humanitarian Law (IHL). Human rights committees and judges have ruled that it is
the duty of States to carry out policies designed to protect the rights of people living under their
control, even if those people are under the de facto rule of a non-State armed faction. Second,
the extent to which non-State actors are subject to human rights legislation is a hotly contested
topic. In a number of instances, States have called on non-State armed groups that have de facto
control over a speci c area to respect both their duties under international humanitarian law and
human rights law. (IHL). Resolutions passed by United Nations (UN) bodies like the Security
Council, General Assembly, or Human Rights Council have issued these demands. Due to a lack
of relevant treaty law and sparse State practice, the question of whether human rights law applies
to non-State armed organisations remains unresolved. There are unanswered questions regarding
the potential human rights obligations of non-State armed organizations, including their origin,
scope, and limitations as well as how those obligations relate to those of the territorial State.
Additionally, it is clear that armed non-State actors have the ability to refrain from violating basic
human rights. However, many of these groups might not have the resources required to uphold
the more complex obligations imposed by human rights legislation. Speci cally, the responsibility
to carry out proactive measures to uphold and realise human rights.
The ICRC adopts a pragmatic approach based on the idea that non-state armed groups may be
deemed to have de facto recognition of human rights obligations if they exercise consistent
control over a given territory and act as a governing authority comparable to a State in order to
address legal challenges and facilitate discussions regarding protection in situations of armed
con ict. It is a di cult job to establish all non-State armed groups' legal responsibilities with
regard to human rights. However, given the needs of the civilian population living under the de
facto rule of a non-State armed group, this perspective acknowledges that the humanitarian and
human rights organisations may need to engage with such groups on a wider range of issues than
those covered by the International Humanitarian Law (IHL) applicable in non-international armed
con ict. In protracted con icts, this is of utmost signi cance.

Iii. Non-Compliance by Non-State Actors

It is widely recognised that a signi cant obstacle to the e ectiveness of the law is the issue of
non-compliance with international humanitarian law brought on by a number of non-state actors.
The notion that non-state organisations are not automatically or voluntarily recognised as
signatories to the agreements and protocols that impose legal obligations on them is one that is
closely linked to the one that was just discussed. The International Humanitarian Law (IHL), which
has been rati ed by a number of states worldwide, contains de nitions and provisions for non-
state armed groups (NSAs) during times of armed con ict due to the NSAs' de facto involvement
in armed con icts. The idea of the so-called "principle of legislative jurisdiction" is widely
acknowledged and supported by the international community. It suggests that non-state actors
are governed by international humanitarian law (IHL) as a result of their activities on the soil of a
contracting party, which is a country that has rati ed the Geneva Conventions and/or its
additional protocols. A state that has consented to be obligated by the Geneva Conventions and/
or its Additional Protocols is referred to as a "Contracting Party." If armed opposition groups are
not included in the process of drafting laws and as a result, have only a limited grasp of the laws
that have been drafted, it will be challenging to achieve full compliance. Ironically, members of
armed resistance groups feel that the state is least concerned with their needs. Non-state actors
(NSAs) are treated di erently under international humanitarian law (IHL) than they are under
domestic law, and their exclusion from the scope of these international legal frameworks does not
ensure that they will adhere to predetermined standards. It could be argued that the non-
consenting or non-participating nature of those engaged in the process of creating regulations is
the most signi cant aspect of the current issue. Additionally, the case for the "legitimacy" of
international humanitarian law (IHL) is shallow when viewed through the eyes of non-State actors.
Whether or not an actor feels as though they have given permission to the legal framework that
they are required to follow or have participated in its establishment is a key factor in determining
whether or not they will comply with the law. IHL treaties have a limitation that they are only
enforceable by States, which has been made clear by the growing role of violent non-State
players in contemporary warfare. This makes achieving complete conformance with IHL much
more challenging than it ought to be.
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 IV. Theory Responses and International Jurisprudence

The third-party consent theory and the legislative jurisdiction theory are two theories in
international humanitarian law that seek to control how people are prosecuted for war crimes,
crimes against humanity, and genocide.
According to the third-party consent theory, a state can only exert jurisdiction over a person
charged with a crime against another country if it has the approval of the other state or the
relevant international organisation. This means that a state cannot bring charges against someone
for crimes done on the soil of another state without the permission of that state or a global body
with jurisdiction over that territory.
The legislative jurisdiction theory, on the other hand, asserts that a state may exercise jurisdiction
over an individual charged with a crime abroad if the state's domestic law permits it. This implies
that if a state's domestic legislation grants it the authority, it may prosecute a person for crimes
committed outside of its borders.
Both ideas have bene ts and drawbacks. The third-party consent theory respects state
sovereignty and prevents interstate hostilities, but it may make it more di cult to hold those
responsible for severe international crimes accountable. On the other hand, the theory of
legislative jurisdiction promotes greater responsibility, but it has the potential to cause disputes
between states and erode the concept of sovereignty.
Depending on the speci cs of each case, international tribunals and courts have actually
combined both ideas to prosecute people for international crimes. The theory selected relies on
the particular legal system and jurisdictional issues at stake in each case.

The third-party consent theory and the legislative jurisdiction theory have been applied in a
number of cases involving the prosecution of individuals for transnational crimes perpetrated by
non-state entities. Here are some examples:

The International Criminal Tribunal for the former Yugoslavia (ICTY) applied the third-party consent
theory in the Tadic case to determine whether the court had the authority to try a Bosnian Serb
accused of war crimes perpetrated in Bosnia and Herzegovina. (1999). The tribunal determined
that the Bosnian government had granted permission for the tribunal to have jurisdiction.
The International Criminal Court (ICC) has applied the concept of legislative jurisdiction in a
number of instances involving non-state actors. For instance, the International Criminal Court
(ICC) determined that it had jurisdiction in the case of Thomas Lubanga Dyilo, a Congolese
warlord accused of enlisting child soldiers, because the crime of doing so was punishable under
domestic law in the Democratic Republic of the Congo.
The Extraordinary Chambers in the Courts of Cambodia (ECCC) combined the third-party consent
theory and legislative jurisdiction theory in the case of Kaing Guek Eav (also known as Duch), a
former senior o cial of the Khmer Rouge government. Because the Cambodian government
requested international assistance in prosecuting Khmer Rouge o cials and because torture is
illegal under both international and Cambodian law, the ECCC insisted that it has authority.
These cases show how di erent jurisdictional theories have been applied by international courts
in order to bring defendants to justice for crimes committed overseas by non-state actors. The
theory chosen is based on the speci c legal framework and jurisdictional problems involved in
each case.

V. Conclusion

In conclusion, it is a complicated and di cult problem to apply international humanitarian law to

armed non-state actors. The rules governing the conduct of non-state actors are less clearly
de ned, even though there is a clear legal structure in place to control the behaviour of state
actors during armed combat. This should not be viewed as a deterrent to applying IHL to non-
state players, though.
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The need for a more thorough legal system to govern non-state actors' behaviour has become
more pressing as a result of non-state actors' growing involvement in contemporary con icts and
their ability to exert control over civilian populations and territory. All participants in armed
combat, whether state or non-state, must adhere to the principles of distinction, proportionality,
and necessity.
The case law discussed in this paper shows that the application of the third-party consent theory
and legislative jurisdiction theory is gaining support among national courts and international
tribunals. These theories have been used to extend the application of IHL to non-state actors.
However, the desire of these organisations to uphold its principles ultimately determines how well
IHL works to control the actions of non-state actors. It is challenging to interact with non-state
actors and ensure their adherence to international law due to their complexity, variety, and
frequently dispersed and decentralised structures.
In conclusion, even though it is a di cult and developing topic, applying international
humanitarian law to armed non-state actors is crucial for defending civilian populations in armed
combat. To engage with non-state actors and encourage their adherence to IHL, national
governments, foreign organizations, and civil society organisations must collaborate to create
fresh approaches and strategies. We can only ensure that the basic values of humanity and justice
are maintained by making a concerted e ort to hold all parties to armed con ict accountable for
their deeds.
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