Talking International Law by Johnstone Ian;Ratner Steven;

Author:Johnstone, Ian;Ratner, Steven;
Language: eng
Format: epub
Publisher: Oxford University Press, Incorporated
Published: 2021-10-15T00:00:00+00:00

9

Non-State Armed Actors and International Legal Argumentation

Patterns, Processes, and Putative Effects

Hyeran Jo

Non-state armed actors (NSAAs) are groups or individuals who militarily fight with state actors to achieve their economic, political, or social goals. Their armed struggle or military methods often brand them as outlaws, which could be said to locate them in a sense outside the realm of international law.1 Rather surprisingly to some people, though, some NSAAs have engaged in international legal argumentation. In their bid for a new nation without apartheid, the African National Congress (ANC) declared in 1980 that it would adhere to the Geneva Conventions,2 and subsequently deposited its declaration with the International Committee of the Red Cross (ICRC).3 The Polisario Front, the liberation movement in Western Sahara, filed a case in 2012 at the European Court of Justice concerning the 2000 EU-Morocco Association Agreement.4 More recently, in 2019, the delegation from the Islamic Emirate of Afghanistan (IEA), also known as the Taliban, spoke about their views and positions on international law in a regional conference at Moscow.5 Many other armed groups, more than one hundred fifty of them, have expressed their commitments to international humanitarian law (IHL), according to the Their Words database that curates the IHL commitments by NSAAs.6 These examples amply demonstrate that NSAAs are indeed part of international legal argumentation processes. More general questions then arise. Why and how do some NSAAs explicitly and purposefully choose to engage in international legal argumentation?

In this chapter, I present the patterns and processes of NSAA legal argumentation mainly from my ongoing research on the documents related to humanitarian commitments expressed by the global sample of NSAAs from 1974 to 2010.7 Approximately 20 percent of groups, 64 out of 364, in that period have expressed something related to IHL. The sample includes only NSAAs that generated at least twenty-five battle deaths annually in fighting against national governments, leaving out other classes of militants, such as some terrorists who are not insurgents, purely criminal gangs, or paramilitary groups. It is therefore possible that more than 20 percent of armed groups expressed some form of arguments related to IHL that the database does not capture. Also, the documents are usually published by the leadership of those armed organizations, so the sample leaves out some legal arguments potentially made by individuals in the rank and file.8

Using the analysis of the assembled global sample, I add a deeper textual analysis with research on the contextual factors of the NSAA legal argumentation. I also add updates from recent years with regard to some selected groups (e.g., Taliban in Afghanistan, National Transitional Council in Libya) that are relevant to recent developments in international legal argumentation. The latter part of this chapter is devoted to a discussion of the putative effects of legal argumentation. The effects are presented as plausible hypotheses drawing on various literatures on legal argumentation, communicative action, and compliance9—hence the subtitle “putative effects.”

Understanding legal argumentation by NSAAs is important because of the human security implications. From the policy perspective, NSAAs

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