A reconsideration of international humanitarian law's procedural fairness : a call to include non-state armed groups enjoying internal legitimacy in the making of customary international humanitarian law

Abstract

The role that non-state armed groups (‘NSAGs’) areallowed to play in the making of customary international humanitarian law (‘IHL’) has been the topic of scholarly debates for years. The far-going direct obligations IHL imposes upon NSAGs without the latter’s consent, nor inclusion in law-making triggers questions of procedural fairness. On the one hand, those in favor of NSAGs’ inclusion in law-making argue that IHL would be more adapted to the needs and capabilities of NSAGs, and that IHL would, by consequence, have a compliance pull vis-à-vis NSAGs. This would make IHL more ‘fit for purpose’. On the other hand, those against NSAGs’ inclusion argue that such inclusion would be undesirable, unreasonable, and unfeasible. What both perspectives share, however, is a state-centered logic that considers the state as the prime subject of international law and the gate keeper who decides who is invited to the table of international law-making. Nevertheless, do all general arguments pro and contra NSAGs’ inclusion necessarily apply to all types of NSAGs and to the same extent? Legal scholarship is currently lacking a convincing criterion or set of criteria to decide which NSAGs could or should participate in the formation of customary IHL. This paper attempts to provide such a criterion by approaching the discussion in a non-state-centered way. It puts those most affected by armed conflict at the center of the debate, notably the individual and relevant communities under situations of ‘rebel governance’. Based on social and political science, the criterion of internal legitimacy is proposed to decide which NSAGs to at least include in customary IHL’s making. Internal legitimacy is generated when communities consent and support rebel governance in a non-coerced manner, motivated by performance-based and symbolic catalysts for legitimacy. This paper will elaborate on what is understood by the notions of procedural fairness and non-coerced community consent and support; how internal legitimacy can be generated; and how it answers the concerns about delegitimizing national governments and legalizing armed struggle.