Armed Non-State Actors in International Humanitarian Law: The Need for a Definition of Legal Adaptation

Today, non-international armed conflicts involving the participation of Armed Non-State Actors (ANSAs) are of remarkable significance, especially when compared to inter-state armed conflicts. Yet, despite the significant role ANSAs play in modern-day conflicts, they constitute an “anomaly” in the current State-centric international legal system. ANSAs’ degree of dispersion, influence, and effect on international politics challenges the Westphalian notion of sovereignty and Max Weber’s definition of State as an entity that successfully “claims the monopoly over the legitimate use of force within a given territory”. Thus, it is necessary to establish strategies for interacting with ANSAs considering the possibility of “adapting” international law, especially International Humanitarian Law (IHL), in light of their role. To identify the main shortfalls of the relevant IHL norms, particularly the 1949 Geneva Conventions and their Additional Protocols, firstly it is necessary to establish a clear and consistent definition of ANSAs, which is still lacking both in law and in theory. Secondly, it is also fundamental to consider the limitations of International Human Rights Law since it does not apply in situations of internal strife or disturbance, where ANSAs also pose serious threats. Starting with the Syrian armed conflict, this paper aims to put forward innovative solutions, such as “backchannel diplomacy”, to foster States’ and ANSAs’ collaboration. Within the scope of the study, some recommendations are proposed, including the establishment of a working table with the participation of States, international and regional organizations, and civil society, with the task to adapt IHL while mindful of ANSAs’ role. Lastly, there is an attempt to find effective tools to ensure that ANSAs comply with IHL.