Norm Clusters of Non-State Armed Groups: Mapping and Understanding the Limits of Warfare as Understood by Non-State Armed Groups 303145913X, 9783031459139

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Will Jamison Wright

Norm Clusters of Non-State Armed Groups Mapping and Understanding the Limits of Warfare as Understood by Non-State Armed Groups

Norm Clusters of Non-State Armed Groups

Will Jamison Wright

Norm Clusters of Non-State Armed Groups Mapping and Understanding the Limits of Warfare as Understood by Non-State Armed Groups

Will Jamison Wright Intl. Law of Peace and Armed Conflict Ruhr University Bochum Bochum, Germany

ISBN 978-3-031-45913-9 ISBN 978-3-031-45914-6 https://doi.org/10.1007/978-3-031-45914-6

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© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Acknowledgements

As a study about warfare and attempts to limit the barbarity of armed conflict, I would be remiss to not begin with an acknowledgement of the subject matter. Throughout the completion of this project, conflicts began, raged, escalated, and ended. At times, this study has felt like a theoretical exercise—remarkably distance from the horrific reality. Observing conflicts around the world has continuously reminded me of the importance of attempting to better understand the limits to warfare. Along these lines, I would like to dedicate this project to victims of armed conflict globally and those who do their best to limit suffering on the battlefield. The successful completion of this project was only achievable through the considerable support of many individuals and institutions. I would like to thank my supervisors, Prof. Dr. Hans-Joachim Heintze and Prof. Dr. Pierre Thielbörger for their generous support in this process. Similarly, I am incredibly thankful for the support of Dr. Mareike Meis for her intensive review of this work, Prof. Dr. William Demars for his reviews of sections of the project, and Prof. Dr. Robin Geiß, Prof. Dr. Dorota Heidrich, and Prof. Dr. Dennis Dijkzeul for their feedback in developing the idea for this study. Furthermore, I am incredibly fortunate to have benefitted from the institutional support of my colleagues at the Institute for the International Law of Peace and Armed Conflict (IFHV), the Network on Humanitarian Action (NOHA), and the Institute of Development Research and Development Policy (IEE). Lastly, I would like to thank my friends and family for their support in this journey. To my grandparents Patricia, William, Caroline, and Oscar—thank you for prioritising education within our family. To my “grandmother”, Elizabeth White— thank you for inspiring me to think globally. To Ute, Vicky, and Karin—thank you for the patience, meals, and support. To my friends in Essen and beyond—thank you for helping me take my mind off this project when necessary. To Whitney, Wes, and

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their families—thank you for the emotional and practical assistance along the way. To my parents Susan and James—thank you for your proof-reading, patience, and unwavering support no matter where I have gone or what I have done. And, most importantly to my wife Pia—thank you for everything—this project would not have started (let alone been finished) without your support.

Contents

1

Introduction: Understanding the Relationship between International Humanitarian Action and Norms of Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Definition of the Puzzle and Research Question . . . . . . . . . . . . . . 1.2 Theoretical Framework and Roadmap . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 5 7

2

Norms, Diffusion, and International Humanitarian Law . . . . . . . . . 2.1 Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Theories of Norm Diffusion . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 International Law, International Humanitarian Law, and Norms . . 2.4 Norms in Warfare Versus Humanitarian Laws . . . . . . . . . . . . . . 2.5 Norms of Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . .

11 13 19 24 27 33 35

3

Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Data Collection: Codes of Conduct, Orders, and Public Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The Coding Frame . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Ideation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 Mitigating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.5 Norm Entrepreneurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.6 Accusations of non-compliance and non-reciprocity . . . . . . 3.4 Establishing the Validity and Applicability of the Norm Cluster . . . 3.5 Means of Tabulating Totals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Creating an Armed Conflict Norm Cluster . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41 44 47 51 52 52 56 57 58 58 59 63 64 65

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Contents

4

Non-State Armed Groups in the International System . . . . . . . . . . . 4.1 Non-State Armed Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Characteristics and Influences on Non-State Armed Groups . . . . . . 4.2.1 Territorial Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Constituencies and Populations . . . . . . . . . . . . . . . . . . . . . 4.2.3 Governance and Chain of Command . . . . . . . . . . . . . . . . . 4.2.4 Ability to Enter into Foreign Relations . . . . . . . . . . . . . . . 4.2.5 Military Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.6 Further Non-State Armed Group Characteristics . . . . . . . . 4.3 Norm Contestation and Non-State Armed Groups . . . . . . . . . . . . . 4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

69 70 76 78 80 82 83 85 86 88 90 93

5

A (Brief) History of War and Its Limits . . . . . . . . . . . . . . . . . . . . . . 5.1 Pre-Historic Warfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Ancient Warfare (3200 B.C.E.–600 A.D.) . . . . . . . . . . . . . . . . . . 5.3 Medieval Warfare (400–1500) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Early Modern Warfare (1500–1850) . . . . . . . . . . . . . . . . . . . . . . . 5.5 Modern Warfare and International Humanitarian Law (1850-Present) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Norms in Historical Laws of Warfare . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

97 100 102 107 113

Results and the Norm Clusters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Behavioural Prescriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Ideations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Normative Ideation-Behaviour Relationship . . . . . . . . . . . . . . . . . 6.4 Document Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 Documents Created by the Groups . . . . . . . . . . . . . . . . . . 6.4.2 Agreements, Joint Statements, and Deeds of Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Group Ideology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.1 Ethno-nationalist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.2 Leftist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.3 Religious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Chronology and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6.1 Pre-1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6.2 1992–2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6.3 2001–2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6.4 Post-2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7 The Armed Conflict Norm Cluster . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

135 136 138 140 141 142

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118 123 128

143 144 145 146 147 148 149 150 151 152 153 155

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 7.1 Norms of Warfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 7.1.1 Core Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Contents

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7.1.2 Over-Performing Norms . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.3 Under-Performing Norms . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Mitigating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Actors and Norm Clusters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Non-state Armed Groups . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Norm Entrepreneurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Enemy Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.5 Implication on Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

171 179 184 187 187 189 190 191 192 192 195

The Armed Conflict Norm Cluster: Closing the Gap Between Norms and Law in Understanding Armed Conflict . . . . . . . . . . . . . . 8.1 Norms in Warfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Norm Clusters and Qualitative Research . . . . . . . . . . . . . . . . . . . . 8.3 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

201 202 206 208 210 212

Abbreviations

ANC AA CNA CPN CNFI CNDD-FDD HDZ DPIK ESF ELN EZLN GAM NTC FSA FMLN POLISARIO FARC-EP HSM ICU IEA ISIS ICRC JEM KNU KNPP KPIK KLA KNA

African National Congress/uMkhonto we Sizwe Ansar Allah Chin National Army (Chin National Front) Communist Party of Nepal (Maoist) Congress of Nationalities for a Federal Iran Conseil National Pour la Défense de la Démocratie—Forces pour la Défense de la Démocratie Croatian Democratic Community Democratic Party of Iranian Kurdistan Eastern Sudan Front Ejército de Liberación Nacional Ejército Zapatista de Liberación Nacional Free Aceh Movement/Acheh Sumatra National Liberation Front Free Libyan Army/National Transitional Council Free Syrian Army Frente Farabundo Martí para la Liberación Nacional Frente Popular de Liberacion de Saguia el Hamra y Rio de Oro Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo Holy Spirit Movement Islamic Courts Union Islamic Emirate of Afghanistan Islamic State of Iraq and Syria International Committee of the Red Cross Justice and Equality Movement Karen National Union Karenni National Progressive Party Komala Party of Iranian Kurdistan Kosovo Liberation Army Kuki National Organisation/Army xi

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KDP KOCP APPRD LDF LTTE LIFG MSF MILF MNLA NCSRO NDF NDFP NRA NSCM NUPA ONLF PPLO PSLF PLO SDA PULO PUK HPG YPG/YPJ PMF: EF PMF: N PMR PIRA RPM-P RoS RENAMO PREPAK RUF ARNO SDS SP SNF SRRC SO SLM SLM-A SLM-MM SLM-U

Abbreviations

Kurdistan Democratic Party Kurdistan Organization of the Communist Party (Komalah) L’Armée Populaire pour la restauration de la démocratie Lahu Democratic Front Liberation Tigers of Tamil Eelam Libyan Islamic Fighting Group Médecins Sans Frontières/Doctors Without Borders Moro Islamic Liberation Front Mouvement National de Libération de l’Azawad National Coalition of Syrian Revolution and Opposition Forces National Democratic Front (Myanmar) National Democratic Front of the Philippines National Resistance Army National Socialist Council of Nagalim National United Party of Arakan: Arakan Army Ogaden National Liberation Front Pa’O Peoples Liberation Organisation Palaung State Liberation Front Palestinian Liberation Organisation Party of Democratic Action Patani United Liberation Organisation Patriotic Union of Kurdistan People’s Defence Forces (Hêzên Parastina Gel) Peoples’ Protection Units (Yekîneyên Parastina Gel) Popular Mobilization Forces: Ezidkhan Forces Popular Mobilization Forces: Nineveh Pridnestrovian Moldavian Republic Provisional Irish Republican Army Rebolusyonaryong Partido ng Manggagawa—Pilipinas Republic of Somaliland Resistência Nacional Moçambicana Revolutionary People’s Front—Manipur (People’s Liberation Army) Revolutionary United Front Rohingya National Army (Arakan Rohingya National Organisation) Serbian Democratic Party Shining Path Somali National Front Somalia Reconciliation and Restoration Council South Ossetia Sudan Liberation Movement Sudan Liberation Movement—Abdul Wahid Sudan Liberation Movement—Minni Minnawi Sudan Liberation Movement—Unity

Abbreviations

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SPLM SPLM-IO SPLM-N SRF SDF URNG UANC UJC UNICEF UN OCHA ZANU ZAPU

Sudan People’s Liberation Movement Sudan People’s Liberation Movement-in-Opposition Sudan People’s Liberation Movement-North Sudan Revolutionary Front Syrian Democratic Forces Unidad Revolucionaria Nacional Guatemalteca United African National Council United Jihad Council United Nations International Children’s Emergency Fund United Nations Office for the Coordination of Humanitarian Affairs Zimbabwe African National Union Zimbabwe African People’s Union

List of Figures

Fig. 6.1 Fig. 7.1

Full armed conflict Norm cluster without weighting of any factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Breakdown of how armed groups which cited a behavioural prescription against the utilisation of child soldiers qualified or defined this concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

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List of Tables

Table 3.1 Table 7.1 Table 7.2

Core elements of the norm cluster coded in this work . . . . . . . . . . . . 53 Most cited and widespread behavioural prescriptions and ideations . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Co-occurrence of the most frequently cited behavioural prescriptions and ideations .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 162

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Chapter 1

Introduction: Understanding the Relationship between International Humanitarian Action and Norms of Armed Conflict

1.1

Definition of the Puzzle and Research Question

In a 2009 letter to the Yemeni Observatory for Human Rights,1 Abdulmalik Al Houthi wrote that Ansar Allah, an armed group that has been waging an insurgency against the previous Yemeni regime since the early 2000’s, aimed to protect enemy combatants that had fallen into their hands. He continued that the prisoners of the armed group, often referred to as the “Houthis”, were treated with dignity, with consideration to their physical and mental health needs, and with respect. This is not, in and of itself, remarkable; many armed groups espouse the willingness to protect their prisoners, at least to a certain extent. What makes this example noteworthy is the justification that Al Houthi gave in this instance. The motivation behind the guarantee to protect and respect prisoners was a sense of religious obligation enshrined in the Islamic teachings that served as the raison d’être of the armed group. Al Houthi noted that these obligations were consistent with international humanitarian law. He wrote: Therefore, we assure you that our treatment to the hostages are based on our religious principles and does not contradict at all neither the Humanitarian International law and conventions with regard to the hostages which include the provisions you mentioned in your letter and as we clarified above we treat them so much better than what is provided in the laws and conventions.2

International humanitarian law, the specialised subfield of international law that regulates the conduct of hostilities, does include protections for prisoners of war. While there are differentiations made between the typologies of armed conflicts and the rules that apply to these conflicts, the protection of prisoners should be respected

1 Ansar Allah (2009) as found on Geneva Call. Their Words: the Directory of Armed Non-State Actor Humanitarian Commitments. 2 Ibid.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 W. J. Wright, Norm Clusters of Non-State Armed Groups, https://doi.org/10.1007/978-3-031-45914-6_1

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Introduction: Understanding the Relationship between. . .

in all types of armed conflicts.3 Yet, the international law on this subject is not Al Houthi’s reasoning. Rather, as he notes, the customs regarding the treatment of prisoner in Islamic teachings is more comprehensive and allows for more protection than in international law.4 This suggests that, in order to better understand the motivations of Al Houthi, one must examine not only how Ansar Allah interacts with international humanitarian law, but also what other factors influence the behaviour of the armed group. Given the thousands of armed groups fighting in insurgencies and non-international armed conflicts around the world, this one case is a minor example. However, it points to often-unexamined issues related to the rules that armed groups apply to themselves in their conduct of hostilities in an armed conflict. As Bangerter writes, armed groups often create codes of conduct and other sets of rules as aspirations.5 The rules they develop are not “as is” but rather they are “as should be”. These rules are not enshrined in international conventions nor are they uniform in their structure or content. Yet, importantly, they exist as aspirations that generally guide what is seen amongst the group as appropriate behaviour. Numerous authors who have written about international humanitarian law have pointed to a duality in the law. While one may lament the number of times a law is broken, the fact that such laws exist should be lauded just as greatly, if not more so. This set of laws exist purely from the aspirations of warring states wanting to limit the horrors of war by adding constraints upon their actions. Likewise, as will be seen in Chap. 5, current international humanitarian law is the outcome of a historical process of aspirations. It should, therefore, be viewed as such rather than the “end of history”. Many rules of international humanitarian law are little more than one iteration of aspirations seen across space and time. The desire to define who is “part” of the conflict and how the conflict affects those that are not involved is ancient and still contested. International Humanitarian Law clearly outlines the generally accepted definitions of these concepts of participation and civilian protection, though context specific religious and cultural norms also feed into these understandings. International law only truly works as a set of rules based on the consent of states to be governed by the laws enshrined in it.6 Non-state armed groups do not consent to these laws, and they do not sign the conventions and treaties which regulate

3

According to the ICRC, this is a core tenant of customary international law applicable to both international and non-international armed conflicts, though the level of protection between these types of conflict could vary. This would mean that humane treatment would be require by international law (see: International Committee of the Red Cross (ICRC). “Rule 87. Humane Treatment.”) but the status as a Prisoner-of-War is reserved only for those with combatant privilege (see: International Committee of the Red Cross (ICRC). “Rule 106. Conditions for Prisoner-of-War Status.”.) 4 Ibid. 5 Bangerter (2011), p. 355; Bangerter (2012), p. 66. 6 International humanitarian law is a specific subfield of international law which specifically governs conduct within the context of armed conflicts. Here, the comments are discussions of international law in general and also apply to international humanitarian law as a specific subfield of this law.

1.1

Definition of the Puzzle and Research Question

3

conduct in armed conflict. While, they are bound by some elements of customary international law, the groups do not bind themselves to these laws nor are they based upon the actions of non-state armed groups.7 Often, when fighting breaks out, many of those involved may not even know of the existence of a such a body of laws. The conduct of these non-state fighters is thus less governed by international humanitarian law, but rather by the societal norms internalised by the individual and the political norms internalised by the group as a whole. These norms are accounted for in the trade-off between humanity and military necessity that is often cited as being at the centre of international humanitarian law.8 To assume that there must be a balance between these two specific factors means that there is a general agreement that humanity is necessary on the battlefield, suggesting an inherent altruism in such limitations, arguably precluding self-serving limitations.9 As seen in the case of Al Houthi, religious motivations are the factor that impact the decisions of him and the fighters under his command. In other groups, a desire for political recognition, calculations as to the economy of force or sustainability of the armed group, or relations with constituency groups or other actors impact the strategic and tactical decisions made. While actors that work with international humanitarian law often espouse the universal nature of international humanitarian law,10 the reality is that for many armed groups, the conventions that make up international law have little influence on their decision-making process. In many cases, it may be impossible to distinguish between behavioural prescriptions resulting from these considerations and international humanitarian law. This overlap, however, can be viewed in two ways. First, as often seen in the literature on norm entrepreneurs, it underscores the ability of actors like the International Committee of the Red Cross (ICRC) and Geneva Call to spread awareness on international humanitarian law as well as helping to define the norms which constitute customary international law. If the behavioural prescription of a norm is the only important aspect of the norm, then this viewpoint is not only justified, but rather convincing. Following this logic, no matter what the reason, so long as the behavioural prescription of the norm is defined, supported, and proliferated, then the norm would be uncontested. Conversely, a norm can be understood more holistically not only as the behavioural prescription but also the motivation to comply with the behavioural prescription. Some academics argue that the motivation or purpose or the behaviour belongs to the norm as well. This understanding, while more complex than examining the crux of the norm as seen in the behaviour, allows for greater understanding of the norm as well as its diffusion, contestation, and internalisation. 7

Customary international law is chiefly drawn from state practice, though it can also be seen as being reflective of generally accepted principles of armed conflict. International Committee of the Red Cross (2021). 8 Melzer (2010), p. 833. 9 On a theoretical level, there should be a distinction between limits adhered to because of the humanity of the other combatants or civilians and the self-interest inherent in limits adhered to out of a sense of self-interest. 10 International Committee of the Red Cross (2004).

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Introduction: Understanding the Relationship between. . .

A norm is only important in so far as it is accepted and internalised by the actor in question. Thus, Al Houthi’s protection of prisoners on religious grounds does not change the practical implications of the norm, but rather changes the abstract understanding of the norm. Thus, to understand the norm itself, its ability to be diffused and contested, one must examine the ideational aspects of the norm as well. This is the object of this study. Its goal is not to examine how international humanitarian law applies to non-state armed groups. There is already a considerably large amount of literature on expanding legal definitions and frameworks to encompass non-traditional actors and on compliance with international humanitarian law.11 Such work should chiefly be in the hands of legal scholars with better expertise at defining the parameters of international law within such a contested context. Importantly, if the impetus of international law is the consent of those under its jurisdiction, understanding the applicable law does little to further conceptualisations of the interaction of these groups with law. However, much of the scholarship on the subject also shows the inherent difficulties in ensuring compliance from non-state armed groups. Jo highlights the strategic use of compliance as a tool of legitimacy, an argument which has been reflected in other scholarship on the subject.12 Building upon such critical scholarship on the relationship between non-state armed groups and international humanitarian law, the objective of this study is to further expand on not just why armed groups follow or ignore the rules of international humanitarian law, but rather how they understand and define their obligations to limit warfare themselves. So, rather than looking to encompass these groups and conflicts in law, the aim here is to study the norms that already exist amongst these groups; not to examine what rules are imposed upon the groups by an international system in which they have no say. This study focuses on what rules the armed groups voluntarily impose upon themselves, like states in international law, to better understand the role of norms as an underexplored force in armed conflict. Expanding the understanding of norms and how they impact non-state armed groups in warfare, is of particular importance to scholars that focus on non-state armed groups and practitioners who engage with these groups to improve compliance with international humanitarian law. Research projects like the Roots of Behaviour in War and Roots of Restraint in War undertaken by the ICRC, as well as the more recent From Words to Deeds, do try to reapproach the matter of limits in warfare from beyond the legal perspective. However, their examination is not only limited to non-state armed groups and their investigation is not limited to norms in armed conflict, but rather includes investigations of implementation by different armed actors. Yet, the existence of these other projects by both academic institutions and international organisations hints at the

11 There is a significant amount of scholarship on different aspect of these points, for some key examples important for the development of this work, see: Heffes and Frenkel (2017), pp. 39–72; Hofmann and Schneckener (2011); Jo (2015). 12 In addition to Jo, studies pointing to the role of legitimacy in determining behaviour include Fazal (2017), pp. 71–82; Fazal and Konaev (2019), pp. 149–68.

1.2

Theoretical Framework and Roadmap

5

importance that is being given towards gaining a more wholistic understanding of the limits to armed conflict, beyond those examinable through international humanitarian law. Thus, to add to this scholarly debate, this study aims to contribute yet another perspective, namely that of the norms of armed conflict as identified by non-state armed groups. The specific research question that will be examined is: What are the norms of armed conflict as identified by non-state armed groups? The overall objective is to better understand what could be described as the armed conflict norm cluster, the cluster of behavioural prescriptions and ideations that define appropriate behaviour in the contexts of armed conflict, particularly from the perspective of non-state armed groups. The ability to answer this question is dependent on the ability to define, conceptualise, and identify norms within armed conflict and to conduct empirical research aimed at identifying these norms amongst armed groups. In the next section, I will further explore how I will go about examining this study and how the rest of this book will be structured.

1.2

Theoretical Framework and Roadmap

As highlighted by Raymond,13 one of the greatest problems plaguing norm research is the variation in understandings of what a norm is, where norms start and where they end, and how they can be measured. To account for this, my research will use Winston’s14 definition and structure of norms as well as her idea of norm clusters, which allows for a more nuanced and comprehensive understanding of norms to account for both the variability and stability of norms.15 While a relatively new model for understanding norms, the norm cluster approach has already received a considerable amount of recognition amongst norm scholars, but has yet to be built upon as the framework for further study.16 As stated by Winston, the norm cluster model can be particularly useful in examining “multiple potential influences on diffusion and actors’ own agency in normative development”.17 Keck and Sikkink stressed that both norm entrepreneurship as well as norm adoption can be seen as particularly strategic in certain settings.18 Given the internationalisation of modern non-international armed conflicts and resource constraints for the military and

13

Raymond (1997), pp. 216–217. Winston (2016), p. 16; Winston (2018), pp. 640–641. 15 See: Linsenmaier et al. (2021), p. 1240. 16 Citations of Winston can be found in: Ibid; Ben-Josef Hirsch and Dixon (2021), pp. 521–547; Beresford and Wand (2020), pp. 534–554; Fehl and Rosert (2020), p. 2; Rosert (2019), pp. 1103–1131; Staunton and Ralph (2019), pp. 660–86; ten Oever (2021), pp. 1–17. 17 Winston (2018), p. 654. This is supported as well by the work of Linsenmaier et al. (2021) and Newell (2019). 18 Keck and Sikkink (1999), pp. 93–95. 14

6

1

Introduction: Understanding the Relationship between. . .

political operations of non-state armed groups, the engagement in normative discourse and adoption of norms can be quite challenging for these groups. Not only do the norms come from multiple actors, both domestic and international, but limited resources and strategic goals must be weighed against the perceived risk of engaging in norm adoption. In the next chapter, I will dive deeper into norms in international relations and their relationship to international humanitarian law. This will be a crucial foundation for the further study as a whole, which will seek to use these ideas and definitions and apply them in an empirical study of how the armed conflict norm cluster is understood and communicated by non-state armed groups. To undertake this empirical research, I will use qualitative content analysis to code and map the armed conflict norm cluster as defined by non-state armed groups. Using the documents produced by non-state armed groups, such as codes of conduct, press releases, political agreements, deeds of commitments, and orders, I will identify the behavioural prescriptions and ideations19 written into the documents while also identifying where they overlap to gain insight on what the armed conflict norm cluster looks like from the non-state armed group perspective. While a qualitative method, qualitative content analysis, particularly within the context of this study, can appear quite quantitative. The frequency at which behavioural prescriptions and ideations are cited, as well as the number of armed groups that cite them, will be examined to better understand which of these can be seen as important elements of the armed conflict norm cluster, as identified by non-state armed groups. In Chap. 3, I will expand upon the precise methodology in more detail, including introducing a coding framework and further identifying the tools used to undertake this coding. Furthermore, I will describe the mapping process and the importance of identifying. Following the introduction of the methodology, non-state armed groups, their structures, nature, and role in international relations will be further explored. I will examine how non-state armed groups understand their responsibilities vis-à-vis international norms limiting armed conflict through how they interpret and reproduce such norms in documents governing their actions. This will allow for the identification of potential channels of influence through which norms could diffuse, through cultural, political, or economic relations beyond these groups. As will be shown, non-state armed groups often, though not always, extend beyond the military campaigns and engage in political activities on the domestic and international stages. Thus, they become actors in international relations despite their status outside of the scope of normally studied actors in international arenas. This further examination will take place in Chap. 4. In the fifth chapter, the focus will return to the interplay between international norms and international humanitarian law, through the lens of a historical exploration of the limits placed on warfare. Other scholars such as Neff,20 Howard,21 and

19

Two of the three elements of Winston’s norm cluster model (2016, 2018). Neff (2005). 21 Howard (1979). 20

References

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Howard, Andreopoulos, and Schulman22 have already undertaken studies of the rules of war before the development of international humanitarian law, but these build to the origin and evolution of modern laws of war. My analysis will focus on the existence of norms before the development of these two staples, namely international law and the Westphalian concept of state sovereignty, of contemporary discussions on norms. As this study seeks to circumvent the challenges posed by using international humanitarian law as means of studying non-state armed groups with unclear roles in international law, better understanding the limits on war absent of both statehood and law is crucial. Furthermore, while there have been recent efforts to link existing international humanitarian law with cultural and religious norms in different regions,23 the examination of the history of rules of war will show the differences between these historical and present-day norms particularly between regions. Finally, this analysis will inform the creation of categories for the coding of the behavioural prescriptions and ideations, as history can point to which key categories of protection have existed absent of international law and Westphalian sovereignty. In Chaps. 6 and 7, I will examine findings of the empirical element of this study and discuss what these mean for international humanitarian law and its relationship to non-state armed groups. The documents will be examined within different contexts, such as in comparison to other documents made in similar time periods, in similar types of documents, and by similar types of armed groups. These findings will be discussed to see which behavioural prescriptions were cited most frequently or widespread across the documents examined and what this can point to in terms of better understanding the armed conflict norm cluster as understood by armed groups. In the final chapter, I will recontextualise the study and findings within the more general debate around limits to armed conflict.

References Ansar Allah (2009) Letter of Abdul-Malik al-Houthi, Leader of the al Houthi rebels, to Dr. Mohammed Al-Mikhlafi, the Head of the Yemeni Observatory for Human Rights. http:// theirwords.org/media/transfer/doc/ye_zaidiyyah_2009_01-0023669c01780affdb479c9a00 df8ac9.pdf. Accessed 31 May 2023 Bangerter O (2011) Reasons why armed groups choose to respect international humanitarian law or not. Int Rev Red Cross 93(882):353–384. https://doi.org/10.1017/s1816383111000385 Bangerter O (2012) Internal control: codes of conduct within insurgent armed groups. Rep. Internal control: codes of conduct within insurgent armed groups. Small Arms Survey, Geneva Ben-Josef Hirsch M, Dixon JM (2021) Conceptualizing and assessing NORM strength in international relations. Eur J Int Rel 27(2):521–547. https://doi.org/10.1177/1354066120949628

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Howard et al. (1994). As seen through ICRC efforts to show the similarities between Islamic law and international humanitarian law; ICRC (2019).

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Beresford A, Wand D (2020) Understanding bricolage in norm development: South Africa, the International Criminal Court, and the Contested Politics of Transitional Justice. Rev Int Stud 46(4):534–554. https://doi.org/10.1017/s0260210520000224 Fazal TM (2017) Rebellion, war aims & the laws of war. Daedalus 146(1):71–82. https://doi.org/10. 1162/daed_a_00423 Fazal TM, Konaev M (2019) Homelands versus minelands: why do armed groups commit to the laws of war? J Glob Secur Stud 4(2):149–168. https://doi.org/10.1093/jogss/ogz005 Fehl C, Rosert E (2020) Working paper. It’s complicated: a conceptual framework for studying relations and interactions between international norms. Leibniz Institut, Frankfurt am Main Heffes E, Frenkel BE (2017) The international responsibility of non-state armed groups: in search of the applicable rules. Goettingen J Int Law 8(1):39–72. https://doi.org/10.3249/1868-1581-8-1heffesfrenkel Hofmann C, Schneckener U (2011) NGOs and nonstate armed actors: improving compliance with international norms. Report. United States Institute of Peace, Washington, DC Howard M (ed) (1979) Restraints on war: studies in the limitation of armed conflict. Oxford University Press, Oxford Howard M, Andreopoulos GJ, Schulman MR (eds) (1994) The laws of war: constraints on warfare in the western world. Yale Press, New Haven International Committee of the Red Cross (2004) What is international humanitarian law? International Committee of the Red Cross (2019) Islamic law and international humanitarian law. International Committee of the Red Cross. https://www.icrc.org/en/document/islamic-law-andinternational-humanitarian-law. Accessed 30 May 2023 International Committee of the Red Cross (2021) Customary law. International Committee of the Red Cross. https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law International Committee of the Red Cross. Rule 87. Humane Treatment. Customary IHL Database. https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule87 International Committee of the Red Cross. Rule 106. Conditions for Prisoner-of-War Status. Customary IHL Database. https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_ rule106 Jo H (2015) Compliant rebels: rebel groups and international law in world politics. Cambridge University Press, Cambridge Keck ME, Sikkink K (1999) Transnational advocacy networks in international and regional politics. Int Soc Sci J 51(159):89–101. https://doi.org/10.1111/1468-2451.00179 Linsenmaier T, Schmidt DR, Spandler K (2021) On the meaning(s) of norms: ambiguity and global governance in a post-hegemonic world. Rev Int Stud 47:508–527. https://doi.org/10.1017/ s0260210521000371 Melzer N (2010) Keeping the balance between military necessity and humanity – a response to four critiques of the ICRC’s interpretive guidance on the notion of direct participation in hostilities. N Y Univ J Int Law Polit 42(3):831–916 Neff SC (2005) War and the law of nations: a general history. Cambridge University Press, Cambridge Newell ME (2019) How the normative resistance of anarchism shaped the state monopoly on violence. Eur J Int Rel 25(4):1236–1260. https://doi.org/10.1177/1354066119848037 Raymond G (1997) A problems and prospects in the study of international norms. Mershon Int Stud Rev 41(2):205–245. https://doi.org/10.2307/222668 Rosert E (2019) Norm emergence as agenda diffusion: failure and success in the regulation of cluster munitions. Eur J Int Rel 25(4):1103–1131. https://doi.org/10.1177/1354066119842644 Staunton E, Ralph J (2019) The responsibility to protect norm cluster and the challenge of atrocity prevention: an analysis of the European Union’s strategy in Myanmar. Eur J Int Rel 26(3): 660–686. https://doi.org/10.1177/1354066119883001

References

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ten Oever N (2021) Norm conflict in the governance of transnational and distributed infrastructures: the case of Internet routing. Globalizations 20:1–17. https://doi.org/10.1080/14747731.2021. 1953221 Winston C (2016) The nature of norms and the evolution of transitional justice. Dissertation. University of British Columbia Winston C (2018) Norm structure, diffusion, and evolution: a conceptual approach. Eur J Int Rel 24(3):638–661. https://doi.org/10.1177/1354066117720794

Chapter 2

Norms, Diffusion, and International Humanitarian Law

As will be further examined in Chap. 5, warfare has always been subject to normative influences aimed at reducing the negative impacts of warfare. Evidence from pre-historic cultures shows the existence of warfare between small groups and its limitations within certain cultural spheres,1 attempts to avoid mutual devastation,2 and the emergence of geographical safe areas.3 Even the earliest written and archaeological evidence of warfare includes evidence of the existence and gradual expansion of limitations, revealing definitions of different types of conflicts and rules specific to those conflicts.4 As will be further examined in Chap. 5, this set of norms is constantly evolving and new norms emerge based upon changing cultural practices, technological advances, and geopolitical developments. These “rules” pertaining to the conduct of armed conflict have developed over time from unwritten cultural practices to codified principals enshrined within the concept of international law.5 Within the context of armed conflicts, this is an impressive development; especially given the variability of compliance with norms historically depending on context and combatants.6 This process is not unique, however, as the ideas of norms and international law are, in the field of international relations, inextricably linked insofar as international law is itself a body of norms, complied with and dependent upon interest and consequence. Thus, to international relations scholars, the principal of the laws of armed conflict have not changed, while the specific aspects of these laws, including their definition and presentation, certainly has. 1

Keeley (1996), p. 58. Ibid. p. 44. 3 Kolb and Dixon (2002), p. 519. These latter two examples are both findings relating to more recent conflicts chronologically, however, are thought to be reflective of the nature of warfare in pre-historic societies. 4 Hamblin (2006), pp. 178, 209; Lanni (2008), pp. 471–472. Neff (2005), p. 23; Ober (1994), pp. 12–13. 5 As seen throughout Neff (2005); Howard et al. (1994). 6 Ibid. This topic is explored in further detail in Chap. 5. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 W. J. Wright, Norm Clusters of Non-State Armed Groups, https://doi.org/10.1007/978-3-031-45914-6_2

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Norms, Diffusion, and International Humanitarian Law

Current scholarly discussions around non-state armed groups, and states for that matter, moderating their actions in armed conflicts are usually framed by the idea of international law, in particular international humanitarian law and international human rights law. One question that emerges is how to better bind non-state armed groups to the concepts and obligations inherent in this body of law through either expanding international humanitarian law or increasing awareness and compliance.7 Some scholars of non-state armed groups question how to increase compliance with international humanitarian law by parties to conflicts, especially non-state armed groups.8 Often, such examinations focus on already existent legal frameworks and principals that should be more vigorously applied in non-international armed conflicts, as these conflicts are under-regulated despite the fact that they constitute nearly every conflict since the end of the Second World War. Even the organisation Geneva Call and scholars who have written about their work have not strayed from the idea of protection, enshrined in international humanitarian law, as being a primarily legal issue.9 Most crucially, when examining the interlinkages between international humanitarian law and the field of norms research, one must understand what the differences between these distinct ideas. One could simplify this relationship in saying that all international laws reflect existent norms, not all international norms coincide with international law. The most agreed upon norms often become enshrined in international law, which in turn standardizes the norm into a specific rule, with a specific definition and linked to specific actions, making it less flexible for compliant behaviour. In addition to trying to expand upon this relationship, this chapter will also examine how norms evolve and are malleable in both their ideational foundation and outcomes. Furthermore, for those complying with existing norms, the reason for adoption may not extend beyond the desire to be compliant with an international system, to remain a viable trade partner, or for self-preservation. This chapter will begin by defining what a norm is and highlighting some of the most pertinent understandings of the role of norms in the international system and theoretical models of how they spread. Following this, I will introduce the argument to explain the separation of international law from international norms and identify the points of convergence and divergence of these two subjects. I will give particular attention to international humanitarian law as the particular area of focus in this study. Then I will examine the role of non-state armed groups in the international system, with a special emphasis on their relationship with norms. With these aspects in mind, I will show how both norms and non-state armed groups exist from an international relations theoretical perspective in the international system. It is this

7

As discussed in Bellal and Heffes (2018), pp. 120–136. Examinations into the compliance of non-state armed groups can be seen in Jo (2015); Fazal (2017); Fazal and Konaev (2019); Mack and Pejic (2008). 9 See Bongard and Somer (2011); Fazal and Konaev (2019). 8

2.1

Norms

13

understanding that may assist in explaining why groups with long-term goals of international political recognition are more willing to accept such legal norms.10

2.1

Norms

One definition of norms in international relations is “standards of behaviour defined in terms of rights and obligations”.11 This definition from Krasner is used to define norms within the context of international regimes,12 which, in turn, are a combination of norms as well as “principles. . . rules, and decision-making procedures around which actor expectations converge in a given issue area”.13 This definition is certainly clear and useful for defining norms within the context of international relations; however, its limitation is that it tries to define a distinct border between the idea of a norm, a principal, and a rule. Thus, to fit with social constructivist thinking from which norms research originates, the emphasis of this definition should be on the initial three words—“standards of behaviour,”—which in turn are being given value through the interactions that form them. Other definitions by social constructivist thinkers define norms as “standards of appropriate behaviour”14 and “guiding behaviour by providing motivation for actions”.15 These definitions remain quite nebulous, however, especially when trying to better understand the implications of norms. The lack of clarity connected to the concept of a norm is not a novel issue. As highlighted by Jurkovich, the popularity and multifaceted nature of the term norm has led to its use to describe phenomena that do not meet a strict definition of a norm as per constructivist definitions.16 Jurkovich highlights the importance of the actor—action—oughtness interaction in defining a norm and argues that, to an extent, conceptual clarity is needed for empirical comparability.17 However, the vagueness of the term “oughtness”18 certainly leads to more unclarity. The socially constructed oughtness amongst states is rarely defined in the adherent bodies or by those in violation. Likewise, the standards of behaviour as part of the norm remain;

10

Fazal and Konaev (2019), pp. 165–166. Krasner (1982), p. 186. 12 Regimes theory is a predominately liberal theory that cites international cooperation “regimes”, founded upon norms and rules. While this theory includes norms, its base in the liberal tradition contrasts with the constructivist understandings of norms and norm diffusion used in the rest of this work. 13 Ibid. p. 185. 14 Finnemore and Sikkink (1998), p. 891. 15 Björkdahl (2002), p. 9. 16 Jurkovich (2019), pp. 694–695. 17 Ibid. 18 The term “oughtness” is used by Finnemore and Sikkink (1998, p. 891) to discuss norms. 11

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in many cases they are not always put into practice by adherent actors nor defined in terms that allow for a uniform behaviour. Thus, while the actor—action—oughtness relationship is an important element of understanding, and the implications of this understanding on the differentiation between norms, laws, principles, and standards is crucial for conceptual clarity, this definition is not the most nuanced for examining norms. However, such a definition was developed by Carla Winston; it provides both clear structure and the nuance to account for a number of factors that impact norms and their diffusion. Her model asserts that norms are visible in how a problem is dealt with by a particular behaviour because of a certain value.19 Furthermore, this model can be summarised as a statement that is internalised by the actors following the norm: “If [problem], [value] suggests [behaviour]”.20 For example, if multiple religious groups coexist in a state, basing one’s actions on the value of human rights would suggest that the state should allow for freedom of religion. Using the previously mentioned model: “problem” is the existence of religious diversity in the population; “value” is a belief in human rights; and “behaviour” is a tolerance of religious differences through a legal freedom of religion. This idea is expanded upon by Fehl and Rosert, who highlight the role of a prescription of behaviour while also discuss the complexities of the interactions of different clusters in different constellations.21 While in this case human rights are used as an example, norms are often described as “what good people do”.22 This makes norms more problematic since this description highlights the subjective nature of norms, while at the same time stating that norms are socially constructed and not always understood the exact same way by different actors implementing them. Furthermore, “good” in this sense must be understood as a subjective, not objective or absolute, “good”. Hence, the everevolving nature of norms can change which valued behaviour is “good”. Stricter definitions of a norm would require that the norm itself exists only within its own relationship to socially constructed “oughtness”. As Wendt points out, the socially constructed value given to a specific behaviour not only impacts the behaviour but can also impact the strategic or materialistic motives.23 Furthermore, the constructivist value given to certain ideas is inextricably linked to materialistic considerations.24 Wendt argues that ideas and materials cannot be seen as two independent categories, with materials being given value through ideas and ideas, in turn, having true value through their connection with materials.25 His example of Marxism points

19

Winston (2016), p. 16; Winston (2018), pp. 640–641. Ibid. 21 Fehl and Rosert (2020), pp. 3–4. 22 Fearon (1999), p. 27. 23 Wendt (1999), p. 123. 24 Ibid. pp. 131–132. 25 Ibid. p. 135. 20

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Norms

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to an understanding of the “mode of production” being defined through collective understandings of the importance of materials.26 Thus, too strong a focus on the constructivist “oughtness” of the norm detracts from nuance of norms by hinting at a collectively defined “oughtness” based solely upon theoretical concepts. States, or other international actors, can certainly arrive at similar behaviours through different values, and realist and liberal rationalist understandings of themselves and their environment certainly impact their value-based decision-making. The “oughtness” of the norm is not only socially constructed, but also a self-reflective comparison as to whether the behaviour of the other falls into one’s own understanding of the norm.27 Importantly, Winston also highlights that this understanding of a norm is not linear. An actor is not always faced with a problem, considers its values, and then decides on a behaviour.28 Rather, the behaviour that an actor chooses, or was forced to choose, to address a problem may lead to the development of a value to accompany the behaviour.29 Furthermore, the same behaviour by two separate states may have different ideational motivations, just as two states with the same ideational motivations may adopt different behaviours. While this changes the norm in principle, it may not change how it appears from the outside. Rather, this will still be identified as the same norm from which it originated as long as the elements of the new norm fit within the accepted parameters accepted by the other actors that have adopted the norm and interact with the adopting actor.30 As an example, one can examine the political impact of the Enniskillen bombing. According to some sources, the Provisional Irish Republican Army was forced to re-examine its tactics due to both internal and external pressures following the bombing.31 They adopted new tactics aimed at reducing civilian casualties and focused also on democratic political development toward their goals. In addition to the behaviour, the value, and potentially the problem, also changed. Whereas a state or non-state actor may choose to adopt more stringent targeting procedures or more distinction-oriented tactics out of sense of legal obligation or because they want to avoid civilian casualties from the outset, the economic and political backlash of Enniskillen would have certainly weighed on the minds of the leadership of the Provisional Irish Republican Army. This, in turn, inherently changes the value in the norm, and thus the norm itself. Externally, one can only see a shift in the behaviour, and it is then up to other actors to identify whether this qualifies as an adoption of an existing norm. Given the research question being examined, it is not only the structure of a norm which is of interest, but also the consequences of the existence of norms. As

26

Ibid. pp. 135–136. Ibid. p. 137. 28 Winston (2018), p. 643. 29 Ibid. 30 Ibid. 31 BBC (2011); Dingley (2012), p. 253; Rusk (2007); Haverty (2018), p. 51. 27

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highlighted by Jurkovich, there remains significant debate as to the exact parameters of norms in both definition and implication.32 It is broadly accepted that norms have both “constitutive” and “constraint” functions.33 The constitutive function gives meaning to certain actions or ideas. Kratochwil uses the example of the phrase “I do” within a wedding ceremony—norms allowed for the phrase to contain meaning beyond their literal definition.34 Within international relations, this function is used, for example, to explain the idea of democratic peace. Kappen-Risse argues that shared understandings between democratic states could explain why democracies rarely go to war with one another but exhibit behaviours that are still warlike.35 The second of these functions constitute what is typically considered when examining norms, namely strict limitations on behaviours. Raymond adds an additional function to norms—namely an “enabling” function, that describes what is allowed.36 Through these functions, actors can both define actions and behaviours that are “correct” or “compliant” with the norm, as well as which actions and behaviours are in violation of the norm.37 An example would be the use or non-use of chemical weapons, which would follow the parameters of international law. In the case of this codified norm, the laws both establish a common understanding of what is meant by chemical weapons and then provide strict prescriptions on behaviour of what is barred from use and in what contexts certain actions are enabled to enforce these rules. Furthermore, they can assign meaning to objects, as is the case with the normative understanding of protected symbols in armed conflict. This example also provides a clear example of the norms before the codified law, as the symbol of a white flag was understood in its meaning before the codification of the norm. Varying theories on norms became increasingly common in the 1980s and 1990s, at a time where the debate amongst international relations scholars was focused on the theoretical frames of neo-realism and neo-liberalism. This can be seen in particular within the context of research on international organisation and international regimes,38 as seen with Krasner.39 By the mid-1990’s, social constructivism became more popular within international relations and the role of norms and norm theories were becoming more influential. Literature on the history of this specific section of the field,40 as well as contemporary commentaries,41 highlight how social

32

Jurkovich (2019), pp. 694–697. Björkdahl (2002), pp. 15–16; Kratochwil (1989), p. 7; Winston (2016), pp. 14–15; Winston (2018), p. 640. 34 Kratochwil (1989), p. 7. 35 Risse-Kappen (1995), pp. 503–504. 36 Raymond (1997), p. 214. 37 Winston (2016) touches on this aspect of norms quite well—as this more flexible and discursive reflective definition of compliance fits well in the norm cluster model. 38 Goertz and Diehl (1992), pp. 634–635. 39 Krasner (1982). 40 Björkdahl (2002), pp. 9–10; Winston (2016), pp. 13–14. 41 Checkel (1998), pp. 327–328. 33

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Norms

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constructivism came to bridge an apparent gap between epistemologically and ontologically differing schools within the discipline. Importantly, social constructivism was seen as offering explanations beyond the “usual suspects”42 and was emphasising the political weight attached to ideas and institutions. With the development of the study of norms came the development of nuanced theories to explain the role norms play in the international system. While the previous definitions portray norms in an isolated context in which a problem is addressed through a behaviour made in a value-based way, the importance of norms to the field of international relations stems from these norms being shared and adopted. In the international system, norms are both intentionally and unintentionally spread or diffused. Norm diffusion is a blanket term used to describe how norms spread; the study of norm diffusion includes a variety of theories and studies that point to different ways in which the norms are reinterpreted and reproduced. Older theories such as those from Keck and Sikkink,43 Finnemore and Sikkink,44 and Acharya45 all highlight the role of non-state actors in the diffusion process but portray diffusion as only being possible for states that decide whether to adopt or reject a norm, with variation amongst norms being explained through a greater number of individual norms being adoptable.46 While it does explain much of norm diffusion, this perspective is too rigid to allow for the flexibility and variation seen in some norms in the international system.47 Research showing that norms were both malleable and debateable led to a shift in thinking about diffusion. The definitions of norms have expanded over time from being well-defined rules to being more discursive. These evolving understandings has brought with it increasingly flexible theories on the mechanisms and patterns of norm diffusion, as will be discussed in the next section. To account for norm evolution and variation, as well as the contradictory “stable” and “flexible” nature of norms, Winston theorised that a single norm exists within norm clusters where a given number of values and behaviours could be adopted to address the same problem or a set of problems.48 These clusters can be as small or large as imaginable. The cluster theory allows for different behaviours to act in conjunction with the same value on the same problem as well as different values leading to the same behaviour. Likewise, the context may impact the relationship between values

42

Raymond (1997), p. 205. Keck and Sikkink (1999, pp. 1–38. 44 Finnemore and Sikkink (1998). 45 Acharya (2004), pp. 239–275. 46 As discussed in Winston (2018, p. 643) in the debate between fused and unfused norms. 47 This line of argument is influenced heavily by Winston (2016, 2018), as the view of this work is that the theory of norm clusters can help explain norm diffusion in non-state armed groups. 48 Winston (2016), p. 16; Winston (2018), pp. 640–641. 43

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and behaviours. What a value enables in one circumstance could be forbidden in another.49 In current practice in the international system, norms are most clearly “salient” in the form of international law and are only enforceable through the actions of the geopolitical actors that choose to support norm-compliant behaviour or punish violators. This is both the reality in geopolitical real-world contexts and important for the application of the social constructivist idea of norms in a realist and neo-realist world view. Democracy could be considered a norm, or along a more recent understanding, multiple convergent norms, in which democratic elections and individual rights are supported by states that promote similar behaviours and definitions in others. Thus, states or international organizations that base development funding on goals related to these norms, like election monitoring or legislative protections of individual freedoms, are supporting the spread of the norm. Likewise, sanctions against countries that do not allow for free elections would be punishment of a violation of this norm. While this is the most visible mechanism of diffusion, there are many others that will be discussed later. As highlighted by Kratochwil and Ruggie, norms in international relations clash with positivism as they are not causal and remain true despite even widespread counter examples.50 What this means is that one cannot argue that a norm has directly led to a behaviour; the norm can “guide”, “inspire”, “rationalize”, or “justify” a behaviour, but the behaviour is the decision of the actor that takes the norm into account.51 Thus, an actor can choose, in a specific circumstance, to ignore a norm and act against it, but this non-compliance does not mean that the actor no longer believes in the norm or does not intend to follow it in the future. In the example given by Kratochwil and Ruggie, even widespread prevalence of drunk driving does not mean that people, even those engaged in it, feel that it is a correct behaviour or will continue to do it in the future.52 Individuals in this case are certainly not compliant with the norm; however, the next time the choice arises, they may decide to follow the norm, especially if they have adopted and internalised the content of the norms itself.53 This aspect becomes important in the study of norms as one begins to examine how the norms spread. The idea of norm diffusion, which will be covered in the next section, is well researched and reported. However, these theories tend to examine the spread and adoption of norms as such, often exploring the impact on actual practice with some difficulty. This is one reason why a great number of researchers examine the spread of international laws and treaties: they are easily definable norms with an

49

The contexts of war and peace are prime examples of this many states which have abolished state sanctioned killing in the case of the death penalty would not limit themselves to less than lethal means of action within the context of an armed conflict. 50 Kratochwil and Ruggie (1986), pp. 764–765. 51 Ibid. p. 767. 52 Ibid. 53 Ibid.

2.2

Theories of Norm Diffusion

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easy indicator, namely ratification or enactment, for diffusion. Compliance is much harder to measure systematically. Likewise, Kratochwil and Ruggie argue compliance, or the lack thereof, is also not definitive for successful norm diffusion.54 Instead, the reality lies in the interplay. How are the norms spread? How are they adopted? How are they integrated into the society? How are they implemented? How are they complied with? Each one of these questions can lead to a more wholistic understanding of diffusion but still not to a complete picture of the intricacies of the diffusion of norms into a new society.

2.2

Theories of Norm Diffusion

International relations scholars are unable to put precise boundaries on the “nebulous” idea of norms,55 however there is a consensus on both their existence and their tendency to spread between countries. As mentioned above, this process is labelled as norm diffusion and has inspired a significant amount of scholarly work over the past three decades. These theories are used to explain, though not always causally, certain puzzles in the spread of norms. Showing that certain ideas, values, and behaviours are informed by this spread is possible,56 whereas measuring the extent to which these values and norms impact or change decision-making is nearly, if not completely, impossible. Theories of norm diffusion such as those from Keck and Sikkink,57 Finnemore and Sikkink,58 focused on the norm as a unit that could be either unitarily adopted or rejected. These binary models were important for the development of the idea of norm diffusion. Despite their importance for innovating understanding in this field, they were also seen as lacking in their ability to cover the nuances of norms in the international system. Thus, some researchers have focused on the tendency for neighbouring states, allied states, and states with similar political systems to adopt similar norms.59 While this does not explain how the norms diffuse, it does offer an explanation to some questions of diffusion and allows for predictions on diffusion to be made. One key theory from Finnemore and Sikkink, which has been utilized and expanded by researchers since its conception in the 1990s, is that of the norm life

54

Kratochwil and Ruggie (1986), p. 768. The commentary of Raymond (1997, p. 233) on this point highlights the variation in definition, understanding, and conceptualization of the idea of norms in international relations. 56 See Keck and Sikkink (1999), Finnemore and Sikkink (1998), and Acharya (2004) for some of the best-known examples of this. 57 Keck and Sikkink (1999)—which described the boomerang model. 12–3. 58 Finnemore and Sikkink (1998)—which described the norm life cycle and norm cascade. 895–6. 59 Examples of studies which argue this are: Simmons et al. (2018), pp. 249–281. Zhukov and Stewart (2013), pp. 271–287; Hyde (2011), pp. 356–369. 55

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cycle. In this diffusion concept, norms are created and then spread by “norm entrepreneurs”.60 The norm initially goes through an “emergence” phase, until it has enough support to reach a “tipping point”, which leads to a “cascade” of states adopting the norm.61 Over time, the norm is internalised by those that have adopted it, ensuring the continuation of its practice. This idea of norm entrepreneurs is essential to much of the literature on norms in international relations. In many views, international organisations and some states take on this entrepreneurship role by actively lobbying for the codification, adoption, or discussion of new norms. Keck and Sikkink underscore the role of NGOs in the diffusion of norms through the “boomerang model”.62 As put forth in this model, norm entrepreneurs not only have the capacity to push the diffusion of a norm to their own state, but also utilise their networks and the international community. It is theorised that the common language of norms allows the call for acceptance of a norm to be passed from NGOs in an unreceptive state to NGOs in a receptive state through geopolitical and transnational pressures to encourage the unreceptive state to observe the norms in question. This model highlights the interplay between state and non-state actors but seems to identify only a specific aspect of the diffusion of norms when a transnational network of norm entrepreneurs is available.63 Risse and Sikkink used a model of norm diffusion, which they labelled the “spiral model”, to examine the diffusion of human rights norms to repressive states in the final quarter of the twentieth century. This model focuses heavily on the socialisation of norms and highlights the discursive aspects of norms as being dependent on different interactions between actors. Here, there are states that help create the norms, which they already have integrated in their structures, and those that do not follow the international norms. Through the development of domestic and international pressures, and particularly the interaction between the two, the situation changes over times. The authors go on to identify their idea of “world time” to explain the uncontrolled factors particular to the cases examined, in which the surroundings of the state were changing with the rapid development of actors working on these norms and states changing to meet them.64 As will be discussed later, they correctly identify the impact of immediate neighbours on the process.65 Another theory of norm diffusion is “localisation”. Theorised by Acharya, this model also focuses on the socialisation of the norm, however not from the perspective of the norm entrepreneurs. Unlike previous researchers, Acharya underscored

60

Finnemore and Sikkink (1998), pp. 896–905. Ibid. pp. 901–904. 62 Keck and Sikkink (1999), pp. 12–13. 63 Ibid. 64 Risse and Sikkink (1999), pp. 19–21. 65 Ibid. p. 24—They correctly identify that capitalist, liberal Europe had already enshrined the human rights that would be diffused by the 1960s while South American countries would go through rapid increase in the proliferation of these norms later, while countries in East Asia and Africa were even later to adopt these norms. 61

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local agency to either fully or partially adopt or reject a norm.66 Through this theory, those adopting the norm do not always simply adopt it as is, but instead change it slightly to fit their local cultural and political context. Instead of norm diffusion being a one-way street in this context, local actors purposefully use foreign norms to their advantage, adopting those norms that will help them secure international or domestic legitimacy and consolidate power. In this way, localisation of norms is more successful when the new norm overlaps or supports existent regional norms with norms too divergent from existing practice at risk of never gaining traction politically or within a society.67 Furthermore, the localisation of the norms into specific contexts impacts general understandings of the norms and strengthens them in an international setting. The example cited by Acharya is the Responsibility to Protect, which was initially a Western norm that was strengthened through its diffusion and application in the global South.68 One could argue that recent attempts by the ICRC to show the universality of international humanitarian law reflect,69 or potentially undermine,70 this concept. There has been pushback on this idea from a number of different angles, whether from those arguing against the inherent euro-centrism of such a universality71 or from those that see expanding protections in international humanitarian law as threatening the ability of states to effectively carry out a conflict.72 Another theory from Zimmerman on the diffusion of norms follows in the tracks of localisation but still identifies a simplistic linear way of thinking about how norms are adopted. To better explain variance in how norms are adopted, enforced, and ingrained, Zimmerman highlights the need for a dichotomous understanding that, like Acharya’s, is neither polar nor unitary. She separates norm adoption into full rejection, partial adoption, and full adoption, as well as separating how it is adopted into becoming part of the discourse, adopting domestic legislation on the norm, and having the norm be accepted by the population. Thus, while a norm can be fully included in the discursive politics of a state, it may only be partially enshrined in domestic legislation, and be completely rejected by the population itself.73 The most nuanced and recent theory on norm diffusion comes from Winston and expands on previous ideas. Winston’s theory of norm clusters argues that what one often describes as a norm is really a cluster of different problem statements,

66

Acharya (2004), p. 254. Ibid. 68 Acharya (2013), pp. 472–478. 69 ICRC. Fundamentals of IHL: III. International Humanitarian Law and Cultural Relativism. 70 Scholarship on the universality of international humanitarian law can be seen both coming from different cultural spheres as well as from the ICRC itself, potentially undermining the local contestation referred to in Acharya (2004). 71 See Constantinides (2008), pp. 53–54; Ramcharan (1998), p. 428. 72 See Pede and Hayden (2021), pp. 12–16; Lappin (2021). 73 This topic and different piecemeal acceptances of norms through localisation are explore in Zimmermann (2014), pp. 102–105. 67

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behaviours, and ideational motivations that influence the behaviours. Similar to Acharya and Zimmerman, adoption is not a yes or no, but instead the same motivation can lead to slightly different behaviours amongst actors in the international system. In turn, the international community can decide which behaviours fall within the parameters of acceptable behaviour to fit within the norm cluster.74 Each of these theories is not mutually exclusive, but rather build upon one another to examine different aspects of norm diffusion in different circumstances. Norm cascades, as described by Finnemore and Sikkink, are observable patterns, while the norm itself may be changed slightly to fit a certain context, in such a way that other states agree that the behaviours are still in line with the intention of the norm.75 The theories need to be viewed in relation to one another to get the most nuanced understanding of norms and their spread. Beyond the theories of norm diffusion, there are clear mechanisms and strategies that influence the diffusion of norms. Most international relations scholars agree that the diffusion of norms is a highly discursive process in which debate, persuasion, awareness-raising, and lobbying play an important role.76 On both the domestic and international stage, norm entrepreneurs are identified as being heavily linked with this process. Scholars have typically divided diffusion mechanisms into coercion, competition, learning, and emulation.77 Coercion is the use of force or political power to adopt a norm. Gilardi cites several studies investigating international financial institutions, such as the International Monetary Fund (IMF) and World Bank, putting policy stipulations on the financial aid going to other states. Likewise, United States’ and subsequent United Nations’78 calls for Iraq to give up weapons of mass destruction or suffer military consequences in 2003 is another example of coercion. The aim is for one actor to force another to adopt and comply with a norm. As pointed out by Finnemore and Sikkink, most international organisations and non-governmental organisations (NGOs) are not able to coerce as a state might.79 They must instead rely on persuasion to get actors to follow norms.80 The second mechanism of diffusion, competition, is more focused on the agency of the actors on the receiving end of the diffusion. States competing for economic advantage have been observed to adopt certain policies or norms to gain advantages

74

Winston (2018), pp. 15–16; Winston (2016), p. 640. Finnemore and Sikkink (1998), p. 895. 76 This is reflected in Acharya (2004, 2013), Finnemore and Sikkink (1998), Keck and Sikkink (1999), Risse and Sikkink (1999), Winston (2016, 2018), Zimmerman (2014). 77 Gilardi (2012), pp. 13–25—His work is arguably more focused on policy diffusion than the diffusion of norms, however the mechanisms of diffusion are the same; Simmons et al. (2006), pp. 790–801; Talentino (2012), pp. 47–72. 78 The White House (2003); United Nations Security Council (2002). 79 Finnemore and Sikkink (1998), p. 900. 80 Ibid. 75

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over competing states.81 Beyond simply providing economic incentives, competing states can make themselves appear more “stable” or “appealing” to foreign partners. One aspect of this theory is Vogel’s “California Effect”, in which actors can also lead to norm adoption in states hoping to access their economic markets.82 This was seen in states adopting higher ecological standards in production to match green legislation in California. The third mechanism, learning, can be observed when actors and decision-makers “learn” from other actors what policies or norms work well. If a certain norm or policy has been adopted or implemented, then other states will learn what is good practice or poor practice and try to implement it. This overlaps in some ways with emulation, though emulation is seen more in context of constructivism, in which norms are constantly being “shaped and reshaped” by interactions between states. Thus, states learn and adopt norms based upon their interactions. This also explains why “like states” tend to adopt similar norms, as their interactions with each other and interests lead to sharing and shaping of understandings.83 Interestingly, Finnemore and Sikkink, possibly following more in the line of constructivism, view norm diffusion mechanisms as types of socialisation—namely emulation, praise, and ridicule. These three mechanisms align more closely with their model of norm entrepreneurs, which influence states into practice. Likewise, this fits with more traditional constructivist understandings in which norms are discursive and only formed through and continuously changed by the social understanding of the norms themselves.84 In turn, each of these mechanisms influence states through economy, politics, or culture, depending on the situation, the states, and the norms being transferred. As many studies look at norm adoption from the constructivist viewpoint, the discursive mechanism (such as learning, emulation, praise, and ridicule) are often the most discussed or considered, despite the fact that actors retain other norm-diffusion tools in their toolkit. While contested norms are less likely to be enforced through such means, significant violations of geopolitical norms often lead to economic or political sanctions. Russia’s incursion into Crimea,85 the Syrian regime’s repeated use of chemical weapons,86 and Gaddafi’s promises of destruction on retaking Benghazi,87 all garnered international reactions through political and economic actions.

81

Vogel (1995). Vogel (1997), pp. 561–562. Ibid. 83 Elkins and Simmons (2005), pp. 10–11. 84 Finnemore and Sikkink (1998), p. 902. 85 Which led to economic sanctions—One example can be seen here: The Council of the EU & The European Council (2021). 86 Which led to an enforce disarmament of Chemical weapons and mandatory ratification of the Chemical Weapons convention—this led to UN Security Council resolution 2118: United Nations Security Council (2013). 87 Which led to the authorization of the use of force through UN Security Council Resolution 1973: United Nations Security Council (2011) 82

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Likewise, learning, emulation, and competition, have also been linked to the diffusion amongst neighbouring and “like states”. Diffusion following along ideational or cultural paths to spread within a group of states has been a long-standing theory in norm diffusion. By principle, if a powerful democracy meets a new challenge with a behaviour, and another state has similar cultural, political, or religious values, it follows that the norm would be learned or emulated. Gilardi,88 Simmons, Dobbin, and Garrett,89 and Talentino90 argue that states that are revered and considered as successful will more likely be copied through emulation. Learning follows the same logic, especially when states that are influential in a certain region or with a regional network. Gheciu cites how the North Atlantic Treaty Organization (NATO) states used their militaries to “teach” democratic norms in Eastern Europe following the collapse of the Soviet Bloc.91 However, learning may also be limited in its diffusion mechanisms depending on the political structure and context of the adopting state.92 Most scholarly works examine the geographic or regional aspects of norm diffusion, but there are also pragmatic and practical perspectives that inform this discourse. Lloyd, Simmons, and Stewart found that the physical connectivity between two states is strongly influences adoption of new policies to combat human trafficking, given that the neighbouring state already had such policies in place. While they also examined different ideological factors that may have also have an impact, they found that the number of roads directly connecting two states influenced the diffusion of norms. They attributed this to the importance of road networks in human trafficking and the fear of increased trafficking in one’s own state if the direct neighbour has already enacted legislation. Thus, it almost replicates competition, in which the two states compete to avoid a disadvantage.93

2.3

International Law, International Humanitarian Law, and Norms

As mentioned earlier, international law is inextricably linked with international norms, so much that the two are, in certain contexts, interchangeable.94 However, while the two ideas are certainly related, they should not be confused with one another.95 Often, though not always, international law, both written and customary, 88

Gilardi (2012), pp. 17–25. Simmons et al. (2006), pp. 795–801. 90 Talentino (2012), pp. 51–52. 91 Gheciu (2005), pp. 979–982. 92 Checkel (1997), pp. 477–478. 93 Simmons et al. (2018), pp. 30–34. 94 Grünfeld (2011), pp. 4–5. 95 Ibid. 89

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reflects the existence of one or more norms that exist, or existed, in the international system. Here, a behaviour is seen as acceptable in its relation to a certain context, set of circumstances, and set of actors involved. Furthermore, both reflect a constructed expectation of behaviour across the international system, and both are unenforceable without the political will of states and international organisations willing to enforce it as both are voluntary and should be self-enforced. Yet, as noted by Jurkovich,96 the existence of a norm does not mean that the norm has been formally codified and entered into international law. Furthermore, the reverse is also true, there are situations in which international laws were created without a pre-existing norm of behaviour. Jurkovich’s example of this is the human right to food, which has not led programmes to fight poverty-induced malnutrition in even some industrialised nations despite its clear applicability.97 Here, the legal expectations have extended far beyond what states deem to be appropriate political action. A clearer example for international humanitarian law, the responsibility to protect, has yet to catch on in practice despite being oft discussed.98 In both cases, the disconnect appears in cases in which international law suggests a positivist intervention to ensure the rights. These legal mechanisms were established before such actions were reflected in the norms of states and have yet to catch on. There is an “oughtness” that pushes states toward respecting freedom of speech or democratic elections, though it is not assured and requires constant contestation and pressure by state and non-state actors to ensure its survival. This pressure to act has not extended to other aspects, despite their accepted inclusion in international law. In academic discussions on the topic, the differences between norms and international law are apparent, though rarely explicitly explored.99 Grünfeld attributes this not only to the gap between disciplines that often examine these subjects, but also in the methodological differences in how the subjects are examined.100 However, the interlinkages between the two are clear. From the specific questions, contexts, actors, and actions that are examined both topics are often, knowingly or unknowingly, examined together. However, norms and international law remain conceptually different and are not two sides of the same coin. In many cases, international law is one of the clearest ways to examine how the most well-defined international norms form and spread, often as compromises around values and power. Likewise, norms constitute an important element in the creation and diffusion of international law. For example, it is possible to place international laws into

96

Jurkovich (2019), p. 704. Ibid. pp. 704–705. 98 Genser (2018), p. 501. The external conditions which have led to successful implementation pointed to by Genser highlight that implementation of the responsibility to protect has not yet become a norm which can easily be implemented regardless of context. Similarly, Acharya (2013) highlights the contested nature of the Responsibility to Protect norm. 99 Grünfeld (2011), pp. 4–5. 100 Ibid. pp. 7–8. 97

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Winston’s model101 of norm structure mentioned above. The problem and behaviour are clear, while the value is the opinion juris, or sense of legal obligation, which is essential to the existence of a customary international law. In this sense, a norm could become customary law so long as the behaviour itself was also uniform across states. Whereas both the uniform behaviour and opinion juris are necessary for a customary law, neither are necessary for a norm, as a norm can be carried out of a sense of what is morally or politically sound, not just legally obligating. Whereas a law can stipulate that, given a certain scenario, one should do this or not do that, norms are seen by some as being understood as, “given a certain scenario, ‘good people’ do this”.102 Finnemore and Sikkink’s analysis on the life cycle of norms provides excellent insight into both international law and international norms.103 They argue that initial states adopting a norm will have a clear ideational foundation for what Winston would label as the value.104 A clear example in the spread of norms in the international system can be seen in the context of human rights. A significant number of rights included in the International Covenant on Civil and Political Rights (ICCPR) were long-standing practice in many countries around the world and were already subject to domestic law before their codification in international law. Thus, these countries became parties to the ICCPR out of a belief in the norms enshrined within the treaty. States that joined later may have done so because of domestic or international political pressure, material or reputational considerations, or changes in political leaders or systems.105 Similarly, different motivations amongst states led to the adoption of the same treaty, and thus commitment to uphold the same norms.106 There is a clear linkage between norms in the international order and international law. Because of this linkage, many international relations scholars refer to international law, and specifically international humanitarian law, to discuss norm diffusion.107 While it is accepted within international relations community that norms exist, observing and measuring them, particularly how they spread and become accepted, have proven difficult. International law provides some level of clarity; a scholar can observe the discourse surrounding a treaty, its history of ratification, and may get qualitative answers to why a certain state may not sign on or does not accept part of the norm. Furthermore, Zimmermann’s theory of norm diffusion even

101

Winston (2016), p. 16; Winston (2018), pp. 640–641. Finnemore and Sikkink (1998), p. 892. 103 Ibid. 104 Winston (2016), p. 16. 105 Risse and Sikkink (1999), pp. 21–22. 106 With several states offering reservations to the rights they see enshrined in the treaty. 107 Price (1998, pp. 613–644) and Winston (2016, pp. 16–17) both cite the case of the landmine ban as an example of norm diffusion. The example of the norm against the use of chemical weapons (Price 2019, pp. 37–52) as well as that on nuclear non-proliferation (Lantis and Wunderlich 2018, pp. 570–593; Fehl and Rosert 2020, p. 9) have been previously explored through the lens of norms. 102

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separates the legal adoption of norms into political and social acceptance.108 Thus, international law allows for the examination of a norm with a level of empirical clarity that is not possible when examining the more nebulous concept of a norm. However, international law is limited in its ability to explain variation in conflicts. The clarity of treaties and customary international humanitarian law captures the norms of armed conflict on an official level. However, even states reinterpret the legal norms to a specific situation, changing their practice within a general understanding of the same norm.109 Non-state armed groups can be even more difficult to understand, as most are not recognised in an official political capacity by the international community. Furthermore, these groups cannot consent to be governed by international law by signing on to legal documents that would apply to their conduct in warfare. These examples point to the importance of understanding the difference between geopolitical norms and international law. A norm can exist parallel to the law in that a norm can be adopted by an entity that is not subject to an international law.110 Thus, while an international law may not apply to a non-state armed group, the non-state armed group may choose to adopt the norm. In international law, even in cases where a norm or law would apply to an actor, the actor may choose not to follow it. The enforcement of both the law and the norm in this sense is dependent upon the international community. The important difference in this case is that, while international law applies to states that consent to its application, norm compliant behaviour can be expected and enforced even in cases where consent is not given. Previous research on the more normative aspects of armed conflict considers both contemporary and historical examples of norm failure within the international system.111 These findings on what is known as the “war convention”, or the normative constructs running parallel to both jus ad bellum and jus in bello, shows the balance between politically agreed upon norms and what is often excused as “military necessity”—namely, that in particular situations both formal and informal norms are violated because the particular military circumstances “required”, or at least excused, the action.112

2.4

Norms in Warfare Versus Humanitarian Laws

Since its emergence in the late nineteenth century, international humanitarian law has, if anything, expanded upon its foundations. Protections have increased over time, but at the same time, protections that may no longer be relevant remain

108

Zimmermann (2014), p. 103. Di Lellio and Castano (2015), pp. 1278–1279. 110 Grünfeld (2011), pp. 4–5. 111 Raymond (1997), p. 208. 112 Ibid. 109

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valid.113 For instance, the emergence of the idea of direct participation in hostilities has expanded and clarified protections from targeting those on the periphery of combat. This general increase in the scope and scale of protections in international humanitarian law should be seen as a reflection upon the differences in international law and norms. In particular, this idea highlights the relatively recent arrival of international humanitarian law to governing armed conflict and the relatively limited changes to war that have occurred since the emergences of this subset of international law. Traditionally speaking, it is defining who is taking part in hostilities and who can be targeted that highlight the balance between military necessity and humanity that is done through international humanitarian law.114 Yet, this presupposes that the value at the basis of this norm is humanity, and other valuations do not factor into these protections. In contrast and when viewed with greater historical perspective, norms of warfare change over time. One clear example are temporal norms that historically limited the conduct of warfare. In both classical Greece and republican Rome, norms existed in a campaigning season in which warfare was conducted.115 Greece included protected holidays, during which warfare, at least inter-Greek warfare, was unacceptable.116 In medieval Europe, some argued for the limitation of warfare for religious reasons to 3 days of the week.117 While both cases include emerging norms on the timing of the conduct of hostilities, only the ancient world saw normative temporal limits actually having an impact on warfare. However, these norms eventually disappeared for both the Romans and the Greeks, and never re-emerged in the conduct of warfare except for specific incidents.118 Another historical example is the practice of allowing prisoners of war to be released with their promise that they will not take part in hostilities.119 This practice has deep historical roots with the earliest instances observed in the ancient Mediterranean. The practice was continued in medieval Europe; noblemen were paroled in

113 Most of modern international humanitarian law applies to inter-state conflict, which has almost completely disappeared since the codification of modern international humanitarian law in the postWorld War Two era. While older treaties on the law of armed conflicts could be plagued by being dated, modern international humanitarian law is vague enough to avoid this problem. One example is the ban on Dum-Dum bullets from the late nineteenth century which has been carried over into the broader ban on weapons causing superfluous injury. 114 Melzer (2010), p. 833. 115 Oakley (1993), p. 10; Ober (1994), p. 13. 116 Lanni (2008), p. 477; Ober (1994), p. 13—These included specific holidays and the Olympics. There are also examples of city-states attempting to exploit this temporal norm, by unilaterally declaring holidays and expecting them to be respected, which they were not. 117 Stacey (1994), p. 47. Monday morning through Thursday evening. 118 The most well-known is the Christmas truce along the Western Front in 1914—though such examples do not represent a norm. 119 The parole can be ended in some circumstances upon “exchange” of prisoners—though the paroled prisoners or not physically exchanged.

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order to return to their estates to gather money to pay their own ransoms.120 Parole became common practice in nineteenth century warfare and was particularly popular in the American Civil War, where the Confederate states paroled entire units of captured Union soldiers due to lack of resources to keep them in the prisons and as a way to cause more logistical issues for their enemy.121 There were cases of parole in both World Wars, but the practice has largely disappeared, particularly with the proliferation of non-international armed conflicts. Despite being included in the Geneva Convention (III) relative to the Treatment of Prisoners of War,122 this norm is no longer seen as “correct” behaviour from political and military actors. A more controversial decay of norms in armed conflict has come through the development of technology. Targeted killings and assassinations have been considered a taboo in warfare for centuries.123 However, the advent and proliferation of armed unmanned aerial vehicles (drones) have led to a re-contestation of this norm to make it more acceptable. This practice remains problematic as targeted killings are often executed away from the battlefield where there is no direct participation in hostilities, making this conduct questionable. However, targeted killing can also be justified for its potential for enhancing compliance with the principals of distinction and proportionality.124 This examination of the historical development of norms attached to behaviour in armed conflict will be addressed in more detail in Chap. 4. However, it is important to note two aspects of these norms in connection to an examination the theory behind norms and its relationship to international law. Firstly, these norms change more significantly than international law. Secondly and as discussed earlier, norms are inextricably linked not only to a theoretical, collectively defined sense of “oughtness” but rather one heavily impacted by self-awareness and materialistic considerations.125 Advances in weapons and tactics and strategic considerations have played as much a role in the definition of what “ought” to be done in war as altruistic motivations.126 The root of the judgements as to the appropriateness of behaviour is thus both defined by what others do and what others could do. Contemporary to the writing of this paper, there exist several examples of the debates relating to the development of new norms and new international humanitarian law: a push to have environmental protections more explicitly 120

Keen (1984), p. 175; Liivoja (2012), pp. 78–79; Stacey (1994), p. 37. Pickenpaugh (2013), pp. 64–65. 122 Convention (III) relative to the Treatment of Prisoners of War (1949). 123 Liivoja (2012), p. 88; Neff (2005), p. 113. 124 Di Lellio and Castano (2015, pp. 1283–1284) highlights that while the arguments are made using these principles as supporting principale, practice may greatly differ, with considerable loss of civilian life through extended campaigns of targeted killing, in which statistics on those killed are not readily available. 125 Wendt (1999), p. 93. 126 As will be seen in Chap. 5. One example that will be seen it that, while the introduction of gunpowder weapons to the battlefield may not have changed written rules of warfare, it certainly changed what actors felt they “ought” to do in waging war. 121

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enshrined into international humanitarian law and a growing concern over the use of explosive weapons in urban settings. These emerging norms are the focus of discussion with regard to particular aspects becoming supplements or amendments to the cannon of international humanitarian law. However, these “proposed norms” can also be linked back to the principles of international humanitarian law as extensions of the ideas of distinction, necessity, proportionality, and humanity. Another example worthy of examination, which may illustrate a non-legal norm in armed conflict: the general prohibition of women from combat roles.127 This is not a legal prohibition, nor is it total. However, it is general practice and most states and armed groups have internalized this norm.128 One emerging norm in international humanitarian law is the protection of the environment in conflicts129 and situations of occupation.130 As discussed by Dinstein, customary international law was lacking protections for the environment in international humanitarian law.131 Current international humanitarian law does protect the environment, but allows for too much flexibility, in the eyes of scholars like Dinstein and Pantazopoulos,132 as “military necessity” is often used as justification to ignore these protections. Given the growing political concern over the environment and climate change in general, the lack of protection for the environment in armed conflicts has re-emerged recently as an important political norm and the subject of potential for new laws.133 Pretorius argues that other bodies of law could be used to extend protections to the environment and cover this existing gap.134 Despite efforts in the wake of the Gulf War to create a “5th Geneva Convention” regarding the environment,135 the idea was quickly dismissed. However, the norm has become more important in recent years, with the International Law Commission meeting to establish new interpretations of existing law along this matter.136 With an active movement to fill this noticeable gap in the laws of armed conflict, some states have decided to adopt and promote the norms toward the environment.137 These norm entrepreneurs, along with NGOs such as the ICRC, Conflict and Environment Observatory, and the 127

Percy (2019), pp. 123–138. Ibid. 129 Pantazopoulos (2019). 130 Conflict and Environment Observatory, and Al-Haq (2018). 131 Dinstein (2001), p. 535. 132 Ibid.; Pantazopoulos (2019). 133 The ICRC had made recommendations on international humanitarian law to protect the environment year before this issue came to the International Law Commission. See Gasser (1996), pp. 230–37. 134 Pretorius (2019), p. 928; Also see: Weir (2015a). 135 Weir (2015b). 136 Pantazopoulos (2019); Weir (2015b). 137 Weir (2015a) highlights the involvement of Nordic countries in building the dialogue around the issues of protecting the environment in situations of armed conflict while Daft (Daft, 2016) highlights the work of the Australian military on this front. 128

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Toxic Remnants of War Project, are promoting broader acceptance of environmental protection norms. Their focus has not been on new codification, but a re-interpretation of existing law and the adoption and practice of norm-following behaviour. Another emerging norm in armed conflict revolves around the use of explosive weapons in urban areas. Here, as with the norm of environmental protection in armed conflict, existing humanitarian law partially covers this issue, but not to the extent that many would wish. The language of military necessity does allow some room for using explosive weapons in urban areas and current practice in armed conflict certainly reflects this.138 The particular issue of this class of weapons and their use in urban contexts has been approached by a number of potential norm entrepreneurs including the ICRC,139 UN OCHA,140 and the International Network on Explosive Weapons (INEW).141 Experts have highlighted issues that are often not considered in initial target assessments, such as damage caused to service systems.142 Thus, the emerging debate on this matter, like that on the protection of the environment in armed conflict, shows less emphasis on new laws but rather a focus on the expansion of applicability of existing principals and the reprioritisation of a part of an existing concept. This goes along with a geopolitical push prioritising this as well.143 As stated earlier, the norms related to the protection of the environment and the limitation of weapons in certain contexts have practical links to other aspects of the laws of armed conflict. However, they are still-developing norms in that their practice is neither yet widespread or accepted, nor is there specific codification pertaining to these issues. The prohibition of women in combat presents a more concrete example of a norm in warfare, one that has been repeatedly violated in different contexts and, while it is beginning to disappear due to contestation on both the political and legal front, it is still widespread. Arguments to continue this norm often focus on pseudo-scientific arguments related to unit cohesion and physical strength. Yet, there are countless examples that contradict these arguments. Percy cites the Soviet Union during the Second World War as an example, but alludes, though briefly, to the more widespread use of women in combat roles in non-state armed groups.144 Percy’s general argument is that the norm of women in combat, whether the norm excluding women in combat or the emerging norm of inclusion, is dependent predominately on the society of the armed group. Societies that emphasise their ideational commitment to women’s rights and gender equality are more likely to support the latter emerging norm, as seen in the Soviet Union during the Second

138

ICRC (2015), pp. 33–35. Ibid. 140 UNOCHA (2018); UNOCHA and Geneva Call (2018). 141 INEW (2019). 142 Zeitoun and Talhami (2016), pp. 58–63. 143 Ibid.; INEW (2019). 144 Percy (2019), pp. 124–1245. 139

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World War. At the same time, this is also dependent upon the situation in which the state and society are in, as the norm re-emerged in the Soviet Union after the war ended.145 The inclusion of women in combat roles by non-state armed groups may be more widespread than in national militaries, but it is certainly not uniform to any region or even any conflict.146 To extend Percy’s argument, it is thus important to examine the constituency represented by the non-state armed group. This is an aspect that seems to be missing from much of the literature on norms of international humanitarian law as well as non-state armed groups. While there are considerations given to the role of the constituency in affecting the political legitimacy vis a vis the respect of humanitarian norms and limiting warfare, research on norm diffusion to non-state armed groups is focused on the work of norm entrepreneurs with the groups directly.147 One can find examples of the divergence of international law and international norms, namely, norms that have existed and disappeared as well as emerging norms that are gaining traction. Previous emerging norms include that against the use of anti-personnel landmines, while current emerging norms include those like the protection of the environment148 or for prohibiting the use of explosives in urban areas.149 Historical norms that have lost their relevance include that for allowing for the parole prisoners-of-war. These examples show the different converging and diverging trajectories that international norms and international law can have to better illustrate the differentiation between international humanitarian law and the norms of armed conflict. Too often in international relations literature, the two are obfuscated through their equivocation. This indicates, however, that norms spread and are implemented differently than international law. Differentiating these allows one to both understand that, regarding practice in international humanitarian law, norm diffusion, not just legal compliance, is an important element tool for protection, especially with regard to instances in which international law is only partially applicable. Understanding that non-state armed group may create their own limits to warfare, that may wholly reflect the applicable international humanitarian law, and being able to engage with them within this realm can allow for more flexible protection. Thus, there is a clear importance to understanding how non-state armed groups define their own norms of warfare and what these norms look like precisely.

145

Ibid. Referred to by Percy (2019, pp. 134–135). Also seen in Hills and MacKenzie (2017), pp. 455–457; Tarnaala (2016), p. 1. 147 Examples include Bruderlein (2000); Grävingholt et al. (2007); Hofmann (2012). 148 Pantazopoulos (2019); Weir (2015a). 149 UNOCHA (2018); UNOCHA and Geneva Call (2018). 146

2.5

2.5

Norms of Armed Conflict

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Norms of Armed Conflict

As discussed in the last section, there are clear linkages between international humanitarian law and norms in terms of the practice and commitment to behaviours in armed conflict. It should be noted that there has been limited research into norms of humanitarian law, most notably in the 2018 report from the ICRC, “The Roots of Restraint in War”.150 This comprehensive report aimed to identify how cultural practices inform the practices and rules of non-state armed groups. However, the report does not clearly define what the authors label as “formal and informal norms”.151 Furthermore, the report examines many aspects of how these norms restrain behaviour on a group as well as an individual level. While the findings of this study are crucial and have even had impacts on the way that the ICRC works, there are still gaps in the literature in relation to a more in-depth exploration of this topic within the theoretical context of norm diffusion, particularly on the group level. In addition, an article from Oliver Kaplan further examined the norms of armed conflict within the context of norms in international relations but limits its scope to two specific examples: Syria and Colombia. Furthermore, the article chiefly examines the “nudging” effects which civilian populations have on armed groups.152 With this in mind, there is room to expand this research to further contexts and to include a broader examination of norms and norm diffusion mechanisms. The existent literature on this particular aspect of the field is still emerging, but often does not go beyond the horizons of what can be understood within the context of international humanitarian law. As seen in the theories of norm diffusion discussed earlier in this chapter, unlike the static nature of international law, norms are contested, formed, evangelised (for lack of a better term), and evolve through their interaction with different actors. But these studies do little to examine the role of non-state armed groups in forming their own norms. Yet, it is exactly this idea that is so important to deepen our understanding of the relationship between armed groups and norms of or related to armed conflict. Perhaps the most comprehensive study of the subject undertaken thus far is from Hyeran Jo in her book “Compliant Rebels”.153 She as well touches on international humanitarian law through the lens of international relations norms with a special focus on non-state armed groups to develop a theory on rebel compliance. One of Jo’s core arguments is that non-state armed groups use compliance with norms of armed conflict strategically in relation to their own valuation of legitimacy.154 The book still focuses on codified international humanitarian law as the chief normative framework and uses the theory to examine compliance with norms rather than the interaction between armed groups and norms themselves. Likewise, it takes quite a 150

International Committee of the Red Cross (2018). Ibid. 152 See Kaplan (2013), pp. 1–18. 153 Jo (2015). 154 Ibid. p. 258. 151

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materialist stance on the relationship between norms and strategic power, rather than a more constructivist stance which would take grater consideration of the ideational commitments to such norms. The arguments themselves, however, are quite convincing and hint at the need for both an understanding of material and ideational motivations behind norm acceptance and later compliance. This could be done by using the norm cluster model, as Winston’s “ideation” does not necessarily need to be purely ideational and abstract. As discussed in the previous sections, power and resource considerations can play into an ideational prioritisation. Where non-state armed groups cite the principals like the need to distinguish between civilians and fighters or as sense of legal obligation, these would represent more abstract ideations. In contrast to this, cases where non-state armed groups limit behaviour due to their material consequences which may be placed on the group or due to a need to consider the economy of force, these would be examples of materially based ideations, less rooted in abstract principles. The differentiation between these two types of ideations as well as concrete examples of these will be further explored in Chaps. 3, 6, and 7. While non-state armed groups cannot create or influence international law, there is an active debate as to a potential role they have in contributing the creation of international humanitarian law, particularly customary international humanitarian law.155 While this does not necessarily impact how armed groups adopt such norms, it does have implications for the relationship between armed groups and international humanitarian law. It is potentially more important to recognize the norms that armed groups adopt and assimilate so one can understand what norms they may espouse in further norm and law creation. The goal here is not to debate the role of non-state armed groups in the formation of international humanitarian law, but rather to examine more in-depth the already existing norms that interact with these groups. Such a debate calls into question many aspects of international law that are core tenants of the field. International law is voluntary and, for the most part, state bind themselves to the rules they wish to bound to. There is no room within this field for non-state actors, such as non-state armed groups, to bind themselves to such laws. However, non-state armed groups still can choose to follow certain rules outside of this framework of international law. The examination and mapping of these rules is the goal of the entire study. Namely to examine the armed conflict norm cluster as defined by non-state armed groups. The research question is “What are the norms of armed conflict as identified by non-state armed groups?”. With an overview of what is meant by norms in international relations and how these relate to international humanitarian law, the next chapter will focus on how precisely the research question will be answers, by introducing the methodology and empirical aspects of this study.

155

See Rondeau (2011), pp. 649–72; Roberts and Sivakumaran (2012), pp. 1081–1152.

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Chapter 3

Method

In the previous chapter, a theoretical argument has been built indicating the importance of norms and the idea of norm diffusion in non-international armed conflicts. More specifically, theories of norms and their diffusion were examined to show the relationship between international law, particularly international humanitarian law, and the norms that parallel these laws. As highlighted in Chap. 2, the methodology of many studies on norms and their diffusion focuses on the spread of ideas, traceable through legislation, action networks, and political movements. Often, this is done with the use of case studies. Keck and Sikkink’s boomerang theory1 stemmed from experiences and research on the role of NGOs in the human rights movement in South America and Archaya’s localisation theory2 came from case studies on regional security and human rights in Southeast Asia. In these examples, case studies have been used to understand the process of diffusion to a greater extent, examining not only the actors and the ideas but how the ideas spread, a methodological tool argued for by Kratochwil.3 In these instances, further examination of the process of diffusion can help build theoretical models but are uniquely linked to specific contexts in which they take place. The boomerang model was only possible due to international NGO networks which do not exist in all circumstances while the challenges for localising took on features specific to Southeast Asia. In the case of norm clusters, Winston built the theory with a group of norms connected to transitional justice but examined these norms in a number of different contexts.4 The use of this model can help showing the interconnectivity of norms and

Supplementary Information The online version contains supplementary material available at https://doi.org/10.1007/978-3-031-45914-6_3. 1

Keck and Sikkink (1999). Acharya (2004). 3 Kratochwil (1989), pp. 43–44. 4 Winston (2016). 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 W. J. Wright, Norm Clusters of Non-State Armed Groups, https://doi.org/10.1007/978-3-031-45914-6_3

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their spread, while not engaging with as in-depth a study of the exact processes of diffusion. Given that non-state armed groups are quite unique to their context, examining one specific case would greatly detract from the generalisability of the findings. Instead, the goal is to examine a large swathe of non-state armed groups, examining their norms, the context in which they exist, and what factors influence them, to best understand the relationship between these groups and geopolitical norms of armed conflict. Simultaneously, it is impossible to know a precise number of armed groups active around the world at any point in time, let alone access quality information on all groups. Thus, with the goal of undertaking a qualitative study on as many groups as possible, there is a need to find a compromise which allows for data collection of verifiable and quality data from as large a number of armed groups as possible. The data selection and collection process is explored in further detail in section one of this chapter. With this in mind, the question then becomes the scope at which to examine non-state armed groups. Operating on the understanding that norms are value-based behavioural prescriptions, there are a few different scales at which one could examine norms and their roles in non-state armed groups. This first of these would be to focus on the behaviour of the armed groups and their combatants. However, quantifying behaviour, particularly across entire armed conflicts involving thousands of individuals is nearly impossible. In a previous work, I attempted to quantitatively examine aspects of one particular conflict, namely, the so-called “Troubles” in Northern Ireland. While the CAIN5 database gives information on those killed in the conflict, by which group and means they were killed and the context, it does not give information on those wounded in the conflict or attacks that may not have caused casualties but caused damage to infrastructure or businesses, a common occurrence during the conflict. Furthermore, the context of the “Troubles” is exceptional in both its scope and the degree to which the conflict could be observed and recorded in the media. To try to make such an examination across multiple armed conflicts, many with more casualties and less data, would be impossible. Building of this previous study, it was also clear that many civilian casualties were unintentional and do not reflect the norms espoused by the armed groups involved. This was already indicated in Chap. 2 when referring to the example of the drunk driver in a society in which drunk driving is both outlawed and frowned upon underscores this fact. In armed conflict, acts carried out by US soldiers at My Lai or in Kandahar could hardly be equated with actions compliant with norms accepted by the US. Thus, there is a need to understand both the intent and the behaviours independently of one another. Despite the challenges highlighted above in attempting to systematically study behaviour in armed conflict, the impact that these behaviours has on millions of people around the world each year points to a need to still attempt to better understand different aspects of these groups and their actions. Norms open up a novel and achievable avenue to do exactly this. As political actors, the indications of

5

Sutton M. Sutton Index of Deaths.

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Method

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non-state armed groups as to what behaviours they deem as appropriate or inappropriate reflect what limits they place view as should being placed on warfare, even if they do not always follow this. Previous research on codes of conduct of armed groups even points to a relationship between identified norms intentions to implement certain behaviours.6 To better explore these, one could look either at the ideational motivations at a group or at an individual level. For the latter of these, studies7 focused foremost on the opinions and actions of the individual combatants present their own challenges. The arguments for examining the groups as political units produced are threefold. Primarily, examining armed groups as political actors allows for the utilisation of international relations norm research highlighted in Chap. 2, which in turn mirrors international law instead of examining how it is understood and accepted on a personal level. While individuals have responsibilities under international law, there is little interaction between individuals and international law. Such interactions can be observed at the level of polities. Beyond this, as reflected in the documents examined in this study, norms are clearly communicated within armed groups. Many armed groups focus on instilling a sense of discipline in their troops, meaning that the commands circulated to and implemented by a group are more reflective of strategic and operational level normative considerations, rather than tactical considerations. While command control is often considered problematic for many armed groups,8 attempts to instil order and discipline with the ranks of armed groups mean that norms espoused at a leadership level are similar to examining the treaties signed by states which are then implemented by armed forces.9 Furthermore, there are clear challenges to trying to examine this topic on a personal level. Interviews or surveys of current combatants would both be difficult, if not impossible, to carry out and would likely yield results which are not reflective of reality.10 As seen later in the study, armed groups as a whole often deny actions they know will be criticized internationally, even if it reflects the reality of the battlefield. Individual soldiers would likely be influenced both by the norms of their groups as well as what they believe to be “correct” internationally. Given these different aspects and challenges, it was clear that to best understand the interaction between international law and armed groups, particularly focusing on how armed groups have view their own responsibilities in armed conflict, norms would need to be examined on the group level.

6

See Bangerter (2011, 2012). One such examples is Muñoz-Rojas and Frésard (2004), pp. 189–206. 8 Grävingholt et al. (2007); Bruderlein (2000, p. 8) highlights the need for a “minimum control” for effective engagement in limiting armed action. 9 State militaries are also not innocent in violating norms espouse by the states themselves, as evidenced in the recruitment of child soldiers (United Nations 2021) or use of landmines (International Campaign to Ban Landmines – Cluster Munition Coalition 2021). However, it could hardly be argued that these states define this norm deviant behaviour as appropriate. 10 Challenges reflected in conducting research in armed conflict, even among those affected by and not involved in armed conflict is highlighted in Kamel (2017). 7

44

3.1

3

Method

Data Collection: Codes of Conduct, Orders, and Public Communications

The last section’s discussions lead to the conclusion that the only viable scope of research is that of group-wide norm interaction. This is reflective of other norm research that examines the diffusion and contestation of norms through the official documents of a state or another actor. Non-state armed groups have been shown to have the complexity to both define their own norms of behaviour and contest those at an official and geopolitical level. In many cases, non-state armed groups define these norms in an official way that is both recorded and shared11 in the form of codes of conduct, orders, commands, or communication. In codes of conduct, which are at times instilled in a group from its formation, the values and numerous behaviours are spelled out in a way to differentiate the group from others in the same conflict and show the principled nature of the group and its leaders. Some of the other categories of documents are more likely to be focused on a specific issue and may not necessarily be as explicit in espousing a value-based behaviour that should be implemented by the armed group. Some argue, through citing specific examples, that such statements made by non-state armed groups, do not reflect a commitment to the actual idea reflected in the statements but rather show a political calculation of using such a principled stance as a public relations tactic.12 As discussed by Bangerter,13 these counter examples, while both problematic and credible, present an anecdotal exception to rule. For the most part, non-state armed groups adopt such norms not only nominally but rather practically with an eye towards implementation. Importantly, as highlighted by Bangerter,14 the considerations that lead to this commitment may not be altruistic or humanitarian. However, as seen throughout history, this was not the case in many such normative systems. As noted in the research of Bangerter, codes of conduct and other official documents give crucial insight into the central organisational level of non-state armed groups.15 This insight is neither complete in describing the behavioural norms that affect non-state armed group behaviour nor does it allow for a comprehensive understanding of the ideational elements of such a norm cluster. It does however allow for the analysis of those norms to which a non-state armed group attaches themselves in an official way, representing the norms that are either most important to the group itself or, at least, are judged to be the most important to communicate to the outside world. It has been observed that codes of conduct are often aspirational documents outlining what an ideal behaviour for the armed group 11

While a number of the documents examined were translated by the organisation, some were published in English in such a way as to portray the armed group in a positive light to others. 12 Bangerter (2011), pp. 355–356; Bangerter (2012), p. 15. 13 Bangerter (2012), p. 127. 14 Bangerter (2011), p. 379; Bangerter (2012), pp. 1–2. 15 Bangerter (2011), p. 357; Bangerter (2012), pp. 23–25.

3.1

Data Collection: Codes of Conduct, Orders, and Public Communications

45

would be.16 The vagueness of such documents and the necessity that they cover a broad swathe of issues makes them important in a foundational sense, while communications and orders are often more specific and practice oriented. In the study of norms in states, support for a norm on a global scale that is not backed up by national legislation could likewise be seen as aspirational. Thus, a mix of documents is necessary to ensure the most comprehensive possible understandings of the situation of norms amongst armed groups. One of the most difficult aspects in researching non-state armed groups, whether in field research or in document research, is the reliability of data. As discussed earlier, direct contact with a large number of armed groups is difficult from both a logistical and ethical perspective, dangerous, and unreliable. Likewise, in several circumstances, like those described by the McQuinn in Libya in which armed groups are heavily splintered,17 the somewhat nebulous and informal institutions existent in armed groups needs to be taken into account. Determining who speaks on behalf of an armed group can be difficult to clarify even in the most official circumstances. Reflecting on peace negotiations connected to armed conflicts in Northern Ireland and Colombia underscore difficulties associated with determining the official voice of an armed group. In the former, the eventual peace agreement was signed not by the armed groups, but rather by political parties associated with the armed groups that agreed to “use influence” to push for disarmament and demobilisation.18 While it was implicit that these political parties spoke on behalf of the groups, the illegality of such groups made an individual signing on their behalf quite problematic. In the latter conflict, even when representatives of FARC-EP were involved in peace negotiations in an official capacity, some fighters chose not to follow suit and either joined other armed groups or continued their existence as armed dissidents.19 Furthermore, in the age of the internet, it is easy for supporters to claim that they are speaking on behalf of the armed group. By searching for the term “YPJ” on twitter, a quick search reveals multiple accounts claiming to be the “official” account of the armed group. This is also true when searching for “Free Syrian Army”, “Ansar Allah”, or “FARC-EP”. Social media platforms, likely out of legal and ethical concerns, do not legitimise the armed groups by “confirming” the accounts. Thus, it is problematic to locate documents that reliably reflect a verifiable position from an armed group. And by extension, selecting a sample from a body of such documents becomes even more difficult. Along these lines, a priority was given to identify a body of reliable documents which could be used. The TheirWords20 database from Geneva Call is an open access database with 574 documents from 243 armed groups. The database includes different types of documents and, more importantly for this study, reflects a body of documents collected by an

16

Bangerter (2011), p. 355; Bangerter (2012), pp. 2–3. As seen through the report McQuinn (2012); Nikolic et al. (2020). 18 The Belfast Agreement (1998). 19 Insight Crime (2020). 20 Geneva Call. Their Words: the Directory of Armed Non-State Actor Humanitarian Commitments. 17

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organisation working with armed groups that is positioned to verify the source of many of the documents. The database serves as a reliable source for official documents from non-state armed groups. The database includes documents from groups whose activity stopped decades before Geneva Call was founded, to modern armed groups that have no working relationship with Geneva Call, to currently active and inactive armed groups that work with Geneva Call. There are a number of challenges to data collection and sampling that had to be considered. Due to the limited number of documents that could be considered both reliable and accessible, convenience sampling was used. All of the documents on the TheirWords database were examined and all documents were omitted if they were not originally in English or had been previously translated by Geneva Call. While this limited the number of documents which could be examined, it ensured that the content and language was uniform to allow for better comparability. Next, the documents from armed groups which only included “deeds of commitment” were omitted. This was done because the goal of the study was not only to examine what norms armed groups agreed to, but also what norms they themselves constructed and espoused. “Deeds of commitment” from groups which had also authored other documents in the database themselves were not excluded, as the document sets included both self-authored and externally drafted documents. After the omission of this second group of documents, there remained a total of 358 documents from 87 armed groups,21 which were examined for this study. This data was collected in May of 2020 and reflect the available documents meeting this description on the TheirWords database on June 1st, 2020. As the number 87 includes several umbrella groups or coalitions under a single name, the effective number of armed groups to be used moving forward was 82 separate armed groups for examination. In the case of the Free Syrian Army, some documents were signed at a central level while others were signed by specific entities within the coalition, though all of these were deeds of commitment. These individual brigades and battalions were considered unique signatories independent of documents signed by the Free Syrian Army as a whole. Furthermore, documents and agreements were often signed in the name of political parties despite being intended for implementation by the armed wings of these bodies or subservient armed groups. Examples of these instances include documents signed by the Sudanese Revolutionary Front, the National Democratic Front of the Philippines, and the Serbian Democratic Party. The signatories or issuers were always coded and recorded as signed, however, the signatory and its relation to a group involved in the armed conflict as well as further information can be found in Annex 1, which details all of the groups examined and gives further information on the group.

21 In this count, a small number of documents are double counted as they are single documents signed by multiple actors and, therefore, apply as a document for each of those actors.

3.2

Methodology

47

Both the Uppsala Conflict Data Program22 and the Dangerous Companions Project23 were used as further academic databases to give supplementary information for the data collection. The Uppsala Conflict Data Program represents one of the best recognised trackers of conflicts after the Second World War. Their annual reports as to the number of armed conflicts and actors involved in them are widely cited within the research community examining armed conflict.24 While not as well known, the Dangerous Companions Project is specifically focused on tracking the state sponsors of non-state armed groups, with measures of different types of support. In almost all cases, these databases included the same information, particularly on the geographical and temporal aspects of the armed conflict. In any cases where there was dissonance between the databases, further research was undertaken and is indicated. These databases also allowed for preliminary analysis as to the scope of the conflicts in which the different armed groups were involved and their support networks. Other details taken from these databases were used to categorise the armed groups, such as ideology, goals, and their years active. This allowed for cross-sectional analysis aimed at looking at different categorisations of groups to explain norm diffusion. The data regarding this information is included in Annex 1. In addition to this list of armed groups and information on these groups, a list of the documents issued by each armed group that were examined for this study can be found in Annex 2.

3.2

Methodology

While a number of international relations studies on norms, including those from Winston, utilise quantitative methods, it became apparent early in this study that such methods would not be usable to answer the research question at hand. While quantitative methods may be viable options for examining compliance25 or examining the expansion of norms in formalised Westphalian states, it can be a hinderance in trying to examine norm contestation and diffusion amongst a heterogenous group of rather informal actors. Furthermore, Grünfeld has highlighted the potential pitfalls of relying on quantitative data from databases for the study of norms, such as an overreliance on quantified databases with indicators that may not be able to give wholistic information as to norm content and diffusion.26 Thus, given both the

22

Uppsala University - Uppsala Conflict Data Program. UCDP Conflict Encyclopedia. San-Akca (2016). 24 Cited in: Hofmann (2012); Kalyvas and Laia Balcells (2010), pp. 415–429. It was also used for the United Nations and World Bank Report (2018). 25 See Jo (2015). 26 Grünfeld (2011), pp. 8–9. 23

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subject of the study and the available reliable data, qualitative research was deemed to be the best way to examine norms amongst non-state armed groups. The main methodological tool for the analysis of these documents is directed qualitative content analysis.27 The goal of this method is to code the contents of existing documents into categories based on an existent theory and literature. As described by Morgan, qualitative content analysis is best utilised to examine data in which patterns are simultaneously being examined for patterns and interpreted for their meaning.28 This is essentially the goal of this study: not only to build and map the outline of norm clusters but also to examine the factors which influence them. Furthermore, qualitative content analysis has been used in quite diverse studies which seek to examine types of puzzles and data. The research of Abbaspoor, Moghaddam-Banaem, Ahmadi, and Kazemnejad qualitative content analysis to examine interview with Iranian women about norms related to the method of birth.29 Further, studies examine the beliefs and attitudes of individuals30 as well as understandings of concepts.31 Likewise, qualitative content analysis has been used to examine written and official communication dealing with political or norm relevant aspects.32 These studies show the flexibility of the method as a tool for examining how different ideas are communicated and portrayed by different types of actors. As the goal of the study is to understand how non-state armed groups understand and communicate the norms limiting armed conflict, such a methodology fits effectively. As with other qualitative studies, the validity of qualitative research relies on a number of elements. As noted by Mayring, many checks on validity and accuracy are problematic when applied to content-analysis, particularly qualitative content analysis, as accepted checks do not fit with the type of information examined in qualitative content analysis.33 Furthermore, most studies reviewed by Mayring which utilise qualitative content analysis do use any such checks and those checks which have been used in qualitative content analysis previously, namely the use of multiple coders, have been criticised and were not available for this study.34 To try to ensure that the data was collected and analysed systematically, the conceptual clarity of the codes was emphasised through the use of guidelines for the coding. Likewise, a number of additional controls were used to ensure the reliability of the coding. The documents were coded with the use of a previously designed coding frame. Each document was coded multiple times and the order of coding was changed and randomised between the rounds of coding, so that the codes and all of the documents

27

Mayring (2004), pp. 246–69; Mayring (2014). Morgan (1993), pp. 114–117 29 Abbaspoor et al. (2014), pp. 804–809. 30 See: Rahimi et al. (2013), pp. 163–170; Hajinejad et al. (2019), pp. 1–21. 31 Medley-Rath (2019), pp. 18–33. 32 Atkinson and Kim (2014), pp. 37–57; Ernst et al. (2017), pp. 1–49. 33 Mayring (2014), pp. 107–109. 34 Ibid. 28

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Methodology

49

were available during the coding and so that the order of documents did not affect how the content of all the documents were viewed and coded. For the overarching categorisation of the codes into the norm structure, as in Winston’s study, the specific sub-codes were undefined. Since the crux of Winston’s analysis was quantitative rather than qualitative, “borrowing” such codes from another topic was not possible.35 Furthermore, the general lack of literature on norm clusters connected to armed conflict and, more specifically, from the perspective of non-state armed groups, means that codes connected to such a cluster did not exist. Both of these factors meant that there were no sub-codes to aid the coding of the documents for this study. Existent literature on international humanitarian law as well as the historical research outlined in Chap. 5 served as frames of reference to help define categories of norms that were coded from the text. For example, norms related to the treatment of prisoners were organised into a sub-category around prisoners and detainees. Thus, the codification process, while open coding, was informed by the literature to organise the codes. The categories were not created before the coding, but rather during the codification process itself. Once a behaviour was found, it was generalised into a category, such as a behavioural prescription prohibiting the torture of prisoners was categorised as dealing with prisoners. Thus, an inductive approach was deemed appropriate as pre-existing codes were not available. This inductive approach is supported in the literature on content analysis. As discussed by Hsieh and Shannon, there are a number of approaches for qualitative content analysis. They describe a “directed approach”, in which the initial codes are defined from theory and existent literature.36 The “directed” nature of the codes were also centred around the meaning of the content rather than the language of the content.37 This differentiation is highlighted by Bengtsson, who separates a “manifest analysis”, which focuses on the exact content by analysing their language, from a “latent analysis”, which focuses on the meaning of the content.38 These two approaches should not be mixed as a means to ensure further reliability of the analysis. As the documents were not always written originally in English and there is no information regarding the translators, the meaning or intended meaning is the crucial information to be understood rather than the specific wording that was used. Code categories were made flexible enough to allow for general understandings to be included that did not rely on the on a focus on the exact wording or language. For example, no attention was given to the use of synonyms which may have important differences in law like detainees, prisoners, and captured or civilians, innocents, and non-combatants. Two categories of codes were built around Winston’s structure of norms: value and behaviour. Thus, the latent contents of the documents I examined were assigned to these categories.

35

Winston (2016). Hsieh and Shannon (2005), pp. 1277–1288. 37 Ibid. pp. 1281–1283 38 Bengtsson (2016), p. 10. 36

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Method

Values were defined as the justifications provided for undertaking an action. In building off of Winston’s model, values in this sense were viewed as being both conceptual or abstract and material. This means that any justification given as the reason for a behavioural prescription, whether it be purely ideational definitions of right and wrong based upon religious beliefs or material considerations related to the economy of force, were considered to be values. These values were further split into three categories: those overarching for an entire document or group, those explicitly stated in the text, and those implicit in the behaviour proscription. Explicit values can be seen in documents like the Deed of Commitment under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action, which states in its preamble “Accepting that international humanitarian law and human rights apply to and oblige all parties to armed conflicts”, which clearly cites the reason for the behavioural prescriptions that follow being grounded in their status in international law. Similarly, the IEA wrote in the preamble of their 2010 Code of Conduct: In the light of such a Code of Conduct and in the light of its appointed shari’a rules, mujahedin will be able to identify their targets far better, and identify the qualities of the enemies of Islam and their helpers and supporters, and deal with the suspicions and doubts that they come across in their jihadi environment, and be able to find an easy solution for these doubts.39

In both of these circumstances, the values informed the appropriateness of all of the behavioural prescriptions in the documents. Explicit ideations, such as military necessity, distinction, or specific protections, may be mentioned in the actual texts of the codes of conduct. Meanwhile, certain ideations are implicit when it comes to behavioural prescriptions. Implicit ideations included documents that were published openly or sent to the media, which implicitly hint at a desire for recognition or legitimacy from states and international organisations. As pointed out by Winston, the inability of a researcher to understand the thought process of the individuals making decisions related to the norm are unavoidable.40 Relying on official stated values in the content of the documents gives at least some insight into this thought process, at least on a public level. In the case of armed groups, these ideations may be linked with norm entrepreneurs and international law, while others may be in opposition to those same actors and institutions.41 This nuance is meaningful for the complete understanding of diffusion and contestation of norms. Thus, to the extent possible, values, either implicit or explicit, were identified from the text. Once this general framework for the norms was established, specific problems, values, and behaviours were coded inductively from the text. These codes were paraphrased, rather than in-vivo coding, to allow for a level of

39

IEA (2010). Winston (2016). 41 It is unavoidably clear that some armed groups fighting against western values may oppose these values in every form. 40

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The Coding Frame

51

comparability across the documents and to control for the fact the documents were primarily translations. The analytical software programme MAXQDA allows for the coding to be done in such a way that the overlapping of codes could be viewed. This presented the clearest opportunity to examine the existence of all of these elements of a norm structure in their relation to one another. Where a behaviour and a value, whether implicit or explicit, overlapped, one could see the linkage between these two ideas in the cluster. This was then used to identify the links, and the strength of the links, between values and behavioural prescriptions. Overarching values were considered to be connected to all behavioural prescriptions. A full coding index with the different codes that were taken from the text and used can be found in Annex 3. To ensure the reliability of data collection, a coding frame was established based on the literature examined. This coding frame can be found in Annex 4.

3.3

The Coding Frame

To ensure the reliability of data collection, a coding frame was established based on the literature examined. General principles described in the literature review on international norms as well as in the historical review which can be found in Chap. 5 were used to establish how the different elements of the norms would appear in the text and how they were to be coded. The coding frame also established mechanisms for how behavioural prescriptions with similar content should be coded separately but within categories or subcategories so that they could be examined together later. The categories were initially established based upon the behavioural prescriptions found in the documents and their relationship to norms often seen in the historical and modern literature as norms of armed conflict, including civilians, prisoners and wounded, means and methods of warfare, the structure and rules of the armed group, and the environment and resources. Further categories and subcategories were created in vivo. As mentioned above, the coding frame came about through a combination of theory—based and open coding. Codes were limited to the norms that apply to the conduct of armed conflict that were described in the documents. Rules on organisation and command structure, internal rules and regulations of the armed group, rules for conduct in peacetime, and objectives of the armed group were also included in the documents. However, since the goal of this study is to examine the norms that impact the conduct of armed conflict, norms of armed groups that apply to other activities were not codified and were excluded from analysis. This decision was made to maintain conceptual clarity in examining the norms. Just as international human rights law and international humanitarian law are the lex specialis applicable to different contexts, there are different norms that would be judged as appropriate in different contexts. Likewise, norms that applied to actors other than the armed group or its political and operational wings were not included. Numerous documents were created as

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agreements with non-state armed groups to govern the status of humanitarian organisations in armed conflict. These agreements often include prescriptions and commitments to action on the part of the armed group while also establishing ground rules for humanitarian organisations and state and international military forces. Codes were split into several types of codes. The crux of these was derived from the norm structure proposed by Winston, chiefly behavioural prescriptions and ideations, which will be touched on in greater detail in the next sections. For clarity, particularly given the importance of these types of code, Table 3.1 gives an overview of the different elements of the norm cluster coded in this study. Beyond these chief codes, “mitigating factors”, “norm entrepreneurs”, and “accusations of non-compliance and non-reciprocity” were also coded where noticed. Over the next sections, these will be explored in more detail.

3.3.1

Problem

In Winston’s model, the problem statements are reflective of the circumstance which requires a behaviour influenced by an ideation. The key problem seen across all contexts and the unifying factor amongst these documents is that they are all referencing actions to be either taken or avoided in an armed conflict. Thus, the essential problem is the existence of armed conflict. While many documents included rules that were more applicable to aspects of peri- or post-conflict governance, the norms being examined were specifically those directly related to conduct in armed conflict. Likewise, many documents that focused on conduct in armed conflicts did not necessarily define the existence of a problem. Thus, the problem was seen as “the existence of armed conflict” and no further exploration of this category was undertaken in the coding. Mitigating factors were identified and could be considered as influencing the problem statement. These will be discussed in more detail below as well as in the discussion.

3.3.2

Ideation

The ideational aspects of norms of armed groups were the most difficult of the parts of the norm structure to identify. Initially, three categories of ideations were identified: implicit, explicit, and overarching. These were established after an initial reading of the documents, in which it was clear that ideations were frequently for the sake of continuity and better comparability, the overarching category was removed after the initial coding was complete. It was identified that overarching ideations, which was defined as ideations that would cover an entire document and not be related to a single behavioural prescription, could also be both implicit and explicit. This meant that a separate category for “overarching” ideations did not allow for sufficient detail. All these codes were re-coded accordingly.

3.3

The Coding Frame

53

Table 3.1 Core elements of the norm cluster coded in this work Type of code Behaviour

Ideation

Winston’sa definition “The action to be taken to address the given problem that allows the actor to better express or practice the value”

“The enjoyment or attainment of something “good” or the avoidance of something “bad” and, as such, gives moral weight to the problem.”

Coding frame The behavioural prescription is the most easily identifiable aspect of the norm cluster and is often equated in other studies as the norm itself. In all cases, the subject should be the armed group as a whole or members of the armed groups, who are being prescribed to follow a certain behaviour. There are two key elements to be defined before coding a behavioural prescription—the behaviour and the prescription. The behaviour is the action being described. In general, it should consist of a verb and a direct object. The prescription is the opinion taken toward the behaviour. Given the variability of both the wording, types, and locations of values in the documents, guideline for how to code values. Prior to the coding, three categories of values were defined as being possible—explicit, implicit, and overarching. The coding frame will be split along these lines. However, before this is done, the general idea of a value has to be clearly defined. – Explicit values are those that are clearly written into the documents and labelled as the reason for the behaviour or behaviours being deemed as appropriate. In treaties and other official documents, these will typically be found in the preamble and highlight different conditions which are trying to be addressed through the content in the document. As such they may say “Considering the legal obligation” or “Out of respect for human life and dignity”. In other cases they may be directly linked to a behaviour, “X should be avoided because Y”. Both of these highlight an ideation that is being considered as important and being given a value as per Winston. – Implicit values are, by their nature, more difficult to discern. They should be drawn from the language of the text surrounding a behavioural prescription. Documents by non-English speaking groups that were originally published in (continued)

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Table 3.1 (continued) Type of code

Winston’sa definition

Coding frame English are implicitly hinting at their target audience, international actors and thus often imply a desire for recognition from such actors. Likewise, linkages between a behavioural prescription and the results non-compliance could have imply that this is a negative outcome that should be avoided. – Overarching ideations are those ideations that are either explicit or implicit that cover the entirety of a document. As mentioned above, often documents with a preamble will list the ideational values underpinning all behavioural prescription in the document.

a

Winston (2018)

Explicit ideations were, logically, the easiest to identify. In many agreements and treaties that were signed by non-state armed groups, the most important ideational motivations behind the treaty or agreement are often, though not always, explicitly spelled out in the preamble of the agreement. For example, in deeds of commitment related to the use of landmines by armed groups, the preamble includes phrases like: Recognising the global scourge of landmines which indiscriminately and inhumanely kill and maim combatants and civilians, mostly innocent and defenseless people. . . Accepting that international humanitarian law and human rights apply to and oblige all parties to armed conflicts. . .42

Given that these phrases come at the beginning of the document and effectively describe the purpose for which the behavioural prescriptions and actions are being agreed to, they serve as the ideational motivation. In the above example, the clearest of these ideations would be that the actions were being done, in part out of a sense of legal obligation. Likewise, the notion of humanity and distinction between combatants and civilians are quite explicit as well. Given that this is the preamble to the document, these ideations serve as the motivation for all the behavioural prescriptions mentioned in the document, i.e., a sense of legal obligation motivates the armed group to adopt all of the behavioural practices, not just a particular one. In other cases, explicit ideations were not applicable to the entirety of an armed groups behaviours, but instead only applied to specific behaviours. One example appears in the “Rules for the conduct of Warfare” from the HPG.43 It states 42

Geneva Call, Deed of Commitment under Geneva Call for Adherence to a Total Ban on AntiPersonnel Mines and for Cooperation in Mine Action. 43 PKK/HPG (2004).

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The Coding Frame

55

“Weapons and eradication tools shall not be used excessively. Means and tools of warfare that cause needless losses shall be avoided.” Here, the limit to the use of certain weapons is done from an ideal of avoiding superfluous suffering. However, this ideation does not, at least explicitly, apply to the behavioural prescriptions that follow it. One ideational factor that was not explicitly written by the armed group was deemed explicit through some of the documents. This was geopolitical recognition or legitimacy. While there were several cases in which this was explicitly written in the text as the motivation behind an action or prescription, in many instances the publication of the document itself could be seen as explicitly showing the purpose. Agreements, unofficial translations of internal documents, and orders all show the circulation or integration of a specific behaviour within the armed group. In contrast, the publication of official documents in such a way that they are made public or are meant as public statements shows, in and of itself, that at least part of the motivation behind the publication of the document was related to the international reputation of the armed group. One of the best examples of this can be seen in the response of the commander of the Houthi armed group in Yemen to reports on human rights violations by the group. The documents can be seen as important in identifying the norms of the armed group and are not meant to be internal, but rather used to legitimise the actions of the armed group. In cases where the origin of the document or its publication in English was unclear, this code was not used to ensure that only those documents mean to be made public were coded as such. As discussed earlier, Winston pointed to the fact that, through documents or interviews, only official ideations can be identified.44 The actual motivations remain, unfortunately, elusive. This was factored into the coding process as it was realized that some implicit ideations needed to be included in the coding. These were the most difficult of the ideations to identify, as a fine distinction had to be drawn as to the implicit ideation that motivated an action or a logic-based assumption. One example of this can be seen in the 2012 Code of Conduct from the Free Syrian Army.45 Here, the group writes that its combatants pledge to “. . .preserve prisoners’ rights and will not exercise any of the above practices in order to obtain confessions.” While it does not explicitly state that this is motivated by a sense of legal obligation, there is recognition of rights which the prisoners possess, which is an implicit recognition of a legal obligation. Lastly, as discussed in the theoretical background of norms in Chap. 2, the ideation is not always a collectively defined, theoretical idea or value. Ideations in this sense can reflect individual interpretations and understandings of material realities. In the case of Islamic Emirate of Afghanistan, commonly referred to as the Taliban, prohibiting the use of child soldiers was due not only to a respect for the rights of children but also to the recognised ineffectiveness of child soldiers in

44 45

Winston (2016), p. 32; Winston (2018), p. 651. FSA (2012).

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combat.46 Thus, the behaviour was influenced both by a purely ideational value as well as one rooted in materialistic understandings of the importance of economy of force. Both these ideations reflect behaviour viewed as correct, though the core of these two “oughtnesses” are quite different. It is important to note that the ideations within these norms included these more practical elements as they were commonly cited by armed groups as being the behavioural motivation and they reflect the pragmatic behavioural limits associated with norms related to armed conflict. A total of 30 separate coded ideations or values were identified from the documents. 18 of these were, for the purpose of coding, subdivided into either being implicit or explicit from the texts. The distinction between these two categories is reflected in the results and in the norm clusters discussed in the next chapter.

3.3.3

Behaviour

The behavioural prescriptions were the clearest to identify from the texts. These were initially coded through open coding. After all the documents were coded and all behavioural prescriptions present in the documents were identified, the documents were recoded with all identified behavioural prescriptions available. In total, 252 behavioural prescriptions were identified from all documents. For the sake of coding, these were split up into 13 general categories and 31 subcategories. Of the 252 behavioural prescriptions, 129 were uniquely applicable to the conduct of the armed groups in the planning, carrying out, or the aftermath of armed operations, including treatment of prisoners. Other behavioural prescriptions addressed actions toward the governance of the armed groups or internal regulations. These were also included and were sifted out in the analysis, they were not particularly related to the context of armed conflict, but will be discussed in further detail in the discussion. A common feature of the documents was that when accused of undertaking a certain violation of norms connected with armed conflicts, groups often would deny that a past transgression had taken place. This cannot be viewed as a prescription for action nor conclusively considered as being related to an ideal. Consequently, such behaviours were not coded. Rather, only prescriptions which were related to current or future actions were coded as behaviour. Primarily, these were written either as rules for internal circulation within the group or agreements with international organisations or other parties to the conflict. Public statements, which were coded, often mentioned behavioural prescriptions that were put in place by armed groups. While these are not specific orders to the combatants, they should be deemed to be reflective of the norms of the group as a whole and are thus included in the analysis. A full list of the behaviours coded can be found in Annex 3.

46

As seen in IEA (2013).

3.3

The Coding Frame

3.3.4

57

Mitigating Factors

Numerous documents also included mitigating factors that in some way impacted the introduction or application of ideationally influenced behaviours. In general, these mitigating factors often explained the relationship between an armed group and the norms that governed them. Some of these were recognition of the overlapping of ideational motivators for undertaking a certain action. The armed groups AA, MILF, PSLF, and POLISARIO all noted that some of the ideational motivations behind their behaviours corresponded to other ideational motivations. These referenced pre-existing cultural or religious obligations, which happen to correspond with norms enshrined in international law. A notation of these mitigating factors was made in the coding, as these instances show the differentiation between ideational motives. Likewise, mitigating factors were also recognised as challenges to the implementation of the norm-compliant behaviour. Challenges such as lack of resources, lack of enforceability, or a clash of an international norm with more local customs were all noted during the coding. All of these are important to better understand the interplay between the ideation, the behaviour, and the actual implementation by the armed groups. By noting an official belief in the norm but highlighting the challenges to ensuring implementation of the behaviour by all combatants, the groups underscore the need to understand not just the compliance of groups with one set of norms, but rather their own norm contestation. It reflects a more nuanced relationship of armed groups with norms connected to armed conflict rather than a stagnant one in which acceptance and compliance with international law is the singular measure. These mitigating factors can be found in the list of codes found in Annex 3. For the most part, the mitigating factors were irrelevant. Of the specific factors described in the documents, only three were cited by more than one group, the most common being a lack of resources to enforce a norm, which was cited by five armed groups. A number of mitigating factors were used for analysis but were not coded in these documents. These were, predominately, traits of the individual armed groups which may or may not have had an impact on their behaviours or valuation system and were taken from databases on armed groups.47 They were coded in vivo in instances where the armed group qualified their norms through further explanation. Examples include where armed groups stressed that they followed certain norms despite a lack of reciprocity or despite non-compliance from their enemy.

47 Geneva Call. Their Words: the Directory of Armed Non-State Actor Humanitarian Commitments; San-Akca (2016); Uppsala University - Uppsala Conflict Data Program.

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3.3.5

3

Method

Norm Entrepreneurs

In addition to coding the structure of the norms, the organisations that interacted with the armed groups in relation to the norm contestation process were also examined. This can be used not only to explore the role international organisations have in the contestation process, but also control for the situations in which organisations are involved in affecting norm contestation norm entrepreneurs’ involvement can be observed through agreements made directly with the organisations. This is seen in multiple situations, including agreements on the implementation of humanitarian projects or in the deeds of commitment signed by armed groups with Geneva Call. In these instances, one can observe how organisations are actively involved in the proliferation and contestation of norms. However, there are also instances in which particular organisations, such as the United Nations or ICRC, are mentioned by armed groups as being the arbiters or having a role in a particular norm but are not mentioned as being part of the process in which this norm diffused to the armed group. These cases imply an inherent connectivity between the organisation and the norms being discussed. This also implies that organisations do not necessarily need to take an active role in the diffusion of norms to be an entrepreneur of that norm. Enemy factions, while often named in the documents, were not coded as norm entrepreneurs. These actors certainly play a role in the diffusion of norms but are hardly the entrepreneurs of norms. From the documents examined for this study, eight norm entrepreneurs were identified and coded. A list of these entrepreneurs is in Annex 3. This list is not inclusive of all norm entrepreneurs with contact with the groups in questions. However, it does show the role that certain organisations have in this field in disseminating information on norms in armed conflict.

3.3.6

Accusations of non-compliance and non-reciprocity

One commonality across many of the documents, which is seemingly unrelated to the conduct of the armed group, is how the group addresses the actions of its enemy. In some cases, the transgressions are cited as the causus belli or a justification for the behaviour of the armed group. Here, the accusations tend to point to transgressions by the enemy against norms of behaviour, often with human rights law or humanitarian law as the measuring stick. While this should not be seen as impacting the behaviour of the armed group in question, the fact that the transgression is noted shows, to some extent, the commitment to the norm that is being violated. In addition to non-compliance with international norms, there are often cited examples of non-reciprocity between the armed group and its enemy. Here, the commitment to a specific norm is not only theoretical but instead the armed group is pointing to a behaviour they are already applying within the armed conflict, which is not respected by the enemy. The importance of this latter example is twofold. Primarily, it hints

3.4

Establishing the Validity and Applicability of the Norm Cluster

59

that the group has integrated the norm in their behaviour despite the lack of reciprocity and has not let the actions of the enemy change their behaviour. Beyond this, and arguably of more consequence, is that, in such a case, the ideation motivating this behaviour must be external to the conflict. If the enemy has not integrated a specific norm in their conduct, in a vacuum, there would be no disadvantage to retaliate with like behaviour. The considerations to continue following the norm, at least nominally, must come from an ideation or motivation that is external to the battlefield, combatants, and the conflict. However, these could also be viewed as false accusations aimed at attacking the reputation of the enemy or even as explanations for behaviour contrary to the norms espoused by the armed group. Thus, instances in which these accusations are made were coded but will be examined with more scrutiny.

3.4

Establishing the Validity and Applicability of the Norm Cluster

Before beginning to look at the norm cluster and its elements in the context of armed groups, it is crucial to establish the applicability and validity of this model, with behavioural prescriptions and ideations amounting to a norm cluster connected with the conduct of armed conflict. When examining the applicability of the model to this example, the question emerges as to whether this model can and should be used universally and, in the particular case of norms of armed conflict, can be used to describe and explain clusters that may reflect highly complex and contested norm. A critique may be that, in armed conflict, competing ideations may be used to both justify and forbid the same action in different contexts. This could pose a challenge for norm models that do not allow for such nuance or flexibility. As previously mentioned, norms must be held independent of action in the case of combat. The norms espoused by armed groups are rarely followed exactly, however, the inclination of the group to strive for such behaviour is crucial. International humanitarian law and rules of warfare do not necessarily constitute an abnormally large area of study for norm research. Often, in cases where there is such a multi-layered area of study, in which an examination of different actors, relationships, and norms is necessary, researchers would fall back on the idea of a regime in international relations theory, which would try to explain these aspects together. Previous areas of study, such as human rights regimes, indicate that such broad topics are examinable at such a general level. Yet, my research is not an analysis of the regime but rather of norms as generalised behavioural prescriptions and ideations focused on patterns of action. As indicated earlier, norms are included as one element that constitutes a regime. Norms are part of the regime, yet defining the regime is not equal to defining the norms. This fact is supported by both Goertz

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and Diehl,48 Fehl and Rosert,49 Winston,50 who also argue that norms must be understood independently of the regime in justifying the idea of norm clusters. For example, one example made to this point is that identifying the norms inherent in a regime, such as human rights, is necessary to understand the regime as a whole. One tool to do this could be Winton’s norm cluster model. Following this line argument, the norm cluster model be used to map and better understand the rules of a particular regime. In the case of this study, this regime is that of the rules of warfare. Furthermore, the premise that a regime is a nothing more but a cluster of related norms, which not only pertain to similar contexts but are also mutually supporting, is supported throughout the literature.51 Likewise, conflicting and interacting norm clusters exist and create different relationships to one another even amongst regimes.52 Here, international humanitarian law as a concept serves as a regime, with the individual rules that make up international humanitarian law being the norms that constitute the regime.53 The norms that constitute this regime around the rules of war are not only those which pertain to the context of armed conflict,54 but also those that support each other in implementation and meaning.55 A prohibition of landmines due to their ability to cause superfluous and widespread suffering supports the necessity of a prohibition of cluster munitions, as the negative aspects that give credence to the ban of the former also apply to the latter. Likewise, the prohibition on the targeting of civilians and the prohibition of recruiting or utilising child soldiers are reliant on collective understandings of who is a civilian or child. As the documents reveal, many groups may sign on to these norms but may have very different understandings of who is protected under these norms. Those falling on different sides of these definitions in different contexts include religious and medical personnel, police officers, and 17-year-olds, thus underscoring the importance of the ability of norms to have a constitutive function.

48

Goertz and Diehl (1992), p. 635. Nikolic (2020), pp. 3–4. 50 Winston (2016, 2018). 51 Ben-Josef Hirsch and Dixon (2021), p. 530; O’Neill (1999), p. 197; Lantis and Wunderlich (2018), p. 576. 52 Fehl and Rosert (2020), pp. 3–4. 53 This perspective of norm clusters comes from Lantis and Wunderlich (2018, p. 576), which they clearly separate from Winston’s idea of norm clusters, in that it does not consist of interlinking behavioural and ideational aspects integral to Winston’s model, but rather similarly focused individual norms. Despite this, the core idea of a norm cluster as a regime and the norm cluster as modelled by Winston are not mutually exclusive, as the connection of similar collectively defined and enforced norms that are similar in their objective and structure are present in both. 54 I.e. those that espouse what behaviours are correct in active armed conflict situations—what weapons or tactics are allowed or prohibited. 55 I.e. those which focus on how rules should be enforced within the armed groups, who makes the rules, what sanctions exist for rule breaking, and even what the vocabulary of the norm means in practice. 49

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Establishing the Validity and Applicability of the Norm Cluster

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It should be noted that the norm cluster model has been used to examine contexts with competing interests, similar to international humanitarian law.56 Transitional justice57 and the responsibility to protect58 are both fields that are not only equally contested but are also adjacent to international humanitarian law in both theory and practice. Similarly, these subjects must balance similar interests to international humanitarian law when dealing with issues of sovereignty and protection. Furthermore, the norm cluster literature does not avoid examples of armed conflict.59 In fact, the norm cluster model allows for a more differentiated understanding of exactly these dilemmas, in which competing valuations would lead to differing behavioural prescriptions. For international humanitarian law, behavioural prescriptions arising from the value to limit the suffering of those not involved in conducting the armed conflict could lead to restraint in the use of force toward a mixed group of combatants and civilians. The decision to use force against the same mix of people would either be contrary to the norm, which is frequently argued to not be a flat-out rejection of the norm. Likewise, a decision for the use of force in this circumstance could be indicative of another norm within the same norm cluster. As seen throughout the documents examined for this work, non-state armed groups do not only indicate restrictions for their fighters, but also indicate permissive norms on use of force. In these instances, it is often against members of the enemy armed forces, but at times extends to police and other security forces as well and, less frequently, civilian figures seen as supporting the enemy, such as political and community leaders and contractors. This indicates the variance within the norm clusters that allows for both restrictive and permissive norms within the context of use of force. Another question that remains is the one of the validity of the rules of war as a norm cluster. In her dissertation on the subject, Winston uses quantitative data to establish the existence of a transitional justice norm cluster among states. Any attempt to use Winston’s methods for establishing the existence of the norm cluster around the rules of armed conflict would face two chief challenges. Firstly, Winston’s examination of states during a defined time period allowed for stronger qualitative examination of norms, which were then limited to a defined number of states and years. The current examination of non-state armed groups faces challenges as it is unable to establish the number of non-state armed groups that existed at a given time, as recognition is not as well-defined as with states. Furthermore, the

56 Competing interests in international humanitarian law are often highlighted through the principle of military necessity, in which the interests of the needs of the military have to be weighed against the norms protecting individuals or objects. The permissive aspects of international humanitarian law, those which allow for acts of violence against legitimate targets, are thus always balanced against the aspects which limit the violence. 57 Winston (2018). 58 Acharya (2013). 59 Winston’s dissertation (2016) cites international humanitarian law as an ideation, while in her 2018 article she points to the landmine ban as an example of a cluster (p. 641).

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existing data collected in the two studies vary greatly in so far as the data that Winston collected was quantitative while the data for this study is qualitative. Thus, using the same mechanisms for confirmation of the existence of such a norm cluster is impossible to replicate via methods used in Winston’s study. However, by examining the qualitative aspects included in this study, it becomes apparent that there is a norm cluster existent in the norms associated with non-state armed groups and their conduct in armed conflict. First and foremost, the coding guidelines, which were built upon Winston’s theory, prioritise the identification of the elements of norm clusters that exist in the texts examined in this study. In Winston’s dissertation, she uses more broad ideations, including international humanitarian law, as elements of the norm cluster for transitional justice.60 However, in other examples, Winston cites more minute and specific examples of norm clusters that are linked with more specific ideations, particularly her explanation of a specific example of international humanitarian law. When interpreting Price’s discussion of the ban on the use of landmines61 as an emerging norm, Winston links the behavioural prescription of not using landmines to the “the ethical need to discriminate between civilians and soldiers in warfare”.62 This valuation, while not overtly citing international humanitarian law, invokes the principle of distinction, which is a core tenant of international humanitarian law. Thus, across these two pieces of research from Winston, one can see that the ideational element of the norm can be as broad or specific as is fitting to the general idea of a behavioural prescription influenced by a value. What is, to some extent, a difference between the norm clusters examined by Winston and examined here is the nature of the object being examined. While Winston examined states, which have some form of uniformity and exchange between them, non-state armed groups lack homogeneity in many ways. Despite this, the existence of a uniform set of rules, namely international humanitarian law, allows one to further examine whether the examined phenomenon constitutes a norm cluster. Despite the differences in norm cluster structure, international law was cited as an ideation by 63 of the 82 armed groups, by far the most cited of the ideations. Thus, there were both cross-context and context-specific ideations that impacted the behavioural prescriptions of the armed groups examined. Likewise, there were crosscontext and context-specific behavioural prescriptions, albeit none as widely cited as international law as an ideation. Collectively, these further underpin the understandings, and strengths, of the norm cluster model. Previous research on norm clusters makes it clear that there is no specific “size”, for lack of a better word, to the ideations or behavioural prescriptions. This opens the door to an examination of the armed conflict norm cluster. The uniformity of the rules in international law and their application to non-state armed groups, as well as their acceptance by them, supports this approach. Previous

60

Winston (2016), p. 69. Price (1998). 62 Winston (2018), p. 641. 61

3.5

Means of Tabulating Totals

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research on norm clusters examining similar subjects provide additional support. Yet, importantly, despite such a clear normative regime being visible through international humanitarian law, one still must approach the identification of norm clusters empirically and without an assumption toward the self-evidence of international humanitarian law being accepted universally. As will be seen in the next chapter, this is clear as there are widely held values and widely observed behavioural practices, but not all fit into any two armed-groups norm clusters identically. Likewise, core tenants of international humanitarian law are not always accepted and endorsed by armed groups, as will be seen in the results and further examined in the discussion.

3.5

Means of Tabulating Totals

As discussed by Mayring,63 while a qualitative method, qualitative content analysis can utilise a quantitative aspects, particularly in trying to establish the frequency at which certain codes occur to sign a potential weight or importance. While it is impossible to state that a certain behavioural prescription or ideation is more or less important to an armed group based upon the frequency that it is mentioned, the number of citations and the number of armed groups that cite an element of a norm remains important for assessing the diffusion of the norm. Along these lines, the results related to frequency and diffusion of norm elements will form a core element of the analysis and guide the more qualitative aspects of the analysis to those behavioural prescriptions and ideations most commonly observed within the documents. In attempting to determine and analyse the frequency of different elements of the norm clusters, it was necessary to distinguish between different ways in which the norms could be summed and analysed. Given the different types of documents, their authorship, and the role of norm entrepreneurs, using different totals was crucial to truly examine not only which norms were observed most frequently and most widespread but also to determine which norms are the most important to armed groups. As some documents were either agreements or joint statements signed between groups or deeds of commitment,64 the norms contained within them could skew the results. For example, the behavioural prescription against the use of landmines was cited 4 times in the Deed of Commitment under Geneva Call for Adherence to a total Ban on Anti-personnel Mines and for Cooperation in Mine Action. This document was signed by 23 of the armed groups included in this study, meaning that the number of times this norm was cited was heavily dependent upon

63

Atkinson and Kim (2014), pp. 41–42. As deeds of commitment are drafted by Geneva Call, all of the deeds of commitment on one topic include the same behavioural prescriptions and ideations. 64

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3 Method

the phrasing as determined by a norm entrepreneur rather than by the individual groups. The question then became how best to control for this. By not including the deeds of commitment in the final tabulation would be to ignore the fact that these armed groups chose to endorse these norms and still seem to accept them as correct behaviour. To count them fully, would simply ignore that the importance of the norms mentioned by norm entrepreneurs may not by reflective of the importance according to the non-state armed groups that sign these deeds of commitment. To try to find a middle solution between the extremes would not substantially address the issues that would come about by ignoring them either. To best account for this issue, three different tabulations were made and will be discussed throughout the analysis. The first will is the weighted full count. This count will include all documents and codes in them, including all deeds of commitment and each of their codes no matter how frequently cited. The second count will be the unweighted full count. For this count each document that was cited multiple times will only be counted once. This will allow for the norms included in the document to still be counted without it skewing the results by being counted multiple times. The final count will be the slim count. This will exclude all documents that were jointly or externally drafted and signed. The goal of utilising multiple counts will allow different perspectives to best understand what the diffusion of these norms, the role that norm entrepreneurs play in their diffusion and the level of universality these enjoy both with and without norm entrepreneurs. For instance, the number of citations attributed to the behavioural prescriptions prohibiting the use of anti-personnel landmines increases from 37 to 177 and from 24 to 37 groups between the slim count and weighted full count. The fact that the activity of norm entrepreneurs in such a field can lead to a threefold increase in the number of citations of a certain behaviour could skew the results. Without such counts, the assumption could be made that an aspect of a norm is seen as crucial by a wide range of armed groups rather than being viewed important due to the work of norm entrepreneurs and not necessarily due to the internal views of the armed group itself. It should be noted that, in the results, these different counts were calculated, but not used in all sections, dependent upon their usefulness in determining any differences that these counts would cause in the armed conflict norm cluster.

3.6

Creating an Armed Conflict Norm Cluster

Once the coding was complete, the armed conflict norm cluster was created that recorded all behaviours and values and their linkages across the sample of documents from non-state armed groups. The data was derived from MAXQDA by creating spreadsheets which quantified which codes were coded most frequently,

References

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the frequency with which they were cited within document files,65 and where the codes overlapped. This last category was chiefly66 done to observe where behavioural prescriptions and ideations overlapped in the documents as a way of establishing justification through these ideations for the prescriptions given. Once these spreadsheets were complete, the quantitative elements and connections of the armed conflict norm cluster were complete and could be graphed. The cluster itself was constructed graphically via Miro. All of the behavioural prescriptions cited were created as independent elements on the left side of the figure, all of the ideations on were created as independent elements on the right side of the figure, and all of the connections observed in the text were graphically portrayed as lines connecting the respective behavioural prescriptions and ideations. Initially, the goal of the mapping was to graphically represent the frequency or diffusion of the elements of the norm cluster through the size of the graphical elements. However, the wide range in the frequency and diffusion of different elements and the number of individual elements deemed this impossible. There was no way to reflect all elements without disrupting the scalability of the data so that all elements could be more closely examined. Instead, further figures were created to better reflect only those elements that were cited most frequently, so that further investigation of these elements would be possible. These figures can be found in Annnex 35.

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Each document file contained the documents related to one armed group. Though not exclusively as will be seen in Chap. 7.

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Bruderlein C (2000) The role of non-state actors in building human security: the case of armed groups in intra-state wars. Report. Centre for Humanitarian Dialogue, Geneva Ernst J, Schmitt JB, Rieger D et al (2017) Hate beneath the counter speech? A qualitative content analysis of user comments on YouTube related to counter speech videos. J Deradicalization 10: 1–49 Fehl C, Rosert E (2020) Working paper. It’s complicated: a conceptual framework for studying relations and interactions between international norms. Leibniz Institut, Frankfurt am Main FSA (2012) Code of conduct of the FSA. http://theirwords.org/media/transfer/doc/sy_ fsa_2012_01-670a046d8c995deb933cec25f062ea7e.pdf. Accessed 1 June 2023 Geneva Call. Their words: the directory of armed non-state actor humanitarian commitments. theirwords.org. Accessed 1 June 2023 Geneva Call. Deed of Commitment under Geneva Call for Adherence to a Total Ban on AntiPersonnel Mines and for Cooperation in Mine Action. Signed by multiple armed groups as found on Geneva Call. Their Words: the Directory of Armed Non-State Actor Humanitarian Commitments. theirwords.org. Accessed 1 June 2023 Goertz G, Diehl PF (1992) Toward a theory of international norms. J Confl Resolut 36(4):634–664. https://doi.org/10.1177/0022002792036004002 Grävingholt J, Hofmann C, Klingebiel S (2007) Development cooperation and non-state armed groups. Report. German Development Institute, Bonn Grünfeld F (2011) International law and international relations: norm and reality or vice versa. Amsterdam Law Forum 3(3):3–14. https://doi.org/10.37974/alf.189 Hajinejad F, Ebrahimi E, de Jong A, Ravanipour M (2019) Factors promoting Iranian older adults’ spirituality: a qualitative content analysis. BMC Geriatr 19(1):1–21. https://doi.org/10.1186/ s12877-019-1146-7 Hofmann C (2012) Reasoning with rebels: international NGOs’ approaches to engaging armed groups. Report. Stiftung Wissenschaft Und Politik, Berlin Hsieh H-F, Shannon SE (2005) Three approaches to qualitative content analysis. Qual Health Res 15(9):1277–1288. https://doi.org/10.1177/1049732305276687 IEA (2010) The Layha. http://theirwords.org/media/transfer/doc/ut_af_taliban_2010_2009_200 6_03-770d9eb55e1984c68f4c994e8c354204.pdf. Accessed 1 June 2023 IEA (2013) An open letter to the UNAMA about the biased behavior of this Organization. http:// theirwords.org/media/transfer/doc/af_taliban_2013_13-653970647b522d27e33370806af814 a9.pdf. Accessed 1 June 2023 Insight Crime (2020) ELN. InSight Crime. https://www.insightcrime.org/colombia-organizedcrime-news/eln-profile/ International Campaign to Ban Landmines – Cluster Munition Coalition (ICBL-CMC) (2021) Landmine monitor 2021, 23rd edn. International Campaign to Ban Landmines – Cluster Munition Coalition (ICBL-CMC) Jo H (2015) Compliant rebels: rebel groups and international law in world politics. Cambridge University Press, Cambridge Kalyvas SN, Balcells L (2010) International system and technologies of rebellion: how the end of the cold war shaped internal conflict. Am Polit Sci Rev 104(3):415–429. https://doi.org/10. 1017/s0003055410000286 Kamel E (2017) Challenges of academic research in the midst of war - Al-Fanar Media. Al-Fanar Media. https://www.al-fanarmedia.org/2017/01/challenges-academic-research-midst-war/ Keck ME, Sikkink K (1999) Transnational advocacy networks in international and regional politics. Int Soc Sci J 51(159):89–101. https://doi.org/10.1111/1468-2451.00179 Kratochwil FV (1989) Rules, norms, and decisions: on the conditions of practical and legal reasoning in international relations and domestic affairs. Cambridge University Press, Cambridge Lantis JS, Wunderlich C (2018) Resiliency dynamics of norm clusters: norm contestation and international cooperation. Rev Int Stud 44(3):570–593. https://doi.org/10.1017/ s0260210517000626

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Chapter 4

Non-State Armed Groups in the International System

The overlap between norms in international relations and international law, and even international humanitarian law, is well covered in existing literature. The bans on anti-personnel mines1 and human rights2 are well studied through the lens of norms and norm diffusion. However, existing studies primarily focus on the development of a norm and related treaty as well as on states and state actions. For this study, as stated earlier, an advance in thinking about international norm theory is necessary. Traditionally, norms are used to examine the actions and motivations of states. While non-state armed groups are not completely ignored, they are certainly underrepresented with international relations literature focused on armed groups as a sophisticated organisation that mimics and challenges state sovereignty.3 However, in many instances, including those essential to constructivist understandings of international relations and critical for theoretical understandings of norms and norm diffusion, the lack of consideration given to these actors is not necessarily logical. In his discussion on the socially constructed collective identity of states, Wendt describes the “corporate” character of states through four key points: 1. physical security, including its differentiation from other actors 2. ontological security or predictability in relationships to the world, which creates a desire for stable social identities 3. recognition as an actor by others, above and beyond survival through brute force 4. 4.development, in the sense of meeting the human aspiration for a better life, for which states are repositories at the collective level.4

As will be seen in Chap. 4, these qualifications are, for the most part, met by non-state armed groups. Despite their heterogeneity, it is difficult to contradict that these groups act collectively and distinctively, not only to address the basic needs of

1

Price (1998). Risse and Sikkink (1999). 3 Krause and Milliken (2009), pp. 202–206. 4 Wendt (1994), p. 387. 2

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survival but to enhance it. Scholarly literature on non-state armed groups and international humanitarian law tends to focus on how to engage these groups from a legal perspective and how the law can be extended to cover non-international armed conflicts. But to understand the relationship between these actors and the norms that parallel international humanitarian law, one must also examine the body of literature covering the political existence of non-state armed groups and their status in the international system. This examination needs to focus on the interaction between humanitarian and development organisations and non-state armed groups acting as norm entrepreneurs to encourage international humanitarian law compliant behaviour on the part of the non-state armed groups. These studies can be used to better understand what non-state armed groups are in terms of norm interaction and diffusion, and in what ways they interact with norms on an international scale. Casespecific literature looks at specific non-state armed groups as a way to examine these groups in depth, which remains difficult to do across different contexts, especially given how these groups differ from one another. In this chapter, I examine the literature on non-state armed groups to better understand these groups within the context of international relations and international law. This section will include a general discussion on these groups. As one of the key elements of international relations is the comparability of “like-units”, I will examine the extent to which one can compare non-state armed groups, at least in their political function. The analysis will then look at particular elements of state behaviour to understand to what extent non-state armed groups also fulfil the basic requirements of a state: having a territory, a population, the ability to govern, and the ability to enter into foreign relations. This will allow for a better understanding of non-state armed groups as political actors and examine non-state armed groups as geopolitical actors on the international stage. This will allow the documents from such groups to be better analysed within the context of what these are and the contexts in which they exist.

4.1

Non-State Armed Groups

One of the first key challenges in examining non-state armed groups is defining a criterion to draw strong borders around the notion of the non-state armed group. A staple of the literature on this topic highlights the collective understanding by many of what a non-state armed group is without actually developing criteria to define this category of actor. In discussing international engagement with non-state armed groups, Podder points out that the great amount of variation between non-state armed groups leads to a lack of “one size fits all” solutions in dealing with non-state armed groups.5 This applies not only to engaging with non-state armed groups but also to gangs, terrorist networks, and other groups that lack the

5

Podder (2013), p. 17.

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organisational structure to qualify as non-state armed groups. The variation among groups is vast, ranging from a few dozen fighters that switch back and forth between the roles of civilians and fighters,6 to groups with established branches of armed forces and structures making them parallel state practice.7 Thus, it is difficult to draw a homogenous category around the idea of “armed groups” as a topic of study. Fazal and Konaev and Vinci addressed this issue by making general categorisations of the tactics, sizes, objectives, or capabilities of the groups as a way to filter out smaller groups and be able to examine those that will give academia and policymakers a better understanding of non-state armed groups in armed conflict.8 However, such distinctions are not clean and cannot necessarily be made on a systematic basis— given the fluid and changing nature of armed groups, their goals, structures, and tactics. Often, such definitions are not based upon characteristics of the group themselves, but rather of their opposition.9 Non-state armed groups are understood to be military actors of varying size and organisation that are independent of the state or states in which they operate.10 Vinci separates these groups into three distinct categories: insurgencies, warlords, and terrorist groups. The differences between the different types of armed groups are predominantly in how the groups are organised, how they use violence, and their relationship to other actors.11 However, these categories are not rigid. For example, Vinci describes how a terrorist group may use violence against civilians to bring attention to a political issue while insurgencies more often fight on behalf of a community.12 Both of these descriptions fit armed groups such as ISIS and the PIRA. He identifies that these groups sometimes fall into multiple categories and have significant similarities. Most importantly, he also finds that non-state armed groups have the organisational capacity and structure to engage in violence for a sustained period of time. The only armed groups which have an official recognition are “peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination”,13 which were given a special role

6 Depending on one’s understanding of an armed group, examples of this would be urban gangs, as well as political dissident groups like the Irish Republican Army and its offshoots like the Continuity Irish Republican Army, the Irish National Liberation Army both during and after the Troubles. 7 Examples of this would be, amongst others, FARC-EP and the LTTE during the height of their power. 8 Fazal and Konaev (2019) examine differences between secessionist groups and non-secessionist groups while Vinci (2010, p. 3) drew the line between “terrorists, warlords, and insurgents”. 9 This is particularly true in the case of “terrorist” groups, which are given this title by rival actors rather than by themselves. Not all groups that use typical “terrorist” tactics are labeled as such. 10 For definitions of this concept, see: International Committee of the Red Cross (2021). 11 As discussed throughout Vinci (2010). 12 Ibid. pp. 25–26. 13 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977a).

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within international humanitarian law, in so far as the conflicts in which they were involved were not non-international armed conflicts, but rather international armed conflicts. However, there are particularities about this official recognition. By the time the Additional Protocol entered into effect, almost all conflicts that may have fell under this recognition were ended. The wave of decolonisation that took place in the 1960’s and 1970’s had more or less ended in 1974, paving the way for a fairly uncontested passing of the protocol.14 Secondly, an armed group participating in such a conflict does receive formal recognition and is no longer a non-state armed group in a legal sense, this status is still recognised politically. As such, the shift in legal status does little to change the political status of the group, especially since such groups are rarely recognised, particularly by the occupying power.15 While there is no legal definition of what constitutes a non-state armed group, the decision of the International Criminal Tribunal for the former Yugoslavia in the Limaj et al. case underscores that the definition needs to include an organised command structure.16 Furthermore, the Haradinaj et al. case established a need for: . . .the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.17

These aspects have become accepted as crucial for the existence of a non-state armed actor. However, there are examples of groups that are politically recognised as non-state armed groups that may be missing one or more of those elements. The splintering of groups like the Irish Republican Army18 or the Free Syrian Army.19 In the first example, political differences within the group led to fractures within the groups and the creation of new groups. In the second example, the overall armed group remains intact, fighting for the collective goal, despite the political differences that have existed since the formation of the group.

14

A process summarised in von Bernstorff (2019). The dichotomy between the PLO and Israel is a key example. While the PLO has formal recognition, they remain a non-state armed group in a political sense to those states that do not recognise them. 16 Prosecutor v. Limaj et al. (2008). 17 Prosecutor v. Haradinaj et al. (2012). 18 The Official Irish Republican Army, the Provisional Irish Republican Army, the Real Irish Republican Army, the Continuity Irish Republican Army, and the Irish National Liberation Front all stemmed from the same armed group. Which split due to differences that emerged amongst political and military leaders, particularly around the peace process and the conduct of the conflict. 19 The documents collected from the TheirVoices database show the ability of the Free Syrian Army to speak with a unified voice at times, while also pointing to divisions between the brigades of the army. This extends beyond the ability to “speak with one voice” and also shows a division in the political and military command structure. 15

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There have been many scholarly attempts to define specific parameters on what is a non-state armed group. These attempts are often linked to examinations trying to come to terms with the number of such groups around the world. As of 2019, the ICRC works with some 400 armed groups.20 While this number is quite imposing, it pales in comparison to recent estimates as to the number of armed groups around the world. The ICRC cites thousands of such groups globally,21 including over 200 groups in the city of Misrata, Libya, alone.22 These statistics are cited often within the context of showing the proliferation of such armed groups around the world in recent years. While armed groups are not a new phenomenon, there is an uptick in the number of armed groups as pointed to by attempts to define and count the number of non-state armed groups, such as the Uppsala Conflict Data Program23 and the Dangerous Companions Project.24 However, the extent to which this increase is reflective of a causal relationship between greater violence around the world or more conflicts is somewhat misleading. As Nikolic, de Saint Maurice, and Ferraro point out, there is an increasing number of armed conflicts, and these armed conflicts are involving a rising number of armed groups.25 Political infighting leads to both divisions and coalition-building amongst armed groups as an increasingly common feature of situations of violence around the world. But this fact raises questions as to the extent of uniqueness to armed groups fighting under the same banner as others.26 In their view, this presents legal challenges to determining the existence of a non-international armed conflict because it challenges the idea of a central organisation and command structure, as will be discussed later. Beyond this, in the example of Misrata from 2012, the 236 armed groups cited by McQuinn were brigades that fought toward a common goal.27 Similarly, there is a number of brigades that fall under the banner of the Free Syrian Army in Syria.28 Yet, in other circumstances, the Free Syrian Army signs of on documents as one group.29 Beyond this, the labelling of subgroups as brigades and divisions points to a sense of unity and structure across the groups. Historically, non-state armed groups have existed across temporal and geographical contexts. Before the end of the 30 Years War, the existence of what would now be considered non-state is difficult to establish because there were no states as per modern definitions. Rebellions against conquering armies are mentioned in histories

20

International Committee of the Red Cross (2019), p. 50. International Committee of the Red Cross (2018), p. 13. 22 McQuinn (2012), p. 13; Nikolic et al. (2020). 23 Uppsala University - Uppsala Conflict Data Program. UCDP Conflict Encyclopedia. 24 San-Akca (2016). 25 Nikolic et al. (2020). 26 Ibid. 27 McQuinn (2012), p. 13. 28 This is reflected in the documents from Geneva Call which points to only particular Brigades signing deeds of commitment and different brigades signing at different points in time. 29 FSA (2012). 21

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of ancient Mesopotamia30 and do not appear to be infrequent in ancient times based on other accounts.31 However, beyond these obvious examples of rebellious forces, the line between legitimate recognised state-like actors and those of a non-state armed group is difficult to define. In the Medieval Ages and through the 100-Years War, there are examples of groups of soldiers leaving the armed forces of a party to the conflict to pillage the countryside for their own profit.32 While these could also be seen as non-state armed groups, their lack of a motivation beyond profit separates them from the typical understanding of a non-state armed group.33 The stark contrast between state and non-state armed groups historically arises from the emergence of state sovereignty. Standing armies that fought for a state and not out of feudal obligations became the status quo in Europe after 1648. Thus, those not fighting amongst the official armed forces of a state took on a different identity, but still remained a pertinent factor in warfare. Colonial struggles against non-European powers34 and against European powers and their non-European allies,35 show both political considerations for those groups that were not part of the Westphalian system and, in particular, their treatment under the rules of war.36 In the era of massed troops and line infantry tactics, the contrast between official armed forces and non-state armed groups was even more recognisable, with guerrilla tactics being utilised and sparking the ire of the state armed forces.37 Following the end of the Second World War, the world was hit by a wave of non-international armed conflicts focused around two key issues: wars of liberation and the conflict between communist and capitalist blocs of the Cold War. While non-state armed groups had been involved in armed conflicts in the first half of the twentieth century, many of these groups began to act as legitimate political actors within the international system. Non-state armed groups had both state support abroad and were seen as potential alternatives to the colonial or undemocratic regimes against which they fought. Since the era of decolonisation, the existence

30

Hamblin (2006), pp. 78–81. Some of the better-known examples historically would be the Serville Revolt in Rome and the Jewish Revolts in Ancient Israel against Roman rule. 32 Neff (2005), p. 74. 33 Similar criminal organisations are not categorised as non-state armed groups within the context of this study. Such actors, like cartels or pirates, are conceptually quite different from non-state armed groups. 34 As seen in countless conflicts of European expansion in Africa, the Americas, Asia, and Oceania. 35 As seen in the 7 Years War and American Revolution. 36 This will be touched upon in greater detail in Chap. 5. 37 As will be discussed in Chap. 5, historically, irregular troops were not well respected and actions by these groups, especially since the eighteenth century, have led to heavy-handed reprisals from state armed forces, as exemplified against guerrillas in Spain during the Napoleonic wars and franctireurs in France in the Franco-Prussian war. 31

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of non-state armed groups38 has become the status quo.39 While these conflicts do internationalise and often involve multiple countries, the specific challenge of the formation and proliferation of these groups has not disappeared.40 However, their aims are no longer decolonisation or related to the Cold War, but rather have a variety of motivations for engaging in armed conflict. One of the best documented debates on this by Collier and Hoeffler centres on whether economic or political discord better explains the outbreak of internal armed conflicts. Their line of argument states that internal armed conflicts, particularly those in West Africa in the 1990’s, are better explained by examining the lack of economic opportunity in those countries.41 This theoretical perspective is countered by others who see the emergence of actions of non-state armed groups in situations lacking economic benefit for such actions.42 Furthermore, other scholars like Vinci have pointed out that the presence of non-state armed groups is not limited to anti-government force. Instead, in most circumstances, non-international armed conflicts also involve armed groups that emerge either to support the government or to counter the immediate threat of dissident non-state armed groups present.43 This challenges common conceptions of the motivations of non-state armed groups and their emergence in armed conflicts, showing the range of actors to be even more diverse than what is often understood in current academic debates.

It should be noted that, within the context of anti-colonial armed conflicts, the “armed groups” were, where recognised, not non-state actors, but rather representatives of a state that did not yet exist. While in legal hindsight, this is clear, the contemporary political reality for such actors did not reflect this legal status. 39 In the case of decolonisation, these wars are classified as international armed conflicts according to Article 1(4) of the Additional Protocol I to the Geneva Conventions. However, this Protocol entered into force in 1977, after many of the decolonial wars were already over and has not played a major role in most armed conflicts since 1977. (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) 1977a). The issues in actual application of this article are discussed thoroughly in Vité (2009), pp. 69–94. 40 As reflected in the quantative findings of Harbom and Wallensteen (2005), pp. 623–635; Pettersson and Wallensteen (2015), pp. 536–550. 41 As examined in Collier and Hoeffler (2000). 42 Krause and Milliken (2009), pp. 213–214; Schlichte and Schneckener (2015), pp. 411–412. 43 Jentzsch et al. (2015), pp. 756–757. 38

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Characteristics and Influences on Non-State Armed Groups

Non-state armed groups exist in a sort of limbo in the international system. Through mechanisms such as the second additional protocol to the Geneva Conventions, they, or at least some of them, are legally recognised in international law.44 However, in most cases, they are not legitimate actors in a legal sense.45 Likewise, many of them gain political legitimacy as actors in international relations through the material support or de facto recognition which states provide. However, not all schools of thought consider these groups actors in international relations. Rather, they still exist within the confines of a state and gain legal legitimacy only in cases where they fulfil specific criteria. Vinci states that non-state armed groups have “empirical sovereignty” but lack the “juridical sovereignty” reserved for states in the international system.46 As a result, these armed groups are not considered as actors in the international system. Vinci further states that these groups exist in an anarchic environment within the “state shell”, and they emulate states in the anarchic international system.47 While previous scholars have drawn a distinction between these two environments, internal to the state and within the international community, Vinci argues that non-state armed groups interact in the international system and engage states in considerations of the “security dilemma”48 and “balance of power”.49 Given that these groups either challenge the state’s monopoly on force within the territory of the state, or have their own monopoly on force, they imitate states as sovereign entities by gaining effective control.50 This effective control can be gained in the short term through violence and coercion, but it cannot be maintained through these factors alone.51 Non-state armed groups rely on both external and internal legitimacy to ensure their long-term survival. Some contend that this legitimacy cannot be based in Weber’s legalistic concept and must rely on rational or charismatic legitimacy.52 However, this point of view is contested, especially in the case of armed groups with both internal and external political recognition and well-established, state-like political institutions. While the source of a non-state armed group’s legitimacy and power certainly matters, it may not always be of the utmost importance to the armed group. As with other sovereign actors, ruling through coercion remains an option for any actor with 44 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977b). 45 Daboné (2011), p. 424 46 Vinci (2008), p. 302; Vinci (2010), pp. 27–31. 47 Vinci (2008), p. 295; Vinci (2010), p. 10. 48 Vinci (2008), p. 297. 49 Vinci (2010), p. 7. 50 Ibid. pp. 27–29. 51 Duyvesteyn (2017), p. 673. 52 Schlichte and Schneckener (2015), pp. 413–415; Weber (1947), pp. 130–131.

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a monopoly on violence in a given area.53 However, this strategy of ruling through violence or coercion has been problematic for non-state armed groups.54 One can break down non-state armed groups into their basic elements by examining them through the lens of how they emulate statehood in a geopolitical sense. As defined by the Montevideo Convention.55 statehood consists of territory, population, governance, and the ability to enter into foreign relations. Similarly, the Second Additional Protocol to the Geneva convention defines non-state armed groups covered in the protocol as, . . .dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.56

Further legal definitions raise the bar for qualification as a non-state armed group even higher. In the Haradinaj case, this includes the existence of a “headquarters”, “the ability to . . . gain access to weapons, other military equipment, recruits, and military training”, a group’s “ability to speak with one voice” amongst others.57 These aspects certainly raise the threshold of organisation for armed groups to achieve legal recognition. The reasoning of such a high threshold for examination by an international tribunal is logical, though the practicality of this as being a threshold to define non-state armed groups from the social science perspective is too limiting. While it is certainly important to ensure a standard for examination, there is little use in making the criteria too restrictive to be reflective of realities in armed conflict. There are several real-world cases where the fine line between non-state armed groups and statehood is apparent contemporaneous to this writing of this book. Perhaps the clearest example is that of the Islamic Emirate of Afghanistan, which took control of Afghanistan in the summer of 2021. While the situation surrounding their takeover is quite complex, it was heavily enabled by the negotiations between the United States and IEA about withdrawing US troops and the impact of this withdraw the Afghan armed forces.58 The situation surrounding this takeover clearly shows the complexities of recognition of non-state armed groups. The IEA was not recognised during the negotiations and, even after ascending to have a “monopoly on violence”59 in Afghanistan, does not have recognition as the legitimate government of Afghanistan.60 The IEA is involved in negotiations about evacuations and is, at

53

Krieger (2018), pp. 563–583; Podder (2013), p. 18. Grävingholt et al. (2007). 55 Montevideo Convention on the Rights and Duties of States, 26 December 1933. 56 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977b). 57 Prosecutor v. Haradinaj et al. (2012). 58 Felbab-Brown (2021). 59 Weber (1919), p. 7. 60 Saul (2021). 54

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least de facto, recognised to be in control of the situation in Afghanistan, though not in any legitimate capacity.61 Thus, in the next sections, non-state armed groups will be examined through these elements, namely, control of territory, rule over population, chain of command or governance, the ability to enter into foreign relations, and the ability to carry out “sustained and concerted” armed campaigns. Through these categories, one can also begin to exclude certain other types of armed actors that may be present in an armed conflict. Mercenaries, private military corporations, as well as organised criminal networks and syndicates are also technically non-state armed groups in so far as they are not a state and utilise weapons within the context of an armed conflict or other situation of violence. While such groups are often classed separately these from other non-state armed groups through the lens of their motivation for being involved in the conflict, this does not always serve as a useful point of differentiation as the true political motivation of some self-proclaimed political armed actors is open for debate. Rather, these other categories of actors fail to fulfil, or even attempt to fulfil, the characteristics of a states mentioned above. Thus, these characteristics will not only be used to define what is a non-state armed group, but also help exclude certain other types of non-state armed actors, which will not be examined in this study.

4.2.1

Territorial Control

The most visible indicator of legitimacy for a non-state armed group is that of territorial control. Even from afar, it is quite easy to see whether a state has what is known as “effective control” over the territory attributed to it, or if a non-state armed group has either official or de facto control.62 While official control would mean that the armed group has a potentially recognised monopoly of violence over the area, de facto control could just mean that the state’s monopoly of violence is challenged in the area. This could vary from contested control of areas with limited access for the state.63 A 2016 study by Calle and Sánchez-Cuenca into the issues of territorial control has shown a link between the types of violence used and the control over a territory.64 This study highlighted the tendency for those groups with territorial control, particularly with territorial control of populated areas, to adopt guerrilla tactics in their violent activities rather than terrorist tactics.65 While this quantitative

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Eddy and Gibbons-Neff (2021). As seen in the reaction of the international community to the Islamic State in the context of the Syrian Civil War; see Urs (2017), pp. 31–32. 63 One example of this would be the Northern Irish context, in which the state could fulfill practices such as law enforce, but only with the support of the armed forces to secure the area beforehand. 64 De La Calle and Sánchez-Cuenca (2015), pp. 795–813. 65 Ibid. pp. 810–811. 62

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study has shortcomings regarding its definition of armed groups,66 it presents a strong case for the importance of territorial control for non-state armed groups. The idea of territorial control by non-state armed groups also presents an interesting contrast between political and legal understandings of the status of non-state armed groups. In discussing the situation of, and reaction to ISIS, Urs noted that many states adopted the pragmatic approach of acknowledging the territorial control of the Islamic State in eastern Syria.67 This recognition justified foreign states’ military involvement against the Islamic State as an enactment of collective selfdefence against the threat presented by the Islamic State.68 These actions took place despite the lack of a legal recognition for the Islamic State, the recognition of another sovereign actor in Syria beyond the Assad regime, and the absence of permission from the Assad regime to undertake these actions.69 Thus, one can begin to see the discord between political and legal understandings with regard to non-state actors as well as a willingness of political actors to violate what may be legal understanding of geopolitical norms. Having effective control of a part of the territory of a sovereign state is politically quite powerful. However, this control does not change any aspect of the group’s legal status nor does it serve any purpose beyond the political.70 Thus, the strategies adopted by non-state armed groups often reflect their detached approach to actual land. Often, non-state armed groups will have effective control over a territory but willingly relinquish ground for longer-term strategic purposes.71 The control of territory is only important to the extent that is includes a population and gives the armed group external political legitimacy. While non-state armed groups’ approaches toward physical territory may differ to that of states, the ability to flexibly take or cede control of a territory is for strategic purposes and is not utilised by all groups.

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Calle and Sánchez-Cuenca define armed groups from amongst a dataset on political violence for groups active for at least a year that killed at least 10 people with their violent activities. While they do control for the number of members of the armed groups as well as other potential factors that may impact the results, the existence of an armed conflict seems to be untouched, equating groups like the Rote Armee Fraktion to armed groups within an armed conflict. This unexamined distinction could both have a significant effect on the ability of armed groups to control territory as well as their use of less asymmetric tactics. 67 Urs (2017), pp. 31–32. 68 Ibid. 69 Ibid. 70 Ibid. 71 Often guerrilla “hit-and-run” tactics are exemplary of such thinking.

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Constituencies and Populations

It seems obvious that any group with the resources and logistical requirements of a non-state armed group would require some sort of support system. As stated by Grävingholt, Hofmann, and Klingebiel: . . .[non-state armed groups] should not be regarded as actors detached from society, but as groups whose societal contexts limit their options for action and impose certain duties on them by creating a socio-psychological sense of unity, solidarity and collectivity.72

Non-state armed groups thus exist in relation to the population that surround and compose them. However, the interaction between non-state armed groups and their constituent communities is quite complex, as the constituent communities are also diverse. Constituents of non-state armed groups are both the fighters and the civilian population from which the fighters are recruited. As examined by Weinstein, the population of potential recruits and their relationship to the non-state armed group is also dependent upon the structure and resources of the armed group itself.73 An armed group with greater economic resources is able to attract a wider swathe of recruits with promises of quick rewards, but the group runs the risk of these recruits being opportunistic in the short-term and uncommitted to the cause.74 The opposite is true as well: an armed group without resources needs to recruit with other strategies but in turn may get more committed recruits. These resource-poor armed groups often recruit among ethnic, political, or religious lines, attracting a more homogenous body of fighters.75 As highlighted by Kalyvas and Kocher, non-state armed groups can be formed and continuously recruit from a certain civilian population faced with indiscriminate violence. Their argument follows that indiscriminate state-sanctioned violence against a civilian population reduces the potential risk and cost for engaging in violent activities against the government. Furthermore, the risks can be mitigated and quality of life can be better for those actively involved in armed resistance with non-state armed groups, because of equal or greater risks of death or injury of being a civilian in a conflict area, particularly for males of military age.76 This is particularly prescient in situations of occupation or in which regimes act contrary to human rights. However, conscription can become a form of violence and is, in some cases, done on an involuntary basis. Some armed groups that utilise child soldiers do so through coercion.77 An armed group must consider more than recruitment when dealing with communities. In communities where the armed group does not enjoy broad support, the

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Grävingholt et al. (2007), pp. 55–56. Weinstein (2005), pp. 598–624. 74 Ibid. pp. 599–600. 75 Examples cited throughout Weinstein (2005). 76 Kalyvas and Kocher (2007), p. 189. 77 Weinstein (2005), pp. 612–613. 73

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armed group that controls territory, especially heavily populated territory, must often organise their communities to support the continued war effort and avoid pushing those behind the lines into forming their own, separate armed group.78 One of the main mechanisms for ensuring this is through good governance by the non-state armed group.79 In cases where a non-state armed group does not control the territory, the group takes on different roles to ensure, or coerce, the support of the population, as seen in examples of community policing where formal law-enforcement has little to no access.80 An armed group with a political message can find support amongst the larger community with the same political beliefs and may need little more than the belief in the overall cause to maintain that support.81 However, even in these circumstances, the armed group can lose broad support by diverging from its goals and from the community as a whole through the group’s unwillingness to negotiate or compromise. As stated by Weinstein, the composition of the group can help ensure support amongst a certain ethnic or religious community.82 Religion and ethnicity have been the key dividing lines during non-international armed conflicts, including the Troubles,83 the Lebanese Civil War,84 and many other conflicts.85 These ethnic or religious communities become the key constituencies for the armed group, which results in the conflict being led by the interests of that core group.86 One clear example of this can be seen in the aftermath of the invasion of Iraq in 2003. Following the collapse of the Sunni Arab-led Hussein regime, Sunni Kurds and Shia Arabs saw their interests better represented in Iraqi government. This led to increasing support for militant Sunni Arabs, who led the resistance against Shia “domination”.87 As a result, the United States has since tried to ensure that its support for one armed group in this region does not alienate other key demographic groups. This shift in policy can be seen in support Kurdish groups in Syria, where the United States encouraged the YPG/ YPJ to form the Syrian Democratic Forces, which includes Arab and other minority groups in their ranks.88 One key element to gaining and building support amongst constituency groups is to allow and support local populations to live and even thrive despite the armed conflict. This idea is addressed in Sect. 4.2.3.

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Bruderlein (2000), pp. 2–3; Vinci, 2010, 14–16. Salehyan et al. (2011), pp. 719–720. Ibid. 80 As was the case in areas of Northern Ireland even long after the Good Friday Agreement. 81 Weinstein (2005), p. 617. Salehyan et al. (2011), p. 718. 82 Ibid. pp. 599, 601, 603. 83 Which pitted Irish-Catholics against Loyalist Protestants and the Loyalist state forces. 84 Which saw battle lines drawn between Christians, Sunnis, Shia, and Palestinian armed groups. 85 The wars in the former Yugoslavia, armed conflicts in Nigeria, Central African Republic, Sudan, and Yemen, amongst others. 86 Weinstein (2005), pp. 610–611. 87 Eisenstadt and White (2005), p. 4; Kaválek (2015), p. 14. 88 Stein (2017), p. 9. 79

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Governance and Chain of Command

The ability of a non-state armed group to govern is a contentious point, as the idea of governing can be defined differently based upon the temporal and geographic contexts. Groups, even some of those lacking territorial control, can replace or supplement state-based governance structures, such as law enforcement, infrastructure maintenance, and the distribution of goods and services. As highlighted by Krieger, the greatest level of concern is for groups often labelled as “rebels”, with political goals and actions against the government.89 However, given the symbiotic relationship between non-state armed groups and their constituent population and foreign regimes, good governance is seen as critical for both the achievement of long-term goals, as well as survival of the group itself.90 One of the key foci of non-state armed group governance is their relationship to their constituent population. Having support for a group in the area of operation of a non-state armed group gives it a certain legitimacy that it could not otherwise attain. Here, however, the interplay between the state, the non-state armed group, and the population is crucial. If the population sees alternatives to violent action to achieve political change, there will be little room for a non-state armed group to operate with the shield of popular support, as costs to the supporting population will be higher with armed conflict.91 Governance of the constituent population is not the only issue that non-state armed groups need to be concerned with. Some political science literature on non-state armed group governance focuses on the leadership of the groups. As noted by Grävingholt, Hofmann, and Klingebiel, most armed groups adopt some sort of pseudo-military hierarchal organisation with a chain of command and command control capabilities over the majority of the troops that fight for the group.92 However, the rigidity of these structures and the uniformity is paramount to assessing the political capabilities of the group.93 The level of this organisation is crucial for internal governance in that it reflects the extent to which group members will follow the strategic and often political decisions made “above” them in the chain of command. Policzer suggests four categories of the type of coercive relationships within groups based upon the capacity for internal and external monitoring by groups: bureaucratic, transparent, blind, and hide-and-seek.94 Those groups with bureaucratic and transparent coercion over their members are more effective in enforcing internal regulations and points of strategy than those groups that do not, or are not able to, use those forms of coercion.

89

Krieger (2018), pp. 566–567. Salehyan et al. (2011), pp. 717–718. 91 Grävingholt et al. (2007), p. 58. 92 Ibid. 93 Ibid. 94 Policzer (2005). 90

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As seen above, the issue of chain of command also depends upon the ability of commanders to gain legitimacy within their groups.95

4.2.4

Ability to Enter into Foreign Relations

Along with the ability to govern, one of the most controversial points surrounding a non-state armed group is its ability to enter into foreign relations, though the definition of foreign relations can be contended. There are political bodies connected to some groups, as is the case in Palestine and the Western Sahara, that have the international recognition allowing them to sign treaties and have representation in the bodies of the international community.96 However, the vast majority of non-state armed groups do not have this widespread recognition or stamp of legitimacy to their actions on the geopolitical stage. This does not make them any less able to participate on this stage, however. Research that looked at armed conflicts from the end of the Second World War to the year 2004 found that around 20% of internal armed conflicts had become internationalised, meaning another state (or states) was involved in supporting one side or another.97 While some cases states will involve themselves in the conflicts of others, the impact of this international involvement in internal conflict may be larger than initially imagined. A further study by Kalyvas and Balcells has pointed to the end of the Cold War bringing a shift in the way the civil wars are fought.98 The technological means by which internal conflicts are fought has rapidly and dramatically changed since the early 1990’s. There has been a marked increase in the proportion of internal conflicts that could be labelled as “conventional” and “symmetric nonconventional”, instead of “irregular”.99 This implies that the technologies and strategies used by non-state armed groups has improved to the point that they can wage warfare on an almost equal level as states. Research of scholars such as San-Akca and Maoz has highlighted the role of state support for non-state armed groups.100 This support is an extension of states’ own foreign policy, particular in contexts where the cost of engaging in armed action, either domestically or internationally, would be too costly politically. This was ever apparent during the Cold War, where both superpowers felt pressure to keep the 95

Schlichte and Schneckener (2015), p. 415. The Palestinian Liberation Organisation had observer status at the UN General Assembly from 1974 until 1988, at which time the observer status was changed to Palestine. This status continues until this day. The Saharawi Arab Democratic Republic has been recognised by the African Union since 1984. In both cases, these recognised political bodies are attached to non-state armed groups. 97 Harbom and Wallensteen (2005), pp. 627–628. The implications of this on what are often labelled “civil wars” was discussed in Salehyan et al. (2011), pp. 709–710. 98 Kalyvas and Balcells (2010), pp. 415–429. 99 Ibid. 100 Maoz and San-Akca (2012), pp. 1–15. 96

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other in check while avoiding a direct confrontation. This is evidenced by countless examples of support for non-state armed groups by both the USSR and the United States from the 1950’s to 1990’s.101 However, this does not mean that non-state armed groups are simply extensions of the foreign policies of the states that support them. Many non-state armed groups lack any official support or recognition system, with some relying on the criminal activities, such as the sale of drugs,102 resources,103 and people,104 or impose systems of taxation,105 to maintain their struggle. Support from states to non-state armed groups ranges from material and technical support to more abstract factors.106 Military support by the United States in the form of equipment and air support to the SDF, YPG/YPJ, and certain factions of the FSA are recent examples of state sponsored material support.107 In terms of more abstract forms of support, this does not always necessarily come from states aligned with the goals of the non-state armed group. Armed groups such as Viet Cong, PIRA, and FARC-EP—were all involved in peace negotiations that involved not only the state against which they were fighting but also other states as mediators. Through such negotiations, states can give non-state armed group legitimacy and demonstrate that non-state armed groups are able to enter into foreign relations. Another aspect of the ability to enter into foreign relations is the de facto recognition that is apparent in some cases. An exemplary case of such a case is that of the Islamic Emirate of Afghanistan in 2020 and 2021. As in the previous mentioned examples, the IEA was involved in multi-state negotiations which eventually led to the withdrawal of US and NATO troops from the country. This withdrawal paved the way to a comprehensive takeover of Afghanistan by the IEA and the complete collapse of the Afghan government and armed forces. At the time of publication of this book, the effective control of Afghanistan lays in the hands of the IEA, though international recognition, even from those states that were involved in the peace negotiations, is still non-existent. Even in the case where the IEA is the key partner in negotiations for the evacuation of those still in Afghanistan, thus a clear recognition of its “monopoly on violence” with Afghanistan, it remains an illegitimate partner and lacks official recognition. In the past two decades, examples of foreign relations by non-state armed groups could also be demonstrated through the relationships and work with international NGOs. The ICRC108 and Geneva Call,109 as humanitarian norm entrepreneurs, work

101

US support for the Mujahedeen in Afghanistan. Blannin (2017), p. 17; Cook (2011), pp. 19–36; Grävingholt et al. (2007), p. 36. 103 Blannin (2017), pp. 14–15. 104 Ibid. p. 21. 105 Blannin (2017), pp. 17–19; Cook (2011), pp. 22–25; Grävingholt et al. (2007), pp. 360–367. 106 As discussed in Salehyan et al. (2011); Maoz and San-Akca (2012). 107 US weapons supply to these groups discussed in Conflict Armament Research (2017). 108 International Committee of the Red Cross (2021). 109 See Heffes (2020). 102

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Characteristics and Influences on Non-State Armed Groups

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closely with non-state armed groups. However, other NGOs also engage with armed groups in a more pragmatic way, in which access to a population in need must be negotiated.110 While this certainly does not imply that such negotiations are an implicit acceptance of sovereignty of group over a region, it does show that, at least from the perspective of the armed group, they are able to enter into discussions and have some control over the access and contact between the population in their zone of influence and the broader international community, or at least the community of actors beyond that zone of influence.

4.2.5

Military Operations

One key aspect of legal definitions of non-state armed group is the longevity of the movement. In the Additional Protocol II to the Geneva Conventions, this is described as the ability to undertake “sustained and concerted” military operations.111 In the decision of the International Criminal Tribunal for the former Yugoslavia on the case of Haradinaj et al., the court saw the ability to make and carry-out military operations and the presence of a military strategy as necessary to defining a non-state armed group.112 Drawing the line between an internal disturbance and an armed conflict thus becomes more well-defined, leading to those groups with some element of longevity to gain legitimacy. Inherent in this longevity is the ability to carry out long-term strategies. At its core, most modern non-state armed groups, to some extent, exploit their longevity and utilise what has been termed “fourth generation warfare”.113 This term is used to describe warfare which embraces a long-term game plan of slowly zapping of resource richer enemies of the will necessary to continue an armed conflict.114 Armed groups like the Mujahedeen in Afghanistan, the Provisional Irish Republican Army, and FARC-EP all are prime examples of this type of warfare. None ever had a technological or resource advantage over their enemy but were able to bring them to abandon the fight and come to the negotiating table. While some may consider this reflective of practical implications of waging asymmetric warfare, some groups knowingly adopt this strategy, as was the case with the “Armalite and ballot box” in Northern Ireland.115

110

This is reflected in the documents examined in this study, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977b). 112 Prosecutor v. Haradinaj et al. (2012). 113 Lind et al. (1989); Term used extensively in Hammes (2006). 114 Ibid. 115 Dingley (2012), p. 10. 111

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Further Non-State Armed Group Characteristics

As mentioned in the introduction to Sect. 3.2, further defining criteria for defining a non-state armed group have come from international law. In the case of the Haradinaj judgement, these include elements such as resources and internal unity.116 As with other characteristics indicated in this chapter, while they may be useful for examination of a non-state armed group, particularly in a legal sense, they should be seen within context for many armed groups. Armed campaigns have been waged in the past by armed groups which may not fit all of these criteria. While this may call into question their legal status, it can hardly take away from their capacity for engaging in violence within the context of armed conflicts. This means that examination of the norms that the group endorses and uses, even outside of the context of recognised armed conflict, is a topic that fills a gap in understanding about limits to the use of force in such circumstances and further investigation is warranted. Regarding the access to equipment, materials, and recruits, several key aspects have already been mentioned in this chapter. One important factor in the question of access to such resources is the issue of financing. Armed groups approach the issue of financing quite differently dependent upon the context in which they find themselves. Armed groups are seen to finance themselves through one of three key avenues: internal, the free market, or partners.117 Often, armed groups utilise more than one avenue. The internal avenue has been referred to previously and is mainly done through taxing of those living under their control or businesses in their territory.118 In other cases, such as Sudan and Democratic Republic of Congo, humanitarian aid is diverted or taxed to fund the armed groups.119 The free market avenue often requires business relationships with external actors and involves the sale of resources and goods to those companies outside the context of the conflict. Famously, diamonds mined by forced labour in Angola, the Democratic Republic of Congo, Sierra Leone, and Liberia and sold around the world are examples of this practice.120 Likewise, ISIS sold oil and antiquities in other markets in the middle east.121 Such transactions are often illegal and can frequently involve the sale of illicit goods. Armed groups on both sides of the conflict in Colombia are known for engaging in the drug trade.122 Armed groups in Afghanistan, Myanmar, and Laos undertake similar activities with opium.123 116

Prosecutor v. Haradinaj et al. (2012). Wennmann (2007), pp. 431–436. Wennmann gives a more comprehensive list of means of financing, though all fit into one or more of the three avenues mentioned here. 118 Ibid. pp. 432–434. 119 MacFarlane (1999), p. 544. 120 See Orogun (2004), pp. 151–61; Wennmann (2011), p. 338. 121 Blannin (2017), pp. 14–17. 122 See Holmes et al. (2006), pp. 157–84; Cornell (2005), pp. 756–757. 123 Cornell (2005), p. 755. 117

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The final avenue of financing comes through the support by foreign states. This can be both military and non-military support. As mentioned in Sect. 3.2.3, armed groups are often used as proxies by states with similar interests and often get material support from these states. This either can come in direct or indirect monetary support or in supplying weapons and other military equipment.124 There are countless examples of such relationships and an overview of such relationships in regard to the armed groups examined in this study can be found in Annex 1. In rare cases, this support does not come from the governments of foreign states, but rather individuals, often expatriates, in foreign states. The PIRA is known to have received material support from private citizens of Irish descent in the United States.125 Similar financing support from diaspora communities has been observed amongst other armed groups.126 These are many ways of ensuring funding for the continuation of an armed conflict and survival of the armed group as well as securing its access to military resources. While some access to resources is necessary for the existence of an armed group, other characteristics included in the Haradinaj decision could be contested. Access to military training, the existence of a headquarters, and the ability to act in a unified matter all presuppose the existence of a specific type of warfare in which these elements are necessary for a campaign to be undertaken. For the first of these elements, access to military training is dependent upon what is meant in this sense. Formal training by military instructors may not be possible, though less formalised weapons trainings by, at worst, veterans of the group would be possible in nearly every context. For the latter two characteristics, there could be strategic reasons not to utilise such a structure that would allow for unified action coordinated through a headquarters. Armed groups often adopt a cell-based structure, particularly in contexts in which they do not control territory or are at a severe numerical disadvantage. This is often the case in conflicts in which urban guerrilla warfare is common.127 The cellstructure allows smaller groups of fighters to undertake armed actions while only exposing a limited number of fighters to the risk of capture should the cell be uncovered.128 While multiple groups can be coordinated, there are limits to the ability to mobilise all cells, as an individual that can mobilise all cells could lead to the unravelling of all cells as well.129 Thus, command-control is limited on a tactical level throughout the entire armed group, while strategic decisions and still be taken in general.130 In theory, such cases still allow for general unity and contain some sort

124

Ruys (2014), p. 15. Guelke (1996), pp. 522–526. 126 Wennmann (2011), p. 339. 127 Joint (2018), p. 4. 128 See United States Army (2014). 129 Ibid. 130 Ibid. 125

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of headquarters, however, both of these can be better understood in more vague terms within the concept of governance and command-control discussed in 3.2.3.

4.3

Norm Contestation and Non-State Armed Groups

If one considers non-state armed groups as a political unit with at least contested sovereignty, then one can also begin to examine groups within the same theoretical concepts as states themselves. Thus, the actions of the non-state armed group are thoughtful, strategic decisions aimed at survival or growth. Likewise, non-state armed groups have the capacity to identify and follow ideational motivations. Non-state armed groups must be able to follow, adopt, internalise, and decide to comply with norms in the international system. To follow Winston’s model,131 diffusion in which all three elements (problem, behaviour, and value) are present and flexible within a range of acceptance, non-state armed groups are faced with political and military problems that can be addressed through behaviour and value-related decisions. Like states, their norm adoption is flexible in that circumstances and capacities that limit their behaviours may in turn influence the ideational values. One example is of non-state armed groups in Syria, which, in the face of the state-backed forces’ use of chemical weapons, made it clear that they follow the norm against the use of chemical weapons, which is a much easier stance to take when one does not have the weapon at hand to use in retaliation.132 Whether belief in the value influenced the Free Syrian Army’s decision not to pursue acquiring and using chemical weapons, or their lack of access to chemical weapons led to their official stance related to the weapons or the opinions of their domestic supporters that may have been on the receiving end of chemical weapons attacks, is irrelevant when it comes to the adoption and practice of the norm. One of the clearest ways in which non-state armed groups show their motivations to fight and their commitment to political norms is through the selection of their name. Krieger mentions the name of the Congolese non-state armed group Forces pour la Défense des Droits Humains (Forces for the Defense of Human Rights).133 Likewise, the names of groups like the Free Syrian Army, Popular Front for the Liberation of Palestine, and Rassemblement Congolais pour la Démocratie (Rally for Congolese Democracy), all give political and ideational aspects to the intentions of the groups. Thus, while adopting names, armed groups can try to show their commitment, at least in theory, to certain norms.

131

Winston (2016), p. 16; Winston (2018), pp. 640–641. This is reflected in the documents of the FSA and YPG/YPJ. 133 Krieger (2018), p. 568. 132

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Norm Contestation and Non-State Armed Groups

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Similarly, non-state armed groups adopt norms through some of the same mechanisms as seen in state-centric theories.134 The most visible example is not with other state but rather with non-state norm entrepreneurs. Many non-state armed groups learn about the concepts of international humanitarian law through training, teaching, negotiation, and awareness-raising by the ICRC and Geneva Call.135 The reputational cost of condemnation from organisations that address violations of international humanitarian law cannot be underestimated despite our current understandings of non-state armed groups.136 However, NGOs are not the only actors interacting with non-state armed groups. The interaction of states with non-state armed groups is well-documented and is currently the area of academic study.137 Through both explicit and de facto support, states interact with non-state armed groups on the political, military, and economic level. This trend has been apparent since the beginning of the proliferation of non-international armed conflicts. During the Cold War, non-state armed groups had the option to align their views with one bloc or another to potentially gain aid. In the anti-French and then anti-American insurgencies in Southeast Asia, weapons and other material and non-material support was provided Communist bloc states.138 The opposite was true for the Communist incursion into Afghanistan.139 While the vetting of partners may have been looser in the proxy wars common during the Cold War, the practice of supporting non-state armed groups exists still today. In the Syrian Civil War, the United States and other Western states looked to arm non-state armed groups whose views most closely aligned with theirs. This led to some ineffective support to groups fighting within the Free Syrian Army Coalition as well as more effective, and more active, support for Kurdish fighters and their coalition, self-labelled as the Syrian Democratic Forces.140 In line with the literature on norm diffusion theory, the strategic partnership in this case was formed along normative lines: which actors have the same normative values and have similar understandings of norms? Kurdish resistance to the Islamic State, which was violating international norms and was observed in the attempted genocide of the Yazidi people, made support of the Kurds more attractive than supporting elements of the Free Syrian Army, which had links to the Islamic State.141 This is certainly not the only possible explanation for the strategic

134 The norm theories reviewed in Chap. 2 are all state-centric and focus on states as the units of analysis that interact with norms. 135 International Committee of the Red Cross (2021). 136 As the steps that non-state armed groups take to combat such condemnation, as will be seen in the results, point to. 137 One such study is Maoz and San-Akca (2012). Also see the Dangerous Companions project (San-Akca 2009, pp. 589–613). 138 As mentioned in Thayer (2018), p. 430; Kalyvas and Balcells (2010), pp. 420–421. 139 As mentioned in Powelson (2003), pp. 298–299; Kalyvas and Balcells (2010), pp. 420–421. 140 Stein (2017), p. 9. 141 Conflict Armament Research (2017).

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partnership between Western democracies and Syrian Democratic Forces as one could use realist or liberal theories to examine these strategic decisions. However, the US legislation that allowed material and military support of Syrian resistance groups stipulated that the groups not be associated with certain other parties to the conflict and have “. . .a commitment from such elements, groups, and individuals to promoting the respect for human rights and the rule of law”.142 However, it is not only external factors that impact non-state armed group behaviour, but also the internal structure and make-up of the group. Recent studies point to the impact of foreign fighters on the levels and types of violence in a given armed conflict.143 Importantly, this is not only applicable to the general course of the conflict but also the rules that groups adopt and put into practice. As discussed by Doctor, the presence of foreign fighters in an armed group has an impact on the amounts of sexual violence carried out by the group. This is observed in both systematic, top-down sanctioned uses of sexual violence, as well as more individualistic acts of sexual violence carried out by individual fighters.144 Doctor argues that this is linked to a decrease in the reliance on local communities for material and political support, as well as different strategies of command control by commanders in armed groups with larger numbers of foreign fighters. This finding parallels data that the use of rape as a weapon of war decreases in armed groups with higher numbers of female fighters.145 While these studies focus on one particular sub-group of norms in armed conflict, namely those related to sexual violence, it underscores the internal, structural aspects that can affect the norm contestation and acceptance in armed groups.

4.4

Conclusion

I have established the non-state armed groups are indeed political actors within the scope of international relations. Not only do these armed groups, or at least some of them, challenge the monopoly on violence that is quintessential to the idea of sovereignty, but many of them fill all the criteria for defining a state except recognition as such by other states. Given this understanding, it becomes clear that these groups are rational actors with the ability to make strategic decisions both for their continued existence and toward the accomplishment of long-term goals. However, this investigation has, thus far, tried to build a frame to examine the relationship between non-state armed groups and the idea of norms in international relations. If these actors are, for all intents and purposes, state-like, then it raises the question: Why should one examine how non-state armed groups are specifically 142

US Congress (2014). See: Doctor and Willingham (2020), pp. 1–19; Moore (2019), pp. 279–94. 144 Doctor (2020), p. 72. 145 Mehrl (2020), pp. 12–13. 143

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Conclusion

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affected by norms in the international system? It is because, despite their fulfilment of most of the pragmatic elements of statehood, these actors still exist in a political and legal grey area, in which they are not, practically or theoretically, seen as the equivalents of states. As seen above, this is attributable to a variety of factors, including their variability. Non-state armed groups are always compared to one another, meaning that even those groups with widespread recognition and territorial integrity are examined together with groups far too small to behave in the same way. While there is a great variety amongst non-state armed groups, there are certain elements of similarity. For all groups, there needs to be a niche for action. If there is room for peaceful action, whether it be for economic or political reasons, there is less room for armed action. Thus, one can assume that where non-state armed groups are active, there is a niche in which they are operating that allows for their continued existence. Likewise, all groups have a constituency. This constituency can be as small as the band of fighters in the group, or as large as an ethnic or religious population. Furthermore, all armed groups have some form of organisation. This does not mean that all groups are well-organised. While small groups may have one leader whom members follow directly, the challenge with larger groups is to form some hierarchical structure that allows for command control. This is present in some, though not all groups, and is highly dependent upon the conflict and the internal politics of the group. Thus, all groups have, to some extent, a mandate for action, a population in which they serve, and a structure. The complexities of the environments in which these group exist determine other aspects of their behaviour and organisation. One can see that small groups can and do exist independent of their environment. These groups can exist for economic reasons and even swell to become larger, at least for a period of time, with the promise of a quick pay-out. However, larger non-state armed groups, particularly those fighting for political reasons or within the context of internationalised non-international armed conflict, require political considerations, particularly in regard to their political legitimacy. These groups’ continued existence is dependent upon them continuously being viewed as legitimate actors. As alluded to by Fazal and Konaev, groups with the explicit political goal of secession or independence are more attentive to adopting norms from organisations and states to increase external support for their cause.146 No doubt, this external legitimacy, coupled with internal legitimacy, has an incredible impact on the behaviour of non-state armed groups. As seen in the previous chapter, norms are an important element factoring into how legitimacy is viewed on the international stage. It allows for the common definition of legitimate action and legitimate rule between states. In the second chapter, I examined what norms are and the mechanisms through which they spread, with particular attention given to the norms, and laws, of warfare. In this chapter, I examined non-state armed groups as political actors within the international system. These actors are inextricably linked to both warfare and

146

Fazal and Konaev (2019).

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preserving their status, locally and on the international stage, through a focus on maintaining and building legitimacy. These three elements can come into conflict, especially given the limited capacity that many of these groups have to uphold norms associated with international humanitarian law without putting themselves at an operational disadvantage.147 Building upon these two chapters, it can be seen that Non-state armed groups are political actors that are engaged on the international stage and thus need to care about their relations with foreign states. Moreover, non-state armed groups exist only with the support of local communities and thus need to care about satisfying local expectations. There is considerable academic thought given to the interactions between non-state armed groups and their interactions with organisations working in humanitarian action and development.148 These actors are both norm entrepreneurs, working to convince armed groups of the reasons for engaging in norm compliant behaviour as well as means underscore legitimacy toward foreign and local supporters.149 Lastly, non-state armed groups form within the context of a culture and state and thus adopt some norms from the state in which they exist. While these groups may not fight for recognition from the state, they are often included in peace talks with the state. The ability of an armed group to function as a legitimate actor is also dependent upon the state. If the state does not allow for political action150 or acts violently against its own citizens,151 it creates the space for action for the armed group. With these aspects in mind, the stage is set for a greater exploration of the precise question of this study. Namely to explore the armed conflict norm cluster from the understanding of the type groups examined in this chapter. Given that norms underpin the international law that governs conduct in armed conflict, the study of these norms is imperative to better understand attitudes on the limits in warfare amongst such groups. Likewise, it is established that non-state armed groups are political actors that not only can, but also need to, endorse and follow norms to be viewed as legitimate actors. Since there is often a complex and unclear relationship between these types of groups and international law, the next step is to look for further examples of norms as limiting factors in armed conflict. To do so, I will turn to history as a unique frame of reference. As will be seen in the next chapter, the historical limits applied to warfare by warring parties were effectively norms, put in place out of a sense of appropriateness. Given that international humanitarian law and even the sovereign state are fairly new developments, the next chapter will outline the necessity of understanding the normative limits of armed conflict as well as begin to look for patterns in these norms that will guide the empirical research of this study.

147

Geiß (2006), pp. 775–777. As examined in Bruderlein (2000); Grävingholt et al. (2007); Hofmann (2012). 149 Discussed throughout Fazal and Konaev (2019). 150 Grävingholt et al. (2007), p. 58. 151 Kalyvas and Kocher (2007), p. 189. 148

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Holmes JS, Gutierrez de Pineres SA, Curtin KM (2006) Drugs, violence, and development in Colombia: A department-level analysis. Lat Am Polit Soc 48(3):157–184. https://doi.org/10. 1353/lap.2006.0033 International Committee of the Red Cross (2018) The roots of restraint in war. ICRC, Geneva International Committee of the Red Cross (2019) International humanitarian law and the challenges of contemporary armed conflicts: recommitting to protection in armed conflict on the 70th anniversary of the Geneva conventions. ICRC, Geneva International Committee of the Red Cross (2021) ICRC engagement with non-state armed groups: why, how, for what purpose, and other salient issues. ICRC, Geneva Jentzsch C, Kalyvas SN, Schubiger LI (2015) Militias in civil wars. J Confl Resolut 59(5):755–769. https://doi.org/10.1177/0022002715576753 Joint Chiefs of Staff (2018) Joint Publication 3–24: Counterinsurgency Kaválek T (2015) From Al-Qaeda in Iraq to Islamic State: the story of insurgency in Iraq and Syria in 2003-2015. Altern-Turkish J Intl Rel 14(1):1–32. https://doi.org/10.21599/atjir.29299 Krause K, Milliken J (2009) Introduction: the challenge of non-state armed groups. Contemp Secur Policy 30(2):202–220. https://doi.org/10.1080/13523260903077296 Krieger H (2018) International law and governance by armed groups: caught in the legitimacy trap? J Interv Statebuilding 12(4):563–583. https://doi.org/10.1080/17502977.2018.1504489 Kalyvas SN, Kocher MA (2007) How “free” is free riding in civil wars?: violence, insurgency, and the collective action problem. World Polit 59(2):177–216. https://doi.org/10.1353/wp.2007. 0023 Kalyvas SN, Balcells L (2010) International system and technologies of rebellion: how the end of the cold war shaped internal conflict. Am Polit Sci Rev 104(3):415–429. https://doi.org/10. 1017/s0003055410000286 Lind WS, Nightengale KS, Schmitt JF et al (1989) The changing face of war: into the fourth generation. Marine Corps Gazette MacFarlane SN (1999) Humanitarian action and conflict. Int J 54(4):537–561. https://doi.org/10. 2307/40203415 Maoz Z, San-Akca B (2012) Rivalry and state support for non-state armed groups (NAGs). Int Stud Q 56(4):1–15. https://doi.org/10.1111/j.1468-2478.2012.00759.x McQuinn B (2012) After the fall Libya’s evolving armed groups. Working paper. Small Arms Survey, Geneva Mehrl M (2020) Female combatants and wartime rape: reconsidering the role of women in armed conflict. Armed Forces Soc 48:1–16. https://doi.org/10.1177/0095327x20981696 Moore P (2019) When do ties bind? Foreign fighters, social embeddedness, and violence against civilians. J Peace Res 56(2):279–294. https://doi.org/10.1177/0022343318804594 Montevideo Convention on the Rights and Duties of States, 26 December 1933 Neff SC (2005) War and the law of nations: a general history. Cambridge University Press, Cambridge Nikolic J, de Saint Maurice T, Ferraro T (2020) Aggregated intensity: classifying coalitions of non-state armed groups. Humanitarian Law and Policy (blog). International Committee of the Red Cross (ICRC). https://blogs.icrc.org/law-and-policy/2020/10/07/aggregated-intensity-clas sifying-coalitions-non-state-armed-groups/#_ftn4 Orogun P (2004) ‘Blood diamonds’ and Africa’s armed conflicts in the post-cold war era. World Affairs 166(3):151–161. https://doi.org/10.3200/wafs.166.3.151-161 Pettersson T, Wallensteen P (2015) Armed conflicts, 1946–2014. J Peace Res 52(4):536–550. https://doi.org/10.1177/0022343315595927 Podder S (2013) Non-state armed groups and stability: reconsidering legitimacy and inclusion. Contemp Secur Policy 34(1):16–39. https://doi.org/10.1080/13523260.2013.771029 Policzer P (2005) Human rights violations and non-state armed groups: a new framework. University of British Columbia Powelson M (2003) U.S. support for anti-Soviet and anti-Russian Guerrilla movements and the undermining of democracy. Demokratizatsiya 11(2):297–304

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Price R (1998) Reversing the gun sights: transnational civil society targets land mines. Int Organ 52(03):613–644 Prosecutor v. Haradinaj et al (2012) International Criminal Tribunal for the former Yugoslavia November 29, 2012 Prosecutor v. Limaj et al (2008) International Criminal Tribunal for the former Yugoslavia April 3, 2008 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). Adopted: Geneva, 8 June, 1977a. ICRC Treaties, States Parties and Commentaries Database. https://ihl-databases.icrc.org/applic/ihl/ihl. nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action= openDocument Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). Adopted: Geneva, 8 June, 1977b. ICRC Treaties, States Parties and Commentaries Database. https://ihl-databases.icrc.org/applic/ ihl/ihl.nsf/Treaty.xsp?documentId=AA0C5BCBAB5C4A85C12563CD002D6D09&action= openDocument Risse T, Sikkink K (1999) The socialization of international human rights norms into domestic practices: introduction. In: Risse T, Ropp SC, Sikkink K (eds) The power of human rights: international norms and domestic change. Cambridge University Press, Cambridge, pp 1–38 Ruys T (2014) Of arms, funding and ‘non-lethal assistance’--issues surrounding third-state intervention in the Syrian civil war. Chin J Int Law 13(1):13–53. https://doi.org/10.1093/chinesejil/ jmu003 Salehyan I, Gleditsch KS, Cunningham DE (2011) Explaining external support for insurgent groups. Int Organ 65(4):709–744. https://doi.org/10.1017/s0020818311000233 San-Akca B (2009) Supporting non-state armed groups: a resort to illegality? J Strateg Stud 32(4): 589–613 San-Akca B (2016) States in disguise: causes of external state support for rebel groups. Oxford University Press, New York Saul B (2021) ‘Recognition’ and the Taliban’s international legal status. ICCT. https://icct.nl/ publication/recognition-talibans-international-legal-status/ Schlichte K, Schneckener U (2015) Armed groups and the politics of legitimacy. Civil Wars 17(4): 409–424. https://doi.org/10.1080/13698249.2015.1115573 Stein A (2017) Partner operations in Syria: lessons learned and the way forward. Report. Rafik Hariri Center for the Middle East, Atlantic Council, Washington, DC Thayer CA (2018) Force modernization: Vietnam. Southeast Asian Aff:429–444 US Congress (2014) Public Law 113–291, Sec. 1209, 113th Congress (enacted) United States Army (2014) TC 7-100.3: irregular opposing forces Uppsala University - Uppsala Conflict Data Program. UCDP Conflict Encyclopedia. www.ucdp. uu.se. Accessed 19 June 2023 Urs P (2017) Effective territorial control by non-state armed groups and the right of self-defence. Zeitschrift Für Ausländisches öffentliches Recht Und Völkerrecht 77:31–34 Vinci A (2008) Anarchy, failed states, and armed groups: reconsidering conventional analysis. Int Stud Q 52(2):295–314. https://doi.org/10.1111/j.1468-2478.2008.00502.x Vinci A (2010) Armed groups and the balance of power: the international relations of terrorists, warlords and insurgents. Routledge, London Vité S (2009) Typology of armed conflicts in international humanitarian law: legal concepts and actual situations. Int Rev Red Cross 91(873):69–94. https://doi.org/10.1017/ s181638310999021x von Bernstorf J (2019) The battle for the recognition of wars of national liberation. Essay. In: von Bernstoff J, Dann P (eds) The battle for international law: south-north perspectives on the decolonization era Weber M (1919) Politics as a vocation. Friedrich-Naumann-Stiftung für die Freiheit, Islamabad

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Weber M (1947) The Theory of Social and Economic Organization. Translated by Henderson AM, Parsons T. Oxford University Press, New York Weinstein JM (2005) Resources and the information problem in rebel recruitment. J Confl Resolut 49(4):598–624. https://doi.org/10.1177/0022002705277802 Wendt A (1994) Collective identity formation and the international state. Am Polit Sci Rev 88(2): 384–396. https://doi.org/10.2307/2944711 Wennmann A (2007) The political economy of conflict financing: a comprehensive approach beyond natural resources. Glob Gov 13(3):427–444. https://doi.org/10.1163/ 19426720-01303009 Wennmann A (2011) Economic dimensions of armed groups: profiling the financing, costs, and agendas and their implications for mediated engagements. Int Rev Red Cross 93(882):333–352. https://doi.org/10.1017/s1816383111000361 Winston C (2016) The nature of norms and the evolution of transitional justice. Dissertation, University of British Columbia Winston C (2018) Norm structure, diffusion, and evolution: a conceptual approach. Eur J Int Rel 24(3):638–661. https://doi.org/10.1177/1354066117720794

Chapter 5

A (Brief) History of War and Its Limits

As stated in previous chapters, the goal of this work is to identify and map norms related to armed conflicts in modern non-international armed conflicts. Given this overall objective, it seems a bit counterintuitive to devote a chapter of this work to the study of the history of norms of armed conflict. However, this chapter will serve two key purposes that are essential for a modern examination of these norms. First, this chapter will establish the existence of norms in armed conflict throughout time. It is a review of literature on the political, military, and normative developments of these norms over time; it is not an in-depth dive into the history of a specific norm nor an acknowledgement that limits existed before the codification of international law. Many of these examples were too context-specific to analyse qualitatively. However, recognising the mere existence of these norms is an important take-away from this chapter when justifying the study of norms, instead of international humanitarian law, in modern armed conflicts. In this regard, the chapter will highlight the specific norms of a certain geographical and historical contexts instead of a retelling of the development of modern international humanitarian law. By analysing the rules of war before the development of the sovereign state or the development of international law as a concept, one can see the normative limits in their most basic form between small political entities. These limits to the conduct of war grew to become an important topic historically and expanded over time, but since the dawn of mankind were rooted in the political considerations of utility and ideation and can be seen as discursive, contested, and flexible. There are certainly realist, liberal, and other international relations-relevant theoretical perspectives on the development and diffusion of norms of armed conflict. However, constructivist arguments highlight the malleability and change in these norms within a historical period based upon ideas of culture and morals, as well as changes across times due to political developments and changes in the means and methods of waging war. Limitations to warfare from the earliest period stemmed out of mutually defined needs by both sides of a warring party. Evidence points to the truces in primitive warfare done out of necessity to avoid mutual destruction. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 W. J. Wright, Norm Clusters of Non-State Armed Groups, https://doi.org/10.1007/978-3-031-45914-6_5

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Likewise, ancient warfare shows that as warfare became more organised, considerations to its limitation became more developed, particularly within certain regions with cultural or economic similarities. Furthermore, the history of limitations of the conduct of warfare shows the importance of reciprocity between combatants. As I will show in this chapter, warfare between cultures led to changes in each culture’s norms surrounding warfare and the development of new norm clusters specific to the conflict at hand. These reciprocal attitudes on warfare even pre-empted the beginning of a conflict. As seen in countless examples of European colonialism and warfare against non-Europeans, both ideas of the inequality of combatants as well as expectations, or a lack thereof, of an enemy’s conduct in war, led to the breakdown of norms and rules that would have been self-evident in warfare between European combatants. The second key goal of this chapter builds upon the first to underpin the methodology of the study itself. An improved historical understanding of the development of norms in general in armed conflict as well as an overall examination of the types of norms and limits which they brought to the battlefield can help in establishing a general roadmap of norms which should be viewed more intensely in the coding of the documents of the armed groups. For example, limits to weapons, tactics, or spaces in which armed conflict can be waged must be viewed in the context in which they were created. However, whether these sub-categories of limits are seen frequently or infrequently in the historical development of norms should inform where attention is given in the modern study of norms of armed conflict. My examination in this chapter of the evolution of norms of warfare will give special attention to norms regarding the treatment of civilians and distinction. This will be done for two key purposes with the broader argument of this work. Firstly, it allows for the analysis of the norms as norms. Since the late nineteenth century, norms on the conduct of armed conflict have been increasingly codified to be part of international law. However, as non-international armed conflicts and non-state armed groups are not subject to most international laws and non-state armed groups, unlike states, do not consent to adhere to these laws, understanding the impact of norms before their codification may help to understand how normative expectations and pressures affect non-state armed groups. Secondly, this historical perspective allows one to examine actors within this norm discourse before the beginning of state sovereignty. As investigating non-state armed groups requires the investigation of geopolitical actors that do not have recognition of sovereignty, then examining wars on the global scale before the emergence of the Westphalian system can give some insight into the motivations of these actors. Thus, the historical examination of norms in warfare allows for the examination of norms in warfare without the mitigating factors of international law or national sovereignty. This follows in line with the goal of this study to better understand the armed conflict norm cluster as defined by non-state armed groups. Beginning with the first indicators of norms during warfare from pre-historic times, I will examine the evolution of warfare and its limitations. This will be done across five identified temporal periods meant to account for technological advances and will look at the parallel development of warfare, norms connected to warfare in a

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general sense, and norms connected to the protection of civilians. The number of wars, actors, and views on this subject is enormous and this examination will only touch the surface of several millennia of developments of weapons and warfare that have forced such limits to evolve. However, it will give an impression as to the changes in norms over time and their affects. Special attention is given to the history of warfare in Europe and the Middle East for a few key reasons. Firstly, the largest amount of literature on the subject of laws of war and their development focuses on European thinking on the matter. Furthermore, it is within the context of Europe that two main developments occurred. The military and weapons revolutions of the Late Medieval period put the powers of continental Europe far ahead of others in their weapons and tactics, allowing them to become militarily superior to most other forces. Secondly, it was within this context that the development of modern international humanitarian law took place. Examples of norms in other contexts are used as a counterbalance to show the universality, or lack thereof, of norms governing armed conflict, while focusing on the developments that led to the eventual creation of international humanitarian law, allows for an understanding of the specific considerations that underpin this set of norms. Scholars and practitioners of international humanitarian law often highlight the universality of the laws by showing that they overlap with more ancient principles from different cultures.1 This can almost serve as a post hoc argument, as international humanitarian law may have developed differently if it had been developed with norms outside of those of the great Westerns powers in the later nineteenth century. The pattern that emerges from this historical analysis is important to understand for three key reasons. Firstly, limitations to warfare far predated the birth of international humanitarian law or even the idea of the sovereign state. With this understanding, it becomes clear that actions carried out to limit the negative effects of armed conflict are norms, not always enforced by the international legal system, but instead engrained in attitudes and decision-making processes of military actors across history and geography. Secondly, these limits are flexible and context specific. While modern international humanitarian law is quite clear with how and when it is used, the historical norms governing armed conflict are flexible and subject to change. As commonly seen, actors are not bound to these norms out of a sense of legal obligation to carry them out come hell or highwater. Instead, the decision to limit one’s military actions in time of armed conflict are dependent upon a number of considerations that involve ideology, one’s own conduct and motivations, and those of the enemy. Historically, rules of war often only applied within certain cultural spheres, with the protections of these limitations not expanded beyond a cultural or religious group. Thirdly, history shows that ideas such as mercy, morality, goodness, and religion have impacted these decisions. However, decisions on the conduct in armed conflict have also been made for economic or pragmatic reasons.

As seen with Islam in “Islamic Law and International Humanitarian Law.” (International Committee of the Red Cross 2019) and Al-Dawoody (2011), pp. 107–112.

1

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Pre-Historic Warfare

The existence of war as a natural element in human society is long-debated and has many diverging viewpoints. In War before Civilization, Keeley pushes the idea that there is evidence that war has been with humanity since the beginning, albeit, in different forms.2 Accepting that collective violence existed amongst our earliest ancestors, though, still leads to the question of limits of warfare in these times. In modern observations of “primitive”3 tribes in New Guinea, battles were often long affairs, so truces were declared so that warriors from both sides could return home to tend to their crops.4 Subsequently, fighting was resumed.5 This provides evidence that warfare between such groups is subject to some limitations, at least in cases where it fits the common interest of all warring parties. As noted by Keeley, non-state societies did not have the logistical capabilities of sustaining a military campaign, meaning combat was limited in these societies and no long-term advantage was gained from exploiting issues that affected both sides.6 There is considerable evidence that many modern humanitarian considerations did not affect how warfare was conducted in pre-historic times. According to Keeley, both archaeological and sociological research show differences between arrowheads made for hunting and combat, suggesting that arrowheads meant for the battlefield could be poisoned, potentially even with infection-causing bacteria.7 Furthermore, arrowheads made for combat were shaped differently to make removal more difficult, painful, and potentially deadly.8 This shows that thought was given to warfare by these societies, while the use of weapons causing superfluous and unnecessary injury was not seen as heinous. Pre-historic mass graves from Europe and Northern Africa show evidence of frequent injuries and executorial deathblows delivered to the heads of men, women, and children.9 Oft-cited evidence of war amongst pre-historic peoples comes from high violent death rates amongst males. In Africa, the archaeological sites Jebel Sahaba and Nataruk show the theorised results of pre-historic warfare in the broader sense. In both cases, not only men but also women and children showed signs of traumatic injuries. In Natrauk, dating back to some 9500 to 10,500 years ago, some of the victims may have been bound before they were killed in an area that would

2

Keeley (1996). The author uses this term reservedly as an indicator of modern studies of what behaviour could have been in the past based upon modern societies living in cultures that are theorised to be reflective of those of early humans. 4 Keeley (1996), p. 44. 5 Ibid. 6 Ibid. 7 Keeley (1996), p. 54. 8 Ibid. 9 Mirazón Lahr (2016). 3

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likely have been populated with different hunter-gatherer groups at the time.10 In Jebel Sahaba, 24 of 59 bodies recovered from the site, including men, women, and children, had evidence of violent deaths, many from projectile weapons.11 In Europe, sites related to the Linearbandkeramik people at Schletz-Asparn and Talheim are thought by Golitko and Keeley to show the entire population of the villages, with violent injuries caused chiefly by violent blows to the head.12 Few of the skeletons showed defensive wounds or wounds caused by ranged weapons, pointing to the violence being carried out as executions.13 While the cause of the conflict cannot be known by simply examining the archaeological remains, these sites seem to show that organised violence was commonplace even for early humans. In North America, famous sites in central Illinois, such as Norris’ Farm14 and Crow Creek,15 show that Native Americans were prone to conflict and extreme violence long before the arrival of the Europeans. In both cases from around the fourteenth century, the massacres included men, women, and children. This also falls in line with evidence from Keeley that highlights violence amongst native people in the Pacific Northwest and Northern Canada.16 All of these cases show warfare with no sense of distinction between combatants and civilians, and all include remains of adult male and female as well as child victims. As Keeley notes, while one cannot be certain about all historical examples, given what is known about modern huntergatherer societies, warriors were almost always male.17 Keeley’s accumulation of evidence regarding different pre-historic and primitive conflicts raises two interesting points. Regarding defences, heavily fortified settlements were often found at the frontier of where different cultural groups met.18 He also notes from modern observation of “primitive” groups that warfare took on a more brutal nature when it was inter-cultural or -linguistic. While conflicts took place between different families or bands of the same tribe, the nature of violence would become more extreme when fighting took on an intercultural element. Thus, pre-historic warfare shows that limits were accepted in conduct of warfare when it was in the self-interest of both groups. While the frequency of violent deaths amongst all ages and genders shows little distinction for the defenceless, there may have been stronger limitations to warfare amongst members of similar groups with similarities and frequent contact. The nature of research on pre-historic groups allows for little more than conjecture. However, there are strong indicators given the

10

Ibid. Taken from Keeley (1996) and Ferguson (2013), pp. 116–117. 12 Golitko and Lawrence (2007), pp. 333–334 and 339. 13 Ibid. 333–335. 14 Ferguson (2013), pp. 124–125. 15 Ibid. 16 Ibid. 17 Keeley (1996). 18 Keeley (1996). 11

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archaeological and anthropological evidence, as well as knowledge of recorded norms from ancient history, so these limits seem to be plausible.

5.2

Ancient Warfare (3200 B.C.E.–600 A.D.)

As humans became more sedentary and began living in more complex societies, the act of waging war also became more organised with protective defensive structures,19 specialised military roles,20 and the first military uniforms.21 The clusters of city-states that formed in Mesopotamia, Anatolia and the Levant, Greece, and Italy saw similar patterns in how warfare was waged: military conflicts were waged both within and across cultural lines and wars within cultural spheres were subject to greater moderation than those across cultural lines.22 Due to limited resources and logistical capabilities, warfare in the ancient world was predominately carried out via raids and sieges.23 While there are examples of large-scale battles, these came about through technological and tactical advancements in the later Ancient Period and still were not as common.24 In Mesopotamia and the Levant, conflicts over the regional hegemony were commonplace, but were limited in severity25 in contrast to those between the Sumerians and non-Sumerians.26 Written evidence indicates that Assyrians kept many civilian prisoners as servants and to work for the economic expansion of the empire.27 Despite some limit to the slaughter, the Assyrians were renowned for their brutality in conducting warfare.28 Babylonian propaganda highlighted mercy in their

19

Hamblin (2006), p. 25. Ibid. 18. 21 Hamblin (2006), p. 247; Pfanner (2004), p. 95. 22 As will be shown, norms of warfare, predominately unwritten, developed to differentiate between the treatment of different types of enemies and the culturally, morally, or religiously acceptable way to conduct this warfare. 23 As discussed throughout Hamblin (2006). 24 Ibid. 25 Hamblin (2006), pp. 44–45. Despite centuries of fighting, Sumerian city-states were rarely sacked in conflicts between Sumerian city-states. Regional hegemony was accepted until new balances of power could overthrow the existing dominant city-state, however, total conquest and destruction never was used as a strategy within these city-states. 26 Hamblin (2006), p. 76. The Akkadian conquest of Sumer by Sargon, who thought of himself as Sumerian, was not nearly as violent as Sargon’s conquest of the non-Sumerian Ebla or Sargon’s heir’s battles to maintain control of Sumer. Sargon effectively destroyed the city walls of conquered Sumerian city-states, without sacking the cities themselves. In contrast, Sargon did sack Ebla, showing he was capable of such violence and showed restraint towards Sumer, and his heir was also seemed willing to sack Sumerian cities that rebelled against his rule. 27 Nadali (2014), p. 105. 28 Particularly in the neo-Assyrian period. As described by Wright (2008), pp. 423–458. 20

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conquests beyond Mesopotamia,29 pointing to mercy in warfare seen as positive value. But that behaviour gave way to a more brutal reality, as evidenced by their conquest and destruction of city-states in the Levant.30 Furthermore, Hammurabi’s Code31 included a few laws related to warfare, mainly focused on the rights of the captured and pointing to the practice of ransoming prisoners captured in battle.32 It is theorised that the rules that emerged in the Old Testament were a direct response to the destructive siege warfare from that time-period.33 War is mentioned throughout the Old Testament, with God being a “man of war” that often has a supernatural impact on the course of a battle.34 The book of Deuteronomy includes five rules on the conduct of military operations, though not all of these are focused on the conduct of warfare. The prescriptions for conduct of armed conflict espoused Israelite warriors to ask for the surrender of the city before laying siege to it or attacking it and, if the terms of surrender were accepted, the city was to be spared and its inhabitants taken as servants.35 In the case that a city was not peaceably surrendered, all adult males were to be killed and all other property, including women and children, should be taken as plunder.36 These rules only applied to cities outside of Israel, as those cities that God had promised to the Israelites were to be destroyed, with no inhabitant spared.37 Soldiers were instructed to not destroy crops and livestock, to take only what was needed, and to only chop down trees that do not bear fruit for siege-craft.38 Several of the foundational ancient Sanskrit texts with religious significance in Hinduism outline different limits to warfare.39 The best known and most clear in its discussion of this topic is the Mahabharata, an ancient Sanskrit text from fourth century BCE India, also includes limits to warfare within the context of a discussion of just warfare.40 As in other religious texts on the conduct of armed conflict, the Mahabharata adds a normative element to behaviour in war. Here, “good” people adopt certain practices in warfare including protections for civilians as well those

29

Hamblin (2006), p. 178. Ibid. As was the case in Mari. 31 Code of Hammurabi. 32 Hamblin (2006), pp. 208–209. 33 As described in Nadali (2014), partially from Assyrian and Babylonian aggression and incursions described in Wright (2008), pp. 429–430. 34 Book of Joshua 6:1–20: The book of Joshua details several battles in the campaign to conquer Israel, however, does not give very solid prescriptions about how to conduct armed conflict, beyond the plans given by God to the Israelites. 35 Rofé (1985), pp. 29–30; Book of Deutoronomy 20:10–11. 36 Rofé (1985), pp. 28–29. 37 Rofé (1985), pp. 24–26; Book of Deutoronomy 20:16–18. 38 Rofé (1985), p. 30; Book of Deutoronomy 20:19–20. 39 These norms are discussed throughout Brekke (2006), pp. 113–144. 40 Ibid. 30

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hors de combat.41 Furthermore, the righteousness of these rules is supported by other Hindu texts, such as the Ramayana.42 Another great empire of the region, that of the Egyptians, relied on warfare to capture resources and for economic gain.43 While their frequent incursions both south and east were aimed at capturing resources of metal that Egypt itself lacked, their navy frequently raided other areas of the Mediterranean.44 The near genocidal campaigns to the east in Canaan45 and to the south against the Nubians46 seem to have caused mass exoduses of populations in these areas. In contrast, whether for logistical or economic reasons, the raiding in the Mediterranean was not paralleled with a similar level of slaughter and exodus, implying that restraint could have been shown.47 Arguably the clearest example of norms in warfare can be found in Classical Greece, where the hoplite, a type of heavily armed foot soldier, became the standard type of combatant seen on Greek battlefields.48 These warriors were farmers and became the economic and political powers behind the Greek city-states.49 The economic and political homogeneity of these city-states and the emphasis hoplite warfare led to the development of norms that reflected this reality and served the interest of the hoplites in the Hellenic World.50 Wars between rival city-states were supposed to be short affairs, relying mainly on hoplite combat, with limited objectives and cruelty, and were resolved in time for the farming season.51 Short, pitched land battles were emphasised and the pursuit of a retreating enemy was also banned.52 Battles should end with a request to bury the dead and this request should not be refused.53 In addition, war was not to be waged during holidays and there were protections for temples and other religious sites and personnel.54 Captured

41

Ibid. Ibid. 43 As seen throughout the description of Egyptian warfare in Caanan and Lebanon (Hamblin 2006, p. 401). 44 Ibid. 45 Ibid. 339. 46 Ibid., 393–395—The sources cited by Hamblin highlight that the Egyptians killed “every Nubian they found”, cut down trees, and burned crops and villages in a campaign that would have been reminiscent of total war based upon modern definitions. 47 Ibid. 401. 48 Ober (1994), p. 14; Lanni (2008), pp. 484–485. 49 Ibid. 50 Ober (1994), pp. 14–16. One theory, espoused by Ober, regarding the emergence of rules of warfare in Ancient Greece argues that socio-economic class structure in ancient Greece pushed for warfare to allow for protections to the middle class that would be the primary combatants and held the power in city-states. 51 Ibid.; Lanni (2008), p. 484. 52 Ober (1994), p. 13; Sage (1996); Krentz (2007), p. 183. 53 Krentz (2007), p. 173. 54 Lanni (2008), pp. 477–478; Krentz (2007), p. 155; Ober (1994), p. 13. 42

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combatants and civilians could be paroled, enslaved, or executed, though execution was frowned upon.55 In addition to these generally accepted rules, warring parties also agreed to rules only to govern specific conflicts.56 Non-compliant behaviour could be punished by retaliation and violations would lead lasting impact on the reputation amongst the other city states.57 Lanni,58 Krentz,59 and Van Wees60 argue that these norms were a result of hoplite warfare, which supports Trundle’s argument, that a breakdown of norms during the Peloponnesian War went hand-in-hand with technological and political advances.61 This further supports the arguments by Winston about behaviour influencing what is deemed appropriate.62 In wars against non-Greek enemies, many of the normative protections were not applied: Enemies were pursued despite retreat, prisoners were killed en masse, and ambassadors were not always protected.63 Waging “total” war, as it would later be labelled, was not limited only to the Persian invaders, as was the case with Greek expansion into the Black Sea and military campaigns against the non-Greek inhabitants living there.64 During the Peloponnesian War, norms changed with changes in warfare, as the Athenian and Spartan factions adopted economic warfare, thus encouraging enemy slaves to rebel and flee.65 Sieges became common and ended more violently than in the previous periods.66 One commentary on these norms can be found in Plato’s Republic. Socrates speaks about the ongoing Peloponnesian War, stating the contemporary warfare amongst the Greeks was not befitting of a people that would rely on each other after the conflict and the fighting intensity and limitless violence should be reserved for foreign enemies.67

55

There are different views in the literature about the treatment of Prisoners in inter-Greek conflicts, with Lanni highlighting the fate of prisoners as being up to discretion of the conquerors. Ober, Neff, Roth, and Sage seem to be of the opinion that while it was okay to execute prisoners, it was not always seen as the best option in the interest of the conquerors and became less popular over time, with more prisoners being paroled. Importantly, this is an example of a less binding, non-religious norm, which was adhered to most likely out of self-interest. 56 As can be seen in the banning of ranged weapons as cited by Neff (2005, p. 23), Ober (1994, p. 12), and Lanni. 57 Lanni (2008), pp. 472–475. 58 Lanni (2008). 59 Krentz (2007). 60 Van Wees (2007), pp. 277–280. 61 Trundle (2018), pp. 21–22. 62 Winston (2016, 2018). 63 Ober (1994, p. 18) cites Persian soldiers massacred in their tents as well as the execution of “heralds” in contrast to norms that were respected in inter-Greek warfare. The killing of ambassadors does not seem to have been uniform, as Lanni points to evidence that there was some respect for ambassadors in Greco-Persian wars. 64 Van Wees (2007), p. 285. 65 Ober (1994), p. 18. 66 Ibid.; Wheeler (2007), p. 240. 67 Ibid.; Plato 1930 (Translation). See books IV and V.

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To highlight the context-specificness of these norms, one only has to look at the development of the Roman Empire which began to develop around the same time often through limited warfare against its neighbours, though destructive, unrestrained warfare was utilised against nomads and some neighbouring city-states.68 The expansive Empire that existed, from Spain and France to the Middle East around the first Century AD came predominately through an avoidance attritional warfare by incorporating allied and conquered city-states into the empire equally. However, to show their might, Romans did demonstrate their ruthlessness to make examples and set precedent.69 Massacres were seen as a good strategy to wage psychological warfare and encourage others to surrender70 or to deal with mortal enemies in the long-term, as with Carthage.71 Likewise, rebellion and betrayal were punished in such a way that allied states would not view rebellion as an option in the future.72 Thus, Roman warfare employed both limited and unlimited warfare strategically. When practical, enemy states were given the opportunity to peacefully surrender after defeat.73 However, in less centralized societies, i.e., against the Germanic tribes, the philosophy was that conquest was only possible with the defeat and subjugation of each individual village74 potentially explaining Rome’s brutal campaigns against those they saw as barbarian.75 There seems to have been some official, and sometimes practical, recognition for restraint when fighting against certain enemies.76 While Roman affinity for the Greeks did not spare Athens from being sacked, the whole of Greece fared better than Gaul during Roman expansion.77 Likewise, contemporary literature highlights the role of honourable conduct in warfare.78 As was customary across most contemporary cultures, cities that surrendered to Rome spared the worst fates, while those that were taken by force often suffered further. Ziolkowski’s analysis of how the Roman army sacked cities points to a

68

Oakley (1993), p. 10. Ibid.; Roth (2007), pp. 396–398. 70 Ziolkowski (1993), pp. 77–78; Beyond Julius Caeser in Gaul (Neff 2005, p. 25), one prime example of this is cited by Morley (2010) in which small tribes in Spain were gathered under the auspices of being “resettled” only to be exterminated. 71 As discussed in: Morley (2010). 72 Ibid. 73 Neff (2005), pp. 24–25. 74 Ibid. 75 Beyond Julius Caeser in Gaul (Neff 2005, p. 25), one prime example of this is cited by Morley (2010, p. 43) in which small tribes in Spain were gathered under the auspices of being “resettled” only to be exterminated. 76 Roth (2007, p. 397) highlights that, despite some famous counter examples, on the whole, Romans treated warfare against the Greeks as different from “Barbarian” enemies—perhaps stemming from the economic and cultural exchange between the two societies. 77 Ibid. 78 Neff (2005, p. 24) cites Cicero and Camillus as being examples of Roman opinions toward fairness and respect for religion and custom in war. 69

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limited number of examples of massacres being planned and most of them being done due to a lack of discipline amongst the soldiers.79 This contrasts with previous understandings of order behind the chaos and a continued command control despite the slaughter.80 This would have been the case in very few circumstances and, for the most part, massacres were the result of soldiers breaking out of their ranks and military discipline and doing whatever they pleased.81 It is apparent that in most of the societies either written or unwritten values and rules influenced, at least sometimes, the conduct of warfare. While some of these came about as a reflection of the tactics and technologies of the time,82 others seem to have emerged as a way of ensuring that the conqueror did not rule over a wasteland,83 while others seem to have emerged as religious prescriptions as to what is “good” behaviour84 or the need for future economic and political relations with the current enemy. The examples cited in this section are, by themselves, quite anecdotal, they do not systematically show how the norms of warfare spread, nor do they give a good account as to the discourse around norm evolution. However, organised political actors with specialised militaries revolutionised the concept of warfare in both practice and values and also recognised that limits were needed. Additionally, the norms highlighted point to the context specificity of the norms of warfare. Likewise, one can begin to see general aspects of warfare in which contextspecific behavioural prescriptions begin to develop, like the definition and protection of those uninvolved in warfare, how to deal with prisoners, and the appropriateness of certain weapons and tactics. Ideationally, the ideas of mercy and protection in the ancient period has to be taken into context, it is clear that it did exist.

5.3

Medieval Warfare (400–1500)

While the Medieval period may be remembered for epic battles like Tours, Hastings, Hattin, Crecy, and Agincourt, warfare remained dominated by small-scale raiding and sieges predicated on economic considerations rather than political or religious

79

Ziolkowski (1993), pp. 77–78. These understandings are discussed by Ziolkowski (1993, pp. 74–76) as emerging from the writings of Polybius. 81 Ziolkowski (1993), pp. 77–78. 82 As seen in scholarly considerations of Greek laws of War. Lanni (2008), pp. 470–471; Krentz (2007), pp. 173–176; Neff (2005), pp. 23–24; Ober (1994), p. 13. 83 Nadali (2014) expresses this idea in examining Assyrian warfare, while seen as a potential explanation for Roman attempts to incorporate areas and peoples into the empire as a way of avoiding constant wars of attrition. 84 The examples from the Old Testament and their existence as a potential reaction toward Assyrian siege tactics (Nadali 2014). 80

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issues.85 While religious war was not common, the influence of religion on the conduct of hostilities in armed conflict began to be seen. Emerging Christian powers in Western and Central Europe based their views of warfare through the lens of, or potentially in contrast to, Roman warfare, or at least what they understood of Roman warfare.86 Due to misunderstanding of the nature and norms of Roman warfare, the medieval definition of bellum Romanum came to be understood as warfare between Christians and non-Christians.87 The declaration of such a conflict was the sole right of the Pope.88 This bellum Romanum emerged within the context of the Just War Theory, a way to justify the sins inherent in warfare within Christian thought.89 As examined by Neff90 and Stacey,91 Christianized Europe had one clear disadvantage in waging war: that the root of Christianity lay in pacifism a là “love your enemies”.92 The Just War Theory developed as non-Christian non-Romans were waging war against the remnants of the Christian Roman Empire.93 Within this context, violence was seen as sinful if done for personal reasons, including selfdefence, but it was justified when done for the collective good and combatting violence with violence for altruistic reasons.94 The Just War Theory focuses primarily on Jus ad Bellum95 justification for violence and does not include many Jus in Bello96 limits as it establishes that, in fighting for a just cause, all actions are justified. Throughout the Middle Ages, as the Just War Theory evolved, it grew to include new ideas, one being the Doctrine of Double Effect.97 This doctrine held that any good intention (i.e., warfare with a just cause and correct intention) could have negative effects (i.e., civilian casualties), however these negative effects should not

85 Clarke (1999), pp. 47–50; Gillingham (1999), p. 68; Reuter (1999), pp. 30–31; Allmand (1999), p. 254; Nicholson (2004), p. 3. 86 Stacey (1994), p. 28. 87 Neff’s understanding of this term contrasts minorly with Stacey’s, with Neff arguing that Roman War meant a war fought to defend the Christian world against non-Christians, making it the ultimate just war. Here the word Roman is in reference to the Roman Catholic Church. Despite different understandings of the etymological background of the phrase, both indelibly point to the same idea of a clash between the Christian and non-Christian worlds. 88 Latham (2011), p. 235. 89 The “just war” tradition comes from St Augustine of Hippo’s fifth century Dē cīvitāte Deī contrā pāgānōs, though only mentioned there in passing, and expanded upon by Thomas Aquinas in the thirteenth century, amongst others. 90 Neff (2005), pp. 45–50. 91 Stacey (1994), p. 28. 92 Book of Matthew 5:43. 93 Johnson (2018), p. 30. 94 Russell (1975). 95 Laws governing when and how armed conflict can be initiated. 96 Laws governing what actions can be taken within the context of an armed conflict. 97 Discussed in Walzer (1977), pp. 151–154.

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outweigh the initial act,98 paving the way for distinction, military necessity, and proportionality. One example of the church’s normative role in Medieval warfare can be seen in its relationship to slavery. Slave raiding was particularly common across Western and Central Europe, especially in the British Isles, with groups like the Vikings, Franks, Huns, and peoples of modern-day Scotland and Ireland being quite prolific.99 As Christianity expanded, the church called on Christians not to enslave other Christians, which had been a widespread practice. The Catholic Church’s involvement in ending this practice eventually led to quite uniform compliance.100 In the British Isles, this practice only began to die out in the thirteenth Century, while the continent saw a decrease in the taking of Christian slaves in the eleventh and twelfth centuries.101 However, the church was not always successful in limiting the impact of warfare. This is evidence by the second Lateran Council’s ban of the crossbow in warfare between Christian combatants in 1139102 and other religious initiatives that failed to change behaviour.103 The Peace and Truce of God movements, as well as similar movements in the British Isles, unsuccessfully sought to limit those affected by warfare by defining protected groups that should not be targeted and defining days of the week on which wars could be waged.104 Likewise, religious leaders were not always pushing a narrative of restraint, as visible in the eighth century when the Catholic Church called for bellum Romanum for Christian expansion.105 The First Crusade at the end of the eleventh century culminated with the murder of thousands of Muslim and Jewish civilians in Jerusalem.106 Exceptions to this slaughter were often just pragmatic solutions to a lack of manpower in the Crusader-controlled Middle East.107 Brutality was more visible at the hands of the Frankish knights from Western Europe rather than their Byzantine allies, for whom the Crusade was being

98

Reichberg (2018), pp. 57–59. Clarke (1999), pp. 57–58; Gillingham (1999), p. 68; Reuter (1999), pp. 30–31; Allmand (1999), p. 254; Gillingham (2012), p. 63. 100 Ibid. 71–73; This was certainly with a great degree of struggle and through a considerable amount of work on behalf of the church, though the work of the church never crossed the line into forceful coercion. 101 Ibid. 102 As cited in Megret (2008); Neff (2005), p. 65. 103 Beyond this, crossbowmen from certain Christian states became renowned mercenaries, fighting not only with a forbidden weapon, but doing so simply for profit. These mercenaries, often from Genoa and Venice, were commonly seen throughout the Christian world, despite their clear violations of church teachings on the conduct of warfare. As Stacey (1994, p. 30) rightly points out, the church itself even hired crossbowmen mercenaries. 104 Allmand (1999), pp. 254–256; Megret (2008); Stacey (1994), p. 41. 105 Neff (2005), pp. 48–49. 106 Nicholson (2004), p. 134; Strickland (2006), pp. 130–131. 107 Edbury (1999), pp. 94–96; Strickland (2006), p. 131. 99

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waged.108 Whereas the Byzantines had economic, political, and cultural links to the Turks and Arabs, the Franks did not and were willing to carry their campaign to more extremes.109 Many atrocities of the Crusades are remembered even to today and point to the norms around warfare developing during the conflict. Saladin ordered the execution of more extremist crusader knights following the Battle of Hattin, only to, weeks later, allow for almost all civilians and Christian knights to leave Jerusalem in exchange for a ransom.110 After the fall of Acre, Richard the Lionheart offered to ransom thousands of Muslim prisoners only to execute them when he felt Saladin was not going to follow through on the ransom.111 For centuries following, both sides would commit “reprisal” atrocities against captured enemies.112 In areas of inter-faith conflict that existed before the call for a Crusade, the conflicts retained some elements of being a limited war like in Spain and Portugal, despite becoming internationalised.113 Gillingham cites several cases in which peace between the Spanish and Muslim Kingdoms would take place and even alliances formed across these religious fault lines to wage war against rivals on one side or the other.114 Fatwas in Muslim Spain provide evidence for the frequent enslavement of captured Muslim soldiers and civilians,115 though some were ransomed, as was also the case occasionally in the Crusades.116 Attitudes in these religious wars began to change among Western Europeans, especially those that remained in the Crusader states and had continued contact with the Muslims.117 Massacres of civilians gave way to increased slave-taking, a practice already abandoned against Christians.118 Furthermore, both sides increasingly ransomed important and noble prisoners, thus hinting at the definition of new norms between the groups.119 Just as in Christian Europe, religion had a major mitigating role to play in warfare in the Islamic World. Rules on the conduct of war have been visible in Islamic legal tradition since the founding of Islam in the seventh century, though scriptural prescriptions have not always led to compliance amongst followers.120 It has been

108

Edbury (1999), pp. 98–99; Strickland (2006), p. 137. Strickland (2006), pp. 128–131. 110 Ibid. 132. 111 Strickland (2006), p. 136; Stroik and Rivers (2010), p. 32. 112 Megret (2008); Strickland (2006), pp. 136–137. 113 As discussed in Laliena (2015), pp. 109–122. There are records of knights from present day France, Italy, Germany, England, and Norway taking part in the conflicts against the Muslim Kingdoms in Spain. Gillingham (1999), pp. 61–63. 114 Gillingham (1999), pp. 61–63. 115 As examined by Jakubowski (2017), pp. 9–22. 116 Ibid.; As seen throughout Strickland (2006). 117 Möhring (2006), pp. 188–192; Strickland (2006), pp. 131–137. 118 Gillingham (2012), p. 71; Megret (2008); Strickland (2006), pp. 133–134. 119 Strickland (2006), p. 135. 120 Salaymeh (2008), p. 542. 109

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shown that practice was dependent on local norms and the specific circumstances of the conflict as well as religion.121 In general, Islamic law on armed conflicts was based on norms already practiced in the Arabian Peninsula before the seventh century.122 It clearly defined different types of conflicts, separating intra-faith warfare from inter-faith warfare and both were also distinguished from the raiding that was commonplace among the nomadic peoples of the Arabian Peninsula.123 According to Islamic tradition, the Islamic world was in a constant war with the rest of the world, which could not be ended outright but saw temporary peace treaties.124 Another type of war was the raid, which held a special place in Islamic tradition, especially in the border regions of an expanding Islamic sphere of influence.125 Since raiding was predominately carried out against non-Muslims and was not a fullscale conflict, there were few rules or concerns given to limiting violence.126 According to Islamic thought, rebelling Muslim cities could not be exterminated nor could retreating rebels be pursued and cut down.127 Only those who actively took part in combat could be harmed and punishments could be levied against soldiers that did not abide by these rules.128 However, in situations where civilians were used as shields, less precise weapons could be used, so long as they were not intended to kill the civilians.129 Islamic law, outlined in the Siyar,130 followed the regional practice of sparing women and children from harm, but only so far as they did not contribute directly or indirectly to the conduct of hostilities.131 Some Islamic legal scholars of the time argued that the elderly, religious monks, and those living with certain physical or mental handicaps should also be protected,132 though this never became the general consensus. For non-Muslim civilians, the only prescription was that these individuals should not intentionally be killed. If, in the course of combat, a non-Muslim civilian fell victim due to collateral damage, then the soldier

121

Ibid.; Neff (2005), p. 43; Strickland (2006), pp. 113–114. Landau-Tasseron (2006), p. 18. 123 Neff (2005). p. 43. 124 Neff (2005), p. 42; Strickland (2006), pp. 113–114. 125 Neff (2005), p. 43. 126 Ibid. 127 Ibid. p. 45. 128 Landau-Tasseron (2006), pp. 2–3. 129 Strickland (2006, p. 114) mentions the use of fire, water, and medieval artillery when besieging a city or even arrows and handheld weapons when civilians were beings used as cover in more closequarter settings. 130 Strickland (2006, pp. 113–114) cites this text heavily, though the extent to which it was known amongst medieval Muslims is unclear. 131 Landau-Tasseron (2006), pp. 2 and 11; Salaymeh (2008), p. 526; Strickland (2006), pp. 113–114. 132 Strickland (2006), p. 114. 122

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responsible would not be punished.133 These protections only extended to fellow Abrahamic monotheists and may not have extended to polytheists.134 There were ideations beyond religion that influenced understandings of appropriateness in warfare, such as honour or chivalry for noble soldiers and knights,135 which was quite effective in its ability to limit warfare particularly in warfare in which the command control of nobles was strong.136 These norms were enforced through the top-down sanctions137 or reputational damage.138 Obligations of chivalry could be ignored with fair warning, with a red banner being flown to indicate to the enemy that no quarter would be given, though use of this banner was more common in civil wars and could be exhibited by one side without affecting the behaviour of the other.139 It is important to note that the red-banner symbol seemed to be used in contexts where chivalrous mercy was expected, hence giving the enemy fair-warning about the intentions. Conceptions of honour were important beyond Europe, like in feudal Japan, where the norms of warfare were massively different,140 honour impacted knights’ conduct in warfare.141 In this context civilians were just another part of the ecosystem of war and would be killed indiscriminately when caught in the wrong circumstance.142 Friday cites counter examples to this case, in which civilians were actively protected. These cases show, however, motivations not regarding a category of people, but instead individuals, as they were protected due to the relation with other powerful military and political figures.143 While this point contradicts the idea of a moral “good” behind mercy in warfare, it supports the idea that behaviours are adopted due to decision-making process that may take values or practical considerations into account. 133

Landau-Tasseron (2006), p. 11; Strickland (2006), pp. 113–114. Strickland (2006), pp. 113–114. 135 Liivoja (2012), pp. 75–76; Chivalry comes from the French chevalier, which signified a mounted warrior, and thus reflected those with the resources and skills to fight on horseback. Stacey (1994), p. 27. 136 Ibid.; Neff (2005), pp. 73–75; Stacey (1994), p. 30. 137 One famous example comes from William the Conqueror’s expulsion of a knight who mutilated a corpse at the Battle of Hastings. Crimes against the chivalric order were punished by feudal courts in many cases. Stacey (1994), p. 30. 138 Killing of a prisoner who had asked for mercy brought with it an addition to a knights’ coat of arms, as did other crimes This mark was known as the point champaine tenné. Berry (1828), p. 12. 139 Stacey (1994, p. 33) cites such an incident between rivals for the English throne in the thirteenth century in which one hopeful to the throne used this signal on more than one occasion, without impacting the chivalrous commitments of his enemy and the French flying this banner at Crecy. 140 Karl Friday highlights the targeting of civilians and property as an accepted part of feudal warfare in Japan (175–177). This was not only an exception, but rather general practice and a practice which was seen as, generally, honourable. Thus, while the concept of honour still played an important role as an ideation, the behavioural prescription was wildly different. As seen throughout Friday (2006), pp. 159–184. 141 Friday (2006), pp. 168–169. 142 Ibid. 175–177. 143 Ibid. 134

5.4

5.4

Early Modern Warfare (1500–1850)

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Early Modern Warfare (1500–1850)

As has been seen thus far, the technology and conceptualisation of warfare, and therefore also the norms applicable to it, evolved considerably over time and were subject to constant change. This means that trying to separate periods of time is rather difficult, as this slow and steady evolution does not fit easily into categories. For sake of generalisation, one could make a major cut at around the year 1500— which saw the end of several major conflicts144 as well as several conflict-inducing political developments.145 While gunpowder weapons had been around for centuries, improvements and proliferation of the weapons systems meant that how wars were fought began to change drastically, in what has sometimes been called labelled the “military revolution”.146 This meant an increasing reliance on soldiers with firearms and a decreasing reliance on walled cities,147 dependent on where the wars were fought.148 Armies became more professional and improved logistics meant less competition and conflict for civilians for resources.149 Given that there were only seven peaceful years in seventeenth century Europe, warfare had a profound effect on the population of Europe as well as on warfare itself.150 Despite this constant conflict, military knowledge was exchanged regularly, and tactics and technology spread through mercenaries and advisers alike151 even beyond the Christian world.152 The result of this was that European powers had, in general, a similar understanding of what constituted war.153 The logistics of this

144

The Ottoman Empire had taken Constantinople (1453), the Spanish Empire had taken the Iberian Peninsula (1492), and France won the Hundred Years War (1453). 145 Trans-Atlantic exploration and colonisation was underway (from 1492) and the Protestant reformation was about to begin (beginning in 1517). 146 As discussed throughout Arnold (1999), pp. 23–44; Spencer (2016), pp. 59–73; Evans and Ryan (2003), pp. 9–10. 147 Parker (1994, pp. 53–54) highlights the role that “fortified frontiers” would play in this new style of warfare. 148 Asch (1999), pp. 23–44. Asch discusses that despite being historically and geographically close, the Eighty Years War in the Netherlands was fought predominately with siege warfare while the Thirty Years War in Germany included a high number of pitched battles. 149 Parker (1994), pp. 53–54; Asch (1999), pp. 59–61. 150 Outram (2002), pp. 245–247. References to this can also be seen in Daudin (2017) and Berg (2016), p. 15. 151 Wilson (1999), pp. 82–83; and Neff (2005) refer to different elements of this shift; highlights the role of officers moving from one country to another to spread these tactics, as was the case in Prussian tactics being “bought” by Russia and American colonists by way of such officers. This also spread to the Ottomans. 152 Ágoston (1999), pp. 143–144. 153 Such conceptualisations often included large, massed formations using volley fire at enemy formations. The idea of instructing soldiers to aim at targets in firing would not come about until the eighteenth century (Wilson 1999, p. 91).

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warfare made it less lethal than earlier warfare.154 War was still terrible, but there were attempts to reel in the destructive tendencies seen in warfare during previous eras.155 Parker argues that even before the “military revolution”, wars were still fairly limited.156 Grave breaches of accepted norms, such as the sacking of cities, did occur but were rather few and far between and only occurred when taken by assault, in order to facilitate a more peaceful future surrender of neighbouring cities.157 This contrasts Neff’s interpretation of the end of the Middle Ages, when the Just War philosophy and chivalry began to collapse and eventually led to the idea of two professional armies making war on one another and not civilians.158 Through the mid-seventeenth century, armies were required to interact with civilians for food, often through pillaging, which was much more strategic in enemy territory.159 Occupying armies’ taxation of populations undoubtedly put a major strain on civilians and made civilians important military targets for conquest and provided an important reason to keep these populations out of the hands of an enemy.160 While this may be true for war amongst Europeans, the practice of making war was quite diverse in this period and wars of colonial expansion and religious conflicts restraint not seen as a necessity. The Spanish defined the enemy more liberally in their wars against the Dutch rebels and indigenous Americans. However, there was a rationale behind the brutality used by the Spanish.161 The influence that norms have on this brutality is best seen in the Americas. Amongst the two groups, Europeans and indigenous Americans, warfare was heavily ritualised. However in war between the two groups, technological and experiential differences between the combatants led to less moderation in the colonial conquest.162 For example, Aztec warfare was not exclusively focused on killing one’s enemy in the field, but rather emphasised capturing an enemy combatant, especially an important one, for later

This is underscored by Wilson’s (1999, p. 91) emphasis on the deadliness of musket fire, namely “one casualty for each 250 to 400 shots discharged”. Though this average was not the case in all battles. This combat needed space for the two factions to be able to see each other with no obstructions, making urban combat difficult. 155 Starkey (2003), pp. 6 and 18; Howard (1979), pp. 5–6. 156 As seen throughout Parker (1994). 157 Parker (1994, pp. 49–51) refers specifically to the sieges of Drogheda, Mechelen, and Magdeburg, highlighting the external and mitigating circumstances that led to the massacres, similarly to what the Romans had done historically. 158 Neff (2005). As seen with bands of warriors in the Hundred and Thirty Years’ Wars who became free companies to pillage the countryside (Ibid.) 159 Asch (1999), pp. 59–60. 160 Ibid. 161 Parker (1994), pp. 46–47. Though he does also reference the Spanish King, who urged some limitation to the violence out of political considerations. 162 Parker (1994, p. 56) traces this back to factors that include entrenched beliefs that the enemy was not deserving of mercy, not feeling the need to show and thus expect mercy, and the deadly arithmetic of trying to wage an offensive war with a numerically inferior force. 154

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sacrifice and as a means for “social advancement”.163 This contrasted with norms of warfare for Europeans, where killing the enemy on the field was the goal of warfare and capture meant mercy, not sacrifice. This meant that expectations of combat between the groups were completely different. Conquistadors exploited their technological superiority to fight and kill from range while Aztec warriors found killing at range dishonourable and were often goaded into pursuing retreating Spaniards with the goal of capturing them instead of trying to annihilate the enemy on the battlefield.164 Norms of warfare no longer mattered, the Spanish, outnumbered and trying to terrorise a population into surrender, were quick to massacre civilians165 while the Aztecs would dishonour the wounded and captured Spanish by killing with a blow to the back of the head, a criminal’s death.166 This conquest was only the beginning of wars of colonial expansion. By the end of the sixteenth century, France and England would be attempting to build their own permanent colonies in the Americas, while colonisation also began in Africa and Asia.167 Colonial armed conflicts often evolved to never-ending retaliations to perceived norm violations—mutilation of bodies and acts of perfidy were common despite being viewed as dishonourable amongst Europeans.168 These atrocities were not compliant with European norms of warfare at the time and highlight both a lack of reciprocity between combatants and negative reciprocity through acts of vengeance.169 However, time and familiarity led to the formation of new norms, as Europeans began to use indigenous tactics in the now internationalised wars playing out in global colonies.170 For example, in the American Revolutionary War, while some American commanders did strive to build a European style army, irregular warfare became common and effective.171 In West Africa, Europeans allied with indigenous groups to combat other Europeans and, as a consequence, economic and military relationships were born.172 In many cases, the changes in behaviour due to new environments or technology led to a new conceptualisation of what was proper and even why it was proper.173 However, there were simultaneous ideational shifts. Writers such as Francisco De 163

Clendinnen (1991), p. 79; Isaac (1983), p. 129. Clendinnen (1991), p. 80. 165 Clendinnen (1991), cites multiple examples of Cortes attacking villages and, in perhaps the most famous incident of his conquest, his men attacking dancing warriors (67). 166 This seems to be only one of many adaptations that the Aztecs adopted to counter the Spanish style of warfare, though these adaptations would be too little too late, as disease and Spanish reinforcements would spell the end for the Aztecs. 167 Discussed throughout Thornton (1999). 168 Selesky (1994), pp. 66–69. 169 Ibid. 170 Ibid., 73–74. 171 Black (1999), pp. 240–241; Selesky (1994), pp. 76–77. 172 Thornton (1999), pp. 43–51. 173 Winston (2018, pp. 640 and 643) argues that often behaviour changes can precipitate changes to a norm by affecting the ideation. 164

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Vitoria,174 Hugo Grotius,175 and Emer de Vattel176 all wrote on the laws of war with a frame of natural law observed in armed conflicts. While certain universal principles shine through in their writings, these authors also make clear differentiations in terms of enemies. Vattel notes different considerations that need to be made when fighting against Christian instead of non-Christian enemies.177 Likewise, the idea that war against barbarians is still distinguishable, meaning that while there were “laws” that naturally applied to warfare, not all “laws” applied to all warfare.178 In terms of ideas about the distinction between civilians and combatants, both Grotius179 and Vattel180 argue that war against a certain state means war against all people of that state, including those not in the military. However, these theories evolved, with both writing that while the enemy states’ population is indeed the enemy, they are not the same type of enemy as one would meet in the field and therefore should be treated differently. However, these texts reflect a more academic view of the norms, rather than one developed in a constructive way by those fighting the war. While civilization inched closer to applying laws to war, other ideals played an important role. Honour, despite its vagueness, was an ideal that impacted behaviour in warfare, especially inter-European warfare.181 The concept of honour served as a justification for jus ad bellum182 as well as a key motivating factor for following the norms of jus in bello. As argued by Liivoja, this concept of honour is a continuation of chivalry and the norms connected with the concept were only applicable in so far as the concept itself mattered to the combatant,183 with a greater emphasis often placed on the concept by officers than by infantryman.184 The concept of honour was also influenced by the continued professionalisation and exchange of personnel,

174

de Vitoria (1991). Grotius (1901). 176 de Vattel (2008). 177 Ibid, 487. 178 Ibid. 179 Grotius (1901). Grotius cites examples from Ancient Greece and Rome to show that the law of nations allows for the killing of all subjects of a foreign state (in particular in Book Three, Chapter Four). However, he later used similar citations to show that “moderation and humanity” should be shown in war as well, though qualified that violence against civilians can be justified (Book Three, Chapter Nine). 180 de Vattel (2008), pp. 509–511. Vattel states that while all subject of an enemy state are enemies, in line from Grotius, not all enemies can be seen as equal. Furthermore, Vattel highlights that all things that are necessary for conducting the war are lawful, but superfluous carnage is not— focusing on the principle of military necessity as a principle of limitation to conduct in warfare. Surrendering enemies are only legitimate targets only if that had previously committed atrocities, thus opening the door for legitimized reprisals. 181 Starkey (2003), p. 5. 182 Ibid. 183 Liivoja (2012), pp. 75–76. 184 Ibid. 82. 175

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ideas, and weaponry amongst Europe’s militaries.185 Given the international nature of conflicts in this time186 and ever shifting alliances, brutality could be detrimental when fighting against or alongside the same armies in the future.187 The end of the eighteenth century saw a rather abrupt shift in the trend of increasing professionalisation of armed forces188 as the forces of the French Republic swelled through levée en masse,189 enabling them to wage a war of conquest across Europe.190 Unlike previous wars, the revolutions at the end of the eighteenth and beginning of the nineteenth century saw many fighters from largely suppressed communities, and extreme violence became common.191 Brutal irregular warfare tactics in both these revolutionary and the Napoleonic Wars were met with equally brutal counterinsurgency measures.192 Politically motivated massacres in the Vendée as well as the atrocities committed in Spain, Portugal, Italy, Russia, and the Middle East during these wars attest to the collapse in the distinction between combatants in civilians in such circumstances.193 Interestingly, many incidents of violence in these contexts were not “excesses of war” caused from the loss of control of troops but were organised and ordered by officers. As warfare came to involve more of the general population, the practices and traditions that limited some unnecessary violence amongst armies was no longer as pertinent to military practice. It had set the stage for industrialised warfare which would further blur the lines between who was and was not involved in waging warfare.194

185

Wilson (1999), pp. 82–83. The Nine Years’ War, the War of Spanish Succession, War of the Quadruple Alliance, War of Austrian Succession, Seven Years’ War, American Revolution, and French Revolutionary wars all involved France, Great Britain, Spain, and either Austria and Prussia, if not both, and took place on multiple continents all within the span of a century. 187 Parker (1994, pp. 53–55) makes this point quite well in referencing the wars in the Netherlands and Switzerland in the seventeenth century. 188 Black (1999), pp. 228–229; Starkey (2003), p. 212; Rothenburg (1994), pp. 86–87. 189 Mass conscription. 190 Black (1999), pp. 228–229; Starkey (2003), p. 215; Rothenburg (1994), pp. 94–95. This is not to say that professionalism disappeared in these contexts, as many officers remained and trained revolutionary armies. 191 Klooster (2018). 192 As seen in Dwyer (2009), pp. 381–405; Dwyer (2013), pp. 117–131. 193 Ibid. 194 Ibid. 186

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Modern Warfare and International Humanitarian Law (1850-Present)

Warfare in the mid-nineteenth century was impacted greatly by the rapid developments in technology, with new tools in communication, transportation, and destruction being utilised in the Crimean Wars, the American Civil War, and the German Wars of Unification.195 On the battlefield the Minié Ball and rifled musket increased the range of small arms fire,196 increasing the lethality197 of combat and necessitating a change in infantry tactics.198 Not all developments were destructive. During the American Civil War, while there were atrocities committed by both sides,199 there was a general application of the norms of warfare common in western warfare during the era.200 Simultaneously, the United States government issued the famous General Order No. 100,201 commonly the Lieber Code, as the first true legal codification of norms already defined within in the army.202 It emphasised the role of military necessity203 and espoused that, “The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.”204 This was put into practice at the end of the war with the utilisation of “total war”, aimed at the destruction of civilian industry and infrastructure.205 Around the same time, Henry Dunant witnessed the aftermath of the Battle of Solferino leading to the founding the Red Cross and the first conventions of modern international humanitarian law.206 As highlighted by Bugnion,207 Dunant and Lieber were not alone in in his efforts, as there had been other organisations that had formed to care for the wounded.208 These efforts reflected the push for more universal acceptance of norms regulating the treatment of wounded soldiers and those that cared for them.

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In each case, the telegraph, locomotive, and rifled musket all became crucial military technologies. As discussed in Bektas (2017), pp. 233–262; Boot (2006), p. 243 (ebook); Mahon (1961), pp. 57–68. 196 Mahon (1961); Leonard (2012), p. 57; Boot (2006), pp. 257–258 (ebook). 197 Based on estimates of Fischer et al. (2007), p. 2. 198 Leonard (2012); Mahon (1961), p. 63; Williams (1975), pp. 204–206. 199 A good review of different incidents is provided in Bennett (2013), pp. 142–158. 200 Both this general trend and the major counter-example to this is the treatment of Black Union Soldiers by Confederates, which eventually led to a cessation of prisoner exchanges as highlighted in Van Creveld (2006), pp. 142–143. 201 Lieber (1863). 202 This view is supported by Carnahan (1998), p. 214; Solis (2010), pp. 40–41. 203 As discussed in Carnahan (1998). 204 Lieber (1863), p. 10. 205 Discussed in Walters (1948), pp. 447–480; Janda (1995), pp. 7–26; Bower (2000), pp. 1119–1132. 206 Bugnion (2009), pp. 3–5. 207 Bugnion (2009), pp. 14–15. 208 Ibid.; Alexander (2015), pp. 112–113; Rostker (2013), pp. 110–111.

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Dunant and Lieber set the stage209 for the codification of the norms of warfare in the first Geneva Convention.210 In addition to the first Geneva Convention, the growing body of international humanitarian law was also born out of the Saint Petersburg Declaration (1868) and the Hague Conventions of 1899211 and 1907.212 These instruments banned certain weapons and defined the norms related to the conduct of armed conflict. Despite military powers from other around the world negotiating these treaties, they were codifying norms that fit European warfare.213 These codified norms only applied to warfare between signatories of the agreements, leaving colonial conflicts and internal disturbances further open to no-holds barred warfare, which were often one-sided affairs given the gulf in technology.214 Where insurgents had equal weaponry, they were effective, if not successful, as in the American Civil War,215 Franco-Prussian War,216 the Paraguayan War,217 and the Boers during the Boer Wars.218 While the signs of incredible changes in warfare were already visible, they would become crystal clear in the First World War, where the lethality of combat was through technology and not a decay through norms.219 Aspects of the norms included in the Geneva and the Hauge Conventions remained intact through the First World War, while others were ignored to gain a military advantage.220 However, there were atrocities committed throughout the war221 and the Treaty of Versailles stipulated that those responsible for these atrocities would be handed

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Levie (2000), pp. 340–341. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864). 211 Elements of this convention cited here are: Declaration (IV,2) concerning Asphyxiating Gases (1899); Declaration (IV,3) concerning Expanding Bullets (1899). 212 Elements of this convention cited here are: Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (1907); Final Act of the International the Second Peace Conference (1907). 213 Max Boot (2006, pp. 415–416 (ebook)) cites the Japanese delegate in the Hague as saying, “We showed ourselves at least your equals in scientific butchery, and at once we are admitted to your council tables as civilized men.” 214 Ibid. Likewise, Boot highlights the success of indigenous armies that did have access to comparable weaponry (2006, pp. 328–331 (ebook)). 215 Janda (1995). 216 Scianna (2019), p. 969. 217 Bethell (2018), pp. 109–111. 218 Strachan (1983), p. 76. 219 Roberts (1994), pp. 124–125. 220 The use of Dum-Dum bullets, though charged early in the war by the Germany against the British armed forces (The British Medical Journal 1919, p. 792), does not seem to have been widespread while the use of poisonous gas was widely practiced by most of the major belligerents. These were both prohibited in the Declarations IV,2 and IV,3 of 1899 Hague Conventions. 221 It should be noted that one of the most publicised violations of norms of warfare during the war, unrestricted submarine warfare by the Germans, is not included in this review, as it is only examining the norms of land warfare. 210

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over for trial to the Allies.222 While this never came to fruition, national trials for war criminals were held in Leipzig and Constantinople.223 Importantly, the norms of warfare were being enforced through the justice system and not through retaliation, though with some controversy.224 For the most part, the normative reaction to the First World War was to challenge the legitimacy of armed conflict, rather than its limits. There were new additions to the Geneva Conventions and additional protocols prohibiting poison gas and draft conventions on the air warfare and the status of civilians.225 Despite war being prohibited as an instrument of national policy by the Kellogg-Briand Pact in the inter-war period, armed conflict continued unhindered.226 In Spain, Europe’s fascist and communist powers used the civil war to test their military might and give their troops combat experience.227 In East Asia, the Chinese Civil War and the Japanese incursion into Manchuria led to millions of dead.228 Unlike the First World War, the brutality of the Second World War was linked with a decay in the norms of warfare. One example of this is the treatment of prisoners, covered by the Geneva Conventions in 1929, of which both the Soviet Union and Japan were not signatories.229 Prisoners held by the Japanese were poorly treated and often died from exhaustion, hunger, or execution, and there was little room for retaliation by the Allies, as so few Japanese soldier surrendered or had their surrender accepted.230 Generally, the treatment of Japanese prisoners by the Allies was up to standard with the Geneva Conventions, despite widespread racial animosity and incidents of barbarity at the front.231 Soviet prisoners did not receive such protections, as evidenced by the execution of millions of Soviet prisoners as result of the state-prescribed political and ethnic hatred toward Communists and Slavs,232 as made explicit through the Kommissarbefehl.233 More than half of the over five million Soviet prisoners died in German custody, despite fears of retaliation by the

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Kress (2006), p. 17. Though the political will to carryout sentences as a result from these trials was lacking. Ibid.; Bass (2000), pp. 78–82; Solis (2010), pp. 75–76. 224 Ibid. 225 Roberts (1994), pp. 126–128. 226 Neff (2005), pp. 304–305. 227 A good study of this conflict can be found in Beevor (2006); See Willard (1987), pp. 368–409. 228 Dower (1986), pp. 53–55. 229 Convention relative to the Treatment of Prisoners of War (1929); See Mackenzie (1994), pp. 487–520; Best (1981), p. 77; Roberts (1994), pp. 128–129; Jansen (2000), pp. 665–666. 230 Best (1981); Dower (1986), p. 77; Mackenzie (1994), pp. 515–516. 231 The brutality of combat in the pacific was commented on by: Best (1981), p. 69; Throughout Dower (1986); Mackenzie (1994), pp. 512–518; Harrison (2006), pp. 819–820. 232 Mackenzie (1994), pp. 504–505; Barany (1983), pp. 163–164; Berkhoff (2005), pp. 789–796. 233 The order which explicitly called for the summary execution of Political Commissars captured in battle. Deutsches Historisches Institut (1941). 223

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Soviets.234 Likewise, the Soviets commitment to Geneva Conventions of 1929 was done half-heartedly and did not impact those in their custody.235 Such poor treatment of prisoners was not universal but was quite context specific and based more in the racial politics of the war than the legal protections guaranteed through the Geneva Conventions. As cited by Mackenzie, the escalation and de-escalation of reprisals toward prisoner treatment can be observed between the British and Germans.236 However, thousands of Black French soldiers were not allowed to surrender, were executed, or were not protected to the standards prescribed of the Geneva Conventions, as the White comrades were.237 Despite the two groups having the same status legally, the norms were not equally applied for all combatants.238 Likewise, Jewish soldiers from the British and American armed forces were also treated differently than their gentile comrades, though still humanely.239 Beyond the realm of prisoners, the Second World War saw other contestation of norms in warfare, particularly in blurring the lines between civilian and combatant. Undefended industrial cities in Germany, the United Kingdom, Italy, Romania, the Soviet Union, China, and Japan were targeted with bombing campaigns aimed at destroying the morale and industrial capabilities of those on the home front.240 This practice was done by all parties and was not contested, eventually culminating in the use of incendiary and atomic weapons. Likewise, atrocities aimed at civilians due to ethnicity such as in Manchuria and China241 or the Holocaust in Europe,242 highlight the linkages between war aims and the destruction of the civilians populations. The use of guerrilla warfare by resistance movements against occupying forces often led to the targeting of civilians backing such fighters.243 Finally, warfare spread to urban areas, as seen in Rotterdam, Stalingrad, Warsaw, Aachen, Arnhem, Caen, Nanking, and Berlin. Industrialisation meant that the civilian population and population centres were now the targets of warfare, rather than only a protected part of the ecosystem around war. The destruction of the Second World War was met with two important developments in international law. The first was post-war tribunals, using international judges to apply international law to individual violators, escalating the enforcement of the laws of armed conflict. The Norms, which had always existed on the

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Barany (1983); Mackenzie (1994), p. 510. Ibid. 236 Ibid. 237 As discussed in Mackenzie (1994), p. 504; Scheck (2005a), pp. 325–44; Scheck (2005b), pp. 595–606. 238 Scheck (2005a, b). 239 Mackenzie (1994), p. 504. 240 Best (1981), pp. 74–76. 241 Dower (1986), pp. 53–55. 242 See Berkhoff (2005). 243 Best (1981), pp. 77–78; Boot (2013), pp. 727–729 (ebook). 235

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battlefield, were no longer to be judged by military or national courts but could be enforced by the international community. The critiques that there was no body of international law criminalising this conduct beforehand goes to show the role that norms played in this process.244 The second development was a new impetus on limiting warfare through four Geneva Conventions, which further solidified many of the shortcomings of the previous treaties while adding a clearer definition of status of civilians and applying the general principles of international humanitarian law to all conflicts. Additionally, in reflecting on the destructiveness of the war, jus ad bellum was severely curtailed.245 The advent of atomic weapons meant that warfare was no longer just illegal, but potentially suicidal, leading to a decrease in international conflicts and an increase in non-international armed conflicts.246 In the 1950s and 1960s in Africa, the number of armed liberation movements, often fighting against states that did not have the will to politically or economically support a long-term anti-insurgency campaign, surged and started a wave of decolonisation through the end 1960s.247 The proliferation of these movements and a surge in communist insurgencies, right-wing counterinsurgencies, Arab nationalist and Islamic extremist groups led to a rise in the number of non-international armed conflicts.248 In most cases, guerrilla tactics were used to inflict casualties, only for fighters to disappear amongst the population, often spurring responses that did not distinguish between fighters and civilians.249 Two clear examples were in Algeria and Vietnam, where “superior” armed forces often attacked civilians that were thought to have supported the guerrillas and utilised “free-fire” areas.250 Terrorist tactics were also adopted to target political and economic interests.251 In all cases, the distinction between who was part of an armed conflict and who was not began to fall apart. As discussed by both Boot252 and Kalyvas,253 what is now labelled irregular warfare is not new but rather contrast with norms of warfare in the West. As

244 Trials for war crimes had existed before often these were dealt with by members of the same armed forces, usually citing internal regulations. However, there were cases where despite non-existence of such regulations, trials took place by other authorities (Solis 2010, pp. 29–30) pointing to the idea that the veneer of law was used as a frame for punishments of behavior that was not norm compliant. 245 This will be addressed further in the next section and is reflected in the Charter of the United Nations, though, in this sense, truly only applies to international armed conflicts. 246 Pettersson and Wallensteen (2015), p. 537. 247 As discussed throughout, Andreopoulos (1994), pp. 191–213. 248 Ibid. As discussed in books VI, VII, and VIII of Boot (2013). 249 In this context, the term combatant is quite a loaded one, as most fighters of non-state armed groups do not qualify legally as combatants. 250 The term “free-fire zone” comes from the US forces in Vietnam but a similar concept was utilised by French in Algeria. 251 Boot (2013), pp. 858–865 (ebook). 252 Boot (2013), pp. 22–42 (ebook) 253 Kalyvas (2005), pp. 90–91.

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discussed by Geiß,254 the inherent inequalities between regular and irregular militaries in these scenarios makes it difficult to ensure that norms are established and that they are up to the standards of international armed conflicts. Attempts to address the rise in non-international armed conflicts and the vagueness of common article three were undertaken, albeit partially, by the international community in the 1970s with the second additional protocol to the Geneva Conventions,255 though it is hampered by the number states yet to ratify the treaty.256 Such challenges should not detract from the efforts of the international community to add such limits nor the applicability of international norms to these armed groups. Non-compliance with these norms often garners condemnation by states and even other non-state actors.257 Furthermore, the increase in humanitarian actors working in non-international armed conflicts has led to more interaction between many of these groups and norm entrepreneurs.258 However, as shown by the non-international armed conflicts fuelled by ethnic animosity259 and the growth of small militias fighting for economic gain,260 advocating for norms of armed conflict remains difficult.

5.6

Norms in Historical Laws of Warfare

As discussed in the introduction, this chapter is aimed at developing two key elements of this research. The first was to establish a clear existence of norms on the conduct of armed conflict before the codification of international humanitarian law or even before the development of the modern sovereign state. Sections 5.1 through 5.5 have done this through numerous examples of attempts to limit armed conflict from pre-history to today. While each norm discussed was not broken down into the norm structure described by Winston and used in the methodology of this study, there are clear trends in behavioural prescriptions and even in ideations that have been discussed. On this point, four general conclusions could be drawn In general, these norms were seen to be both flexible and rigid. These norms are not only visible in modern international humanitarian law, but also exist outside of the context of international law and have been constructed by both non-state as well as 254

Geiß (2006). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1949). 256 Particularly those involved in such conflicts like, the United States, Israel, Turkey, Iraq, Iran, Syria, and Pakistan. 257 Severe violations of norms of armed conflict often invoke condemnation, some from groups using similar tactics, as in the case of Leaders from Hezbollah and the Palestinian Liberation Organisation both criticised the targeting of civilians in the September 11th, 2001 attacks. 258 Hofmann (2006), pp. 399–400. 259 Kalyvas (2005), pp. 96–97; See Meijer and Verwimp (2005). 260 Collier and Hoeffler (2000); Kalyvas (2005), p. 97; Vinci (2010), pp. 22–24; Paul et al. (2014), pp. 71–72. 255

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state actors. While the norms of armed conflict are often described as universal, history shows that they are context-specific and are often only applied to those within a specific context. Finally, established norms codified in international humanitarian law reflect a specific iteration of warfare and present challenges for those not implementing this form of warfare. One can derive the first conclusion by examining the norms seen throughout history into the norm structure proposed by Winston.261 The problem, or problems, is clear: the existence of war is the main unavoidable problem that precipitated valuebased behaviours. However, other problems emerge, namely, that wars end. While this can also be seen as a value,262 the existence of war coupled with the unavoidable problem that a peace must exist after war, make up the dual problems that predicate behaviours be influenced by ideals. The knowledge that an armed conflict will end is certainly a problem faced by both individuals and groups in armed conflict.263 Values present arguably the most difficult identifiable feature of the norms of warfare historically. Some of the values are vague and purely ideational. This is the case with collectively defined values that are referred to historically, such as mercy,264 honour,265 morality,266 and the legitimacy of action.267 Some of these values are contextually defined by religious268 or political269 bodies while others are concepts that are up to the individual to assign value to. Other values have their roots in more concrete and material considerations. Often, considerations are given to selfpreservation,270 reciprocity,271 and military necessity.272 For both the individual and the group, value attached to both the vague and more practical considerations have quite real implications. Historically, the result of a collective definition of norm

261

Winston (2016), p. 16; Winston (2018), pp. 640–641. Here it would rather be the desire for peace. 263 In the modern era, the desire to avoid war crimes trials could be the problem for which a norm is applied. 264 Seen already in Babylonian (Hamblin 2006, p. 176) propaganda and seen as a strength in different contexts across time. 265 Originating in chivalry (Liivoja 2012, pp. 75–76) and still existent in norms today. 266 Discussions on the morality of actions can be seen in the religious and philosophical writings on limits to armed conflict. 267 As highlighted in the Just War Theory as well as in decolonisation, in which the impetus to act affects the applicability of the norms. 268 Ober (1994) highlights the protections to religious institutions in Greece. Limits seen in Christianity, Hinduism, Islam, and Judaism attaching appropriateness of conduct to the religion of the enemy are seen throughout the chapter. 269 International law and its enforcement mechanisms in international politics assign value in modern armed conflict. 270 Seen across history from anthropological observations of stone-age warfare to Cold War considerations of mutually assured destruction. 271 This value both. 272 In the modern sense this can be defined based on humanitarian considerations, but historically may have been influenced by logistical limitations. 262

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violation described by Winston273 is reputational damage to norm violators,274 the most recent form of this being war crimes trials and tribunals. Importantly ideational influenced behaviours are not universally applied, with most historical normative systems distinguishing between types of conflicts, enemies, or situations which impact the application of these norms. This is seen from the earliest written examples of limits to warfare275 up through modern times, even arguably making its way into modern international humanitarian law.276 The clearly defined distinction between enemies seen in Hellenic and Israelite norms around warfare were not all that dissimilar to those seen in religious distinctions in warfare during the Crusades. Nor were either of these dissimilar to ethnic definitions that impacted norm application in the colonial Americas or by the German armed forces during the Second World War. In each of these circumstances cultural, religious, ethnic, or political distinctions were used to judge the applicability of certain norms pertaining to armed conflict. These examples are evidence of the normative nature of limits to armed conflicts. While modern international humanitarian law may state that certain principles apply in all circumstances, the appropriateness of applying these norms is context-specific in its interpretation by the armed group. The norms that limited suffering warfare were apparent to both the Athenians and Spartans in the Peloponnesian War just as they were clearly defined and well understood277 by the Germans in the Second World War. Yet in both instances, a conscious decision was made to ignore these norms in these circumstances. This conscious decision is a violation of the law in a legal sense, but also represents a contestation of their applicability of the norms behind the laws in this context. The norms in both circumstances were well defined and rigid, yet flexible enough to be ignored. The behavioural prescriptions attached to armed conflict are arguably the most identifiable piece of the norms themselves. Both unwritten and written norms of armed conflict highlight actions to be taken or avoided, even when no reason is given. In Deuteronomy, some laws are given with explanations while others without, meaning that though the value may not be clear, the behaviour is. The actions themselves to be taken are always context-specific and are only applicable in so far as they are practicable in a given context. The eventual decline of traditional sieges as a means of warfare made those norms related to siege warfare irrelevant. Ober278 cites the prohibition on waging warfare on holidays as a key norm of 273

Winston (2016), p. 4; Winston (2018), pp. 645–646. This as well is underscored within the context of Ancient Greece by Ober (1994) and, on an individual level within the system of Chivalry (Berry 1828). 275 As seen in Deuteronomy. 276 Distinctions as to the types of conflicts which are fought and which rules apply underscore this continued. 277 Mackenzie (1994, pp. 494–495) and Scheck (2005b, pp. 596–597) highlight that German military leadership was at odds with political leaders regarding non-compliance with norms, particularly early in the war. 278 Ober (1994), p. 13. 274

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Hellenic warfare, yet this behavioural prescription was surely irrelevant when fighting against those of a different faith. Likewise, the behaviour279 of using formations of massed troops in battle was no longer practicable with the proliferation of the rifled musket. The second key conclusion is the existence of these norms beyond international law and beyond the behaviour of states. The birth of the modern sovereign nation state took place after the Thirty Years’ War and the codification process of international humanitarian law happened centuries after that. Thus, many of the norms examined predate the modern nation state and international law.280 However, these norms still factored into decision-making for warring groups and pre-sovereignty political structures. Historically, the cultural, economic, and political consequences of non-compliance clearly impacted what was considered appropriate. Thus, norms in warfare are culturally produced and, at least to some extent, independent of the sovereignty or legal status of a group. Given that the appropriateness of value-based behaviour is dependent upon collective values and judged to be norm-compliant in so far as it matches with collective understandings of the norm, each set of norms is context-specific. The norms established for warfare by the Ancient Greeks were not deemed collectively as appropriate for warfare against foreigners. The behavioural prescriptions would have not been seen as appropriate for warfare amongst contemporary groups, let alone would they be deemed as appropriate to determine the conduct of warfare in a modern conflict.281 Furthermore, as seen within the context of larger conflicts, different norms are adopted within different contexts.282 If norms of armed conflict need to be considered as context-specific, then the idea that norms are universal is contestable. Accordingly, the norms of armed conflict need to be understood in a more context-specific way, meaning that the established norms of international humanitarian law may not be the best instruments to understand these norms. The norms of armed conflict enshrined in international humanitarian law are reflective of the moment and cultural context in which they were defined and, as seen in the emphasis on international armed conflicts rather than non-international armed conflict, reflect a certain iteration of warfare that may no longer common. The disconnect between the laws of armed conflict as a set of norms and the environment in which they are applied may not rest on a lack of applicability but rather in being the wrong tool for the desired outcome.

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In this case practice informed the value and irregular warfare was seen as contrary to the norms of combat in the “Old Regime”. 280 Many of these norms served as customs which in turn served as the basis for later codification. See: International Committee of the Red Cross. “Introduction.” 281 One only has to look back to the Russia’s 2008 conflict with Georgia to find an armed conflict coinciding with an Olympic games. 282 The Germans during the Second World War, the conduct of armed forces in different theatre of the Seven Years’ War, and Confederate treatment of black versus white troops in the American Civil War are all clear examples of these.

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Throughout history, the idea of protected groups and what protection means has changed significantly. Many of the earliest norms on warfare seem to lie on what could be called the axis of involvement and protection, in which different groups were either involved or protected. Protection was most strengthened where warfare was physically separated from civilian life. As siege warfare gave way to pitched field battles, the norms changed regarding how those uninvolved with warfare should be treated. In those cases, where pitched battles did not increase such as in colonial conflicts, this pattern is not observed. Franco Cardini283 called the end of the Medieval Period and beginning of the Early Modern Period the worst era for civilians, as they were completely at the mercy of massive armies that continuously utilised siege warfare. One could add the caveat that the introduction of total war and increase in irregular warfare in modern times has likewise seen a worsening of conditions for civilians. Thus, the norms around civilian protection, while being context specific, must also be examined with a keen eye toward the degree to which behaviour, namely tactical and technological developments, influences values as well as values influencing behaviour. To quote from the Roots of Behaviour in War, “. . . we must conclude that, as far as attachment to the norms of International Humanitarian Law is concerned, it makes no difference whether the origin is sought in references to Islam or to human rights.”284 While this may be true for commitment to the law, understanding the ideational value that binds non-state armed groups to the norms of armed conflict is part of understanding the norm itself. The goal of this work is to use the norm cluster model to better understand the structure of these norms and their relationship with non-state armed groups. As argued in previous chapters, it is upon this basis that the further argument of this work is built. If these norms have indeed existed within specific contexts, then using international law as the primary lens through which limits to armed conflict are viewed may not provide the clearest picture of which norms are truly applied to armed conflict by those involved. This is particularly true in circumstances, which are, under the best circumstances, challenging for the application of international law, such as non-international armed conflicts. In this chapter, the history of armed conflict has been explored for two key reasons. As established in thus far, the first of these is to confirm the existence of norms applicable to armed conflict throughout history. The historical record confirms this to have been the case, at least at a local level, throughout history. Beyond this, this historical section aimed to identify which types or categories of norms were frequently seen across contexts and historical periods. It is in trying to do this, that the constitutive and constrictive nature of these norms become apparent. Across history, we see constitutive norms in attempting to define protected categories of people and accepted tactics, times, places, and tools for fighting. The constrictive nature of the norms is seen in the prohibition of the use of these defined categories. For example, we see in many eras and cultures that women, children, and the elderly

283 284

Cardini (1992). Translated and quoted directly in Frésard (2004), p. 20. Muñoz-Rojas and Frésard (2004), p. 192.

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are often seen as protected categories, with this protection then also being expanded to scholars, monks, and merchants in others or all those not taking part in the conflict in others. Likewise, the extent of this protection also varied from being spared from massacre but enslaved to receiving protection from physical violence but having their property at risk to being fully protected from harm. While there are a number of these norms that developed through history that were either never relevant285 or quickly lost their relevance,286 not all norms trying to limit the means and methods of warfare were unsuccessful. As mentioned in the chapter, a ban of archers was seen at least in one context and the limited use of non-quarter assaults points as to both its viability as a tactic though one that was generally viewed as inappropriate. Particularly in the era of codified international humanitarian law, norms that try to ban specific categories of weapons and dum-dum bullets in the early twentieth century likewise speaks to the ability of parties to apply such limits are an integral part of the limits to armed conflict that have historically been deemed as “Hague Law”.287 Using these two core findings, the empirical research outlined in Chap. 3 can be conducted on solid footing, not only with the underpinning of the existence of norms of armed conflict historically but also with the knowledge about how those norms appear and what generalisable categories exist amongst these norms. On the base of this knowledge, the codes of conduct and other official documents from non-state armed groups, the internalised norms will be examined to attempt to build the first pieces of the non-state armed group norm cluster on civilian protection using the notions of different types of norms taken from this historical analysis. As the goal of this study is to examine the armed conflict norm cluster as understood by non-state armed groups, the historical roots of this norm cluster, and not just international humanitarian law, gives us a frame of reference. It is now clear what types of protections existed before international humanitarian law and before the Westphalian state, hinting at what norms should look like among non-state armed groups— namely behaviour-based limits primarily focused on the key interactions and protections discussed in this chapter.

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As in the banning of crossbows or attempts to limit the days of the week on which hostilities could be conducted. 286 Such as other temporal aspects of armed conflict. 287 International Committee of the Red Cross. Law of the Hague.

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Chapter 6

Results and the Norm Clusters

The purpose of examining norm clusters reported in the documents of non-state armed groups is to better understand the armed conflict norm cluster, as interpreted by non-state armed groups. In this chapter, I will give an overview of the results, focusing on which aspects of the norms were most frequently cited and widespread across the groups. To do this, the results will be split into several subsections to best examine the different elements of this interplay. First, the behavioural prescriptions seen in the documents will be examined. Following this, the ideational motivations will be discussed. Afterwards, there will be an examination of the relationship between these two elements. Then there will be an examination of further mitigating factors seen in the documents. Beyond this, the groups and documents will be analysed within the context of similar groups, document types, and chronology. The purpose for these further breakdowns will be to examine whether specific aspects of the armed conflict norm cluster are seen uniquely related to certain types of documents or armed groups. However, this chapter will focus primarily on reviewing the results. Further analysis of what these results mean for the understanding of the armed conflict norm cluster will be established in Chap. 7. The findings will be examined through the methodological frame of qualitative content analysis, as described in Chap. 3. As noted by Mayring, the use of quantitative analysis can be used to support the analysis of the qualitative results taken from the documents.1 For the documents that will be examined for this study, the frequency at which certain norms are cited should not be seen as a quantified statement of importance, or lack of importance of a certain norm or element, but rather as a piece of empirical evidence that supports more general understandings of the norms seen across the groups. In this sense the, the evidence being analysed is

Supplementary Information The online version contains supplementary material available at https://doi.org/10.1007/978-3-031-45914-6_6. 1

Mayring (2014), pp. 41–42.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 W. J. Wright, Norm Clusters of Non-State Armed Groups, https://doi.org/10.1007/978-3-031-45914-6_6

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not the actual wording of the different aspects being examined, but rather the number of times these aspects are found and where. For example, the fact that Armed Group A mentions a behavioural prescription four times while Armed Group B mentions the same behavioural ten times does not necessarily mean that Armed Group B prioritises the norm more or that a statistical analysis of the number of times a norm is cited would bring with it greater understanding as to the meaning of the norm. Rather in this case, the quantitative importance lies in the fact that multiple groups cite the norm multiple times, which goes to support a generalised understanding as to the status of that norm in a broader context and allows for interpretation of the differences between the exact norm structure of these two groups. This chapter aims to accomplish two chief goals. Firstly, it will reinforce the validity and applicability of the norm cluster model to the case of non-state armed groups. Secondly, the primary results from the empirical study of the documents will be discussed to answer the central questions of this study, namely what is the cluster of norms limiting conduct in armed conflict that is visible through examining the written documents, how can these be mapped, and what larger implications do they have for both the broader understanding of norms and non-state armed groups. As will be seen later in this chapter, the number of norms and ideations cited across all armed groups do not necessarily allow for an examination in detail of each of these norms. There were 249 behavioural prescriptions cited 2672 times and 45 ideations cited 1124 times. Due to this large number, I will concentrate on discussing behavioural prescriptions, ideations, and their relationship as seen across many contexts, patterns observed through the coding, interplay between these norms across groups, and the mitigating factors which impact these norms. This is a logical step given not only the large number of norms that would need to be examined, but also the validity of examining norms existing in only one group or context while trying to analyse norms at a higher inter-group level. However, an overview of all of the categories behavioural prescriptions and ideations can be found in Annex 3. Likewise, an overview of all of the behavioural prescriptions and ideations cited by group and document can be found in Annex 1.

6.1

Behavioural Prescriptions

As previously discussed in Chap. 3, behavioural prescriptions are typically the most easily identified elements of the norm structure from the documents. Often, the difficulty in identifying and coding these was in the categorisation of which exact wordings fell into the same behavioural prescriptions and which applied solely, or mainly, to conduct in armed conflicts. A total of 252 different behavioural prescriptions were found and coded. To get some idea of how these behavioural prescriptions were cited, the mean value for the number of times that a code was cited was 12.34 times, the median number of times that a code was cited was four times, and the mode was one time. Perhaps more importantly for this study is not the

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frequency of occurrence of the codes themselves but rather how many armed groups cite each of the norms. Here, the mean is 6, while the median is 3 and mode is 1. Following Winston’s model, it is the behavioural prescriptions that should be the most recognisable elements of my study with international humanitarian law.2 Given the universal applicability of this legal code across contexts, one would expect there to be a high level of correspondence of behavioural prescriptions that are applicable and repeated across contexts. This is, however, not the case. Even key tenants of international humanitarian law that have entered into customary international law and would be applicable in all non-international armed conflicts are not reflected in rules seen in the documents. The prime example is the prohibition of hostage taking. The prohibition of hostage taking is, according to the ICRC database on customary international humanitarian law,3 a law applicable to both international and non-international armed conflicts and customary, meaning that it is universal regardless of the treaties a state has signed. The universal applicability of this rule in international humanitarian law, however, does not translate to universal acceptance of the norm connected to this rule by non-state armed groups. Only 14 armed groups included the prohibition of taking hostages in their internal rules, and, in fact, the ELN included statements that specifically allowed for the taking of hostages.4 Examples which are more contested, which then shows the diversity of behavioural prescriptions that emerge in the norms related to armed conflict, are those prescribed behaviours on the recruitment and utilisation of child soldiers. Much like the taking of hostages, the recruitment and the use of child soldiers is forbidden by customary international humanitarian law, meaning that it is universally applicable. There is a bit of legal unclarity as to the exact age limit for this ban,5 however, that the recruitment and utilisation of individuals under the age of 15 constitutes a violation of international humanitarian law in both international and non-international armed conflicts, even when carried out by non-state armed groups, is widely uncontested. The fact that a norm connected to this would need to cover definitions of a “child” as well as the essential behaviours that should be carried out leads to even more diversity in the norms that emerge amongst non-state armed groups. The complete prohibition on the recruitment and utilisation of child soldiers is the fourth most-cited norm found in this study, cited over 119 times by 34 armed groups. Yet, four armed groups expressly allow children in non-combat roles and the NDFP stated in multiple documents that those under the age of 18 should be allowed to take part in self-defensive actions, despite a prescription against using those under 18 in armed conflict. 2

As the norms of international humanitarian law would have the existence of the law or legal obligation as the ideation, at least in theory, leaving only changes in the behavioural prescriptions. 3 International Committee of the Red Cross. Rule 96. Hostage-Taking. 4 The inclusion of this rule came long after a prohibition was included in other armed groups’ documents, including those of armed groups in contact with and fighting in the same context as ELN. 5 See International Committee of the Red Cross. Rule 136. Recruitment of Child Soldiers. and Rule 137. Participation of Child Soldiers in Hostilities.

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Over one-third of behavioural prescriptions were only cited by one group and a large number of codes were only cited a few times or by a few groups. There were 68 behavioural prescriptions that were cited only one time across all the documents. Thirty-one behavioural prescriptions were only cited twice, and 17 behavioural prescriptions were cited thrice. Additionally, 91 of the behavioural prescriptions were only cited by one armed group, 25 were cited by two armed groups, and 24 were only cited by three armed groups. These do little to help examine the generalisability of the universal or collective aspect of norms. However, this provides insight into differences between contexts and where certain internationally accepted norms have been diffused or localised, as it is clear that a number of behavioural prescriptions are limited in their diffusion to only a small number of contexts or groups. The quite large number of such prescriptions points to a limited number of widespread behavioural prescriptions, only 114 out of 252, were cited by more than three armed groups. Two behavioural prescription were tied with the most widespread acceptance in the unweighted full count, namely that against the use of force against non-combatants and civilians and against the use of child soldiers. These are reflective of the most basic and universal of the protections that that calls for distinction between those involved in the armed conflict and protecting those without and was coded 104 and 100 times by 30 groups throughout the documents. By using the weighted full count, the most frequently cited behavioural prescription is that against the use of landmines (155 citations by 36 groups) while the application of international humanitarian law to the armed conflict was the most widespread behavioural prescription (117 citations by 50 groups). A table in which a full overview of the behavioural prescriptions cited by each group using the weighted full count can be found in Annex 2. A table in which a full overview of the behavioural prescriptions cited by each group using the unweighted full count can be found in Annex 3. A full table in which a full overview of the behavioural prescriptions cited by each group using the slim count can be found in Annex 4.

6.2

Ideations

While more difficult to identify than behavioural prescriptions, ideations potentially provide a better insight into the differences that emerge amongst the armed groups examined in this study. Thirty separate ideations were identified and coded in the documents. Some of these ideations were sub-divided into explicit and implicit ideational motivations, with four ideations being uniquely implicit, 11 uniquely explicit ideations, and 15 ideations that were seen in both categories. Five ideations were only cited by one group and only three ideations were cited only once altogether. This indicates a higher level of consistency to ideations across contexts throughout the documents. Throughout all documents, only four armed groups that cited behavioural prescriptions did not give any ideational justifications for their behavioural

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Ideations

139

prescriptions, either explicitly or implicitly. In three of these cases, the documents examined only included a single behavioural prescription which related to the armed conflict or the armed groups behaviour in relation to the conflict. In only one instance, The Code of Conduct for Commanders and Members of the SP,6 were multiple behavioural prescriptions related to the armed conflict espoused without further reasoning. In this case, implicit ideations could potentially have been inferred from the text, but not with a degree of confidence that would have allowed for verification. In general, the average number of times each ideation was cited was 24.4 times, with the mode being 2 and the median being 6. Each norm was cited by an average of 12.7 armed groups, with the mode being 2 and the median being 5. Taken together, these indicate that ideations were widely used and in most cases were used by multiple groups, but still not universal. Using both the unweighted and weighted full count, the most cited ideation that informs behaviours in armed conflicts is a sense of legal obligation, which is cited by 49 of the 79 armed groups using the unweighted full count and 64 of the 79 armed groups using the weighted full count. This was by far the most commonly cited ideation. Other ideations cited by numerous armed groups using the weighted full count were: a sense of humanity (44), desire for political legitimacy and recognition (54), desire to avoid superfluous suffering (37), military necessity (36), economy of force (28), distinction between combatants and non-combatants (48), desire for eventual peace (23), desire for economic development (33), and desire for good relations with the community (31); each of these were cited by at least 20 armed groups. Likewise, legal obligation was cited 199 times explicitly and a further 15 times implicitly, while only the desire for political legitimacy and recognition (112 explicit and 53 implicit) and distinction between combatants and non-combatants (117 explicit and 2 implicit) were the only other two ideations cited more than 100 times. Several of the above-mentioned categories highlight the interplay between the ideational and behavioural prescription elements of the norms examined. In the case of distinction between non-combatants and combatants, one must separate the behavioural prescriptions to protect or not target non-combatants from the ideational identification of these two categories. In the case of the behavioural prescription, armed groups, through the documents issued in their name, implore their fighters not to carry out acts of violence against non-combatants. As will be seen in the next section, often this behavioural prescription is seen together with a sense of legal obligation or religious obligation. In contrast, a number of more specific behavioural prescriptions on the prohibition on the use of force against non-combatants, like those dealing with the use of landmines, use the need to distinguish between these two categories as an ideational motivation. In this instance, the distinction between these two categories is ideation that informs the behavioural prescription. A table in which a full overview of the ideations cited by each group using the weighted full count can be found in Annex 5. A table in which a full overview of the ideations 6

Shining Path/ Sendero Luminoso (1982).

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cited by each group using the unweighted full count can be found in Annex 6. A full table in which a full overview of the ideations cited by each group using the slim count can be found in Annex 7.

6.3

Normative Ideation-Behaviour Relationship

While the data on the ideations and behavioural prescriptions presents one with a clearer understanding as to the two core elements of the norm structure, it does not provide any information as to the interplay between these two independent pieces. To do this, one needs a further analysis of how and where these two elements correspond in the documents. As discussed previously, throughout the documents behavioural prescriptions were seen together with ideational justifications. Gaining a firmer understanding of this relationship is precisely what is needed to illuminate this puzzle and better understand the role of norms in armed groups. This also allows for the identification and mapping of the actual norm clusters, which consist of both of these groups.7 In the slim count, co-occurrences were highly reflective of the general frequency in which behavioural prescriptions and ideations were cited. Unsurprisingly, the most frequent co-occurrence between ideations and behavioural prescriptions was the co-occurrence of the sense of legal obligation and the prescription against the use of force against non-combatants, linking the most frequently cited ideation and most frequently cited behavioural prescription. In total, the sense of legal obligation co-occurred with behavioural prescription 838 times. Likewise, the desire for geopolitical recognition and legitimacy (538 co-occurrences) was found to co-occur with other behavioural prescriptions. To examine this from a further perspective, the behavioural prescriptions against the use of force (200 co-occurrences), against the recruitment and utilisation of child soldiers (165 co-occurrences), for the application of international humanitarian law to a non-international armed conflict (138 co-occurrences), against the use of landmines (128 co-occurrences), for the protection of civilian populations (119 co-occurrences), and for the protection of prisoners, wounded, and enemies hors de combat (103 co-occurrences) were all seen to co-occur different ideations over 100 different times. Interestingly, 69 behavioural prescriptions viewed in the texts were not seen to have any co-occurrences with ideations in this initial analysis. All ideations had at least one co-occurrence with a behavioural prescription. In unweighted full count, few changes were seen from this inclusion. While it did lead to a jump in the number of co-occurrences observed for the legal obligation (906 co-occurrences) and added at least 20 co-occurrences to five further ideations. For behavioural prescriptions, the only significant increase observed through this calculation of the norms was observed amongst three behavioural prescriptions

7

HDZ, SDA, SDS (1992).

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Document Types

141

connects to the use of norms: agreeing to advocate for de-mining and mine action (+20, new value 103 co-occurrences), against the use of landmines (+24, new value 152 co-occurrences), and supporting the work of NGO’s working on de-mining (+18, new value 51 co-occurrences). A further three behavioural prescriptions were now found to co-occur with ideations, leaving the number of behavioural prescriptions without a co-occurrence at 66. Logically, the patterns of increase observed in the second calculation increased even further in the weighted full count. This was particularly the case for the behavioural prescriptions and ideations attached to the deed of commitment dealing with the use of landmines and a further statement on the use of landmines made collectively in the name of a number of armed groups in 2009. The former included 23 armed groups and the latter 14 armed groups, all of which were signatories of the deed of commitment as well. The effect of multiplying a norm by 23 and 14 respectively led to major increases in the corresponding co-occurences between behaviours and ideations, which had already increased from the first to the second calculation. In contrast, further documents that were included, including less widespread deeds of commitment and the aforementioned agreement between parties to the conflict in the Balkans. The full documents showing the co-occurrences of behavioural prescriptions and ideations for all three calculations can be found in Annexes 12–14.8

6.4

Document Types

While there are many different types of documents observed in this study, and different way to differentiate between these groups of documents, one of the most crucial differentiations for this study is the authorship of the documents examined. With regard to this categorisation, one can divide the documents into two distinct categories: those documents authored by the armed group and those documents partially or fully authored independently of the armed group as an agreement which the armed group then endorsed. The examination of the norms in this study is qualitative and relies on the terminology and the language used to express the norms and the content they are conveying. As such, the exact authorship of the documents and the norms contained within them is important to understand whether these are the prioritised thoughts of the armed group or rather external norms which are agreed to by the group. As would be expected in a comparable study of states that sign on to norms within the context of international treaties, often the external agreement is coupled with an internal document which contextualises, underscores, or clarifies the norm. In norm diffusion literature, this could be seen as an example of localisation, or the process in which an international norm is adapted into the specific context. This is not always

8 Annex 8 is the full weighted count, Annex 9 is the full unweighted count, and Annex 10 is the slim count.

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the case, however, where this does occur, it can give further insight into how the norm is justified internally and externally. A number of specific behavioural prescriptions on disseminating information through the ranks, allowing for monitoring and evaluation, and others were observed in the documents to serve this function. Likewise, entire documents, often in the form of General Orders, were drafted to this effect by several armed groups to reflect these agreements. These documents and behavioural prescriptions give further insight into how the international norms made in agreements get localised and internalised by armed groups.

6.4.1

Documents Created by the Groups

The largest group of documents examined in this study was documents created by the armed group themselves. These documents are crucial for examining and understanding the norms which armed groups themselves define as being important to their own structures and members. The most telling of these documents are codes of conduct created by the groups for internal use. At times, these codes of conduct are supported by specific orders or internal communications aimed at amending or underscoring aspects of behaviour that the armed group considers particularly important. In addition to these documents, there are a number of official communications on behalf of the groups in which public statements are made, which underscore the norms of behaviour that an armed group espouses and, according to these documents, identifies as appropriate. Such statements often take the form of press releases by those armed groups with an active campaign to influence media perception of their actions but can also take the form of letters responding to charges against the armed group of violations of certain norms by other actors. 233 documents were identified to have fit under this category, representing a sizeable majority of the documents examined in this study, though not all of these contained relevant information for this study. There were 232 behavioural prescriptions cited a total of 1451 times throughout the 165 documents created by the groups. The most frequent behavioural prescription was against the recruitment or utilisation of child soldiers (91 citations across 62 documents), followed by the prescription against the use of force against non-combatants (82 citations across 52 documents) and the application of international humanitarian law to a non-international armed conflict (57 citations across 45 documents). A further seven behavioural prescriptions were cited in between 27 and 31 documents with a total of 20 behavioural prescriptions being cited at least 20 times. A full table of all of the behavioural prescriptions cited in this category of document can be found in Annex 11. All 45 ideations were cited at least once in the 158 internal documents created by the groups, with these being cited a total of 639 times. Unsurprisingly, the most cited ideation was the sense of legal obligation, which was cited 118 times across 96 documents. After this, the most frequently cited ideations were the desire for geopolitical legitimacy or recognition (94 citations across 73 documents), the

6.4

Document Types

143

principle of distinction (62 citations across 49 documents) and a sense of humanity (33 citations across 31 documents). A further ten ideations were cited more than twelve times and in more than 11 of the documents. A full table of all of the ideations cited in this category of document can be found in Annex 12.

6.4.2

Agreements, Joint Statements, and Deeds of Commitment

In a number of instances reflected in the documents, armed groups entered into negotiations with political actors as to the conduct of the conflict or the peace process. One of the more famous examples of such an agreement can be seen in the Balkan Wars in both 1991 and 1992,9 negotiations between warring factions were facilitated by the ICRC and UN to agree upon aspect of international humanitarian law to be observed by the warring factions. Such agreements represent a useful tool to gain insight into how armed groups view rules to apply to the entire conflict. Importantly, this also shows how the collective definition of norms can take place. A final type of document that has an important role in this study and the one that, in many ways, had a major role to play in the development of this entire research process is the “Deeds of Commitment”. Alluded to earlier, “Deeds of Commitment” are documents which allow non-state armed groups to commit to following specific norms, which are negotiated and signed as part of the work of Geneva Call. These deeds are drafted externally, namely by the organisation, and are thus more reflective of the norm entrepreneur and their priorities than those of the armed group. As the Their Words database is managed by Geneva Call, there are quite a few of these documents that are available on the database, a number of these documents were excluded however, as the armed groups only available documents were those that could be found on the Their Words database. For this examination each joint document was only counted once, meaning that each deed of commitment was included once no matter how many armed groups had signed on to it. This brought the total number of documents examined for this category to 46, though not all of these documents contained relevant information for this study. In the 31 documents containing relevant behavioural prescriptions, there were 121 behavioural prescriptions cited a total of 481 times. There were two behavioural prescriptions that were cited equally both in terms of frequency and in terms of the number of documents in which these were cited. These two behavioural prescriptions were those against the use of force against non-combatants and the prescription for allowing humanitarian access, both of which were cited 24 times in 12 documents. There were a number of other behavioural prescriptions that were cited quite similarly in these documents. Interestingly, many of these are related to humanitarian action and the relationship between armed groups and humanitarian organisations, 9

HDZ, SDA, SDS (1992).

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including the prescription for the protection of humanitarian workers (15 citations across nine documents), for respect for the principles of humanitarian organisations (11 citations across six documents), for the respect of humanitarian space (nine citations across five documents), for the protection and respect of humanitarian emblems (eight citations across four documents), for the right of civilians to access humanitarian assistance (eight citations across six documents), and for respecting the facilities of humanitarian organisations (eight citations across five documents). In addition to many of these touching on a specific topic, they are chiefly positive behavioural prescriptions instead of restrictive prescriptions that are more common in general. A full table of all of the behavioural prescriptions cited in this category of document can be found in Annex 13. Across 25 of these jointly authored documents and agreements containing relevant ideations, 22 ideations were cited a total of 117 times. As in most cases, a sense of legal obligation was the most commonly cited with 22 citations across 20 documents. This was followed by a sense of humanity (12 citations across 11 documents), a desire for eventual peace (ten citations across nine documents), and a desire to avoid superfluous suffering (ten citations across ten documents). A full table of all of the ideations cited in this category of document can be found in Table Annex 14.

6.5

Group Ideology

Along with the previously examined means of categorising and interpreting the data, one interesting question emerged as to the differences between armed groups. Given the findings of Fazal,10 Fazal and Konaev,11 and Jo,12 there is evidence to believe that the ideology or political goal of a group is important for their willingness to comply with norms of armed conflict. Thus, the, this sub-question of ideology emerged as an interesting frame, though which more information on the general armed conflict norm cluster could be gained. While there are many ways to categorise armed groups, I decided to examine the data through the lens of different ideologies that serve as key traits of the different armed groups. Through the examination of the ideations, larger ideations frequently appear in the documents and serve an important role in defining the norms of behaviour espoused by a group. To further divide the entire body of groups into categories based upon a “type” of ideology allows for a more in-depth analysis. While there are no two groups that are direct ideological twins and no armed group is completely homogenous in terms of such an organising ideology, such categorisations already exist in previous studies of armed groups.13 In the next section, I will examine different categorisations, the

10

Fazal (2017), pp. 78–80. Fazal and Konaev (2019), pp. 165–166. 12 Jo (2015), p. 258. 13 San-Akca (2016). 11

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groups that fall into these categories and have documents included in this study, and the ideations and behavioural prescriptions that are more common within these groups. Three major categories of armed groups were observed, namely those motivated by ethno-nationalist ideology, those motivated by a religious ideology, and those motivated by a leftist ideology. Not all groups fall under one of these categories and groups can exist in multiple categories. Furthermore, these ideological categories are also not necessarily homogenous. Religious motivation, particularly extremism, is observed in multiple religions. Similarly, anarchist, Marxist-Leninist, and Maoist groups would all be considered leftist despite ideological differences that could manifest in how an armed conflict is strategically pursued or even tactically carried out. It is even more apparent that ethno-nationalist groups would be further divided, as these groups include ethnic groups from around the globe and it is logical that a group motivated by Irish unity and republicanism would vary greatly from the ethnic armed groups fighting for recognition in India or Myanmar. All these differences are important and could have clear implications in how the armed conflicts are waged as well as what limits are placed on behaviour in the armed conflict.

6.5.1

Ethno-nationalist

From the groups examined in this study, 52 can be considered ethno-nationalist in nature, as defined by San-Akca.14 Often, these armed conflicts revolve around the rights or self-determination of a certain ethnic or political group, however this is not uniform. For the most part, these groups can be split into two unique subgroups: those fighting for regime change in a state and those fighting for self-determination. Of the 52 ethno-nationalist groups examined in this study, 16 were fighting for regime change while 28 were fighting for independence or self-determination. These groups were active in 32 states around the world including 12 African states, eight Middle Eastern states, five European states, five South and Southeast Asian states, once Central Asian state, and one Central American state. Sixteen armed groups were no longer active, as the conflicts had ended, while six others were in a state of ceasefire, though, in some cases, the ceasefires were long standing. The conflicts were quite varied in their date of outbreak, with three beginning as early as the 1940’s, while the “youngest” armed groups had formed within the context of the Syrian Civil War around 2015. The most frequently cited behavioural prescriptions amongst ethno-nationalist groups are those against the use of landmines (126 citations by 27 groups) and for advocating for de-mining activities (111 citations by 24 groups), both of which are frequently cited by armed groups that have signed the deed of commitment on landmines from Geneva Call. These both surpass the subsequent behavioural 14

Ibid.

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prescriptions despite being cited by fewer armed groups. The third most frequently cited behavioural prescription is applying international humanitarian law to non-international armed conflicts. A table of the behavioural prescriptions cited by the different groups can be found in Annexes 15 through 17. For the ethno-nationalist armed groups, there were 43 citations cited a total of 406 times across the documents. Of the 54 ethno-nationalist armed groups, 45 of them cited ideations in the documents included in this study. By far the most frequently cited and the ideations that was endorsed or espoused by the most armed groups was the sense of legal obligation, which was cited 78 times by 33 of the 45 armed groups that cited ideations. Beyond this, both desire for political legitimacy and recognition (58 citations by 26 armed groups) and the principle of distinction (43 citations by 27 armed groups) were frequently cited. Four further ideations were cited by at least 10 of the armed groups. A table of all of the ideations cited by the different groups can be found in Annexes 15 through 17.

6.5.2

Leftist

Similar to the other ideological groups in the analysis, the labelling of certain groups as “leftist” was not done without difficulty, particularly in defining what leftist is. The groups all included in this category espouse a political agenda predominately focused on regime change toward a form of Marxism. However, the differences between classical Marxist armed groups and Maoist groups are noted, as is the impact of Maoism and, in particular, Mao’s rules of insurgency on other armed groups with other ideological goals.15 The groups included in this category had to have Marxism or another leftist ideology as the core to their struggle, thus groups like the Provisional Irish Republican Army or the Palestinian Liberation Organisation, which may have had fighters or groups of fighters committed such ideologies but for whom the armed conflict was not about fighting for a Marxist world order, were not included. However, explicitly leftist groups with goals of gaining selfdetermination for a new leftist state, as in the case of leftist Kurdish groups, were included. In total, there were 15 armed groups included in this category located in 11 different countries, with five of these nations were in Central and South America, four were in Southern or Southeast Asia, and two were in the Middle East. Four of these groups were, contemporary to the writing of this book, demobilised and one other group still existed despite a long-standing ceasefire in the conflict. There were 107 documents from leftist armed groups examined in this study. Leftist armed groups cited 156 different behavioural prescriptions a total of 730 times. The most cited behavioural prescriptions are those for the application of international humanitarian law to a non-international armed conflict (37 citations

15

Even non-Maoist groups like the RUF adopted Mao’s eight principles as a sort of code of conduct. See RUF. The Eight Codes of Conduct.

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by nine groups) and that against the use of force against non-combatants (35 citations by ten groups). As mentioned previously, these are consistent with overall trends across all types of armed groups. Further prescriptions which merit mentioning are for the endorsement of human rights law (22 citations by nine groups) and for supporting the work of de-mining NGOs (19 citations by eight groups). While both of these are quite frequently cited overall, they were cited by quite a large percentage of the leftist armed groups. A table of all of the behavioural prescriptions cited by the different groups can be found in Annexes 18 through 20. Leftist armed groups cited 31 different ideations a total of 305 times across these documents. As seen more generally, the most frequently cited ideation was the sense of legal obligation (66 citations by 13 groups), which was cited by all except for two of the leftist armed groups. Additionally, the sense of humanity (24 citations by ten groups), the desire to avoid superfluous suffering (22 citations by nine groups), the desire for geopolitical legitimacy or recognition (39 citations by nine groups), and the principle of distinction (26 citations by nine armed groups) were all widespread in their citation by these groups. A table of all of the ideations cited by the different groups can be found in Annexes 18 through 20.

6.5.3

Religious

Nine groups examined in this study can be considered to have a religion as their organising ideology, as defined by San-Akca.16 In all but one case, these groups espouse an extremist interpretation of Islam; the one exception is the Holy Spirit Movement, which was extremist in its Christian ideology. As this only covers two religions, and Islam is overly represented, there is little utility in examining potential differences between these groups, but, rather, an opportunity in exploring commonalities. There was a total of 38 documents from religious armed groups examined in this study. Amongst these nine armed groups, one behavioural norm was espoused by seven of the groups: the norm against the use of force against non-combatants and civilians. A further seven behavioural prescriptions were cited by five of the armed groups and nine were cited by four of the groups. Amongst these behavioural prescriptions cited by four or more of the armed groups, six were related to civilians and civilian property, two related to enemy prisoners and wounded, as well as prescriptions related to dissemination of rules within the armed group, landmines, and humanitarian action. In total, 129 behavioural prescriptions were cited by these nine groups 386 times. A full table of all of the behavioural prescriptions cited by the different groups can be found in Annexes 21 through 23. Most interestingly, while the behavioural prescriptions remained broadly the same amongst religious groups compared to other categorisations, their ideational

16

Ibid.

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justifications were indeed quite different. An ideational sense of a legal obligation, which was broadly seen as the most cited ideation amongst all groups and amongst other ideological groups, was third on the list of ideations amongst religious groups, with the desire for geopolitical legitimacy and recognition, the second most cited ideation generally, coming even further down the list. While desire for geopolitical legitimacy and recognition was cited by less than half of the religious armed groups (4) examined, the sense of legal obligation was cited by seven armed groups. The most cited ideation was, unsurprisingly, religious justification, which was cited 30 times across all documents by all nine armed groups. Following this, the principle of distinction was cited 20 times by seven of the armed groups. A table of all of the ideations cited by the different groups can be found in Annexes 21 through 23.

6.6

Chronology and Context

As seen in Chap. 4, the nature of warfare has changed radically throughout history, particularly over the past eight decades since the end of the Second World War. While it is logical that norms should always, in some way, adapt to their context, there is still a need to compare the norms and trends within norms. To do this, breaking down these documents into the eras in which they were created is also crucial for a more wholistic understanding. This is particularly important when examining the role that norm trends seem to play in both the development of international humanitarian law and in norm diffusion to both state and non-state actors. As mentioned previously, the case of the landmine ban is often cited within norm diffusion literature and is a fairly recent development, becoming an important movement only in the 1990’s. While most of the norms enshrined in international humanitarian law are much older than this ban, behavioural prescriptions against the use of landmines are observed more frequently, even when excluding the deeds of commitment, than prescriptions against the use of other weapons, such as chemical and biological weapons. Thus, to best understand how non-state armed groups view the armed conflict norm cluster, it is essential to examine how this understanding may have evolved over time. To do this, the norms included in the documents in comparison to other documents created at a similar point in time. There are several dates that one could try to use as arbitrary points to divide the documents, all of which would be significant for some of the conflicts, but not for others. From a legal perspective, 1977 is an important year due to the drafting of the Additional Protocols to the Geneva Conventions, which would have, at least in theory, impacted the applicability of international humanitarian law to some of these conflicts. Four documents examined for this study were created around the time of the drafting of these protocols,17 all of which espoused adherence to the Geneva Conventions by active armed groups in Southern Africa. Yet, few of the armed

17

Three in 1977 and a further document in 1978.

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groups examined have been active since the 1970’s, leaving any analysis unrepresentative. However, as this study has focused more on the changes in norms on a geopolitical rather than an international law perspective, epochs for comparison could be made around key geopolitical developments. This analysis should be seen more as a way to compare and contrast documents historically rather than a means of attempting to empirically track the development of norms. Thus, three dates were selected as dividing points, the first being 1992, representing the collapse of the Soviet Union and the end of the Cold War. The second dividing point is 2001, as the September 11th attacks in the United States had serious consequences on global attitudes toward non-state armed groups labelled as terrorist groups and led to new conflicts as well as further escalation of older conflicts. The third date is 2011, corresponding to the beginning of the Arab Spring. Several armed groups examined came about in the wake of this event. Likewise, the geopolitical aftermath of this movement is also felt beyond the conflicts that directly stem from the movement itself. Given the historical research outlined in Chap. 4, one would expect to observe changes in norms. However, these changes are unlikely to be major when occurring within a span of only a few generations amongst similar actors. Yet, even in this short period of time, one can see small shifts, which give insight into the interaction between evolving norms and these actors. Likewise, the ideational motivations behind the adoption of these behavioural prescriptions have showed some semblance of an evolution in thinking.

6.6.1

Pre-1992

As mentioned in the previous section, the date of 1992 was selected due to the upheaval that came about at the end of the Cold War. Of the documents examined, 27 were written before 1992. The earliest of these was written in 1956, with all other documents coming over a decade later. All of these documents, though potentially published before 1977, were created by armed groups active well prior to 1992, a criterion for inclusion in this study. One document examined skirts exactly this period of time, namely the Memorandum of Understanding created by Yugoslavia and Croatia in November of 1991. While the document was created before 1992,18 it belongs more to the era following the collapse of the Soviet Union rather than before, as it was very much a part of the conflicts which came about through the dissolution of another communist state. Thus, excluding this document, there are 26 documents which were examined as part of this epoch.

18 To be more specific, the dissolution of the Soviet Union took place on the 25th of December, 1991.

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The two most frequently cited behavioural prescriptions have not, up until this point, been discussed: (1) the prescription to act morally or piously, and (2) the application of international humanitarian law to a non-international armed conflict. In comparison to many other behavioural prescriptions found in the documents, both are vague and difficult to clearly define. The latter of the two was present across more documents but was seen more often in statements from armed groups issued in the 1970’s and 1980’s. In total, 58 behavioural prescriptions were cited across the 26 documents in this time and well over half of these (36) were only cited once. Attention was given to non-combatants and those Hors de Combat, as protections for these are seen amongst the norms included, in addition to norms that govern the more general behaviour of those in the armed groups. A full table of these results can be found in Annex 24. In addition to the limited scope of behavioural prescriptions, the ideations seen in this earliest chronological segment were also considerably more limited than in later periods examined. Accordingly, a total of 20 ideations were observed throughout the documents a total of 61 times through these documents. Around one-sixth (10) of all of these citations were linked back to sense of legal obligation, while the explicit desire for political legitimacy or recognition, sense of humanity, and desire for good relations with the community were all similar cited at least five times. Implicit suggestions as to the desire for political legitimacy or recognition and desire for good relations with the community were likewise both cited four times. A full table with these numbers can be found in Annex 24.

6.6.2

1992–2001

The second epoch to be examined, namely the decade following the collapse of the Soviet Union before the September 11th attack, includes more than twice as many documents as the previous epoch. Fifty-two documents were counted toward this period, including the Memorandum of Understanding between Yugoslavia and Croatia mentioned in the previous section. One interesting aspect of this period is the changes that can be seen within the confines of this decade. One case that is seen reflected in the numbers is that related to the use of landmines. As the Ottawa Treaty was signed in 1997 and went into force in 1999, it is logical that references to this norm would either begin or increase in this period. This is exactly what one can see in the documents, as landmines were not mentioned once in the documents until 1996, the same year that the draft of the Convention against landmines was first written, well into the global debate on the use of these weapons. Similar to the previous epoch, the most frequently cited behavioural prescriptions in this period were mainly focused on the protection of non-combatants and those Hors de combat. There was a significant increase in the total number of behavioural prescriptions cited in this paragraph, with 142 prescriptions appearing in the documents in this decade cited 616 times. In addition to these behavioural prescriptions, prescriptions connected to humanitarian work and workers and landmines, which

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were not widely cited previously, begin to emerge. The vague commitment to apply international humanitarian law decreased in the relative number of times it was cited and the prescription to act morally decreased substantially. A full table with these results can be found in Annex 25. Furthermore, 35 ideations were cited a total of 170 times in the documents in this decade. The most frequently cited ideation was the sense of legal obligation (29), which was cited nearly as often relative to the total number of citations as in the previous decade.19 In addition to this, the second most frequently cited ideation was the principle of distinction (15) followed by the explicit desire for geopolitical legitimacy or recognition (12) and explicit desire for good relations with the community (10). A full table with these results can be found in Annex 25.

6.6.3

2001–2011

The decade between the September 11th attacks and the Arab Spring was quite an important period in the development of many norms connected to armed conflict. Geneva Call came about as an organisation allowing for an alternative to ICRC, which operated from a chiefly legal perspective. Likewise, the landmine ban become much more widespread. While most of the conflicts examined here began before 2001 and continued beyond it, the War on Terror and the war in Iraq greatly changed how many in the west viewed non-state armed groups. There were 149 documents that came out of this 10-year span, by far the largest group in this study. However, the numbers were bolstered by several collective statements and deeds of commitments, which were signed by numerous groups during this decade, in contrast to the two previous decades examined. In examining the parts of the norms that appeared in this decade, there were 163 behavioural prescriptions that were cited 920 times in the documents. In this period, there is frequent repetition of behavioural prescriptions. This is clearly reflected in the frequency at which certain behavioural prescriptions were cited. The prescription against the use of landmines was cited 92 times across 41 documents, and the prescription to advocate and engage in de-mining activities close behind with 71 citations across 35 documents. Using the unweighted full count, the most frequently cited behavioural prescription is against the inclusion and utilisation of child soldiers (52 citations across 37 documents), followed by the prescription against the use of force against non-combatants (29 citations across 20 documents). Even in the unweighted full count, the prescription against the use of landmines is still relatively frequently cited, being cited 23 times across 18 documents. A table of the complete results using the weighted full count can be found in Annex 26. A table of complete results using unweighted full count can be found in Annex 27.

19

17.06% of all citations vs 16.66% of all citations in the previous decade.

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The ideations which underpinned the behavioural prescriptions during this decade were more diverse than in the previous decade, though only slightly. In this decade, 41 ideations were cited a total of 492 times. The most frequently cited was, as seen in previous decades, the sense of legal obligation, though with a slightly lower percentage of the ideations cited (16.67%). As seen with the behavioural prescriptions, by using the unweighted full count, the numbers change slightly, with the sense of legal obligation still occurring most frequently out of 39 ideations cited 67 times out of a total of 316 ideational citations. This alternate count raises the percentage of times this ideation is cited to 21.20%, increasing it in comparison to previous decades again. The ideations which seem to be the most impacted by the removal of these duplicated documents are the second, third, and fourth most frequently cited ideations, which are the principle of distinction, the desire to avoid superfluous suffering, and the sense of humanity. Importantly, all documents that were included as duplicates in this alternate count dealt with landmines and norms connected to their use and removal. A full table of the results using the weighted full count can be found in Annex 26, while a similar table using the unweighted full count can be found in Annex 27.

6.6.4

Post-2011

There were 111 documents examined from the decade since 2011. While the Arab Spring is, geopolitically, a somewhat arbitrary point to bring into analysis, of the 82 armed groups included in this analysis ten came into existence since 2011, seven of which could be understood to be related to the Arab Spring or the conflicts which came about in its wake in Libya, Syria, and Iraq. Given that nearly one-tenth of the armed groups can be linked back to this moment in time, it seems fair to use this date to separate armed groups. As with the previous two decades, a number of documents were duplicated across armed groups, with two new deeds of commitment being developed by Geneva Call since 2011. The slight decrease in the number of documents was mirrored by a slight decrease in the number of behavioural prescriptions cited in the documents. A total of 148 such prescriptions were found to be cited in the documents 1193 times across the documents from this period. The most cited of these was the prescription to ensure that rules and guidelines were disseminated throughout the ranks of the armed group (70 times in 50 documents). This follows with other prescriptions related to the accountability of all members of the armed groups to the norms of armed conflict, with prescriptions to expressly allow for monitoring and evaluation of related to norms, to punish members of the armed groups that violate norms, and the commitment to investigate rights violations committed by members of the armed group. By not counting the duplicated deeds of commitment multiple times, this changes quite a bit, though many of these norms related to accountability are still amongst the most cited. The unweighted full count gives rise to 148 behavioural prescriptions cited 645 times. Here, the most cited prescription is against the recruitment and utilisation

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of children soldiers (39 citations in 21 documents), as well as against the use of force against non-combatants (33 citations in 23 documents), and for the protection of civilian populations (24 citations in 14 documents). A full table of the results using the weighted full count can be found in Annex 28, while a similar table using the unweighted full count can be found in Annex 29. Additionally, there were 32 ideations cited in the documents a total of 436 times through all the documents. Yet again, the most cited ideation was the sense of legal obligation, which was cited 82 times in 65 of the documents, followed by sense of humanity (61 citations in 43 documents), and an implicit desire for political legitimacy or recognition (42 citations in 42 documents). As with behavioural prescriptions, the duplicated documents, which predominantly consisted of deeds of commitment in the period since 2011, had an impact on the results when counted for each time the documents appeared, rather than as one document. Thus, the unweighted full count was used to not skew the results due to the existence of one externally created norm repeated so many times. The unweighted full count results were quite different. While the most frequently dictated ideation remained the same, albeit with reduced numbers (33 citations in 31 documents), the second and third most cited, namely the explicit desire for political legitimacy or recognition (27 citations in 26 document) and the principle of distinction (21 citation in 16 documents) replaced the previous second and third most cited ideations. A full table of the results using the weighted full count can be found in Annex 28, while a similar table using the unweighted full count can be found in Annex 29.

6.7

The Armed Conflict Norm Cluster

The results outlined in this chapter are quite raw representations of the elements of the norms coded, how frequently they were coded and in which documents, and how these results can be viewed in different ways to get different representations of the data. Given the size of the armed conflict norm cluster, as examined here, it is difficult to reach any overarching conclusions about the results. To begin, a few general findings should be discussed about the armed conflict norm cluster from the perspective of armed groups. There is an element of universality of the existence of these norms and armed groups’ understandings of them. There is universality in the existence of the restraints on behaviour in armed conflict, as these restraints are seen across contexts. Through the documents, it can be seen that each group examined builds their own norm clusters around their involvement in an armed conflict, from actions on the battlefield to the organisation and structure of their internal and external control mechanisms away from the battlefield. Therefore, one can examine both the individual norm clusters of a specific group or groups or the general norm cluster that exists amongst the non-state armed groups. Along these lines, the universality exists insofar as norm clusters exist in all contexts. But the universality of these norms stops with the particular elements of these norm clusters, namely the ideations and behavioural prescriptions that constitute the

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Fig. 6.1 Full armed conflict Norm cluster without weighting of any factors. The units on the left represent the behavioural prescriptions cited in the documents. The units on the right represent ideations cited in the documents, with the light blue units representing implicit ideations and the light purple units representing explicit ideations. The lines connecting the two are the interlinkages of these two types of citations in the documents—meaning where there was overlap between specific behavioural prescriptions and ideations. A scalable version of this which can be zoomed to see the individual units is provided in the annexes. Note that many behavioural prescriptions are linked to explicit ideations related to political legitimacy, legal or religious obligations, the principle of distinction, or moral and ethical principles—all of which are situated toward the bottom of the ideations

norm cluster for a given armed group. There is no ideation or behavioural prescription espoused by all groups. On the contrary, even those behavioural prescriptions that are seen most frequently amongst armed groups still are cited by only slightly more than half of all of the armed groups examined. The ideations identified were fewer in number and the most frequently cited of these ideations enjoyed quite widespread recognition, but still not universal. Thus, the clearest conclusion from this examination is the existence of norms, their connectedness to global norms and trends, and their distinct context-specific nature. In Fig. 6.1, the full armed conflict norm cluster, as cited by non-state armed groups can be seen in its full. This shows a large and diverse armed conflict norm

References

155

cluster with hundreds of elements and connections. As portrayed in this chapter, there are certainly behavioural prescriptions, ideations, and connections that play a unique role as being essential to the norm cluster across contexts—like the protection of prisoners and those hors de combat and the prohibition on the targeting of civilians, as sense of legal obligation or desire for geopolitical legitimacy, or connections between the protection of certain groups and the principle of distinction. These elements represent the core of the armed conflict norm cluster, in so far as they are the aspects that can be widely agreed upon across contexts. These include both deeply engrained norms like those against targeting civilians that are seen across eras, types of armed groups, and documents, as well emerging norms like those against child soldiers and landmines, which are more recent and have been more observable in documents not originally written by the armed groups. This highlights two important trends within the total armed conflict norm cluster, the first being the existence of quintessential norms that seem to truly exist across contexts and are basic to the limits of armed conflict. The second is the apparent success of norm entrepreneurs at diffusing norms to actors and making these issues key to the armed conflict norm cluster. It must be noted, however, that there is an aspect of contestation in the specificity of norms which can be seen throughout the results. There are often one or two key behavioural prescriptions, such as against the use of landmines or against the recruitment of child soldiers, which are broadly cited. In addition to this, there are more specific prescriptions amongst certain armed groups that may not clash with the key protection, but mediate its meaning, such as for the use of child soldiers in non-combat roles, for the care of children by non-state armed groups, or for the continued safe stockpiling of anti-personnel mines. The existence of these mediating norms suggestion, sub-clusters of norms, within the armed conflict norm cluster. These sub-clusters are interlinked behavioural prescriptions and ideations with significant overlap that highlight the contested and localised understandings of more global norms by the armed groups. These sub-clusters and their role in the general armed conflict norm cluster will be explored in greater detail in the next chapter.

References Fazal TM (2017) Rebellion, war aims & the laws of war. Daedalus 146(1):71–82. https://doi.org/10. 1162/daed_a_00423 Fazal TM, Konaev M (2019) Homelands versus Minelands: why do armed groups commit to the laws of war? J Global Secur Stud 4(2):149–168. https://doi.org/10.1093/jogss/ogz005 HDZ, SDA, SDS (1992) Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina. Accessed on June 1, 2023. http://theirwords.org/media/transfer/doc/ yu_sda_sds_hdz_1992_01-d2d62e36891dd6a31b4727538c4ceb35.pdf International Committee of the Red Cross. Rule 136. Recruitment of Child Soldiers Customary IHL Database. International Committee of the Red Cross. https://ihl-databases.icrc.org/customaryihl/eng/docindex/v1_rul_rule136

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International Committee of the Red Cross. Rule 137. Participation of Child Soldiers in Hostilities. Customary IHL Database. International Committee of the Red Cross. https://ihl-databases.icrc. org/customary-ihl/eng/docindex/v1_rul_rule137 International Committee of the Red Cross. Rule 96. Hostage-Taking. Customary IHL Database. International Committee of the Red Cross. https://ihl-databases.icrc.org/customary-ihl/eng/ docs/v1_rul_rule96 Jo H (2015) Compliant rebels: rebel groups and international law in world politics. Cambridge University Press, Cambridge Mayring P (2014) Qualitative content analysis: theoretical foundation, basic procedures and software solution. Verlagsgruppe Beltz, Klagenfurt RUF. The Eight Codes of Conduct. Accessed June 1, 2023. http://theirwords.org/media/transfer/ doc/sl_ruf_01-1678c63ea48fb4e15f0f50c7c53ef15b.pdf San-Akca B (2016) States in disguise: causes of external state support for rebel groups. Oxford University Press, New York Shining Path/ Sendero Luminoso (1982) The Code of Conduct for Commanders and Members. Accessed on June 1, 2023. http://theirwords.org/media/transfer/doc/pe_sl_1982_01-9b3 d6c7b9de82f7622a87e2bbd655122.pdf

Chapter 7

Discussion

As discussed both in the methodology and in the last chapter the results present in Chap. 6, are fairly raw pieces of data outlining different angles through which one can examine the question of how non-state armed groups understand and communicate the armed conflict norm cluster. This leaves an interesting, though incomplete, picture of the role of norms in the conduct of warfare by non-state armed groups: one of contestation and conflict. In this chapter, the objective will be to interpret these results so that the non-state armed group perspective on the armed conflict norm cluster is clearer and understandable beyond just knowing who cited what how many times. To do this, I will use the results presented in the last chapter to concentrate the focus on specific behavioural prescriptions, ideations, and connections to take a more in depth look at what these results mean and what the armed write about these norms. As discussed in the last chapter, the existence of norms, their connectedness to global norms and trends, and their distinct context-specific nature were quite clear from the data. To understand the different factors that impact the connectedness of these “localised” norms to their international counterparts, one must begin by examining specific aspects of the armed group that may influence the “adopted” norms. This includes many of those aspects that have been mentioned in the previous chapter, as well as some that could be seen as further mitigating and viewed through post-facto examination of the documents. Such factors include those pieces of this puzzle that extend far beyond the confines of elements of the norm cluster and appear as supplemental information from the documents. The object of this chapter is to do exactly this by further examining individual elements of the norms to better learn about the entire armed conflict norm cluster. To do this, I will expand upon and interpret the results described in the previous chapter, with special attention to the theoretical and historical perspectives examined

Supplementary Information The online version contains supplementary material available at https://doi.org/10.1007/978-3-031-45914-6_7. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 W. J. Wright, Norm Clusters of Non-State Armed Groups, https://doi.org/10.1007/978-3-031-45914-6_7

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earlier in this work. The goal will be to gain a better grasp of the interaction between armed groups and norms related to warfare that are observable across the contexts of the different armed groups examined. Using the results, I will underscore those aspects of the norms which either confirm or contrast the general overarching principles present in the norms limiting armed conflict, while also paying attention to those norms or elements of norms that were observed less frequently than may have been expected. This gives a more in-depth understanding of what norms related to warfare armed groups see as most important or pertinent while also highlighting those aspects of international humanitarian law that may not be as broadly accepted or evoked by non-state armed groups. Thus, this feeds back into the general objective of the study to better understand the armed conflict norm cluster, particularly from the perspective of non-state armed groups.

7.1

Norms of Warfare

The objective of this study is to identify and map the norm cluster pertaining to armed conflict as defined by non-state armed groups. It was predicted that such a cluster would be possible across all the different behavioural prescriptions examined so that one large cluster could be created. While this objective was achieved, it became apparent within the general norm cluster there were smaller “sub-clusters” connected to more specific aspects of armed conflict. These are not unique and should be seen as part of the more general cluster. However, the tracking of these sub-clusters and the consolidation of similar behavioural prescriptions, in particular into more generalised sub-clusters, allows for the broader understandings of these norms across contexts and how armed groups approach and cite norms. For further discussion within the context of this study, three important categories of norm sub-clusters were observed within the norm cluster. These categories are core norms, i.e., norms with broad support and high importance; over-performing norms, i.e., norms with broader support than expected given their status in international humanitarian law; and under-performing norms, i.e., norms with less support than expected given their status in international humanitarian law. By examining and comparing the number of armed groups that have endorsed a norm, one can assess the broadness of support, across groups and contexts. By examining and comparing the frequency of situation amongst groups, one can assess the importance attached to the norms, with more important norms being more frequently repeated by those groups that endorse them. Whether a norm is enshrined in codified humanitarian law or customary humanitarian law was used as a countermeasure to how the norms were observed in the norm clusters themselves. For example, the distinction between civilians and combatants and the norm against targeting of civilians are clearly

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enshrined both in codified and customary international law.1 To contrast this, the Ottawa Treaty, and its ban on anti-personnel landmines, has not been signed by 32 states and is not customary international law. So, by extension, it would be logical to assume that the norm against the targeting of civilians would be more frequently cited and more widely accepted by non-state armed groups than the norm against the use of landmines, when comparing non-state armed groups with states. A number of norms, or elements of norms, fall into this pattern of either being more or less mentioned than expected, though not all can be found in one of these categories. The most important norms in warfare are those norms that a large number of armed groups agree upon to some extent. Here one can look to both the behavioural prescriptions and their combinations with ideations as whole norms to best understand what constitutes the basic norms of warfare for non-state armed groups. As non-state armed groups are not seen as being progressive or on the forefront of norm diffusion, observing emerging norms engrained in the internal documents of armed group would suggest a more general acceptance of the norm by all political actors than as reflected by states alone. Likewise, well-established norms that do not seem to be as engrained amongst non-state armed groups compared to the international system belies groups’ political and legal understandings of appropriate behaviour. In general, prohibitory behavioural prescriptions are more frequent than positivist prescriptions. For example, the behavioural prescription prohibiting the targeting of civilians is more popular than one that ensures protection for civilians. Likewise, the norms that are seen most often across contexts are those which are most vague and general. More specific norms on specific behaviours that may fall under a different, more general norm should thus be seen within context of the sub-clusters examined. For instance, the behavioural prescription prohibiting the targeting of civilians, in theory, includes the prescriptions against the use of collective punishments or indiscriminate bombing. These latter prescriptions must therefore be examined within the context of their own clusters to determine whether armed groups have endorsed these specific behavioural prescriptions in addition to the more general norm, or instead of the more general norm. Both possibilities point to the importance of specific practices in warfare, while also highlighting the different understandings as to what normative framework exists for the armed group. Over the next three subchapters, some of the core norms, over-performing norms, and under-performing norms will be examined in further detail to look at what the armed groups say about these norms in the documents examined and what they can mean within the broader context of the armed conflict norm cluster.

International Committee of the Red Cross (ICRC). “Rule 1. The Principle of Distinction between Civilians and Combatants.” Customary IHL Database. International Committee of the Red Cross. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule1. 1

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Discussion

Core Norms

While this study has identified nearly 300 behavioural prescriptions, 50 ideations, and found over 700 different combinations of co-occurrence between the armed groups from the documents examined, one of the most striking findings is the apparent importance of only a few individual behavioural prescriptions and ideations. These individual elements and their co-occurrences with one another create a small cluster of the strongest and most common norms in the armed conflict norm cluster. They are cited both frequently and widely and reflect the core norms that most armed groups seem to accept as appropriate behaviour in armed conflict. A list of the these can be found in Table 7.1. These core behavioural prescriptions and ideations were all cited by at least 20% of the armed groups and their citations and interlinkages can be considered as the core of the armed conflict norm cluster. This is displayed graphically in the “Core Norm Cluster” section of Annex 1. However, if one is to consider what the interlinkages as well show, then one can limit down this core even further to include these relationships between the behavioural prescriptions and ideations that have a certain threshold of interlinkages. By setting this threshold at a minimum of 50 interlinkages in the document, the core is limited down to 14 interlinkages between seven behavioural prescriptions and five ideations. These are displayed in Table 7.2. While there are a number of behavioural prescriptions that could be considered the most important, there is evidence that the prescription against the use of force against civilians could be considered as the most important amongst the armed groups examined. It is clearly seen in the historical evidence, being clearly visible across different geographical and historical contexts, and is cited very broadly and frequently. However, the norm against the force against civilians was not the most frequently cited nor the most widespread. It was surpassed, in the number of groups that endorsed it, by the prescription to apply international humanitarian law to a non-international armed conflict and matched by the prescription to disseminate the rules throughout the ranks of the armed group. However, both of these “more cited” norms are not necessarily truly behavioural prescriptions governing conduct in armed conflict in the strictest sense of the term. The former covers a wide range of behaviours, as international humanitarian law covers almost all of the behavioural prescriptions covered in this study. Furthermore, the application of international humanitarian law could also be interpreted as including the protection of civilians, as the principle of distinction which would include this is a key principle of international humanitarian law. The latter pertains to both rules governing conduct in armed conflict and those governing conduct outside of armed conflict. Furthermore, the prescription against the use of force against civilians has the most frequent ideational co-occurrences of any behavioural prescription in the slim count and unweighted full count and was seen to co-occur with more ideations that any other behavioural prescription. Additionally, it should be noted that the explicit citation of the principle of distinction is the second most frequently and widespread ideation cited across all

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Table 7.1 Most cited and widespread behavioural prescriptions and ideations Behavioural prescription or ideation - Use of landmines + Advocate for demining/mine action + Apply IHL to NIAC - Recruiting/utilising of child soldiers - Use of force against/targeting non-combatants + Endorsement of Human Rights + Disseminate rules through ranks + Protection of prisoners, wounded, Hors de Combat + Protection Civilian Populations + Punish violators + Protect rights of child + Allow observers/M&E functions - Targeting civilian infrastructure/property + Humanitarian access - Rape/sexual violence - Mistreatment of prisoners + Protection civilian infrastructure and property + Respect for private property + Avoid collateral damage - Discrimination (ethnicity/race/Religion/sex) + Rights of civilians to aid & protection + Physical separation between mil. & civ. to avoid collateral damage + Destroy mine stockpile Implicit I Desire for geopolitical recognition/legitimacy Implicit I Desire for good relations with community Explicit I Desire for eventual peace Explicit I Avoid superfluous suffering Explicit I Military necessity Explicit I Effectiveness/economy of force Explicit I Desire for geopolitical legitimacy/recognition Explicit I Desire for economic development Explicit I Distinction between military and civilians Explicit I Sense of humanity Explicit I International legal obligation

Citations 155 131 116 110 116 94 86 66 64 52 50 41 45 45 32 33 31 26 28 24 22 20 19 31 39 35 83 71 32 111 63 118 91 196

Groups 36 30 49 33 39 38 39 19 26 25 21 21 25 20 22 18 17 18 17 20 18 17 17 22 23 24 37 35 28 44 31 50 44 63

documents.2 These measures all point to their importance in comparison to other norms given that they are not only widespread but can also be justified through numerous ideational values and that its uniquely parallel ideation is also widely connected with other norms.

2 It remains the second most widespread ideation when joint documents are not counted, though it does to the third most frequently cited ideation.

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Table 7.2 Co-occurrence of the most frequently cited behavioural prescriptions and ideations

- Use of landmines + Apply IHL to NIAC + Advocate for demining/mine action + Endorsement of Human Rights - Use of force against/targeting non-combatants - Recruiting/ utilising of child soldiers

International legal obligation 52

Distinction between military and civilians 86

Avoid superfluous suffering 58

86

54

50

59

58

51

Military necessity 68

Desire for economic development 74

51

54

55

The normative protection of civilians is one of oldest norms related to warfare that can be observed historically, as discussed in Chap. 5. Thus, the strength and penetration of this norm across 39 of the armed groups, both as a norm with a behavioural prescription and in a slightly different iteration as an ideation, is logical. A majority of armed groups seem to accept that there should be some sort of distinction between combatants and civilians and that the latter category should be not be the target of force. This prohibition is endorsed more than prescriptions that may be adjacent in their meaning or implication, as the connected ideation espousing the principle of distinction was cited by 50 armed groups. The positive protection of these same populations, rather than the negative prohibition on the use of force, is less frequently and widespread in its citation, only being cited by 26 armed groups, despite its being quite similar to the prohibition in meaning. The prohibition on targeting civilian infrastructure was only cited, as well as prohibitions against more specific abuses such as those against terror tactics (3 armed groups), indiscriminate bombing (1 armed group), and collective punishments (2 armed groups), are other behavioural prescriptions that do not seem to have nearly the same level of diffusion as that against the targeting of non-combatants. Where does this leave the general prescription against the use of force against non-combatants? Is its widespread endorsement only the result of its vagueness and prohibitory nature? The evidence indicated that this prescription was popular and widespread even in comparison to other general and prohibitory norms and there is a strong recognition by most non-state armed groups that this norm, in one form or another, is an appropriate limitation to armed conflict. Inherent in this is a recognition of the need for some sort of practical distinction between fighters and civilians. Given the impact this distinction, or often the lack of this distinction has on

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thousands of innocent civilians living within the context of armed conflicts, the importance of understanding this distinction is paramount. Likewise, the fact that the principle of distinction was the second most frequently and widely cited ideation within internally drafted documents shows that its importance extends far beyond international agreements. It is well ingrained in the core norm cluster of most armed groups and, given its status in international humanitarian law, appears to be a core normative tenant of armed conflict. In addition to behavioural prescription prohibiting the use of force against civilians, there are other prescriptions that have a similarly wide degree of acceptance. Additional norms, or rather sub-clusters connected to multiple ideations, include the prohibition of the utilisation or recruitment of child soldiers, the prohibition of the use of landmines, the protection of captured or wounded enemies, or who are hors de combat, the prohibition of targeting civilian infrastructure, and allowing for humanitarian access. These behavioural prescriptions, much like the prohibition on the use of force against civilians, are only the core behavioural prescriptions within larger sub-clusters of interlinked behavioural prescriptions and ideations that will her explored in this chapter. In contrast, these sub-clusters are more nuanced and include more contestation than that against the use of force against civilians. This is important, in so far as it shows the general uniform acceptance of general normative principles while also highlighting the prominence of the sub-cluster prohibiting the targeting of civilians. Simultaneously, this warrants further exploration of these other sub-clusters. The first two of these—the sub-cluster around child soldiers and the sub-cluster around landmines—are prime examples of sub-clusters with core behavioural prescriptions that are widely accepted and connected behavioural prescriptions which are contested by armed groups. Both are also the subjects of deeds of commitment and therefore must be considered within the context of where and how the norms are espoused. Likewise, both sub-clusters provide excellent examples of the localisation of norms that are pushed by norm entrepreneurs and how the idea of localisation fits into the context of the norm cluster model. These two sub-clusters will be elaborated on in more detail in the following paragraphs. Landmine Sub-cluster In the case of landmines, there is little to no mention of the landmines being an unacceptable weapon of warfare until the mid-1990s. This corresponds to the drive by states and civil society to ban landmines, which culminated in the Ottawa Treaty, as discussed in Chap. 6. Since this civil-society led effort, a number of armed groups have added their voices to the armed actors against the use of landmines, albeit without necessarily citing the Ottowa Treaty as the reason behind their prohibition. Examples include, It is a fact that anti-personnel mines have been killing civilians, destroying properties, destroying the environment and inflicting damage to innocent civilians more than it has served its military purpose. The Rebolusyonaryong Partido ng Manggagawa—Pilipinas and the Revolutionary Proletarian Army—Alex Boncayao Brigade declares its opposition and

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rejection of the use and production of anti-personnel mines. We give our full support to the worldwide campaign against the use. . .3

and As far as the issue of landmines is concerned, the SPLM/A in 1996, unilaterally, declared a moratorium on the use of landmines before the 1997 Ottawa Convention. Our move was prompted not by the desire to wash our face before the international community, or gain an undue recognition while we do the contrary. No. Our decision was triggered by the simple fact that we are fighting for a peaceful homeland and not a turbulent mine-land.4

While there is a general acceptance by many non-state armed groups that landmines should not be used, there is certainly contestation from armed groups such as, However in certain circumstances we use them to defend our troops as we lack alternative means of defence. Our use of landmines is extremely limited and steps are taken to avoid civilian casualties. We only use them in military zones, not in civilian areas. The Karenni army does not place landmines on roads and in other areas used by innocent civilians. They are used for defensive purposes and we have no intention of placing them in war-free-zones.5

and, There shall be no use, stockpiling, production and transfer of anti-personnel mines without order or clearance from MILF commander on the ground during actual combat when the enemy attacks MILF camps.6

The deed of commitment against the use of landmines is the most signed of all the deeds examined amongst this sample. Furthermore, it was widely supported as evidenced by a number of statements by armed groups related to this deed of commitment.7 This causes the number of citations to increase from 43 to 155 and from 26 to 36 groups which had cited behavioural prescription against the use of landmines between the slim count and weighted full count. Similar increases were observed for the behavioural prescriptions of advocating for de-mining, for supporting NGOs in de-mining work, and, to a lesser extent, for the destruction of stockpiles of mines. Other behavioural prescriptions connected to the landmines did not see the same increase. These include the prescription allowing the controlled use of landmines, for informing civilians where mines had been planted, for safe stockpiling, prohibiting non-combatants from manufacturing, holding, or planting landmines, and even for the general use of landmines.

3

RPM-P (2000). SPLM (2001). 5 KNPP (2006). 6 MILF (2000). 7 See Arakan Rohingya National Organisation/Rohingya National Army, National United Party of Arakan/Arakan Army, National Socialist Council of Nagalim, et al. (2004); National Socialist Council of Nagalim, Zomi Re-unification Organisation, Sudan People’s Liberation Movement/ Sudan People’s Liberation Army, et al. (2009); Zomi Re-unification Organisation, Rebolusyonaryong Partido ng Manggagawa ng Mindanao/Revolutionary People’s Army, Frente Popular de Liberación de Saguía el Hamra y Río de Oro, et al. (2009). 4

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This comports with understandings on how norm compliance is determined within the norm cluster model. According to Winston,8 any combination of behavioural prescription and ideation can exist, but whether such a combination is norm compliant is dependent upon collective understandings. As such, actors may feel that their actions are norm compliant, but it can only be determined by others whether to accept or reject the behaviour as appropriate. While this is not the object of this study, understanding this can help one understand the interplay between these norms and external actors. Norm entrepreneurs, such as Geneva Call, play a role in the armed groups’ determining what is norm compliant and what is not. The IEA responded on multiple occasions to accusations of the use of landmines,9 which supports the argument that some armed groups fear reputational loss. Through this, we see three unique perspectives on this sub-cluster: armed groups with norms that are compliant, armed groups with norms that are non-compliant, and those armed groups without any sort of normative prescription on this issue. This sub-cluster can be seen displayed graphically in the “Sub-clusters” section of Annex 1. Child Soldier Sub-cluster The situation with the landmine sub-cluster is quite similar to that of the sub-cluster around the use of child soldiers. In this case, one can observe the role that external actors play in proliferating specific aspects of the behavioural prescription. While some armed groups make clear that individuals under the age of 15 will not be recruited or included in the armed activities of the group, others draw this line at 17 or 18. This is reflective of the unclarity of a recruiting age in international law, which is even observable in the documents themselves. The NDFP states, The New People’s Army may recruit only persons who are 18 years old and older as armed fighters for its combat units even as Article 77, paragraph 2 of the said 1977 Protocol 1 Additional to the Geneva Conventions of 1949 and relating to the Protection of Victims of International Armed Conflicts still legally permits the recruitment of children 15 years and above as soldiers.10

Similarly, the LTTE writes, There are several international instruments that specify minimum age of recruitment. There are inconsistencies among them. In the UN Convention on the Rights of Child (CRC) of 1989, 15 is the minimum age. Only in one instrument, the Option Protocol to the CRC of 2001, the minimum age of 18 is specified. The LTTE has recently set the minimum age of recruitment at 17 and the minimum age for combat duty at 18.11

To contrast this, the policy of the HPG is,

8

Winston (2018). IEA (2012, 2013). 10 NDFP (2012). This references the existence of a standing policy on this since 1988, which is also reflected in other documents from the NDFP. 11 LTTE (2007). 9

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Group Prohibition of Child Soldiers 16 14 12 10 8 6 4 2 0 Children