International Law

What Happens When States No Longer Govern?

By Shane Reeves
Monday, February 13, 2017, 3:30 PM

For seventy-three days last summer, the so-called Islamic State of Iraq and Syria (ISIS) and a Kurdish/Arab militia known as the “Syrian Democratic Force” (SDF) fought over Manbij, Syria. The fierce urban battle left thousands of fighters dead and caused significant damage to Manbij, a city with a population of nearly 100,000. This brutal clash is noteworthy not for its level of violence—in the greater context of the long-running Syrian war, it is sadly unremarkable—but because the hostilities were almost exclusively between non-state actors in a war-torn and uncontrolled region of Syria.     

As Syria, Afghanistan, Libya, Yemen, and Somalia fragment, what occurred in Manbij is becoming increasingly common. Non-state actors are the emerging power in vast, geographic areas left ungoverned in these failing states and, with unique ambitions and particular belief systems, these groups often enter into sustained competition with one another resulting in violence and drawn-out hostilities. Organized, well-financed, and heavily armed, non-state actors are interested in exclusively controlling territory over the long-term and governing in accordance with their worldviews. It is this dynamic that fuels, to name just a few current examples, the war between the Taliban and the so-called Islamic State over the border region of Afghanistan and Pakistan, the fighting amongst the dozens of armed groups in Libya, and the struggle between the al-Nusra Front (recently renamed al-Sham) and the so-called Islamic State in southern Syria.   

With conventional-type armies and access to significant resources, these non-state actors are more akin to pseudo-states than local militias. Not reliant upon state sponsors, they make independent and pragmatic decisions in furtherance of their own goals. Occasionally, the non-state group will collaborate with a state—such as when the United States-led coalition in Iraq/Syria provided advisors and air strikes in support of the SDF in Manbij—but will not act as a subservient proxy. Instead, these are loose partnerships, with the state using the non-state actor to apply pressure to external threats or further a particular ideology. The non-state actor, in turn, gains access to sophisticated technology that allows it to hasten the elimination of a territorial rival. For the non-state actor, these arrangements are convenient but not necessary, as the organization would have fought the opposing group regardless of the state’s involvement. In these circumstances, the state does not have effective or overall control of the non-state actor and cannot dictate how these groups should behave. States are at most on the periphery of the violence, and with no local government providing oversight, these conflicts are often unregulated.    

This situation does not result from a lack of applicable law, but rather because existing law is unenforced. For example, these struggles take place within territory of an internationally recognized state. This means, in theory, the domestic law of the state applies to the non-state actors. However, as the centralized government retracts from these areas, non-state actors—such as the so-called Islamic State, Al-Shabab, or the Taliban—become the de facto sovereign. In practice, therefore, the host nation has no enforcement power in these areas, making domestic law an irrelevant check on the violent behaviors of these groups.

In a growing number of situations, the violence between non-state actors is significant enough to equate to an armed conflict, triggering international law. While there is no conclusive definition of the term “armed conflict,” the Tadic decision states that such a conflict “exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” No single factor determines if a non-state group is organized; however, some indicators of organization include the existence of a command structure; disciplinary standards and mechanisms; the existence of a headquarters; group control of territories; access to weapons and other military equipment; recruiting and training; and coordinated military operations. Many of these non-state actors meet most, if not all, of these organization criteria. Coupled with the intense and sustained nature of the armed violence between many of these organized groups, it is clear that a number of non-state armed conflicts are currently ongoing.

As no state parties are involved, these conflicts are “not of an international character occurring in the territory of one of the High Contracting Parties [of the 1949 Geneva Conventions],” making Common Article 3 of the Conventions applicable. Portions of Article 8 (War Crimes) of the Rome Statute of the International Criminal Court—triggered when “there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”—as well as customary international law provisions concerning targeting and weapons also apply. While Additional Protocol II to the 1949 Geneva Conventions, by its own wording, does not regulate these wars between non-state actors, many of the Protocol’s articles are also customary law. Together, this combination of conventional and customary law provides a robust international legal framework with which to regulate these non-state armed conflicts.

Nevertheless, little incentive exists to hold non-state actors accountable under international law. In fact, states capable of enforcing the law typically avoid failing states and their internal conflicts in order to stay clear of exactly these types of responsibilities. And even when a state does get involved in an environment like this, it will usually be careful to further its particular objectives as indirectly as possible. Some states, notably the United States, make support to non-state actors contingent upon their compliance with the law of armed conflict. If the group does not comply, the collaboration may end. While this requirement is admirable, and most likely positively influences the non-state actor’s adherence to the law of armed conflict, it still avoids ownership of the group’s behaviors. As a result, even when state actors conscientious about law of armed conflict compliance are involved, they have very limited influence on the conduct of hostilities in these non-state conflicts.

Responsibility for policing these conflicts would therefore seem to fall to the broader international community. Yet states seem incapable of collective action, as illustrated by the lack of an international response to the mass atrocities taking place in the Syrian war. Differing views on the legitimacy of the various non-state actors, and conflicting goals for failing states, makes partnerships impossible. Without consensus, regulation of these non-state armed conflicts simply cannot happen.

With neither state actors nor the international community willing to enforce international law, and with domestic law incapable of being enforced, these non-state conflicts transpire in a legally unenforced vacuum.  Given this license to act with impunity, non-state armed groups will continue their savage fights for primacy in the borderlands of failing states. Unfortunately, as in any war, the people trapped between such groups are the ones who will suffer most.