Extending International Criminal Law beyond the Individual to ...

Extending International Criminal Law 923
dedicate as much, if not more, space to the violations committed by the nonstate
actors as they do to addressing the states concerned. The mechanism visa'
-vis the non-state actor works not only through naming and shaming but by
encouraging the non-state actor to submit an ‘action plan’ to the Security
Council, in this way the group can be removed from the list of violators. One
group that has supplied such an action plan and claims to no longer be
a violator is the Forces Nouvelles (FAFN) in Co“ te d’Ivoire. The Security Council
has in mind that it could adopt ‘country-specific resolutions, targeted and
graduated measures, such as, inter alia, a ban on the export and supply of
small arms and light weapons and of other military equipment and on military
assistance, against parties to situations of armed conflict which are on the
Security Council’s agenda and are in violation of applicable international law
relating to the rights and protection of children in armed conflict’. 72 The
assumption here is that the non-state party to the conflict is violating international
law. Although the reports are hazy (to put it gently) on which norms of
international law are actually being violated, and make very little reference to
international criminal law, the prospect of follow-up sanctions by the Security
Council is premised on the idea that these groups have violated international
law, and not simply a set of moral imperatives.
Third, in addition to the threat of sanctions imposed by the Security Council,
or indeed the threat of individual prosecution at the ICC, rebel groups may have
other reasons for seeking to be seen to abide by apparent international obligations.
The work of Geneva Call in engaging armed groups in ‘Deeds of
Commitment’ regarding a ‘total ban on anti-personnel mines and for cooperation
in mine action’ can provide some insights. 73 First, rebel groups realize the
advantages of being seen to abide by international norms in the context of
moves towards peace negotiations; second, it is much easier to criticize governments
and their armed forces for committing international crimes if the group
has policies in place to avoid and punish such crimes; third, factions may be
able to distinguish themselves from other armed groups and thus ‘get ahead’ in
terms of dialogue with the government or other actors; 74 lastly in some circumstances
entering into commitments not to violate international norms
related to, say, anti-personnel mines, may give access to assistance from the
international community in the form of mine clearance. 75
72 UN Doc. S/RES/1612 (2005), 26 July 2005, x 9.
73 I have dealt with this in some detail in Human Rights of Non-State Actors, supra note 6, at
291^299.
74 ‘Groups that seek legitimacy, international support, and involvement in the political process
could be rewarded for compliance with the laws of war.’ ‘Report on an Interdisciplinary
Seminar on Transnational and Non-State Armed Groups: Empowered Groups, Tested Laws,
and Policy Options’, Program on Humanitarian Policy and Conflict Research at Harvard
University and Graduate Institute of International Studies Geneva (2007), at 31 of the printed
version.
75 And, as pointed out by Jane’s Intelligence Digest, non-state actors place their mines in ‘strategic
places instead of creating larger, coherent minefields’. Because they are less likely to mark their
mines they ‘may have a bigger humanitarian impact than mines placed on a country’s borders’,
16 November 2007.