Legitimacy and Compliance with International Law: Access to Detainees in Civil Conflicts, 1991–2006

Abstract

Existing compliance research has focused on states’ adherence to international rules. This article reports on state and also non-state actors’ adherence to international norms. The analysis of warring parties’ behaviour in granting the International Committee of the Red Cross (ICRC) access to detention centres between 1991 and 2006 shows that both governments and rebel groups adhere to the norm of accepting the ICRC in order to advance their pursuit of legitimacy. National governments are more likely to grant access when they are democracies and rely on foreign aid. Insurgent groups are more likely to grant access when they exhibit legitimacy-seeking characteristics, such as having a legal political wing, relying on domestic support, controlling territory and receiving transnational support.

A porous humanitarian shield: The laws of war, the red cross, and the killing of civilians

“…There might be other instruments employed but due to the confidential character of the ICRC's negotiations with governments and the organization's overall lack of transparency these mechanisms cannot be scrutinized independently. The ICRC is involved in many other important activities, such as medical relief work and visiting detainees, and compliance might vary across different issues (Jo and Thomson 2014). It is conceivable that the ICRC accepts some sacrifices for the sake of other priorities.…”

“…A core problem is that non-state armed groups are not signatories of the agreement. A study by Jo and Thomson (2014) on the international norm to grant the ICRC access to prisoners of war did not provide evidence of reciprocity in compliant behavior of conflict parties in intra-state wars. Whether non-state actors comply depends largely, as it does for government actors, on whether they strive for legitimacy.…”

International Conventions and Nonstate Actors

“…While humanitarian law originally developed to constrain the behavior of governments in international conflicts, scholars and experts of law started considering ways to legally constrain NSAs in the 1970s (Clapham, 2006;Barbelet, 2008, 82f) (Bangerter, 2011;Jo and Thomson, 2014;Jo, 2015;Morrow, 2007Morrow, , 2014. 8 There has been some interest in compliance with the laws of war (Valentino, Huth and Croco, 2006;Morrow, 2007Morrow, , 2014, as well as wartime civilian targeting (Valentino, Huth and Balch-Lindsay, 2004;Eck and Hultman, 2007;Downes, 2011) and child soldiering (Beber and Blattman, 2013;Lasley and Thyne, 2015).…”

“…Our analysis extends current research on treaties in international relations to non-state actors and to the context of civil wars and their aftermath. We posit that the ongoing debate on the screening and constraining effects of international agreements is relevant beyond states and formal treaties (e.g., Simmons, 1998Simmons, , 2010Simmons and Hopkins 2005;von Stein 2005), and that analogous mechanisms can apply to NSAs and informal agreements or commitment devices as well (see Bangerter, 2011;Jo and Thomson, 2014;Jo, 2015). Indeed, although Geneva Call's efforts to engage non-state armed groups are quite specific and limited, the data on convention signing and compliance allow us to gain insights that extend beyond this particular application.…”

The Fall and Rise of Peace Treaties

“…States may seek to avoid the obligations of IHL. But rebel groups in civil wars-particularly those seeking international legitimacy, 32 such as secessionist groups-may view the proliferation of codified IHL as an opportunity to engage with the international community. By publicizing their compliance with IHL, these groups seek to signal their intent and capability to be good citizens of the international community, should they be admitted to the club.…”