Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law

Abstract

Academics and international lawyers look for the sources of international law in the treaties and customs created by states. Although nonstate actors have often been subject to international legal rules, they have seldom been seen as having a role in the formation of such rules. International humanitarian law is no exception. The authors argue that this "statist" exclusion of nonstate actors from international lawmaking is outdated and normatively questionable. The authors suggest that nonstate actors-and specifically, nonstate armed groups-should be understood as potentially having a role in the making of international humanitarian law. Giving nonstate actors such a role would require academics and lawyers to look beyond the treaties and customs of states when seeking potential sources of international law. The authors explore what these new sources of international law might look like, and what the benefits and limitations of accepting each of them might be. The Article provides a framework for discussing the role nonstate entities play in international law. Instead of the typical dichotomy between states and nonstate actors, the authors propose distinguishing between states, state-empowered bodies, and nonstate actors. Whether and how a particular nonstate actor should participate in lawmaking depends on pragmatic considerations specific to the situation. These considerations should encompass the perspective of the international community as a whole. The authors then apply this approach to the role of armed groups in shaping international humanitarian law, arguing that there are good reasons to include these groups in the lawmaking process. They do not argue that these groups be given the same role as states, but instead seek to accommodate the groups' practices within a less statist approach to the doctrine of sources. This lawmaking paradigm would allow for the constructive engagement of armed groups without downgrading the standards of international humanitarian law or treating armed groups as akin to states.