Mitigating humanitarian crises during non-international armed conflicts—the role of human rights and ceasefire agreements

Applicable rules of international law

The laws applicable to armed conflicts are extremely well rehearsed (Solis 2010; Clapham and Gaeta 2014) and will be only briefly laid out below. The following section will focus on non-international armed conflicts taking place between a state and (one or more) non-state armed group. For the purposes of the paper, the term ‘non-state armed group’ shall refer to a definition of a non-state actor as suggested by Geneva Call. It shall therefore include “any armed group, distinct from and not operating under the control of, the state or states in which it carries out military operations, and which has political, religious, and/or military objectives” (Bellal et al. 2011, 48).¹

Applicability of international humanitarian law

The corpus of international humanitarian law applicable during NIAC is somewhat limited compared to that relating to international armed conflicts. In the early days of international law, the lack of development was perhaps due to a general understanding that because of its domestic nature, internal warfare fell within the scope of states’ national jurisdiction and need not be regulated internationally (Moir 2002, 2). Although some customary international law pertaining to NIAC existed (relating particularly to the recognition of belligerency), state practice on the matter rapidly declined (Moir 1998, 352). However, as the prevalence of internal conflicts grew, and the transnational effects of NIAC became more evident (e.g. the influx of refugees and/or a ‘spill-over’ of hostilities to neighbouring states: Moir 2002, 2) and the realisation that parties most affected by conflicts (i.e. civilians) were in need of protection regardless of the nature of the conflict, the mid-twentieth century brought a greater acceptance of the application of humanitarian norms to NIAC. Nonetheless, despite efforts of the International Committee of the Red Cross to encourage the application in practice (having adopted a resolution on the matter in 1938: Moir 1998, 354), progress was stopped short by the breakout of World War II. It was therefore not until 1949, after a rejection of the International Committee of the Red Cross (ICRC)’s attempts to have the totality of international humanitarian law extended to cover NIAC, that the somewhat restrictive Common Article 3 to the universally binding Geneva Conventions (Best 1994, 82–83; ICRC 1949a; ICRC 1949b; ICRC 1948c; ICRC 1949d) was adopted.² The NIAC-specific Additional Protocol II to the Geneva Conventions of 12 August 1949 (ICRC 1977) was later hastily adopted in 1977, after further disagreements between states as to the extent to which their internal affairs should be opened to external scrutiny (see Best, 346–347).

The standards contained in these instruments apply to both state and non-state parties to a NIAC. This assertion has raised several conceptual concerns, perhaps the most notable relating to the legitimacy of applying treaty standards to NSAGs, who have not ratified the relevant treaties. At the international level, in the absence of an elected world government, the legitimacy of obligations stems from the sovereign equality of states and the fact that they bind only themselves through the creation and adoption of international norms. The source of legitimacy for the imposition of direct obligations on non-state actors at the international level without their participation therefore raises some questions. Justifications proffered range from the ‘doctrine of state jurisdiction’³ to the analogy of individual criminal responsibility.⁴ Perhaps the most persuasive justification is the argument that some procedural requirements of legitimacy need not be followed in relation to norms preventing heinous conduct. It has been argued, for example, that if the expected result of the obligations’ implementation is of paramount importance, it may negate the necessity of the norms being adopted with the consent of affected parties (Ryngaert 2010, 71–73). Ryngaert asserts that in the absence of participation by a non-state actor, if a “legal norm or its implementation has in itself an important substantive value”, participation is not necessary (Ryngaert 2010, 71). Arguably, in the case of international humanitarian law that was extended to NIAC primarily for the purpose of protecting civilians, this argument rings true. Indeed, “it has now become uncontroversial…that [NSAGs] are bound by international humanitarian law” (Bellal et al. 2011, 56).

However, a high threshold must be met for Additional Protocol II to be applicable.⁵ This means that in many situations, only Common Article 3 providing minimal protections would apply, as the provision automatically applies upon the classification of a situation as a non-international armed conflict. By now, however, this body of law has matured, with a more expansive corpus of customary international humanitarian law applying to NIAC (Sivakumaran 2012, 102). Notwithstanding criticism of this customary law, its application to NSAGs has been more broadly accepted than the application of treaty-based rules (Bellal et al. 2011, 56).

In addition, the assertion that some rules of international armed conflicts are also applicable in NIACs is becoming more commonplace (Columbia Law School Human Rights Institute, cited in Cleveland 2014). These evolutions in the law of NIACs have taken place predominantly to counter concerns that despite the widespread nature of NIACs, the laws applicable during an international armed conflict were much more extensive in scope. Until the 1990s, developing the rules of NIAC beyond those provided for by Geneva law was “never seriously entertained” (Sivakumaran 2012, 55). With the majority of armed conflicts currently occurring worldwide being non-international in nature (Armed Conflict 2014),⁶ the developments are now a welcome opportunity to mitigate the human suffering caused by armed conflicts and thwart concerns regarding the deregulation of NIACs.⁷

Now that the law applicable during NIAC is in a more (though by no means fully) developed state, the primary issue to be addressed is how to ensure that NSAGs comply with the relevant norms and close the gap between law and practice during NIAC. Aligning the practice of NSAGs with the legal standards is an extremely challenging task, however. On the one hand, NSAGs may not be aware of the existence or meaning of humanitarian norms and may lack the institutional structure to ensure compliance of their own fighters (Ryngaert and Van de Meulebroucke 2012, 456–457). Alternatively, a NSAG may be unwilling to engage with the notion that it has legal obligations under humanitarian law (e.g. ICRC 2008). Even those NSAGs willing to abide by the laws may encounter an array of obstacles in implementing them.⁸ It is for this reason that organisations such as the International Committee of the Red Cross have engaged with NSAGs that have expressed a desire for help. Nonetheless, as Ryngaert and Van de Meulebroucke note, unlike for states, there is no formal advisory service available to NSAGs struggling to comply (Ryngaert and Van de Meulebroucke 2012, 457).

Notwithstanding the difficulties faced in ensuring NSAGs’ compliance with humanitarian law, there is growing support for the application of international human rights law to situations of armed conflict, which will be explained in the following section.

Applicability of international human rights law

The rhetoric pertaining to the application of international human rights law to armed conflicts was initially somewhat divergent. A major focus of this debate has revolved around the doctrine of lex specialis derogat legi generali (lex specialis), which many believed to render the application of human rights during armed conflicts inappropriate (e.g. Schabas 2007, 594). As the literature engaging with this debate is extremely extensive, this section will present a summary of the doctrine and its consequences within the context of this paper. The doctrine mandates that more precise and specialised law is to take precedence over more general laws. Reluctance to apply human rights law during armed conflicts was also due to the differing natures and ‘roots’ of humanitarian and human rights law (Solis 2010, 24). On the one hand, humanitarian law (not seeking to abolish conflict) does not prohibit the immediate killing of the enemy. It seeks rather to diminish the devastating human cost of conflicts and to ensure a fairer fight (ICRC 2004).⁹ Human rights law, on the other hand, seeks to protect individuals from potentially abusive actions by states and does not allow the arbitrary taking of life under any circumstances.¹⁰

Furthermore, as is explained below, human rights law imposes obligations on the state for the benefit of individuals. The relationship between the obligation-holder and the beneficiaries (or rights-holder) is thus inherently vertical in nature. In contrast, as explained above, many humanitarian obligations are owed by all parties to the conflict, which act essentially as mutual beneficiaries (assuming that all parties comply with their obligations).

In more recent years, the international community has increasingly accepted the view of the International Court of Justice (ICJ) in its Advisory Opinion on the Legality of the Construction of a Wall in the Occupied Territory that during armed conflicts international humanitarian norms and international human rights norms may apply simultaneously, in a complementary manner (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 2004, para 106). It may be said, therefore, that the doctrine of lex specialis serves more to determine the precise rules to apply to a particular situation, rather than precluding application of one body of law. This view is supported by Marko Milanović, who has highlighted that understanding the doctrine as being generally applicable to the human rights and humanitarian regimes as a whole, is mistaken (Milanović 2011, 98–101). Following Kreiger, Milanović’s suggestion is to assess which rule constitutes the lex specialis by looking at the relationship between specific norms, rather than regimes as a whole (Milanović 2011, citing Kreiger 2006). The present paper will also depart from this starting point, understanding the lex specialis during situations of humanitarian crisis as being human rights law.

NSAGs and the indirect horizontal effect of human rights

Under the current international human rights framework, NSAGs do not have direct human rights obligations; as non-state actors, NSAGs cannot be party to international human rights treaties. Rather, human rights obligations are vertical in nature, being owed by the state on a vertically superior legal plane, to individuals. Unlike other international treaties, human rights treaties do not even have horizontal application, or ‘horizontal effect’ between states. Human rights treaties allow for neither substantive horizontal effect (i.e. allowing individuals to claim violations of actual rights owed to them by NSA), nor procedural horizontal effect, often known as drittwirkung ¹⁸ (reflected in the rule that complaints of human rights violations may only be brought before the human rights treaty bodies by individuals against states) (e.g. Optional Protocol to the International Covenant on Civil and Political Rights 1966c, Article 1).

However, the ever-increasing power and influence of non-state actors (including NSAGs) and their ability to interfere with the enjoyment of human rights has led to an application of ‘indirect horizontal effect’ by many human rights monitoring bodies and courts. Although being achieved through several different methods, indirect horizontal effect essentially holds states responsible for human rights interference resulting from the conduct of non-state actors. In the past, this has been used in relation to corporations, NSAGs, and even individuals (e.g. European Court of Human Rights (ECtHR) Fadeyeva v. Russia 2005; United Nations Committee against Torture Sadiq Shek Elmi v. Australia 1999; ECtHR, X and Y v. The Netherlands 1985). Perhaps the most prevalent way of achieving indirect horizontal effect is to use states’ positive obligation to protect individuals from human rights interference with the enjoyment of their rights.

The obligation has been fleshed out using a ‘duty of due diligence’. Under international human rights law, this means that states must take all appropriate measures to ‘prevent, investigate and punish’ third party interference with human rights enjoyment (Inter-American Court of Human Rights Velásquez-Rodríguez v. Honduras 1988, paras 79, 172). When assessing whether or not a state has acted with due diligence, the focus is on the conduct, and the progressive measures that states took in a particular situation, rather than the result of the measures and whether or not they were actually successful in protecting an individual (Office for the United Nations High Commissioner for Human Rights 2005, 61). In practice, this means that a state will not be expected to protect every individual all of the time. Rather, they will be expected to take protective measures when they know, or should have known, of a threat to an individual’s rights by a third party (see, e.g. ECtHR, Osman v. United Kingdom 1998b; ECtHR, Z and Others v. United Kingdom 2001, ECtHR Kaya v Turkey 1998a).

Whereas this is arguably more reasonable for states, it has obvious flaws in relation to non-state actors outside of state control, such as NSAGs. An illustrative example is that of the Fuerzas Armadas Revolucionarias de Colombia (FARC) in Colombia. The non-international armed conflict between the NSAG and the state has been taking place for over 50 years, with the FARC having gained in 2000 effective control over a large area of Colombian territory (Rollins 2010, 18). The Human Rights Council has expressed concern at the lack of inquiry and investigation into crimes committed by demobilised individuals from the FARC against women and children, in particular the recruitment of child soldiers (Human Rights Council, Working Group on the Universal Periodic Review 2008, para 57).

This would also presumably fail to comply with the state’s obligation under Article 4(2) of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) to “take all feasible measures” to ensure that the relevant norms are respected. The Inter-American Commission on Human Rights emphasised the importance of the obligation to investigate and punish actions by NSA in its assessment of whether Colombia had acted with due diligence in relation to FARC activity, but ultimately stated that “in situations of civil strife, the State cannot always prevent, much less be held responsible for, the harm to individuals and destruction of private property occasioned by the hostile acts of its armed opponents.” (Inter-American Commission on Human Rights, Organization of American States 1999, Chapter IV para 4, discussed in Clapham 2006b, 422). This appears to place a lower (albeit more realistic) burden on states than the European Court of Human Rights. In the case of Illascu and others v. Moldova and Russia (1999), the Court was called upon to question the responsibility of Moldova for harm that occurred in an area of its territory over which it no longer had effective control. The Court opined that “States retain the obligation to use all means and resources available to them to guarantee human rights” (para 333) and upheld Moldova’s responsibility. Whilst encouraging states to make efforts to guarantee human rights throughout its territory regardless of situations of conflict is laudable, finding the state to have violated its obligations in areas where it is no longer capable of securing human rights is questionable. Although the approach of the Inter-American Commission may appear to be too soft-handed, the much more heavy-handed approach of the ECtHR has been questioned, not least by dissenting judges (Illascu and Others v. Moldova and Russia 1999, Partly Dissenting Opinion Of Judge Sir Nicolas Bratza).

Ultimately, whichever view is taken could result in a gap in human rights protection. Even if a state were to use all means and resources available to try to secure human rights in areas controlled by NSAGs, it may not be possible. Additionally, and unfortunately, the vast majority of previous cases upholding indirect horizontal effect have been in relation to civil and political rights. Until recently, it was not possible to bring an individual complaint in relation to rights contained in the International Covenant on Economic, Social and Cultural Rights.¹⁹ The entry into force of the Optional Protocol to the Covenant now allows for this possibility, but it remains to be seen how the Committee on Economic, Social and Cultural Rights will deal with such situations.²⁰ These factors all culminate in a gap in effective legal protection of subsistence rights during armed conflicts. Whilst some NSAGs take it upon themselves to provide public services and to essentially fulfil some human rights on a de facto basis, there exists a legal lacuna. A correlative of this is an inequality in human rights protection. Victims living in an area controlled by the state may still be able to receive redress for their human rights violations by bringing a complaint directly against the state. For those living in NSAG-controlled areas, depending on the situation on the ground and the efforts that states have made in securing human rights enjoyment despite the control of the NSAG, this may not be possible. Individuals suffering the effects of severe humanitarian crises may therefore be left with no way of accessing essential materials. Despite laudable efforts by humanitarian aid organisations to deliver materials to those in need, and the humanitarian norms prohibiting the restriction of their access to areas in need of essential materials,²¹ some areas remain rife with crisis. For these reasons, more measures need to be taken to try to achieve a rounder, more comprehensive protection of human rights.

This contrasts with international humanitarian law, which contains the fundamental principle of equality of obligations.²² This means that all parties to a conflict owe the same obligations and hold the same rights “irrespective of the ‘justness’ of the cause”, even during NIAC (Sivakumaran 2012, 242–246). Consequently, civilians belonging to both sides of the conflict are in theory equally protected from the effects of the conflict. However, the developments in the range of laws applicable during NIAC remains limited in comparison with international armed conflicts due to the reasons mentioned above. The limited scope of the norms renders the equality of obligations during NIAC less meaningful, particularly in situations where the high threshold for application of Additional Protocol II is not met. Indeed, the equality of obligations in NIAC was seemingly a response to the need to ensure equal protection for civilians during internal as well as international conflicts rather than to recognise NSAGs as bodies competent of discharging obligations.

In this respect, it is possible to compare the application of humanitarian law to NSAGs with that of human rights norms to some extent. States have shown a reluctance to impose direct obligations on non-state actors under both spheres of law, resulting in the (deliberate) gaps in the obligations of state vs. non-state actors. With respect to both legal fields, the primary reason for this is the prevailing state-centric, Westphalian approach to international relations. States are still considered to be the sole subjects of international law; sovereign entities endowed with the power and responsibility of managing their internal affairs (including the regulation of non-state actors). This is reflected, for example, in the fact that only states may be party to international human rights law treaties and the Geneva Conventions (including Additional Protocol II). Changes in the prevalence and power of NSAGs are highlighting the insufficiency of this paradigm for dealing with situations of humanitarian crisis during NIAC. Interestingly, some level of equality has been transposed into the younger field of international criminal law, which allows for individuals to be held individually criminally responsible for breaches of international humanitarian law. This is possible where an individual has committed one of the ‘grave breaches’ of the norms, some of which concern human rights principles.²³ Nonetheless, the principles involved do not relate to subsistence rights. This makes the deterrent aspect of international criminal law less valuable in the context of humanitarian crises. Consequently, the gap in both humanitarian and human rights law makes it difficult to govern the actions of NSAGs effectively.

Christa Rottensteiner has noted, “the primary responsibility for meeting the needs of the civilian population in an armed conflict rests with the warring parties that are in effective control of the territory on which that population lives” (Rottensteiner 1999). As the international legal framework does not currently envisage NSAGs as obligation-holders, and in light of the lack of evidence of political will to alter this, extra-legal efforts are necessary to bring NSAGs’ conduct in line with human rights standards and alleviate humanitarian crises caused by NIAC.

Voluntary undertakings

As can be seen on quite a widespread basis, NSAGs with effective control over an area of territory sometimes voluntarily undertake some human rights obligations. Whether the group itself views their actions in this way or not, there are many which have, on a de facto basis, begun to fulfil some human rights. These can range from the provision of some public services to the instatement of an internal justice system. This is often due to the group’s ultimate goal of either taking complete control over a territory and becoming the new governmental authority or establishing a separate, smaller state within the territory of the state that they are in a conflict with. We can see examples of both of these instances if we look at the so-called Islamic State and the FARC, respectively. The mission of the Islamic State is to take control over a very large territory within the Levant, including Iraq and Syria (Australian National Security Database on Terrorist Organisations 2014). Within a relatively short period of time, the group gained effective control over an area of Syrian territory, establishing a ‘capital’ known as Raqqa (Hubbard 2014). Having obtained authority in this region, the Islamic State went on to establish what is essentially a state-like structure (Barnes-Dacey 2014). This has involved the group re-securing the provision of some public services, for example installing new power lines and setting up a ‘suq’ for locals to exchange goods, and reforming the education system (see Zelin 2014). Whilst the intentions of the group in doing these are most likely not related to human rights concerns, it could be argued that they are in effect providing some human rights to (at least some) individuals within Raqqa. However, obvious problems arise. There are concerns as to discrimination in the provision of the public services, and the inability of the Syrian state (or indeed of third states) to exercise control or influence over the group makes it virtually impossible for outside actors to improve the situation of humanitarian crisis within Raqqa.

The situation regarding the FARC is somewhat different. In 2000, the Colombian Government agreed to concede around 42,000 km² to the non-state group. Some of the actions of the FARC within this area have been surprisingly state-like, as the group “deliver[s] social services, including healthcare and education. They also practise restorative justice through their revolutionary courts and have implemented agrarian reform by breaking up large ranches and turning over smaller plots to landless peasants. They also collect taxes from local businesses to fund schools and clinics” (Leech 2013).

This shows that the group has a very well-established and fully functioning community, and the fact that they are providing ‘public’ services such as education and healthcare suggests that they are capable of and actually are fulfilling these human rights within their controlled territory.²⁴ The successful governance of at least this relatively large area by the FARC makes it not implausible that they would be able to orchestrate the required infrastructure to achieve this on a larger scale, were their armed forces be able to overtake a larger percentage of land from the state.

Voluntary undertakings in this manner are a promising development for subsistence rights. Many public services entail the provision of economic, social and cultural rights, such as healthcare. However, the nature of the undertakings makes them very hard to regulate and monitor. The lack of a concrete agreement or obligation means that the NSAG providing the services may choose the extent to which it wishes to provide a right. As with ISIS, this may in turn lead to discrimination in the fulfilment of rights. It is therefore desirable to have some form of agreement or statement by the NSAG specifying the scope of the rights and obligations they are willing to fulfil.

Action plans and deeds of commitment

Common Article 3 special agreements

One example of such an agreement is a ‘special agreement’ adopted pursuant to Common Article 3 of the four Geneva Conventions. As mentioned above, unless Additional Protocol II applies, Common Article 3 is the only treaty norm applicable to NIAC. The provision encourages parties to NIAC to bring other provisions of the Geneva Conventions into force through a special agreement. The agreements may state the law that parties are already bound to follow (declaratory agreements) or extend their legal obligations (constitutive agreements). Special agreements constitute clear commitments by parties to a conflict, providing an “important basis for followup interventions to address violations of the law” (ICRC 2008, 16). The agreements can also potentially remedy the gap between law and practice that exists in relation to NIAC, and the application of more extensive norms can ensure more equal protection of civilians during international and internal armed conflicts. Indeed, practice relating to special agreements shows that most agreements adopted involve those humanitarian norms concern the protection of civilians (Clapham et al. 2015, 513). However, the agreements have not been particularly popular in practice (Clapham et al. 2015, 511), and for the purposes of protecting subsistence rights during humanitarian crises, they are fundamentally limited by their restrictive scope of their coverage (i.e. the Geneva Conventions). Nonetheless, lessons may be learned from the agreements which have arguably been the inspiration for agreements through which NSAGs assume both humanitarian and human rights obligations, which will be discussed in the following section.

Human rights agreements

Other than the voluntary commitments by NSAGs, there have also been examples of human rights agreements between NSAGs and states. Perhaps the most famous of these is the human rights agreement concluded between the Frente Farabundo Martí para la Liberación Naçional (FMLN) and the government of El Salvador in 1990. The Acuerdo de San José sobre Derechos Humanos 1990 included provisions that the NSAGs would comply with the same human rights obligations as the El Salvadorian state—a significant undertaking. The obligations of the FMLN in relation to particular human rights, for example the rights to freedom of association, expression and movement, are elaborated upon within the agreement. Although the more specific obligations relate more to civil and political rights as opposed to economic, social and cultural rights, the agreement was very significant for two reasons. First, in terms of disregarding concerns of states that giving NSAGs direct human rights obligations would grant the groups unwelcome legitimacy³¹ and second in the fact that the United Nations endorsed and agreed to monitor implementation of the agreement.³² The recognition of the agreement’s preamble that the FMLN had the capacity to fulfil the human rights obligations is also worthy of note, especially given widespread opposition to horizontal effect for this reason (Zegveld 2002).

Another example of a bilateral agreement including human rights norms is the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the National Democratic Front of the Philippines and the Government of the Philippines 1998. The Agreement included a whole section dedicated to an impressive range of human rights.³³ Although a laudable effort and very much a positive development in itself, the ensuing peace was not long-lasting. This rendered the governance potential of the agreement effectively null, with renewed efforts at reconciliation between the parties repeatedly falling through.³⁴ In addition, the agreements would need to include specific provision for subsistence rights in order to make sure that their protection during humanitarian crises would be provided for. This may not be a problem in itself, but the low likelihood of such a human rights agreement having been adopted before a situation of humanitarian crisis caused by a NIAC is more problematic. Together with the rarity of states agreeing to acknowledge the validity of declarations and agreements of NSAGs, this suggests that a new approach is necessary.

The nature and content of ceasefire agreements

The term ‘ceasefire agreement’ refers to an agreement between two parties engaged in conflict with each other to end hostilities. Ceasefire agreements may take several forms, cover different scopes of content and durability and have different purposes. For example, an agreement may aim to establish peace through a complete cessation of hostilities (also referred to as ‘peace agreements’). Ceasefire agreements may also be made as a way of temporarily ceasing hostilities in order to enable the parties to a conflict to negotiate a full peace agreement. Alternatively, a ceasefire agreement may be more limited in temporal scope. Such agreements are often adopted for humanitarian purposes, to allow civilians temporary relief from hostilities in order to get access to essential materials (such as those seen between Hamas and Israel).³⁵

The recommendations of using ceasefire agreements will focus on the latter type of agreement, rather than peace agreements (and long-term ceasefire agreements). The latter, although perhaps the most significant ceasefire agreements when successfully implemented, are of less relevance for present purposes. This is because although some such agreements have been adopted in the past (e.g. the Comprehensive Peace Accord between the Government of Nepal and the Communist Party of Nepal (Maoist) 2006), they can take many years of negotiation to come to fruition. Indeed, taking the example of the Colombian government, which has been negotiating various peace agreements with the FARC for decades, it is evident that in some situations, a long-term ceasefire agreement is extremely unlikely to be adopted. As the problem faced in this paper is to provide a relatively fast response to situations of humanitarian crisis, peace agreements would not be the most effective solution.

In addition, it is important to note at this juncture the legal status of peace agreements. Prior to 2005, peace agreements were understood as being legally binding documents, serving as a kind of contract between the signatory parties (Kastner 2015, 13). Since the Armed Activities Case before the ICJ (International Court of Justice 2005), however, the status of peace agreements has been in doubt. In this case, the Court effectively ‘downgraded’ the status of peace agreements from legally binding instruments to modus operandi (para 99). The reasoning for this seems to have been to prevent states from relying on peace agreements to escape international responsibility for wrongful acts (an argument on which Uganda was relying in the case) (Lang 2008, 109). Andrea Lang has argued that the Court’s judgement was also based on a reluctance to engage with the issue of the status of NSAGs under international law (Lang 2008, 125), which is an issue that would be unavoidable, should agreements signed by NSAGs constitute a legally binding document. However, the legal status of the kinds of ceasefire agreements between states and NSAGs focused on in the current paper remains somewhat anomalous (see Kastner 2015, 13–14). Even though many of these agreements do not fall within the realm of public international law, it is still possible for a NSAG to conclude a legally binding agreement with states (for example by “including a third state party as a guarantor or using a Security Council Resolution”: Public International Law and Policy Group 2013, 7). The legal status of the agreements proposed will therefore depend upon the situations of their adoption.

Ceasefire agreements generally consist of three core elements, which provide for “(1) a cessation of hostilities, (2) the separation of forces, and (3) the verification, supervision, and monitoring of the agreement” (Public International Law and Policy Group 2013, 1). A key component to the success of ceasefire agreements is to “clearly indicate the rights and obligations of the parties” (ibid, 1–2). This component is of particular relevance here, as it suggests that some level of detail concerning the rights and obligations is required. This supports (in light of the above discussion as to the relevant lex specialis) an argument that human rights norms, rather than humanitarian norms should be included in the agreement to improve the protection of subsistence rights.

Ceasefire agreements as a tool for compliance

In using ceasefire agreements as a tool for NSAGs’ compliance with human rights law to improve protection of subsistence rights during humanitarian crises, it is envisaged that provisions detailing the relevant norms of human rights law and the standards expected to be upheld by parties to the conflict will be included. The advantages and disadvantages of this approach will now be examined.