Legal brief: Forcible recruitment of adults by non-state armed groups (May 2019) [EN/AR]



The purpose of this Brief is to demonstrate that non-State armed groups (NSAGs) are prohibited from forcibly recruiting adults in the context of a non-international armed conflict (NIAC) on the basis that such conduct amounts to an ‘outrage upon personal dignity’, contrary to Common Article 3(1)(c) of the four Geneva Conventions of 1949.1 The scope of this prohibition would apply to all protected persons under Common Article 3; namely: ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ (out of combat) by sickness, wounds, detention, or any other cause.2 It is submitted that forcing such persons to engage in militarystyle operations without the legal protection of the State – and often against their State of nationality – causes sufficient humiliation and degradation so as to constitute an outrage upon personal dignity.

While it is accepted that international law recognises the inherent right of States to forcibly recruit their own civilians, this right not transferrable to NSAGs using the ‘equality of belligerents’ principle. ‘Equality of belligerents’ is an IHL principle that entitles all parties to the conflict to equal application of the relevant rules of IHL.3 It ensures that the rules governing the conflict bestow the same rights and obligations on the warring-parties, irrespective of their status under international law or the reasons for the initiation of the conflict. It therefore encourages NSAGs to comply with the law. However, the equality of belligerents principle is strictly limited to the rules of IHL and does not provide NSAGs with additional rights from external sources of law. A State’s right to forcibly recruit its own civilians derives from the recognition of its sovereign independence under international law and is not attributable to a rule of IHL. Accordingly, NSAGs cannot use the equality of belligerents principle to justify forcible recruitment.

Despite the absence of any positive right of NSAGs to forcibly recruit, there is equally no provision under IHL that explicitly prohibits such conduct in the context of a NIAC. Accordingly, it is necessary to demonstrate that forcible recruitment by NSAGs violates one of the existing IHL rules applicable in NIAC; namely: the prohibition on committing ‘outrages upon personal dignity, in particular humiliating and degrading treatment’ against persons not actively participating in hostilities or otherwise ‘hors de combat’. As demonstrated in Section V, forcing individuals to kill and commit other acts of violence, expose themselves to serious risk of injury or death, or participate in a war to which they may be fundamentally opposed, is inherently capable of causing feelings of humiliation and degradation. However, if forcible recruitment by NSAGs is to be characterised as an outrage upon personal dignity contrary to Common Article 3(1)

(c), it is necessary to explain why the same conduct, when committed by States, does not violate this prohibition. Otherwise, such discriminatory application of Common Article 3 would contravene the equality of belligerents principle. In response, it is submitted that the impact that forcible recruitment has on the individual in the context of a NIAC is fundamentally dependent on the legal status of the perpetrator.

When States forcibly recruit their own civilians pursuant to State law, the individual benefits from the legal protection of the State and is a recognised and legitimate actor under both domestic and international law. While the individual may still be exposed to danger and suffer feelings of distress, the lawful authority of the State prima facie precludes such conduct from amounting to an outrage upon personal dignity.

This legal authority of a State to forcibly recruit own population is distinct from the manner in which the recruitment was conducted, which may amount to a violation of IHL, provided that specific legal elements of a particular violation are met. For instance, if the manner in which the State forcibly recruits protected persons in NIACs independently constitutes a violation of IHL, providing it meets the gravity threshold of humiliating and degrading treatment and there is a sufficient nexus to the armed conflict, it may simultaneously amount to an outrage upon personal dignity, contrary to Common Article 3(1)(c).

However, when NSAGs forcibly recruit adults in the territory under their de facto control, the NSAG’s inherent lack of legal authority exacerbates those feelings of distress and causes the degree of degradation and humiliation necessary to constitute an outrage upon personal dignity.

Indeed, NSAGs’ lack of de jure authority forces those individuals to contravene the domestic laws of the State, lose the legal protection of the State, and become an unrecognised entity under international law (outside of IHL). When coupled with the inherent danger and distressing nature of being forced to fight in a war against one’s will, it is submitted that this lack of legitimacy and loss of legal protection satisfied the threshold of an outrage upon personal dignity. Under the law of NIAC, persons taking no active part in hostilities and those ‘hors de combat’ are therefore protected from forcible recruitment by NSAGs in all circumstances.

To this end, it should be noted that under the law of international armed conflict (IAC), States are prohibited from forcibly recruiting ‘protected persons’ to serve in the hostile armed forces.4 Protected persons in the IAC context refers to prisoners-of-war and other individuals who find themselves in the hands of a party to the conflict of which they are not nationals. The rationale behind prohibiting such persons from serving in the enemy’s armed forces is the inherently distressing and dishonourable nature of being 4. CGIV (1949), supra note 1, Arts. 51 and 147. Article 51 of GCIV (1949) states: ‘The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.’ See also: CGIII (1949), supra note 1, Art. 130. forced to fight against one’s State of nationality.5 A similar argument could be made by analogy to the forcible recruitment of adults by NSAGs, given that, in the majority of NIACs, forcibly recruited persons are also forced to fight against their State of nationality.