Title: Malik, Mullah, Siyar, State : the role of non-state law in the regulation of armed non-state groups
Author: Hazelwood, Jessica Anne
Awarding Body: King's College London
Current Institution: King's College London (University of London)
Link to institutional repository
This thesis seeks to examine how insurgent groups that have evolved in a legally pluralistic environment reconcile a conflict of norms in their conflict conduct. It seeks to separate their conflict practice from their narrative. It does this through a case study of the Afghan Taliban operating over the period of 1994-2001, considering the impact of international, tribal, and Islamic law in their conflict conduct. Unleashing the non-native invasive 'beast' that is international law in the area of non-international armed conflict (NIAC) has seen it unable to effectively adapt or flourish in an environment it was never designed to inhabit. Despite the proliferation of international law within the area of NIAC, its near total failure, to account for the capacity, ability and will of least half of the actors inhabiting the legal space (armed non-state actors) coupled with high levels of competition from the native, domestic law to maintain exclusivity over such conflicts, has restrained its successful infiltration and application. As armed non-state groups (ANSGs) continue to violate the most basic humanitarian and human rights norms, dominant international legal regulation is questioned as being too far removed, too unnatural, and paralyzed by its own constitution to effectively address such violations within NIAC. At first instance, international attempts to formally engage these groups may be diplomatically controversial, if not illegal. Furthermore, ANSGs may not want the same international or domestic legitimacy as States rendering political pressure from third states or the international community impotent. Compounding this, ANSGs are not economically dependent on host States, and are likely to finance their operations through private companies, third states or illegal means. Therefore, the international community lacks coercive power when the institutions and mechanisms for doing so are non-existent, ineffective or irrelevant. Dominating contemporary conflicts yet unyielding to international legal influence, international regulation of these groups is a fiction. While there is burgeoning literature on the difficulties faced by the international community in its regulation of ANSGs, attempts to manipulate both international treaty-based and customary law in efforts to impose binding and enforceable obligations continue. An attempted multi-faceted, and often tenuous legal transposition from the state actor to non-state actor results in, if not undermining, at very least diluting the effectiveness of the international regime in its ability to mitigate against the cruel destiny of civilians caught in the cross fire. ANSG's that identify as Islamic add an extra dimension to be understood by the international community. There is a humanitarian imperative to move beyond positive international law in its attempt to regulate Islamic ANSG conduct and look to alternate non-state and informal legal systems which international law can inform but is not dictated or dominated by it. The growing trend from legal theorists and international lawyers has resulted in the distinction between law and non-law losing much of its relevance, rather there is an added emphasis on whether and how the subjects of norms, rules and standards come to accept those norms rules and standards, and if such norms are regarded as authoritative, may constitute law. When the existence of international law as a practical element in the conduct of human affairs is questioned, and when such precepts claimed to be fundamental in that law are daily set at nought by belligerent's in conflict, alternatives to that law warrant exploration. Far from advocating the removal of international law from the NIAC formula, it is argued that it would be better partnered with sub-state law to perform a 'coordinated' legal intervention on the regulation of ANSGs. Rather than explore ANSGs in terms of binding obligations they should or could possess in abstract regulatory regimes, this research will focus on examining the law and regulation that exists in reality as evidenced in both their own rhetoric and in practice.
Supervisor: Webb, Philippa Mahal ; Kersten, Karel Peter Leonard Gerard ; Green, Penelope Jane Sponsor: Not available