Special agreements as a means of enhancing compliance with IHL in non-international armed conflicts: An inquiry into the governing legal regime

Common Article 3 to the four Geneva Conventions encourages the parties to a noninternational armed conflict to bring into force international humanitarian law provisions through the conclusion of special agreements. Since armed groups are ever more frequent participants in contemporary armed conflicts, the relevance of those agreements as means to enhance compliance with IHL has grown as well. The decision-making process of special agreements recognizes that all the parties to the conflict participate in the clarification and expansion of the applicable rights and obligations in a way that is consistent with the principle of equality of belligerents. This provides incentives for armed groups to respect the IHL rules they have themselves negotiated. However, even upon the conclusion of such agreements, it remains unclear which legal regime governs them. This paper will argue that special agreements are governed by international law instead of domestic law or a sui generis legal regime.

Keywords: armed groups, special agreements, sources of international law, equality of belligerents, participants.

About the authors

Ezequiel Heffes
Geneva Call

Thematic Legal Adviser, Geneva Call; LLM, Geneva Academy of International Humanitarian Law and Human Rights; Lawyer, University of Buenos Aires School of Law.

Marcos Kotlik

Marcos Kotlik is a Researcher and a master’s degree candidatein international relations. He also holds a law degree from the University of Buenos Aires School of Law.