On each occasion that public international law is tested – be it its goals or how it is conceived, orchestrated and applied by a variety of societal actors – fundamental socio-legal questions arise. This is because this legal framework is often seen as more than just a neutral body of norms that purports to regulate the relations between States and other entities – or between these other entities themselves. Instead, it is perceived as having in itself some blueprint for improving the world, or those aspects where it operates. In a context in which those participating within the international realm offer different means to achieve the goals that this regime has (or intends to have), this book explores the legal regulation of non-State armed groups’ detention activities in non-international armed conflicts.

Building on findings presented earlier in this book, this chapter has a two-fold aim. First, it explores the reasons why non-State armed groups (NSAGs) actually detain, challenging some common misconceptions about how these entities operate in conflict settings, and suggesting new lines of inquiry. Second, it considers these findings and discusses the legal grounds necessary for these non-State actors to deprive individuals of their liberty in conflict settings or, to put it differently, to ensure that the actions of NSAGs in this regard are not manifestly unlawful. This chapter (and the book more broadly) is of the view that NSAGs need to enact their own normative authority to guarantee the respect of individuals’ safeguards, including the principle of legality. Given the lack of an explicit legal basis to deprive individuals of their liberty in international law, in particular in treaty and customary international humanitarian law, it is submitted that NSAGs’ ‘laws’ and regulations, which result from their law-making (or law-adapting) activities, are the only legal tools that may actually serve for this purpose.

Although the nature, organisation and behaviours of ‘non-State armed groups’ (NSAGs) are issues of increasing concern for the international community, in particular due to the participation of these entities in the majority of armed conflicts, relatively little is known about them within the legal realm. When compared to other actors affecting or being affected by different regimes, normative studies dealing with the way in which these non-State entities behave seem to be scarce. This chapter examines NSAGs’ limited position within the international legal architecture. This is because understanding what these actors are allowed to do, or rather are restricted from doing, is determined by a set of rules, the creation and further development on which NSAGs had, at least a priori, no say. This basis serves to assess later in the chapter how international law, political sciences, and different institutions and bodies address NSAGs. A typology of these actors is provided for the purposes of this book.

Having analysed the place that non-State armed groups (NSAGs) occupy within the international legal architecture and the reasons why they are (and should be) bound by the obligations contained therein, this chapter focuses on how international law responds to some of their detention activities in non-international armed conflicts (NIACs). It explores, in particular, the possible legal basis that these non-State actors can rely upon to deprive individuals of the liberty, focusing on NSAGs’ law-making and ‘law-adapting’ activities. By relying on a ‘legal pluralistic’ approach to international law and on the principle of equality of belligerents under IHL, this chapter argues that NSAGs’ ‘laws’ can provide a valid legal basis for their activities in NIACs.

Inquiring about the role and regulation of non-State actors (NSAs) often leads to captivating discussions, largely because examining the rules applicable to these entities implies certain choices that not everyone is willing to make. Indeed, moving away from State-centric conceptions (and the ‘beliefs’ contained therein) is not exclusively a legal exercise; it also involves a policy decision that lawyers (and the institutions for which they work) are often reluctant to make. In this context, the present book has invited the reader to think differently about a system that places NSAs at the periphery and non-State armed groups (NSAGs) in the margins of this periphery. The analysis has focused on the legal regulation of the detention activities of NSAGs in non-international armed conflicts (NIACs), but it is expected that many of the findings can also be applied to other entities operating in the legal realm. Bearing these considerations in mind, this final chapter has a two-fold goal. On the one hand, it presents some of the key conclusions of the book; on the other hand, it proposes new avenues to put them into practice when dealing with NSAGs in the field of detention.

The first step in determining the international legal framework(s) applicable to the detention activities of non-State armed groups (NSAGs) is to acknowledge how they are intuitively considered: non-State actors (NSAs). Inevitably, any attempt to examine what these entities are allowed to do, or rather are restricted from doing within the international realm, is met by challenges related to their limited legal ‘subjectivity’, how they acquire international obligations and the actual content of these rules. This is because this normative framework is a system which confers full legal personality to States, and much of its dynamics are devoted to protecting what one might call their ‘monopoly of subjecthood’. This chapter analyses the relevance of both international humanitarian law and international human rights law when dealing with NSAGs, identifying the various reasons that serve to justify such an examination. This exercise serves to locate NSAGs within the broad international legal architecture. In particular, it explores why and how these legal regimes relate to NSAGs, espousing the different views on their binding nature and advocating for an alternative view that considers their place within their international community.

Introduction

This project started with the aim of reconsidering the effects of China and its rise on the knowledge production of International Relations (IR). In particular, the contributions to this volume have probed why the phenomena and transformations spurred by China's rise do not seem to have been accorded the requisite attention by IR theory. Both the scholarship on and the history of the discipline indicate that any major junctures in the patterns of world affairs have invariably exhorted urgent reconsideration of IR's frameworks for explanation and understanding. From the origins of IR in the wake of the First World War, all through the vicissitudes of the ‘long twentieth century’ – the Second World War, the decolonization conflicts, the end of the Cold War, and the ‘war on terror’ (to name only some of the cornerstones) – IR theory has tended to respond quickly to such momentous events in the dynamics of world affairs by offering new perspectives, interpretations and formulations. Even if we were to put aside the narrow focus on warfare as the marker of major change, Japan's economic – and potential political and military – rise during the 1970s and 1980s provoked substantive critical reflection and theory building. Starting with the so-called ‘neo-neo’ debate and the analytical framework of ‘complex interdependence’, going through the proliferation of perspectives in International Political Economy, and the introduction of concepts such as ‘developmental state’ and ‘soft power’, all these innovations in IR theory developed against the background of either concern about, or consideration of, the question how the West (and, especially, the United States) would fare under possible Japanese hegemony. The probability of such a shift seemed to increase with the collapse of the Soviet Union and the dissolution of the bipolar Cold War order. Admittedly, much of the effort backstopping such theory building was aimed at reinforcing the primacy of Western actors and allaying the fears that Japan could ever challenge their hegemony. Joseph S. Nye (1992: 99– 100) seems to offer an apt summary of these theoretical commitments in his acknowledgement that

Introduction

The establishment of a Westphalian world order gave rise to universally accepted Western norms for state sovereignty, legal state equality, and nonintervention, among other principles. Today, China is both challenging broadly accepted Western norms and capitalizing on certain Westphalian values. According to Chinese representative Yang Jiechi, who participated in high-level strategic talks with US Secretary of State Antony Blinken and US National Security Advisor Jake Sullivan on 18– 19 March 2021, China's political discourse emphasizes a defence of the UN Charter's core principle of respect for the sovereignty of individual countries. During this meeting, Yang presented China as both emphasizing its own characteristics and reminding the United States that it should not use a double standard when applying the UN Charter to international relations and governance. Ever since the onset of the COVID-19 pandemic, the world has witnessed a return to traditional forms of self-help sovereignty in cross-state competition. The pandemic is one of several reasons why cooperation and trust between different types of regimes have sharply declined while fragmentation has increased. In China's case, the more Beijing wants to defend its autonomy when confronting Western powers in areas such as foreign policy, the more it is being treated by the rest of the world as the main international threat, perhaps even bearing responsibility for the COVID-19 pandemic itself (Kavalski, 2021). In this chapter I will argue that this view of China is a product of our established way of understanding world affairs according to Westphalian state order principles and their epistemology, both built on assumptions regarding self-help and estrangement among nation states.

Some International Relations (IR) scholars have started to describe the political practices of China and other Asian countries as examples of an emerging ‘Eastphalian order’. It has to be acknowledged that this proposition suffers from some geopolitical limitations. For instance, the projected Eastphalian order appears to suggests that China and its neighbouring countries have the potential to form a strong multilateral base for pushing against the constraints of the existing Westphalian order, which might be a contributing factor to destructive competition among Asian countries.

Introduction

The International Relations (IR) discipline developed over the course of the 20th century has predominantly focused on the concerns of powerful Western states and has elaborated conceptual frameworks that could be applied elsewhere (Smith, 2002). Mainstream IR scholars treat different regions of the world as test cases for their theories rather than sources of theory in themselves. The ‘non-West’ becomes a domain that IR theorists perceive as backward, hence requiring instruction in order to reach the ‘End of History’ encapsulated by Western modernity (Fukuyama, 1992). In response, over the past two decades the discipline has witnessed a post-Western quest urging IR scholars to ‘re-World’ subaltern voices. From a post-Western perspective, no single modernity exists to which all actors must aspire and no actor or set of actors is reified. Rather, it seeks out multiple worlds and hidden voices (Ling, 2002).

In its quest to rediscover ‘non-Western’ worlds, post-Western IR urges scholars to re-world non-Western sites by examining how Western IR discourses have been interpreted and appropriated in each particular site over time. This allows the ever-changing and differing meanings of IR to be released from the monopolistic grasp by one exclusionary epistemology, whereby agency can be rediscovered at non-Western sites for adaptation, feedback and reconstruction of the Western influences. Such worlding of the non-Western worlds, if successful, exposes the ‘provincial’characteristics of the West, which has mistakenly presented itself as the universal, a result of Eurocentrism reinforced by the power of expansion (for example imperialism and post/neo-colonialism).

Nevertheless, a number of caveats exist concerning the post-Western exercise. First, post-Western IR seeks to provincialize ‘the West’ as an undifferentiated entity and yet strives to world non-Western sites each in their own differently different geo-cultural genealogies. Such endeavours risk the epistemological pretention that the provincial West cannot and should not be worlded. The West is reduced and yet simultaneously promoted to the status of an epistemologically unquestioned premise. Second, post-Western IR encourages site-centrism in its celebration of contextual alternatives to dominant Western discourses, institutions and values; yet, it faults the West for committing Eurocentrism when doing the same.