Non-State Armed Groups and the Role of Transnational Criminal Law During Armed Conflict

With the ascendance of the terrorist group known as the Islamic State of Iraq and Syria (ISIS), the international community has struggled to adapt to the new international security context. Among the challenges that are currently being confronted are questions relating to how states may effectively facilitate international cooperation to counter ISIS (especially among countries in the Middle East and North Africa). Within this context, guidance from the United Nations on international cooperation posits that “[t]he universal counter-terrorism conventions and protocols do not apply in situations of armed conflict” – a legal position that would serve to stymie important cooperative efforts throughout the Middle East and which, if accepted as accurate, would prevent those states and others from addressing terrorism and many problems associated with non-state armed groups within a rule of law framework.This article, therefore, examines that U.N. legal position and, concomitantly, the unfrequented legal realm that lies at the crossroads of transnational criminal law and the law of armed conflict – providing an analysis of the emerging field of transnational criminal law and exploring how this burgeoning area of international law interacts with the law of armed conflict. This, in turn, permits an illuminative discussion of how various areas of international law interact with one another and how conflicts between competing areas of law may be resolved. Drawing on international legal sources, comparative law, and relevant civil law scholarship, the analysis demonstrates that the terrorism suppression conventions as well as other similar conventions – both multilateral and bilateral – remain operative and are not muted by the fact of an armed conflict. The United Nations should, therefore, correct its analysis so that governments in the Middle East, North Africa, and elsewhere have clear and accurate legal guidance with regard to the applicability of the terrorism suppression conventions during a time of armed conflict. Such conventions, after all, are what provide the legal bases which permit states to adopt hybrid approaches to hybrid threats such as ISIS – enabling all elements of state power (including both military and law enforcement capabilities) to address an increasingly complex and malevolent phenomenon within a rule of law framework.