This chapter analyses the historical incorporation of armed non-state actors (ANSAs) within modern treaty international humanitarian law (IHL). It argues that states have been unwilling or unable to design adequate rules for such groups due to the challenges of ‘identification’ and ‘legitimation’. Rather than designing clear and commensurate IHL rules for ANSAs, states have commonly circumvented that goal, only adopting international rules under conditions of diplomatic pressure. To build this argument, the chapter examines the negotiation of Common Article 3 to the 1949 Geneva Conventions and the two 1977 Additional Protocols to those Conventions. It concludes that, given the political intractability of the identification and legitimation challenges under international legal processes, bilateral or domestic alternatives are advised.
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