Human Rights Obligations of Armed Non-State Actors: An Exploration of The Practice of The UN Human Rights Council

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A C A D E M Y I N-BRIEF No.

Human Rights
Obligations of Armed
Non-State Actors:
An Exploration of the
Practice of the UN
Human Rights Council
Geneva
December 2016

The Academy, a joint centre of


ISBN: 978-2-9701003-0-0
© Geneva Academy of International Humanitarian Law and Human Rights,
December 2016.

Acknowledgements
This Academy In-Brief was researched and written by Dr Annyssa Bellal, Strategic
Adviser on IHL and Research Fellow at the Geneva Academy of International
Humanitarian Law and Human Rights (Geneva Academy), with the initial research
support of Dr Sandra Krähenmann, Research Fellow at the Geneva Academy. The
Geneva Academy would like to thank all those who commented on a draft of the
text, in particular Professor Marco Sassòli, University of Geneva, Professor Lyal
S. Sunga, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Dr
Katharine Fortin, University of Utrecht, Dr Daragh Murray, University of Essex,
Jelena Pejic, ICRC, and Carolin Nehme, Geneva Call. The Geneva Academy
would like to thank the Swiss Federal Department of Foreign Affairs (DFAE) for its
support to the Academy’s research on this issue. Editing, design, and layout by
Plain Sense, Geneva.

Disclaimer
This Academy In-Brief is the work of the author. The views expressed in it do not
necessarily reflect those of the project’s supporters or of anyone who provided
input to, or commented on, drafts. The designation of states or territories does
not imply any judgement by the Geneva Academy or the DFAE regarding the
legal status of such states or territories, or their authorities and institutions, or
the delimitation of their boundaries, or the status of any states or territories that
border them.
A C A D EM Y I N- B R I E F N o . 7

Human Rights
Obligations of Armed
Non-State Actors:
An Exploration of
the Practice of the
UN Human Rights
Council
Contents
Introduction____________________________________________________________ 3

1. ANSAs in HRC Resolutions____________________________________________ 7


Types of Armed Non-State Actors______________________________________ 7
Use of the Terms ‘Abuse’ and ‘Violation’_________________________________ 9

2. The International Legal Framework____________________________________13


State Responsibility for Acts Committed by ANSAs______________________13
International Humanitarian Law________________________________________16
International Human Rights Law ______________________________________18
Statements on the Applicability of Human Rights Obligations to ANSAs____21
Human Rights Obligations of De Facto Non-State Authorities_____________26

3. Conclusions and Recommendations___________________________________31

4. Suggested Analysis and Wording for Resolutions on ANSAs and Human


Rights________________________________________________________________35

Annex. HRC Resolutions on ANSAs 2008-2015____________________________39

Bibliography and Further Reading_______________________________________47


Human Rights Obligations of Armed Non-State Actors: 3
An Exploration of the Practice of the UN Human Rights Council

Introduction
The great majority of contemporary armed conflicts are fought between states
and armed non-state actors (ANSAs) or between ANSAs.1 Armed violence by
ANSAs also poses a significant threat to human security outside situations of
armed conflict.2
While it is well established that ANSAs are bound by the law of armed conflict,
also known as ‘international humanitarian law’ (IHL), the extent to which these
actors have obligations under human rights law (HRL) when they are a party to
an armed conflict remains controversial. Even though the legal regime applicable
to ANSAs is unclear, the United Nations has generally recognized the need to
engage these actors on both IHL and HRL. For instance, in his report for the 2016
World Humanitarian Summit, the UN Secretary General emphasized that ‘at a time
when most conflicts are non-international, it is critical for impartial humanitarian
actors to engage in dialogue with States as well as non-State armed groups to
enhance their acceptance, understanding and implementation of obligations
under international humanitarian and human rights law’.3
Against this background, and in a manner resembling the practice of the UN
Security Council,4 in country5 and thematic resolutions of the Human Rights
Council (HRC) have increasingly reported on ANSA violations of international
law.6 In some sessions, the HRC has adopted resolutions that directly address
one or more ANSAs. For instance, resolution S-22/1 of September 2014
specifically addressed the organization known as ‘Islamic State’ and associated
groups in Iraq, and in May 2015 resolution S-23/1 considered Boko Haram in
‘affected States’. Many of the special procedures set up by the HRC also cover

1 According to The War Report 2014, twelve of fourteen armed conflicts (excluding military occupations)
are situations of non-international armed conflict in which at least one ANSA is a party. See A. Bellal (ed),
The War Report 2014, Oxford University Press, 2015.
2 In 2015, for example, the Geneva Declaration on Armed Violence ranked the states of Honduras and
Venezuela just below Syria in terms of violent death rates. Geneva Declaration, The Global Burden of Armed
Violence 2015: Every Body Counts. Executive Summary available at: http://www.genevadeclaration.org/
measurability/global-burden-of-armed-violence/gbav-2015/executive-summary.html.
3 UN General Assembly (2016), One humanity: shared responsibility – Report of the Secretary-General for
the World Humanitarian Summit, UN Doc. A/70/709, §51.
4 A. Constantinides, ‘Human Rights Obligations and Accountability of Armed Opposition Groups: The
Practice of the UN Security Council’, Human Rights & International Legal Discourse 4 (2010), 89-110.
5 See for example the 2012 resolution 20/17 on Mali and the 2014 resolution 26/25 on Syria.
6 See for example the 2015 resolution 28/17 on the effect of terrorism on human rights.
4 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

human rights abuses and violations of international humanitarian law by ANSAs.


Examples include the report of the UN Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism
on ‘the human rights violations’ committed by the armed group known as Islamic
State;7 and the 2014 report by the Commission of Inquiry on Syria titled ‘Rule of
Terror: Living under ISIS in Syria’.
The terminology used in these resolutions is inconsistent. They sometimes speak
of violations of human rights law and violations of international humanitarian law
and at other times speak of human rights abuses and violations of humanitarian
law. Use of the term ‘abuse’ rather than ‘violation’ reflects the unclear legal regime
applicable to ANSAs involved in situations of armed conflict and violence. At the
same time, it permits the HRC to consider ANSAs’ impact on human rights without
adopting a firm stance on the legal framework applicable to them. As a result,
its terminology appears to reflect a political choice rather than legal logic. On
these grounds, Andrew Clapham has suggested that, ‘while some authors reserve
the notion of human rights abuses for armed non-State actors and violations for
States, one cannot necessarily derive any legal significance from such labelling’.8
This In-Brief sets out to describe the current legal framework applicable to ANSAs
and to address the controversy about whether or not these actors have human
rights obligations under international law. It explores the practice of the HRC
and makes recommendations that may be of interest to states, NGOs, and other
stakeholders, including when they negotiate resolutions for adoption by the HRC.
It first discusses how the HRC has dealt with human rights violations that ANSAs
commit, and the types of non-state actors on which it has focused. As the main
subjects of public international law, states have an obligation to ensure that
treaties to which they are a party, and customary international law, are respected
in territories under their jurisdiction and control. The In-Brief therefore explains
the rules that determine the responsibilities of states when ANSAs violate
international law. It then examines how the two main legal frameworks applicable
in armed conflicts, IHL and HRL, apply to ANSAs. It focuses on the applicability
of HRL because this issue is the subject of most debate. Finally, the study makes
recommendations and suggests how future HRC resolutions could best address
ANSAs.

7 A/HRC/29/51.
8 A. Clapham, ‘Protection of civilians under international human rights law’, in H. Willmot, R. Mamiya,
S. Sheeran, M. Weller (eds), Protection of Civilians, Oxford University Press, 2016, p 145.
Human Rights Obligations of Armed Non-State Actors: 5
An Exploration of the Practice of the UN Human Rights Council

The research undertaken for this paper focused on HRC resolutions since the HRC
was created in 2006. As required by General Assembly (GA) resolution 60/251 of
15 March 2006, the Council must promote human rights for all and also address
gross and systematic violations of human rights.9 Since the majority of gross
violations of human rights occur in situations of armed conflict or other situations
of violence, the Council has had to cover many violations committed by ANSAs.
The research also examined the reports of Special Procedures (independent
experts nominated by the HRC who report on specific human rights issues or
the human rights situation of specific countries)10 and of Commissions of Inquiry
(COIs) which the HRC has established. Members of COIs are usually independent
experts.11 COIs establish facts, identify alleged perpetrators, and make
recommendations to the state concerned and to the international community
on how violations should be addressed.12 Special Procedures and COI reports
therefore differ from HRC resolutions in that they are not drafted and adopted
by state representatives and express expert opinions rather than the opinions of
states.

9 UNGA, Resolution 60/251, adopted on 15th March 2006.


10 The HRC has created 37 thematic and 14 country mandates. See: http://www.ohchr.org/EN/HRBodies/
SP/Pages/Welcomepage.aspx.
11 Recent COIs mandated by the HRC include: the 2006 Commission of Inquiry on Lebanon (HRC
resolution A/HRC/S-2/1, 11 August 2006); the 2009 United Nations Fact-finding Mission on the Gaza
Conflict (HRC resolution A/HRC/RES/S-9/1, 12 January 2009); the 2010 International fact-finding mission
to investigate violations of international law, including international humanitarian and human rights law,
resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance (HRC resolution
A/HRC/RES/14/1, 23 June 2010); the 2010 International Commission of Inquiry on Libya (HRC resolution
A/HRC/RES/S-15/1, 25 February 2011) ; the 2011 International Commission of Inquiry on Ivory Coast
(HRC resolution A/HRC/RES/16/25, 25 March 2011); the 2011 Independent International Commission of
Inquiry on the Syrian Arab Republic (HRC resolution UN Doc. A/HRC/RES/S-17/1, 18 October 2011); and
the 2013 Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (UN Doc.
A/HRC/22/13, 21 March 2013).
12 See also, P. Alston, ‘The Darfur Commission as a Model for Future Responses to Crisis Situations’,
Journal of International Criminal Justice, 3 (2005), 600-607.
Human Rights Obligations of Armed Non-State Actors: 7
An Exploration of the Practice of the UN Human Rights Council

1. ANSAs in HRC Resolutions

Types of Armed Non-State Actors


A range of ANSAs operate today in armed conflicts or other situations of violence,
but one can find very few definitions of the term in international law. The UN
Security Council, for instance, has defined non-state actors quite broadly as
an ‘individual or entity, not acting under the lawful authority of any State’.13
The African Union’s Convention for the Protection and Assistance of Internally
Displaced Persons in Africa (the Kampala Convention) defines ‘armed groups’ as
‘dissident armed forces or other organized armed groups that are distinct from
the armed forces of the state’.14 For the European Union (EU), ANSAs ‘retain
the potential to deploy arms for political, economic and ideological objectives,
which in practice are often translated into an open challenge to the authority of
the State’.15 This In-Brief adopts the definition of Conciliation Resources which
considers ANSAs to be armed actors operating ‘primarily within state borders,
engaged in violent attempts to challenge or reform the balance and structure
of political and economic power, to avenge past injustices and/or to defend or
control resources, territory or institutions for the benefit of a particular ethnic or
social group’.16
HRC resolutions and the reports of Special Procedures and COIs examined
for this paper do not usually define the term ‘ANSA’. In one instance, the HRC
referred to ANSAs in broad terms without defining them. In a resolution on Mali,
whose content was reflected in later resolutions adopted in 2012 and 2013, the
HRC condemned ‘the excesses and abuses committed in the Republic of Mali,
particularly in the north of the country, by, among others, the rebels, terrorist
groups and other organized transnational crime networks, which include violence
against women and children, summary executions, hostage-taking, pillaging,
destruction of cultural and religious sites and recruitment of children, as well

13 UNSC, Resolution 1540 (2004), 28 April 2004.


14 Article 1.
15 European Union, ‘Mediation and Dialogue in transitional processes from non-state armed groups to
political movements/political parties’, Factsheet – EEAS Mediation Support Project, November 2012.
16 Conciliation Resources, ‘Engaging armed groups in peace processes’ (Accord 2004), quoted in V.
Dudouet, ‘Understanding armed groups and their transformations from war to politics: A collection of
insider perspectives’, Conference paper presented at the Sixth Pan-European Conference on International
Relations, Turin (2007), p 4.
8 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

as all other human rights violations’.17 Although not common, this reference to
‘transnational crime networks’ in the resolutions on Mali shows that the HRC does
not necessarily restrict its concern to armed groups that have political objectives
but is prepared to address violence committed by other types of ANSA.

Box 1. Types of ANSA active in armed conflicts or other


situations of violence

No categorization of ANSAs is broadly accepted. The list below classifies


groups in terms of their operational rationale and does not pretend to be a
scientific definition. It should also be kept in mind that particular groups may
present characteristics associated with several categories or may shift from
one category to another.
Armed opposition groups seek the liberation of a social class or a nation and
oppose the state or its administration.
Paramilitary groups or militias are irregular combat units that usually act on
behalf of, or are at least tolerated by, a governing regime.
Terrorist groups spread panic and fear in societies in order to achieve political
goals.
Vigilante or self-defence groups are usually composed of armed civilians
acting in self-defence, whose degree of organization varies and is often loose.
Such groups do not necessarily have a political purpose (such as replacing
the existing government) but rather aim to defend themselves against the
attacks of enemy armed forces or other ANSAs.
Territorial gangs do not have political aims per se but try to gain control of
a territory in order to oversee criminal activities or ‘protect’ residents in the
area concerned.

See C. Homequist, ‘Engaging Armed Non-State Actors in Post-Conflict Settings’, Security


Governance in Post-Conflict Peacebuilding, DCAF (2005), 46; and U. Schneckener, ‘Fragile
Statehood, Armed Non-State Actors and Security Governance’, in Private Actors and Security
Governance, DCAF (2006), p 25.

17 A/HCR/RES/20/17, 17 July 2012, §2; A/HRC/RES/21/25, 19 October 2012, §1; A/HRC/RES/22/18,


10 April 2013, §1.
Human Rights Obligations of Armed Non-State Actors: 9
An Exploration of the Practice of the UN Human Rights Council

Use of the Terms ‘Abuse’ and ‘Violation’


In the last ten years, HRC resolutions have increasingly addressed the behaviour
of ANSAs, indirectly or directly (see Annex at page 39). The majority of the
resolutions examined for this research focused on country situations, but a few
were also thematic resolutions.
The wording of these resolutions is not uniform, sometimes speaking of human
rights ‘abuses’ and sometimes of human rights ‘violations’. References to
ANSAs in early HRC resolutions tend to speak of ‘violations’ of human rights
or ‘obligations under international human rights law’. In Resolution 9/17 of 18
September 2008 on the situation of human rights in the Sudan, for instance, the
HRC called on ‘all parties to respect their obligations under international human
rights law and international humanitarian law, in particular with regard to the
protection of civilians, and to end all attacks on civilians, with a special focus on
vulnerable groups, including women, children and internally displaced persons,
as well as human rights defenders and humanitarian workers’ (§9). Similarly, in
Resolution 7/35 of 23 March 2008 on Assistance to Somalia in the field of human
rights, the HRC demanded that ‘all parties in Somalia reject and stop all acts of
violence, abstain from engaging in hostilities, prevent any act likely to increase
tension and security and fully respect their obligations under international human
rights law and international humanitarian law’ (§2).18
It seems that the Council referred to ‘abuses’ of human rights for the first time in
a resolution entitled ‘Assistance to Somalia in the field of human rights’, where
it called ‘for the immediate cessation of the grave and systematic human rights
abuses perpetrated against the civilian population by Al Shabab and its affiliates’.19
In 2012, the term ‘abuse’ was subsequently used in four resolutions.20 The trend
is not systematic. In 2013, for instance, a Council resolution entitled ‘Technical
assistance to the Central African Republic in the field of human rights’ condemned
‘all the serious human rights violations and acts of violence against the civilian
population, including crimes, summary executions, rape and other forms of sexual
abuses … carried out by all forces present’.21 A clear distinction between the
terms ‘abuse’ and ‘violations’ can be found in a resolution of 3 October 2014 on
the continuing grave deterioration of the human rights and humanitarian situation

18 A/HRC/7/L.11/Add.1.
19 A/HRC/RES/17/25, 14 July 2011, §2.
20 A/HCR/RES/19/28 and A/HRC/RES/20/21 on Somalia; A/HCR/RES/21/25 on Mali, A/HCR/RES/21/27,
and A/HCR/RES/21/31 on Sudan.
21 A/HRC/RES/23/18, 27 July 2013, §3.
10 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

in the Syrian Arab Republic. In that resolution, the Council expressed its grave
‘concern at allegations of torture in detention facilities controlled by non-State
armed groups, and stresses that such acts constitute violations of international
humanitarian law and abuses of human rights’.22
Successive resolutions on the same country often adopt identical wording. In
several resolutions on Syria, for instance, the Council ‘strongly condemns the
terrorist acts and violence committed against civilians by the so-called Islamic
State in Iraq and the Levant (Daesh), al-Nusrah Front and other extremist groups,
and their continued gross, systematic and widespread abuses of human rights law
and violations of international humanitarian law’. (Resolution A/HRC/RES/30/10,
13 October 2015, para. 4; see also A/HRC/RES/29/16, 22 July 2015, para. 8).23
Similarly, resolutions on Sudan often call ‘upon all parties … to respect all human
rights and fundamental freedoms’.24
In contrast, several country-specific Special Procedures mandates prefer to
speak of ‘violations’ when they refer to ANSAs. In A/HRC/7/25 (summary), the
Independent Expert on the Democratic Republic of the Congo referred to ‘massive
human rights violations of armed groups’. In A/HRC/19/67, the Special Rapporteur
on Myanmar referred to serious violations by non-state armed groups and called
on them to ‘ensure respect for international human rights and humanitarian law’
(§59, §60, §95). Referring to the LTTE and the Karuna faction of the Tamil Makkal
Viduthalai Pulikal armed group (TMVP-Karuna], the Special Rapporteur on Torture
noted that ‘the most serious allegations of human rights violations that come
to light, including those related to torture and ill-treatment, are in relation to the
conflict and are alleged to be committed by both government and non-State
forces, including the LTTE and the TMVP-Karuna group’.25 In relation to the Al-
Shabaab armed group, the Independent Expert on Human Rights in Somalia found
that: ‘Al-Shabaab … continues to perpetrate serious violations of humanitarian
and human rights law, including summary executions of civilians associated with
the Government, unlawful arrest and detention and acts amounting to torture and
other inhumane, cruel and degrading practices, such as flogging, amputation and
stoning’.26

22 A/HRC/RES/27/16, §11.
23 A/HRC/RES/30/10, 13 October 2015, §4; also A/HRC/RES/29/16, 22 July 2015, §8.
24 A/HRC/RES/24/28, 8 October 2013, §13; A/HRC/RES/21/27, 15 October 2012, §12;
A/HRC/RES/18/16, 14 October 2011, §8.
25 A/HRC/7/3/Add.6.
26 A/HRC/18/48, §31.
Human Rights Obligations of Armed Non-State Actors: 11
An Exploration of the Practice of the UN Human Rights Council

COIs and Fact-Finding missions tend to refer to both ‘abuses’ and ‘violations’.
An OHCHR report in February 2016 on Libya reported ‘patterns of violations and
abuses’.27 The COI on Gaza reported in June 2015 ‘serious violations of IHL and
IHRL by Israel and Palestinian armed groups’.28
With regard to categories of ANSA, resolutions most frequently speak of
‘armed groups’, but some describe certain ANSAs as ‘terrorist groups’.29 In its
resolution on human rights and preventing and countering violent extremism, the
HRC expressed its concern at the ‘serious human rights abuses and violations
of international humanitarian law by violent extremists and terrorists’.30 In a
resolution on cooperation and assistance to Ukraine in the field of human rights,
the Council strongly condemned ‘the violence and abuses committed by illegal
armed groups’.31

27 Investigation by the Office of the United Nations High Commissioner for Human Rights on Libya,
A/HRC/31/47, 15 February 2016.
28 Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict, 24 June 2015,
A/HRC/29/52, §74.
29 See A/HRC/RES/28/20, 8 April 2015, §6 on Syria; also A/HRC/RES/28/17, 9 April 2015, §5 on
the Effects of terrorism on the enjoyment of human rights.
30 A/HRC/RES/30/15, 12 October 2015.
31 A/HRC/RES/26/30, 15 July 2014, §5.
12 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Box 2. HRC Special Sessions on ISIL and Boko Haram

On 1 September 2014, the Council adopted, without a vote, a resolution


on ‘The human rights situation in Iraq in the light of abuses committed by
the so-called Islamic State in Iraq and the Levant and associated groups’.32
It expressed its deep concern about ‘the increasing and dramatic human
rights violations and abuses and violations of international humanitarian law
in Iraq resulting from the terrorist acts committed by the so-called Islamic
State in Iraq and the Levant and associated terrorist groups against the Iraqi
people, including those involving unlawful killing, the deliberate targeting of
civilians, forced conversions, targeted persecution of individuals on the basis
of their religion or belief, and acts of violence against members of ethnic
and religious minorities, in particular Christians and Yazidis in Mosul and the
surrounding areas’. It also condemned ‘in the strongest possible terms the
systematic violations and abuses of human rights and violations of international
humanitarian law resulting from the terrorist acts committed by the so-called
Islamic State in Iraq and the Levant and associated groups taking place
since 10 June 2014 in several provinces of Iraq, which may amount to war
crimes and crimes against humanity, and strongly condemns in particular all
violence against persons based on their religious or ethnic affiliation, as well
as violence against women and children’.33
A special session in 2015 considered the ‘Atrocities committed by the terrorist
group Boko Haram and its effect on human rights in the affected states’. The
Council condemned ‘in the strongest terms the gross abuses of international
human rights law and violations of international humanitarian law perpetrated
by the terrorist group Boko Haram’.34

32 A/HRC/RES/S-22/1.
33 Ibid, §1. Emphasis added.
34 A/HRC/RES/S-23/1, 21 May 2015, §1. Emphasis added.
Human Rights Obligations of Armed Non-State Actors: 13
An Exploration of the Practice of the UN Human Rights Council

2. The International Legal


Framework

State Responsibility for Acts Committed by


ANSAs
In some instances, the behaviour of an ANSA directly engages state responsibilities.
The Articles on the Responsibility of States for internationally wrongful acts, which
represent customary international law, foresee that possibility, for example when
an ANSA in fact acts under the control of a State (article 8), or when certain forms
of conduct take place due to the absence or default of official authorities (article
9), or when an ANSA becomes the new government (article 10).35
Under article 8, ‘the conduct of a person or group of persons shall be considered
an act of a State under international law if the person or group of persons is in
fact acting on the instructions of, or under the direction or control of, that State in
carrying out the conduct’. The level of control that a state must exercise over an
ANSA in order to trigger state responsibility has been discussed by the case law,
and has evolved. The requirement shifted from ‘effective’36 to ‘overall’37 control
over the actions of the wrongdoer. In its Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, however, the International

35 See International Law Commission, ‘Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries’, in Yearbook of the International Law Commission, 2001, Vol. II, Part Two.
36 In Military and Paramilitary Activities (Nicaragua v United States), the ICJ held that Contra rebels were
not de facto agents of the United States because the United States’ ‘participation, even if preponderant
or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection
of ... targets, and the planning of the whole of its operation, is still insufficient in itself … for the purpose
of attributing to the United States the acts committed by the contras. […] For this conduct to give rise
to legal responsibility of the United States, it would in principle have to be proved that that State had
effective control of the military and paramilitary operations in the course of which the alleged violations were
committed’. International Court of Justice, Military and Paramilitary Activities (Nicaragua v US), 1986, §115.
37 In Tadic, the Appeal Chamber of the International Tribunal for ex-Yugoslavia (ICTY) held that the ‘effective
control’ test was contrary to the logic of state responsibility and was inconsistent with state and judicial
practice. The ICTY concluded that states needed only to exercise ‘overall control’ over an ANSA to incur
responsibility for unlawful acts by that group. ICTY, Prosecutor v Tadic, Case N° IT-94-1-A, 1999, §116-
144. See also D. Jinks, ‘State Responsibility for the Acts of Private Armed Groups’, 83 Chicago Journal of
International Law (2003), 83-95.
14 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Court of Justice confirmed the ‘effective control’ test.38 A typical example of the
application of this article would involve the actions of militias (ANSAs controlled by
a state). In the context of the conflict in Syria, for instance, the HRC has repeatedly
condemned ‘the systematic, widespread and gross violations and abuses of
human rights and all violations of international humanitarian law by the Syrian
authorities and affiliated militias’.39
Article 9 states that ‘the conduct of a person or group of persons shall be
considered an act of a State under international law if the person or group
of persons is in fact exercising elements of the governmental authority in the
absence or default of the official authorities and in circumstances such as to call
for the exercise of those elements of authority’. The ILC Commentary on article
9 underlines that a prior demand for government to exercise authority must have
existed for this article to apply: ‘In other words the circumstances surrounding the
exercise of elements of the governmental authority by private persons must have
justified the attempts to exercise police or other functions in the absence of any
constituted authority’.40 An example might be the actions of Iran’s Revolutionary
Guards when they performed immigration and customs functions at Teheran
airport just after the revolution.
Article 10 states that ‘the conduct of an insurrectional movement which becomes
the new government of a State shall be considered an act of that State under
international law’. The successful takeover of the government of the Central
African Republic (CAR) in March 2013 by Séléka (a coalition of armed groups) is a
noteworthy and rare example of the potential application of this article. As noted
in a 2013 report on CAR by the Office of the High Commissioner for Human Rights
(OHCHR): ‘According to article 10 of the draft articles on the Responsibility of
States for international wrongful acts, the Séléka, after it seized power, engaged
the State responsibility of the Central African Republic for all the violations
committed by Séléka members in the country during the armed conflict’.41

38 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007], ICJ Rep. 43.
39 A/HRC/RES/30/10, 13 October 2015, §3. Emphasis added.
40 International Law Commission, ‘Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries’, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p 49.
41 OHCHR, Situation of human rights in the Central African Republic, A/HRC/24/59, 12 September
2013, §25.
Human Rights Obligations of Armed Non-State Actors: 15
An Exploration of the Practice of the UN Human Rights Council

Box 3. State responsibility for acts committed by ANSAs

In general, states are not responsible for acts committed by private entities or
persons. However, in certain circumstances a state can be legally responsible
at international level for violations of international law committed by an ANSA.
This is so when:
• A state has exercised control over the ANSA, such that the ANSA in fact
acts under its direction.
• The ANSA has exercised elements of governmental authority in the
absence or default of official state authorities and in circumstances where
it was necessary to so act.
• The ANSA has become the new government. The state then assumes
responsibility for violations the ANSA committed before it assumed power.

Source. Responsibility of States for Internationally Wrongful Acts, Articles 8, 9 and 10, International
Law Commission, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries’, Yearbook of the International Law Commission, 2001, Vol. II, Part Two.

A state is also obliged to exercise due diligence and do all it can to protect all
persons under its jurisdiction against threats that ANSAs, including de facto
authorities and armed groups, pose to the enjoyment of human rights. States
must seek to hold individual perpetrators of abuses and violations to account and
guarantee the rights of victims, including their right to an effective remedy and
reparation. On these grounds, the African Commission on Human Rights stated
with respect to a conflict in Chad: ‘The national armed forces are participants in
the civil war and the Government has failed to intervene to prevent … killing. [...]
Even where it cannot be proved that violations were committed by government
agents, the Government had the responsibility to secure the safety and the liberty
of its citizens, and to conduct investigations.’42

42 African Commission on Human Rights, Commission Nationale des droits de l’Homme et des Libertés v
Chad, Commission N° 74/92 (1995).
16 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

International Humanitarian Law


International Humanitarian Law (IHL) only applies in times of armed conflict. It
distinguishes conflicts between States (‘international armed conflicts’) from
conflicts between ANSAs or between ANSAs and a state (‘non-international
armed conflicts’).43

Box 4. Definition of ‘armed conflict’ for the purpose of the


application of IHL

As spelled out by the International Criminal Tribunal for ex-Yugoslavia (ICTY),


‘an armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State. International
humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until a general conclusion of peace
is reached; or in the case of internal conflicts, a peace settlement is achieved.
Until that moment, international humanitarian law continues to apply to the
whole territory of the warring States or, in the case of internal conflicts, the
whole territory under the control of a party, whether or not actual combat
takes place there.’

ICTY, Prosecutor v Dusko Tadic, 2 October 1995, §70.

According to case law, two conditions determine the occurrence of a non-


international armed conflict: protracted violence, and the level of organization of
the ANSA involved. In the IHL context, ‘protracted violence’ implies that armed
violence is intense as well as enduring, notwithstanding the ordinary meaning of
these words.44
With respect to ANSAs’ level of organization, international tribunals and scholars
have developed a variety of indicators and guidelines to establish whether a group
has the requisite level of organization; taken alone, however, none are sufficient
to fulfil the organizational requirement. Elements listed by the ICTY include: the
existence of a command structure and disciplinary rules and mechanisms within
the group; the existence of a headquarters; the fact that the group controls a

43 See S. Vité, ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual
situations’, 91 International Review of the Red Cross 873 (2009), 69-94.
44 See also S. Sivakumaran, The Law of Non-International Armed Conflicts, Oxford University Press, 2012.
Human Rights Obligations of Armed Non-State Actors: 17
An Exploration of the Practice of the UN Human Rights Council

certain territory; the ability of the group to gain access to weapons, other military
equipment, recruits and military training; its ability to plan, coordinate and carry
out military operations, including troop movements and logistics; its ability to
define a unified military strategy and use military tactics; and its ability to speak
with one voice and negotiate and conclude agreements such as ceasefires or
peace accords.45
Scholars continue to discuss the precise legal means by which ANSAs are bound
by IHL.46 However, state practice, international case law, and scholarship all agree
that Common Article 3 of the 1949 Geneva Conventions, Additional Protocol II
of 1977 to the 1949 Geneva Conventions (AP II), and customary IHL apply to all
categories of ANSA that are parties in non-international armed conflicts.47
Additional Protocol II also applies to conflicts of a non-international character. In
addition to the existence of an armed conflict in the territory of a High Contracting
Party between an ANSA and the government,48 three cumulative material
conditions under para. 1 of Article 1 must be fulfilled before the treaty is applicable
to the ANSA in question:
1. The ANSA must be under responsible command.
2. It must exercise such control over a part of the national territory as to
enable it to carry out sustained and concerted military operations.
3. Territorial control must be such as to enable the ANSA to be able to
implement the Protocol.

45 ICTY, Prosecutor v Haradinaj, Case No IT-04-84-84-T, Judgment (Trial Chamber), 3 April 2008, §60.
46 For example, in 2004 the Appeals Chamber of the Sierra Leone Special Court held that ‘it is well
settled that all parties to an armed conflict, whether states or non-state actors, are bound by international
humanitarian law, even though only states may become parties to international treaties’. See Prosecutor
v Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack
of Jurisdiction (Child Recruitment), Decision of 31 May 2004, §22, available at: www.unhcr.org/refworld/
docid/49abc0a22.html. For the different theories on the applicability of IHL to ANSA, see S. Sivakumaran,
‘Binding Armed Opposition Groups’, 55 International and Comparative Law Quarterly (2006), 381; and A.
Cassese, ‘The Status of Rebels Under the 1977 Geneva Protocol on Non-International Armed Conflicts’,
30 International & Comparative Law Quarterly 2, (1981), 429.
47 In Nicaragua v United States of America, the International Court of Justice confirmed that Common
Article 3 was applicable to the Contras (an ANSA). ‘The conflict between the contras’ forces and those of
the Government of Nicaragua is an armed conflict which is “not of an international character”. The acts of
the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts
of that character.’ See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America), Judgment of 27 June 1986, ICJ Reports 1986, §219.
48 In contrast to Additional Protocol II, Common Article 3 also regulates armed conflicts between ANSAs.
18 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Where these cumulative criteria for application of the Protocol are objectively met,
the Protocol becomes ‘immediately and automatically applicable’, irrespective of
the views of the parties to that conflict.49
Finally, customary international humanitarian law is applicable to all actors in
international and non-international armed conflicts,50 including ANSAs that meet
the necessary criteria. Customary IHL rules applicable to ANSAs include those on
the conduct of hostilities, such as the principle that requires parties to an armed
conflict to distinguish civilians and civilian objects from military objectives.51

International Human Rights Law


The International Court of Justice has formally confirmed on several occasions
that HRL also applies in situations of armed conflict, whether these have an
international or non-international character.52 However, whether ANSAs also
have obligations under human rights law in situations of armed conflicts or other
situations of violence remains controversial.

49 See Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 1353; and International
Criminal Tribunal for Rwanda (ICTR), Prosecutor v Akayesu, Case No. ICTR-96-4-T, Judgment, 2
September 1998, §624.
50 See, for example, Special Court for Sierra Leone, Prosecutor v Morris Kallon and Brima Buzzy Kamara,
SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé
Accord Amnesty, Appeals Chamber, 13 March 2004, §45–47. This asserted: ‘There is now no doubt that
this article [Common Article 3] is binding on states and insurgents alike, and that insurgents are subject
to international humanitarian law. [...] A convincing theory is that [insurgents] are bound as a matter of
customary international law to observe the obligations declared by Common Article 3 which is aimed at the
protection of humanity.’ See also L. Moir, The Law of Internal Armed Conflict, Cambridge University Press,
2002, p. 56–58.
51 The customary international humanitarian law study conducted by the ICRC has identified 161 Rules of
which the great majority are also applicable in non-international armed conflicts. See https://www.icrc.org/
customary-ihl/eng/docs/v1_rul.
52 See ICJ, 1996 Nuclear Weapons Advisory Opinion, as well as its Advisory opinion on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004, ICJ
Reports 2004. The ICJ also confirmed that international human rights law is applicable in situations of
armed conflict in a case concerning Armed Activities in the Territory of the Congo (Congo v Uganda),
Judgment of 9 December 2005, ICJ Reports 2005.
Human Rights Obligations of Armed Non-State Actors: 19
An Exploration of the Practice of the UN Human Rights Council

Indeed, whereas some IHL provisions specifically address ANSAs as parties


to a conflict and therefore bound by relevant rules,53 few human rights treaties
explicitly refer to ANSAs.54 It has been argued that the objective of human rights
treaties is to establish norms for regulating the relationship between states and
individuals living under their jurisdiction, and that in consequence human rights
treaties are ‘neither intended, nor adequate, to govern armed conflict between
the state and armed opposition groups’.55 Scholars do not unanimously support
this interpretation of human rights law. For one author, ‘the foundational basis
of human rights is best explained as rights which belong to the individual in
recognition of each person’s inherent dignity. The implication is that these natural
rights should be respected by everyone and every entity.’56
The argument that human rights law does not apply to ANSAs is both theoretically
and practically problematic for several reasons.

53 Common Article 3 to the 1949 Geneva Conventions states: ‘In the case of armed conflict not of an
international character occurring in the territory of one of the High Contracting Parties, each Party to the
conflict shall be bound to apply, as a minimum, the following provisions...’ (emphasis added). Article 1 of
Additional Protocol II states that ‘This Protocol, which develops and supplements Article 3 common to
the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall
apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts
(Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under responsible command, exercise
such control over a part of its territory as to enable them to carry out sustained and concerted military
operations and to implement this Protocol’.
54 Article 4 of the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict states: ‘1. Armed groups that are distinct from the armed forces of a State
should not, under any circumstances, recruit or use in hostilities persons under the age of 18; 2. State
Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal
measures necessary to prohibit and criminalize such practices. 3. The application of the present article shall
not affect the legal status of any party to an armed conflict.’ Article 2 of the 2009 African Union Convention
for the Protection and Assistance of Internally Displaced Persons in Africa states that an objective of the
treaty is to ‘provide for the respective obligations, responsibilities and roles of armed groups, non-state
actors and other relevant actors, including civil society organizations, with respect to the prevention of
internal displacement and protection of, and assistance to, internally displaced persons’. Article 3 of the
2006 International Convention for the Protection of All Persons from Enforced Disappearance states: ‘Each
State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons
or groups of persons acting without the authorization, support or acquiescence of the State and to bring
those responsible to justice’.
55 See L. Zegveld, The Accountability of Armed Opposition Groups in International Law, Cambridge
University Press, 2002, p 54.
56 A. Clapham, ‘The Rights and Responsibilities of Armed Non-State Actors: The Legal Landscape and
Issues Surrounding Engagement’, 1 February 2010, p 24, available at SSRN: http://dx.doi.org/10.2139/
ssrn.1569636.
20 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

First, while IHL, through treaty and customary rules, potentially affords a
significant level of protection, especially to civilians, its remit is limited to acts
directly associated with armed conflict. IHL only partially addresses the range of
harmful actions that ANSAs may perpetrate against a civilian population.57
Second, the main purpose of IHL is to regulate armed conflicts and limit their
negative impacts on victims and those who have laid down their arms. It does
not cover all violations of international law that occur in these situations, such
as violations of freedom of expression or gender discrimination. More generally,
unlike HRL, IHL does not regulate the everyday life of people in situations of non-
international armed conflict.58
Third, if states are primarily responsible under international law for ensuring
that the human rights of persons under their jurisdiction are respected,59 during
situations of armed conflict (and sometimes outside that context) states may lose
control over part of their territory and population.
Finally, IHL may not apply in situations where its conditions of applicability are
unfulfilled (where violence is insufficiently intense or the ANSA is insufficiently
organized). In such cases, the only remaining legal framework other than domestic

57 The scope of IHL extends throughout the territory in which hostilities take place (ratione loci) and must
involve a person protected by the instruments (ratione personae): ICTY, Prosecutor v Tadic, 1995, §69–70;
ICTR, Prosecutor v Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment and Sentence, 21
May 1999, §189. However, international tribunals have developed slightly different tests to determine the
requisite nexus between alleged crimes and conflict. According to ICTY, Prosecutor v Tadic, Case No.
IT-94-1-T, Opinion and Judgment, 7 May 1997, § 573: ‘It is sufficient that the alleged crimes were closely
related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict’.
According to ICTY, Prosecutor v Kunarac, Kovac and Vukovic, Case No. IT-96-23, Appeals Chamber
Judgment, 12 June 2002, §57: ‘As indicated by the Trial Chamber, the requirement that the acts of the
accused must be closely related to the armed conflict would not be negated if the crimes were temporally
and geographically remote from the actual fighting. It would be sufficient, for instance, for the purpose of
this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the
territories controlled by the parties to the conflict.’ According to ICTR, Prosecutor v Musema, Case No.
ICTR-96-13-T, Judgment and Sentence, 27 January 2000, §260: ‘The alleged crimes ... must be closely
related to the hostilities or committed in conjunction with the armed conflict’.
58 See K. Fortin, ‘The Application of Human Rights Law to Everyday Civilian Life under Rebel Control’,
Netherlands International Law Review (2016), 1-21.
59 As noted by the Office of the High Commissioner for Human Rights: ‘Everyone has rights and
obligations under human rights law. The State holds primary responsibility, as not only must it respect
human rights and respond when it violates them, but it also has the duty to protect against violations by
third parties and to create an environment where all rights are respected. While, for example, armed actors,
landlords and businesses must all respect human rights and be accountable for violations they commit,
the State, through its policies, programmes and laws, must act to stop these violations and prevent their
repetition.’ Annual report of the United Nations High Commissioner for Human Rights, Addendum, Report
of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, 7
January 2013, A/HRC/22/17/Add.3, summary, p. 2.
Human Rights Obligations of Armed Non-State Actors: 21
An Exploration of the Practice of the UN Human Rights Council

law is HRL: this is problematic if HRL only binds states, especially where a state’s
institutions have failed.
In all these different scenarios, the fact that IHL may not cover all the violations
committed by ANSAs or may not be applicable at all makes it likely that victims
under the control of ANSAs in situations of armed conflict or situations of violence
will be inadequately protected unless ANSAs are obliged to respect human rights.
The debate on the applicability of human rights law to ANSAs also has an impact
on field operations. As one author observed: ‘Human rights monitoring experience
in Nepal suggests that the lack of a clear framework addressing the human rights
obligations of non-state actors can impact the effectiveness of field operations.
[…] A narrow focus on the state’s responsibility to protect its citizens from violence
by non-state actors has proven unsatisfactory. As a consequence, human rights
organizations struggle to justify their monitoring and interventions, host states
become suspicious of international field presences, and policy makers at the
headquarters of monitoring organizations become concerned about potential
political fallout from human rights monitoring.’60

Statements on the Applicability of Human


Rights Obligations to ANSAs
For the reasons explained above, many organizations, including UN bodies, have
addressed human rights violations committed by ANSAs.
The need to ensure that ANSAs are accountable in contexts where IHL is not
applicable seems to be a particular concern. In her 2010 report, the Special
Rapporteur on the situation of human rights defenders observed: ‘Defenders are
also the victims of attacks by non-State actors, in time of peace. Evidence shows
that, in certain countries, paramilitary groups make death threats against human
rights defenders who advocate land rights and denounce the granting of mining
concessions. Several leaders of communities fighting for economic, social and
cultural rights have also been killed, allegedly by paramilitaries.’61
It is worth noting that experts from the Institute of International Law, in a resolution
adopted at its Berlin session in 1999, already considered that: ‘To the extent
that certain aspects of internal disturbances and tensions may not be covered

60 F. Rawski, ‘Engaging with armed groups: a human rights field perspective from Nepal’, 6 International
Organizations Law Review 2 (2009), 601–626.
61 A/65/223, 4 August 2010, §7.
22 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

by international humanitarian law, individuals remain under the protection of


international law guaranteeing fundamental human rights. All parties are bound
to respect fundamental human rights under the scrutiny of the international
community.’62
The Commission of Inquiry on Syria also addressed the issue of ANSAs’
responsibility in situations where IHL is not applicable. In February 2012, the
Free Syrian Army (FSA) did not exercise any effective control over territory and
the Commission considered that IHL was not yet applicable, leaving HRL as the
only normative framework to assess its conduct. In its report, the Commission
affirmed that, ‘at a minimum, human rights obligations constituting peremptory
international law (jus cogens) bind States, individuals and non-State collective
entities, including armed groups. Acts violating jus cogens – for instance, torture
or enforced disappearances – can never be justified.’63

Box 5. ANSAs and international crimes

International criminal law establishes the criminal responsibility of individual


members of armed groups when international crimes have been perpetrated,
including international crimes not committed in the context of an armed
conflict, which are therefore outside the ambit of international humanitarian
law. Examples include the crime of genocide and crimes against humanity,
situations in which massive and criminal human rights violations occur.

62 Institut de Droit International, The Application of International Humanitarian Law and Fundamental
Human Rights, in Armed Conflicts in which Non-State Entities are Parties, Berlin session, 1999, Article
X. No definition of what constitutes ‘fundamental human rights’ has been agreed, nor has it been settled
which human rights norms are part of jus cogens. In its commentary on the Draft articles on State
Responsibility, the International Law Commission has identified as peremptory norms of international
law the ‘prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and
torture, and the right to self-determination’ (Commentary on Article 26, in Yearbook of the International Law
Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
2001, Vol. 2, Part Two, p 85). However, this list is exemplary rather than definitive. The UN Human Rights
Committee has identified the following acts that violate jus cogens norms: arbitrary deprivation of life,
torture and inhuman or degrading treatment, taking hostages, imposing collective punishments, arbitrary
deprivation of liberty, and deviating from fundamental principles of fair trial, including the presumption of
innocence. See Human Rights Committee, General Comment No. 29: States of Emergency (Article 4),
CCPR/C/21/Rev.1/Add.11, 31 August 2001.
63 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic,
A/HRC/19/69, §106. See T. Rodenhäuser, ‘Human Rights Obligations of Non-State Armed Groups in other
situations of violence: The Syria Example’, International Humanitarian Legal Studies 3 (2012), 263-290.
Human Rights Obligations of Armed Non-State Actors: 23
An Exploration of the Practice of the UN Human Rights Council

Article 6. Genocide.
For the purpose of this statute, ‘genocide’ means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 7. Crimes against humanity.
1. For the purpose of this Statute, ‘crime against humanity’ means any of the
following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in paragraph
3, or other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph
or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.

Source. The Rome Statute, www.icc-cpi.int.


24 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

A number of UN Special Procedures have discussed the applicability of human


rights to ANSA. For instance, following a mission to Sri Lanka, the UN Special
Rapporteur on extrajudicial, summary or arbitrary executions stated: ‘Human
rights law affirms that both the Government and the LTTE [Liberation Tigers of
Tamil Eelam] must respect the rights of every person in Sri Lanka. Human rights
norms operate on three levels – as the rights of individuals, as obligations assumed
by States, and as legitimate expectations of the international community. The
Government has assumed the binding legal obligation to respect and ensure the
rights recognized in the International Covenant on Civil and Political Rights. As a
non-State actor, the LTTE does not have legal obligations under [the International
Covenant on Civil and Political Rights], but it remains subject to the demand of
the international community, first expressed in the Universal Declaration of Human
Rights, that every organ of society respect and promote human rights.’64
In a 2014 report to the Human Rights Council, the Special Rapporteur on human
rights while countering terrorism suggested that persons who commit terrorist
acts, whether organized in armed groups or not, violate human rights. He stated:
‘Certainly, when viewed from a victim’s perspective, the mass killing of civilians
which is the objective of most terrorist campaigns, involves the deprivation of the
most fundamental human right of all. The Special Rapporteur acknowledges that
there is a responsible body of opinion to the effect that only States and comparable
entities can violate human rights. However, he does not share this view.’65
Finally, many ANSAs claim to be bound by human rights and some have even
established institutions to monitor their respect. An example is the Human Rights
Court established by the SPLM-N (Sudan).

64 Special Rapporteur on extrajudicial, summary or arbitrary executions, Phillip Alston, E/CN.4/2006/53/


Add.5, 27 March 2006, §25.
65 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, Ben Emmerson, Framework principles for securing the human rights
of victims of terrorism, A/HCR/20/14, 4 June 2012, §13.
Human Rights Obligations of Armed Non-State Actors: 25
An Exploration of the Practice of the UN Human Rights Council

Box 6. The Human Rights Court established by the


SPLM-N (Sudan)

SPLM-N
Office of the Chairperson
Resolution No. (6) - 2013

In accordance with my designative authorities and provision 20 (2) of the


Constitution of the Sudan People Liberation Movement/Army- North (SPLM/
A-N), 2013, I hereby issue the following resolution:
(a) Name of Resolution and Entering into Force: SPLM/AN Chairperson
resolution to establish a Human Rights Court. The resolution enters into
force from the date it was signed.
(b) The Establishment: An independent Human Rights Court is hereby
established to address complaints of human rights violations in SPLM/A-
N’s liberated areas.
(c) The Mandate of the Court: the mandate of the Human Rights Court is the
following:
1. Study and make decisions about complaints and accusations of human
rights violations received from individuals, SPLM/A-N’s institutions and/or
civil society organizations.
2. Receive complaints from individuals and other civic institutions of
violations, conduct investigations and take the appropriate actions.
3. Protect and promote human rights through monitoring of violations and
dissemination of information.

Source: www.theirwords.org (Geneva Call).


26 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Human Rights Obligations of De Facto


Non-State Authorities
The practice of intergovernmental organizations such as the UN strongly suggests
that ANSAs must respect human rights law when they exercise governmental
functions or have de facto control over territory and a population. This view is
supported by a number of resolutions, decisions or reports adopted by various UN
organs and bodies, including the UN Security Council, the UN Secretary-General,
UN human rights treaty bodies, as well as by Special Procedures, COIs and fact-
finding missions. De facto authorities have been defined as ‘entities, which exercise
effective authority over some territory, no matter whether they are engaged in
warfare with the sovereign or are subsisting in times of peace’.66 They include
partially recognized or not recognized states, but are not limited to these actors.
OHCHR, for instance, has consistently taken the position that ‘non-State actors
that exercise government-like functions and control over a territory are obliged to
respect human rights norms when their conduct affects the human rights of the
individuals under their control’.67
In its 2007 report to the Security Council, the Panel of Special Procedures Experts
on the Sudan also concluded that ‘although it is the primary responsibility of the
Government of the Sudan to guarantee the human rights of its citizens and to
protect them from any transgression, the different armed opposition movements
also bear responsibility in areas under their control. […] Members of the
SLA/MM [Sudan Liberation Army-Minni Minnawi] armed groups have consistently
committed grave violations of human rights in areas where the armed group has
a presence.’68

66 Arantzazu Mendi case, House of Lords, Judgment of 23 February 1939, L.R., [1939] A.C. 256 (House of
Lords), reproduced in 1942 International Law Review 60, at §65 et seq. See also M. Schoiswohl, ‘De facto
regimes and human rights obligations – the twilight zone of public international law?’ Austrian Review of
International and European Law 6 (2001), 50; and J. Van Essen, ‘De Facto Regimes in International Law’,
28 Utrecht Journal of International and European Law 74 (2012), 31-49.
67 OHCHR, Human rights violations emanating from Israeli military attacks and incursions in the
Occupied Palestinian Territory, particularly the recent ones in the occupied Gaza Strip - Report of the
High Commissioner for Human Rights on the implementation of Human Rights Council resolution 7/1,
A/HRC/8/17, 6 June 2008, §9. OHCHR reiterated its position in a 2011 publication on the international
legal protection of human rights in armed conflict: ‘Concerning international human rights obligations,
the traditional approach has been to consider that only States are bound by them. However, in evolving
practice in the Security Council and in the reports of some special rapporteurs, it is increasingly considered
that under certain circumstances non-State actors can also be bound by international human rights law.’
See OHCHR, The international legal protection of human rights in armed conflict, 2011, p 24.
68 Report of the Panel of Experts established pursuant to resolution 1591 (2005) concerning the Sudan
prepared in accordance with paragraph 2 of resolution 1713 (2006), S/2007/584, §282 and §330.
Human Rights Obligations of Armed Non-State Actors: 27
An Exploration of the Practice of the UN Human Rights Council

In a report of June 2011 the International Commission of Inquiry on Libya


affirmed: ‘Although the extent to which international human rights law binds non-
State actors remains contested as a matter of international law, it is increasingly
accepted that where non-State actors exercise control over territory they must
respect fundamental human rights of persons in that territory. The Commission
has taken the approach that since the [National Transitional Council] has been
exercising de facto control over territory akin to that of a Government authority, it
will examine also allegations of human rights violations committed by its forces.’69
The 2014 Joint Report on the mission to Lebanon and Israel by a group of four
special procedure mandate holders noted, in relation to Hezbollah, that ‘the
Security Council has long called upon various groups which Member States do
not recognize as having the capacity to do so, to formally assume international
obligations to respect human rights. It is especially appropriate and feasible to call
for an armed group to respect human rights norms when it “exercises significant
control over territory and population and has an identifiable political structure”.’70
The ICRC has also recognized ‘a limited exception to its principled position that
non-state armed groups do not incur IHL obligations where a group, by virtue of
stable control over territory, has the ability to act like a state authority. In these
circumstances, such a group’s human rights responsibility may be recognized
“de facto”.’71
It is important to note that, where a state has lost effective control of part of
its territory to de facto authorities, it still remains under an obligation to take all
appropriate diplomatic, economic, judicial and other measures in its power to
protect the human rights of the population living in the part of its territory that is
outside its control. In relation to the obligations of the Republic of Moldova vis-à-
vis the population in the Transnistrian region, which is under the control of de facto
authorities, for instance, the Human Rights Committee stated that the State party

69 Report of the International Commission on Libya established by the Human Rights Council resolution
S-15/1 of February 2011, (A/HRC/17/44). The Commission also noted that ‘since the NTC has been
exercising de facto control over territory akin to that of a Governmental authority, it will examine also
allegations of human rights committed by its forces’, §72.
70 Mission to Lebanon and Israel (7-14 September 2006), prepared jointly by the Special Rapporteur
on extrajudicial, summary or arbitrary executions, Philip Alston, the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, the
Representative of the Secretary General on human rights of internally displaced persons, Walter Kälin, and
the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living,
Miloon Kothari, A/HRC/2/7, 22 December 2014, §19.
71 A. Breitegger, ‘The legal framework applicable to insecurity and violence affecting the delivery of health
care in armed conflicts and other emergencies’, 95 International Review of the Red Cross 889, (2015),104.
The author notes, however, that the ICRC’s use of the term ‘responsibilities’ falls short of recognizing
legally-binding obligations.
28 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

was under the ‘continuing obligation to ensure respect for the rights recognized
in the Covenant in relation to the population of Transnistria within the limits of its
effective power’.72
Scholars generally support the idea that ANSAs that exercise territorial control
or de facto governmental authority have human rights obligations. Indeed, the
need to regulate the relationship between those who govern and those who
are governed, which many consider underpins human rights law, justifies the
application of that law.73

Box 7. The position on ANSAs of the Committee on the


Elimination of all Forms of Discrimination against Women

In its General Recommendation No 30 of 18 October 2013 on women in


conflict prevention, conflict and post-conflict situations, the Committee
on the Elimination of all Forms of Discrimination against Women (CEDAW)
stated: ‘Under international human rights law, although non-State actors
cannot become parties to the Convention, the Committee notes that under
certain circumstances, in particular where an armed group with an identifiable
political structure exercises significant control over territory and population,
non-State actors are obliged to respect international human rights’. The
Committee went on to urge ‘non-State actors such as armed groups: (a) to
respect women’s rights in conflict and post-conflict situations, in line with
the Convention; (b) to commit themselves to abide by codes of conduct on
human rights and the prohibition of all forms of gender-based violence’.

Source. CEDAW, General Recommendation No 30 on women in conflict prevention, conflict and


post-conflict situations, CEDAW/C/GC/30, 18 October 2013, §16 and §18.

72 See CCPR/C/MDA/CO/2 (2009), §5.


73 See for instance N. Rodley, ‘Can Armed Opposition Groups Violate Human Rights’, in K. E. Mahoney
and P. Mahoney (ed), Human Rights in the Twenty-First Century: A Global Challenge, Martinus Nijhoff,
1993, p 297-318; and L. Zegveld, The Accountability of Armed Opposition Groups in International Law,
Cambridge University Press, 2002.
Human Rights Obligations of Armed Non-State Actors: 29
An Exploration of the Practice of the UN Human Rights Council

One weakness of this approach is that it is unclear for how long and to what
extent an ANSA must exercise control over a territory and population before it
becomes subject to human rights law.74 Some guidance may be found in a 2014
report of the Special Rapporteur on freedom of religion or belief, who stated:
‘While international human rights law traditionally focused only on the obligations
of States, an evolving approach recognizes the importance and impact of certain
non-State actors, arguing that some human rights obligations also apply to them,
including non-State armed groups with (or arguably even without) effective control
over a territory. […] “Effective control” means that the non-State armed group
has consolidated its control and authority over a territory to such an extent that
it can exclude the State from governing the territory on a more than temporary
basis. Furthermore, armed groups without effective control over territory have
been held to have committed human rights violations. In May 2014, a report by
the United Nations Mission in the Republic of South Sudan stressed that the most
basic human rights obligations, in particular those emanating from peremptory
international law (jus cogens), bind both the State and armed opposition groups
in times of peace and during armed conflict.’75
A further challenge is to determine which human rights norms are applicable to
ANSA. Should de facto non-state authorities or ANSAs that control territory be
bound by all or only some human rights norms? It has been argued that this question
should be determined by ANSAs’ capacity to implement the norms in question.76
Some UN reports have attempted to list the human rights norms that might be
binding on ANSAs. Following a mission to Sri Lanka, the Special Rapporteur
on extrajudicial, summary or arbitrary executions argued: ‘The LTTE should
refrain from violating human rights, including those of non-LTTE-affiliated Tamil
civilians. This includes in particular respect for the rights to freedom of expression,
peaceful assembly, freedom of association with others, family life, and democratic
participation, including the right to vote. The LTTE should specifically affirm that it
will abide by the North-East Secretariat on Human Rights charter.’77

74 T. Rodenhäuser, ‘Armed Groups under International Humanitarian Law, Human Rights Law, and
International Criminal Law: What Degree of Organization is Required?’ PhD Thesis, Graduate Institute of
International and Development Studies, 2016 (forthcoming 2017).
75 Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, A/HCR/28/66, 29
December 2014, §54 and §56.
76 See D. Murray, Human Rights Obligations of Non-State Armed Groups, Hart, 2016.
77 Special Rapporteur on extrajudicial, summary or arbitrary executions, in the context of his mission to
Sri Lanka, E/CN.4/2006/53/Add.5, 27 March 2006, §85.
30 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

In a 2012 report on Mali, the OHCHR categorized violations that had occurred in
the north of the country, which was controlled by ANSAs. It listed: violation of the
right to life; extrajudicial and summary execution; torture and other cruel, inhuman
or degrading treatment; arbitrary arrest and detention; recruitment of child soldiers;
sexual abuse; attacks on property; violation of freedom of expression and the right
to information; violation of the right to education; violation of the right to health;
violation of cultural rights; and violation of the right to freedom of religion.78
It is also unclear from these statements whether human rights law binds all types
of ANSAs that exercise territorial control, including ‘territorial criminal gangs’. In
principle, there is no theoretical obstacle to considering territorial armed gangs
as ANSAs to which international law could apply. As has been noted above, IHL
only requires an armed group to reach a certain level of organization before it
becomes subject to IHL obligations, regardless of its objectives.79 While urban
gang violence does not initially seem relevant to the traditional framework of IHL
and HRL, it has nevertheless been shown that there are good reasons to consider
applying humanitarian norms to territorial gangs, and many humanitarian agencies
and NGOs, including national Red Cross and Red Crescent societies, already
work in such contexts.80

78 Report of the United Nations High Commissioner for Human Rights on the situation of human rights in
Mali, 7 January 2012, A/HRC/22/33.
79 See for example Jennifer M. Hazen, ‘Understanding gangs as armed groups’, 92 International Review of
the Red Cross, 878 (2010), 369-386.
80 O. Bangerter, ‘Territorial gangs and their consequences for humanitarian players’, 92 International
Review of the Red Cross, 878 (2010), 392- 400.
Human Rights Obligations of Armed Non-State Actors: 31
An Exploration of the Practice of the UN Human Rights Council

3. Conclusions and
Recommendations
There is room for discussion as to how and to what extent ANSAs are bound
by human rights law, but it is clear that the international community increasingly
holds ANSAs accountable for human rights violations, despite legal uncertainties.
Several reasons explain this trend. Certain human rights obligations that apply to
situations of armed conflict are also protected by IHL, including the prohibitions
of torture, inhuman and degrading treatment, murder, and sexual violence and
slavery. To an extent, therefore, the application of IHL to ANSAs in situations
of armed conflict protects civilian populations as well as people who are hors
de combat. However, most contemporary armed conflicts persist for years or
even decades. IHL was not meant to regulate the everyday life of people living
in areas under the control of ANSAs over such an extended period. In many
countries, civilians living in ANSA-controlled areas strive to lead ‘normal’ lives,
despite conditions of extreme violence. In addition, IHL is applicable to ANSAs
only in situations that are legally defined as armed conflicts, and human rights are
threatened by ANSAs in many other contexts. The state remains responsible for
ensuring that the human rights of populations under its jurisdiction are protected,
but in some instances it is not able to access ANSA-controlled areas or cannot
prevent or punish ANSA violations, notably where its institutions are failing. In
all such contexts, the Human Rights Council, many UN special procedures,
COIs, and other UN bodies have felt called by their mandates to address the
responsibility of ANSAs for human rights violations.
Recognizing that ANSAs have human rights obligations has important operational
and policy consequences. First, it may increase the legitimacy of ANSAs at
international level, which may be politically sensitive for states and international
organizations. One should note, at the same time, that a body bound by
international norms does not automatically incur a particular legal status. This is
made clear by Common Article 3 of the 1949 Geneva Conventions.81 Second, if
ANSAs are required to respect and implement human rights norms, they might

81 Common Article 3, §2, of the Geneva Conventions states: ‘An impartial humanitarian body, such as the
International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to
the conflict should further endeavour to bring into force, by means of special agreements, all or part of the
other provisions of the present Convention. The application of the preceding provisions shall not affect the
legal status of the Parties to the conflict.’ (Emphasis added.)
32 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

need support from the international community to do so. This raises concerns
similar to those associated with the issue of legitimacy. The fact that some ANSAs
are listed as terrorist groups makes it difficult for many organizations to cooperate
with them or build their capacity.82
HRC resolutions referring to ANSAs have not been systematic in speaking of
‘abuses’ or ‘violations’ of human rights law. It seems that, as the main UN body
trusted with promoting human rights, the Council has wished to signal politically
that it cannot ignore the role of ANSAs and their impact on human rights, but
simultaneously it has been unwilling to take a firm stance on the applicable
legal framework. That said, the Human Rights Council should cease to speak
misleadingly of human rights ‘abuses’ rather than human rights ‘violations’,
thereby avoiding giving any impression that all categories of ANSA, including de
facto authorities, might be free of human rights obligations.
In 2014 and 2015, the HRC held two special sessions specifically on ANSAs, one
on the so-called Islamic State in Iraq and the Levant and the other on Boko Haram.
While it is interesting that ANSAs were the subject of these two resolutions, it
is significant that the HRC denounced the human rights and humanitarian law
violations of only one party to these armed conflicts. If such resolutions appear
biased, their influence on the conduct and policies of ANSAs is likely to diminish,
making ANSAs less ready to acknowledge that they have human rights obligations.
HRC resolutions have also sometimes employed the term ‘terrorist groups’
when referring to ANSAs. While it is true that some ANSAs are listed in national
and international lists of terrorist organizations, states will tend to label any
armed group that opposes it as ‘terrorist’. The branding of ANSAs as ‘terrorist’,
regardless of their nature and motivation, has created difficulties and dilemmas
both legally and for policy. First, since the legal qualification of an ‘armed conflict’
is based on fact, it is important to note that an ANSA can be party to a conflict
and bound by the same relevant rules of international law as other parties to that
conflict, whether or not it is labelled as a ‘terrorist group’.83 Second, as noted
by the ICRC, ‘a recent challenge for IHL has been the tendency of States to
label as terrorist all acts of warfare against them committed by armed groups,
especially in non-international armed conflicts. This has created confusion in
differentiating between lawful acts of war, including such acts committed by

82 See Geneva Call, The Positive Obligations of Armed Non-State Actors: Legal and Policy Issues, Report
from the 2015 Garance Talks, 2016.
83 See S Vité, ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual
situations’, 92 International Review of the Red Cross, 873, March 2009, 69-94.
Human Rights Obligations of Armed Non-State Actors: 33
An Exploration of the Practice of the UN Human Rights Council

domestic insurgents against military targets, and acts of terrorism.’84 Indeed,


under IHL, both in international and non-international armed conflicts, only ‘acts
or threats of violence the primary purpose of which is to spread terror among
the civilian population’85 can be considered as falling into the category of an
‘act of terrorism’ which entails individual criminal responsibility under customary
international law.86 In other words, attacks that exclusively target military
objectives do not fall into this category. The main UN treaties on terrorism
include a clause requiring that they must interpreted in accordance with IHL.87
Accordingly, under such treaties, attacks by ANSAs on governmental armed
forces in armed conflicts cannot be considered as acts of terrorism prohibited
by the conventions. For these reasons, we suggest that states, including when
they negotiate resolutions on ANSAs at the Human Rights Council, should be
attentive to the legal and policy consequences of labelling any armed group as
a terrorist group.88 For instance, it has been noted that associating ANSAs with
terrorism has had ‘a direct impact on the EU and the international community’s
capacity for mediation and dialogue in transition processes’.89
More generally, experts tend to agree that it is important to consider ANSAs not
only as perpetrators of violations of international humanitarian law and human
rights law but also as actors who can play positive roles in the implementation of
international law, if only because they are often very close to their constituencies.90

84 ICRC, ‘Contemporary challenges for IHL: Overview’, 29 October 2010, at: http://www.icrc.org/eng/war-
and-law/contemporary-challenges-for-ihl/overview-contemporary-challenges-for-ihl.htm.
85 See Art 51(2), Additional Protocol I, and Art 13(2), Additional Protocol II.
86 ICTY, Judgment, Galić (IT-98-29-T), Trial Chamber, 5 December 2003, § 113-129.

87 See Article 19 of the 1997 International Convention for the Suppression of Terrorist Bombings (1997
Convention); Article 4 of the 2005 International Convention for the Suppression of Acts of Nuclear
Terrorism (2005 Convention); and Article 21 of the 1999 International Convention for the Suppression of
the Financing of Terrorism. See also A. Coco, ‘The Mark of Cain, The Crime of Terrorism in Times of Armed
Conflict as Interpreted by the Court of Appeal of England and Wales in R v. Mohammed Gul’, 11 Journal of
International Criminal Justice, 2, 425-440.
88 See B. Saul, ‘Terrorism, Counter-Terrorism and International Humanitarian Law’, Sydney Law School
Legal Studies Research Paper No 16/37, May 2016. See also D. Lewis, N. Modirzadeh, and G. Blum,
Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism, Harvard
Law School Program on International Law and Armed Conflict (HLS PILAC), Sept. 2015, at: https://dash.
harvard.edu/bitstream/handle/1/22508590/HLS_PILAC_Medical_Care_in_ Armed_Conflict_IHL_and_State_
Responses_to_Terrorism_September_2015.pdf?sequence=1. The authors describe the emerging conflict
of norms between national and international counter-terrorism laws and some IHL provisions on health care
and humanitarian assistance.
89 See EU Factsheet, ‘Mediation and Dialogue in transitional processes from non-state armed groups to
political movements/political parties’, 2012.
90 R. Dudai and K. McEvoy. ‘Thinking critically about armed groups and human rights praxis’, 4 Journal of
Human Rights Practice 1 (2012), 15.
34 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

The HRC, in common with other UN bodies that engage or address ANSAs,
should take these considerations into account, with the aim of providing better
protection to victims of both IHL and HRL violations.
This In-Brief has reviewed the human rights obligations of ANSAs and the practice
of the HRC with respect to them. It suggests that more research is needed to
develop a shared and more comprehensive understanding of the notion of de
facto authorities, and to identify the content of human rights norms that might be
binding on ANSAs. It also recommends that the views of ANSAs should be taken
into account on the norms and issues that concern them.91 Finally, the international
community should consider creating judicial or non-judicial mechanisms92 that will
make ANSAs more accountable for IHL and HRL violations that they commit.

91 See M. Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International
Humanitarian Law’, Journal of International Humanitarian Legal Studies 1 (2010), 5–51.
92 See A. Bellal, ‘Non-state armed groups in transitional justice processes’, International Centre for
Transitional Justice, 2017.
Human Rights Obligations of Armed Non-State Actors: 35
An Exploration of the Practice of the UN Human Rights Council

4. Suggested Analysis and


Wording for Resolutions on
ANSAs and Human Rights
As an intergovernmental body the practice of the HRC reflects to some extent
‘state practice’, and as such may also influence the formation of customary
international law.93 In that perspective, HRC resolutions should not only be
founded on international law but should be as clear and systematic as possible.
Because the term ‘abuse’ does not have any legal content, and is therefore vague
and misleading, this In-Brief does not recommend making a distinction between
‘abuses’ and ‘violations’ when assessing or denouncing the human rights conduct
of ANSAs.

The HRC should not distinguish ‘abuses’ from ‘violations’ when it addresses
the human rights conduct of ANSAs in its resolutions. At a minimum, the term
‘violations’ should be used when:
1. The ANSA is a de facto authority or controls territory and a population over
an extended period of time.
2. The ANSA violates norms than amount to an international crime or can be
considered to violate jus cogens.

A two step analysis, which should not necessarily be taken in a precise order,
is suggested when addressing ANSAs in a specific resolution. The proposed
analysis and wording, which will necessarily be a simplification of the issues at
stake, should be understood as a framework for discussion and can, as such, be
questioned. It is aimed at stimulating thoughts and ideas on this important matter,
rather than closing the debate.

93 Article 38 (b) of the Statute of the International Court of Justice defines ‘international custom’ as ‘general
practice accepted as law’.
36 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Step 1. Determine an ANSA’s characteristics and the applicable legal


framework.
As explained in this research, there is clear practice suggesting that ANSAs
are bound by a broader set of human rights obligations when they exercise de
facto governmental functions or exercise control over a population. Whenever
ANSAs are addressed in HRC resolutions, we therefore recommend that their
characteristics are carefully analysed and determined. In particular, drafters should
assess whether the ANSA in question can be considered a de facto authority or
whether a population lives under its control.
Determining the ANSA’s level of organization will also clarify the applicability of
IHL. Determining the applicability of IHL to a given situation is a difficult exercise.
Information and guidance on this issue can be found in the Rule of Law in Armed
Conflict Project (www.rulac.org) or The War Report of the Geneva Academy of
International Humanitarian Law and Human Rights.
Where a situation cannot be qualified as a non-international armed conflict, only
human rights law is applicable and it becomes particularly important to determine
types of violation in order to avoid a gap in protection.
Step 2. Determine the types of violation.
Some practice tends to show that all forms of ANSA are bound to respect human
rights which are peremptory norms of international law (or jus cogens) and
whose violation can lead to the establishment of individual criminal responsibility,
whether or not the ANSA responsible controls territory and whether or not IHL is
applicable. For other types of violations, where the legal framework is less clear,
it is suggested that only ANSAs that act as de facto authorities may be bound by
human rights law. Two questions may be considered:
ƒƒ Do the acts violate peremptory norms of HRL? Can they to lead to the
establishment of individual criminal responsibility?
ƒƒ Do the acts violate other types of human rights norms?
These recommendations are summarized in the two charts below.
Human Rights Obligations of Armed Non-State Actors: 37
An Exploration of the Practice of the UN Human Rights Council

Step 1. Identify an ANSA’s characteristics and the applicable legal framework.

ANSA level of organization

High Low

Organized ANSA
De facto authority? that does not Is IHL applicable?
control a population

Step 2. Determine the types of violation.

International crimes or Other human rights


jus cogens violations? violations
(non-exhaustive list) (non-exhaustive list)

ƒƒ Murder ƒƒ Enslavement ƒƒ Freedom of expression


ƒƒ Torture ƒƒ Widespread ƒƒ Freedom of assembly
or systematic
ƒƒ Persecution ƒƒ Political rights
violations of
ƒƒ Genocide economic,
social and
ƒƒ Starvation
cultural rights

Can fall under IHL and HRL Not protected by IHL

Consider applying the term


‘violation’ where an ANSA
Consider applying the term exercises control over territory
‘violation’ to all types of ANSA. or a population or can be
considered to exercise
de facto authority.
Human Rights Obligations of Armed Non-State Actors: 39
An Exploration of the Practice of the UN Human Rights Council

Annex. HRC Resolutions on


ANSAs 2008-2015

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
30/1 30th, Country: OP 5: need for a process of AC in No vote
2015 Sri Lanka accountability and reconcili- Sri Lanka
ation for the violation and
abuses committed by the
LTTE.
30/15 30th, Country: OP 3: condemns the system- AC in Syria 29 to 6; 12
2015 Syria atic, widespread and gross abstentions
violations and abuses of HR
and violations by the Syrian
authorities and affiliated
militias, including foreign
terrorist fighters and those
foreign organizations on
behalf of the Syrian authori-
ties, in particular Hizbullah.
OP 4: condemns the gross,
systematic and widespread
abuses of HR and violations
of IHL by ISIL, al-Nusrah and
other extremist groups.
OP 5: condemns the gross
and systematic abuse of
women’s and children’s
rights by ISIL.
OP 6: condemns all
violations and abuses of
HRL and all violations of IHL
and urges all parties to the
conflict to comply with their
obligations under IHL and
respect HR.
40 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
30/15 30th, Thematic: PP: condemns serious HR NA 37 to 3; 7
2015 Prevent- abuses and violations of IHL abstentions
ing violent by violent extremists and
extremism terrorists.
29/15 29th, Country: OP 3: condemns the system- AC in Syria 29 to 6; 12
2015 Syria atic, widespread and gross abstentions
violations and abuses of HR
and violations by the Syrian
authorities and affiliated
militias, including foreign
terrorist fighters and those
foreign organizations on
behalf of the Syrian
authorities, in particular
Hizbullahm Asa’ib Ahl al-
Haq and Liwa Abu al-Fadl
al-Abbas.
OP 8 : condemns the
systematic and widespread
abuses of HR and violations
of IHL by ISIL. al-Nusra front
and other extremist groups.
OP 9: condemns all viola-
tions and abuses of IHRL
and all violations of IHL
and urges all parties to the
conflict to comply with their
obligations under IHL and
respect HRL.
28/17 28th, Thematic: OP 1: condemns all terrorist No 25 to 16; 6
2015 Effects of acts and expresses grave abstentions
terrorism concern at their detrimental
on the effects on HR, including
enjoyment the right to life, liberty and
of HR security.
Human Rights Obligations of Armed Non-State Actors: 41
An Exploration of the Practice of the UN Human Rights Council

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
28/20 28th, Country: OP 12: strongly condemns AC in Syria 29 to 6; 12
2015 Syria the gross, systematic and abstentions
widespread abuses of HR
and violations of IHL by ISIL.
OP 14: condemns all viola-
tions of IHRL and all viola-
tions of IHL and calls upon
all groups in Syria to comply
with their obligations under
IHL and to respect HR.
24/27 24th, Technical PP: condemns wave of AC in DRC No vote
2013 assistance violence and serious crimes,
and including acts of sexual
capacity violence, by armed groups.
building:
DRC
24/18 24th, Technical PP: calls on parties to stop AC in No vote
2013 assistance abuses and violations of HR. Darfur
and OP 12: calls on the govern-
capacity ment to ensure compliance
building: with HR and IHL by all
Sudan parties.
24/30 24th, Technical OP 4: condemns grave and AC in No vote
2013 assistance systematic HR abuses by Somalia
and al-Shabaab.
capacity
building:
Somalia
24/32 24th, Technical OP 8: calls on armed groups AC in No vote
2013 assistance to end the recruitment and Yemen
and use of children.
capacity
building:
Yemen
23/1 23rd, Country: OP 2: condemns all HR AC in Syria 36 to 1; 8
2013 Syria violations and abuses. abstentions
42 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
23/18 23rd, Technical OP 3: condemns serious HR Not clear No vote
2013 assistance violations and acts of
and violence by all forces
capacity present.
building:
CAR
22/18 22nd, Technical OP 4: condemns excesses AC in Mali
2013 assistance and abuses committed by
and rebels, terrorist groups and
capacity other organized trans-
building: national crime networks.
Mali OP 5: calls on all forces and
armed groups to ensure that
human rights law and IHL
are respected.
21/25 21st, Country: OP 1: condemns the excess- AC in Mali No vote
2012 Mali es and abuses committed by
rebels, terrorist groups and
other organized transna-
tional crime networks.
21/22 21st, Technical OP 4: calls on government AC in No vote
2012 assistance and armed opposition Yemen
and groups to end recruitment
capacity of children.
building:
Yemen
21/26 21st, Country: OP 4: condemns violations AC in Syria 41 to 3; 3
2012 Syria of HR by Syrian authorities abstentions
and the government con-
trolled militia Shabbiha.
21/27 21st, Technical PP: condemns HR abuses AC in No vote
2012 assistance: and violations by all parties. Sudan
Sudan OP 12: on the situation in
South Kordofan and Blue
Nile; calls on all parties
to respect all HR and
fundamental freedoms.
Human Rights Obligations of Armed Non-State Actors: 43
An Exploration of the Practice of the UN Human Rights Council

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
21/31 21st, Technical PP: condemns the violations AC in No vote
2012 assistance: and abuses by state and Somalia
Somalia non-state actors.
OP 1: condemns grave and
systematic HR abuses and
violations perpetrated, in
particular by al-Shabaab
and its affiliates.
OP 4: holds perpetrators of
HR violations and abuses
accountable.
OP 5: urges non-State
actors, in particular
al-Shabaab, to refraim
from abusing the rights of
women.
20/17 20t, Country: OP 2: Condemns the HR AC in Mali No vote
2012 Mali violations and acts of
violence committed in
norther Mali in particular by
the rebels, terrorist groups,
and other organized trans-
national crime networks.
NB: no reference to ‘abuses’ any-
where in the resolution.

20/21 20th, Assistance OP 2: condemns the grave AC in No vote


2012 to Somalia and systematic HR abuses, Somalia
in particular by
al-Shabaab and its affiliates.
OP 10: urges all parties to
take steps to protect
children and to end abuses
and violations against them.
OP 12: urges all parties to
take steps to proect women
and to end abuses and
violations of their HR.
44 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
20/22 20th, Country: OP 1: condemns HR AC in Syria 41 to 3; 3
2012 Syria violations and crimes abstentions
committed by the govern-
ment controlled Shabbiha.
19/21 19th, Country: OP 10: calls on the authori- AC in No vote
2012 Myanmar ties and all armed groups Myanmar
to protect the civilian popu-
lation and respect their HR.
19/28 19th, Assistance OP 2: condemns the grave AC in No vote
2012 to Somalia and systematic HR abuses, Somalia
in particular by al-Shabaab
and its affiliates.
OP 3: urges all parties to
take steps to protect
children and to end abuses
and violations against them.
18/16 18th, Technical OP 8: calls on all parties AC in No vote
2011 assistance: to … respect HR and South
Sudan fundamental freedoms. Sudan
18/19 18th, Technical OP 4: condemns all AC in No vote
2011 assistance violations of HR by all Yemen
and parties.
capacity
building:
Yemen
17/17 17th, Country: OP 4: urges all parties con- AC in No vote
2011 Libya cerned to respect applicable Libya
IL, in particular HRL and IHL.
17/25 17th, Assistance OP 2: Condemns and calls AC in
2011 to Somalia for cessation of the grave Somalia
and systematic HR abuses
by al-Shabab and its
affiliates.
Human Rights Obligations of Armed Non-State Actors: 45
An Exploration of the Practice of the UN Human Rights Council

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
S-14/1 2010, Country: OP 1: (condemns HR Violence No vote
14th Côte violations without naming after
special d’Ivoire actors). contested
session OP 2: calls on all relevant election
parties to put an end to HR
violations and to respect HR.
OP 3: urges all actors,
particularly defence and
security forces, to refrain
from violence and respect
all HR.
S-9/1 2009, Grave OP 2: calls for end of AC in 33 to 1; 13
9th violations launching of rockets against Palestinian abstentions
special of HR Israeli civilians. Territories
session in the OPT OP 10: urges all parties
concerned to respect the
rules of IHL and international
human rights law.
Res. 9/17 2008, Country: OP 9: urges all parties to AC in No vote
9th Sudan respect IHL and international Sudan
session human rights law.
Res. 7/1 2008, Country: OP 3: calls for the immedi- AC in 33 to 1; 13
7th OPT ate cessation of … firing of Palestinian abstentions
session crude rockets. Territories
OP 6: urges all parties to
respect IHL and international
human rights law.
Res. 7/35 2008, Country: OP 2: demands that all AC in No vote
7th Somalia parties ... respect their Somalia
session obligations under IHL and
international human rights
law.
46 Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council

Resolution Year & Type Term used to describe Context Vote


No Session human rights (HR) abuses of Armed
by ANSAs Conflict
(AC)
Res. S-8/1 2008, Country: OP 1: calls on all parties (in AC in DRC No vote
8th DRC North Kivu)  to comply with
special their obligations under IHL,
session international human rights
law and refugee law. 
OP 2: calls for an immediate
end to all HR violations.
OP 5: condemns acts of
violence, HR violations and
abuses committed in Kivu,
in particular sexual violence
and recruitment by the
militia of child soldiers.

NB: nothing relevant in 2007 and 2006 sessions.


Human Rights Obligations of Armed Non-State Actors: 47
An Exploration of the Practice of the UN Human Rights Council

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50 Human Rights Obligations of Armed Non-State Actors:
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An Exploration of the Practice of the UN Human Rights Council

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The Geneva Academy of International Humanitarian Law and Human
Rights provides post-graduate education, conducts academic legal research and
policy studies, and organizes training courses and expert meetings.

It concentrates on branches of international law that relate to situations of armed


conflict, protracted violence, and protection of human rights.

Master of Advanced Studies programmes at the Geneva Academy:


LL.M. in International Humanitarian Law and Human Rights
Executive Master - Master of Advanced Studies in International Law in Armed
Conflict (equivalent to an LL.M.)

Master in Transitional Justice, Human Rights and the Rule of Law

Villa Moynier
Rue de Lausanne 120B - CP 67 - 1211 Genève 21 - Switzerland
Phone +41 22 908 44 83 - Fax +41 22 908 44 99
info@geneva-academy.ch - www.geneva-academy.ch

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