Program on Humanitarian Policy and Conflict Research - non-state armed groups

Human rights obligations and accountability of armed groups

hpcr — Mon, 02 Apr 2012 19:37:24 +0000

Blog Type:

IHL in Action

One of the controversies surrounding armed groups is whether – and to what extent – they bear obligations under international human rights law. The traditional and still dominant conceptualization of human rights addresses only harms done by governments to individuals and leaves largely unaddressed abuses committed by non-state actors and private parties. The relevant treaties are signed and ratified by states and are binding upon them. Thus states incur a range of obligations to respect, protect and fulfill the rights of those in their territory and subject to their jurisdiction. These obligations are monitored by the respective treaty bodies as well as under other universal or regional mechanisms. By not fitting into this scheme, armed groups are not considered as bound by international human rights law. Thus any non-governmental violence is not regarded as amounting to human rights violations but as only having an indirectly harmful effect on the capacity of states to provide basic services and ensure full enjoyment of human rights to affected individuals.

This approach is, however, premised on the shaky assumption that states possess and control a functioning institutional apparatus and that governments are in effective control of the state’s territory. It turns a blind eye to dozens of failing or failed states that are unable to provide even the most basic services to their citizens and other individuals (e.g., refugees) and/or do not control portions of their territory. In such situations the state-centric approach to human rights is largely ineffective and leaves a regulatory and accountability gap, which cannot be filled by applicable rules of state responsibility or international humanitarian law and international criminal law, even if we were to assume the latter’s applicability in all situations. Infringements on the rights to expression, religion, assembly, movement, family, food, work, health, education and others as well as issues of (gender-based or other) discrimination are barely and only indirectly – if at all – addressed by applicable international humanitarian law. This gap should however be filled if the international community is serious about the cause of human security.

Yet, regulation of activities of armed groups in international treaty law is mostly limited to international humanitarian law (i.e., common article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II). As regards international human rights treaty law, armed groups have only found their way into Article 4, paragraph 1 of the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Nevertheless, there is nothing in international law that prevents further regulation of harmful activities of armed groups in situations beyond the reach of international humanitarian law. Many armed groups do not lack the capacity to provide protection to civilians and ensure a variety of their human rights that go beyond the reach of applicable rules of international humanitarian law or, conversely, commit violations/abuses of rights that do not necessarily result in accountability under international criminal law. The international legal system may well accommodate additional obligations (and rights) of non-state actors if treaties are concluded or customary law emerges to that effect. Indeed, apart from treaties, there are plenty of legally significant developments in many conflict situations involving armed groups that are largely unaccounted for and can influence or change the legal landscape if properly documented.

Such developments include the rich practice of the Security Council, which has identified the applicable legal framework concerning armed groups as including human rights obligations and has sometimes enforced such obligations by imposing sanctions on their leaders. This practice is in line with similar developments in the United Nations and elsewhere, such as: UN reports as well as expectations and engagement of UN organs with armed groups on the ground; reports by Truth and Reconciliation Commissions; peace and other agreements concluded between armed groups and concerned governments, often witnessed by other states and/or the UN; declarations and codes of conduct unilaterally undertaken by armed groups under the scrutiny of the international community. Much of this practice has developed in interaction with armed groups, which adds to the legitimacy of the obligations incurred.

When they first appeared, such developments admittedly met with controversy among scholars and some ambivalence in the UN. However, when the problem has arisen on the ground the various concerned actors – including affected governments and the United Nations – in different country situations did not shy away from extending human rights obligations to armed groups in addition to obligations applicable under international humanitarian law. Much of this practice has skipped the attention of international lawyers. However, if such developments are properly documented and if their legal relevance is properly assessed, we may witness a welcome change in the applicable legal framework, which will extend human rights obligations and accountability to powerful armed groups to the extent appropriate to the context, depending on their actual capacity to bear those obligations.

Blog Tags:

IHL

non-state armed groups

Guest Writer:

Aristoteles Constantinides

On ICRC Engagement with Non-State Armed Groups: Recent Developments

hpcr — Mon, 02 Apr 2012 19:18:02 +0000

Blog Type:

IHL in Action

Engaging with non-state armed groups has been at the core of ICRC actions for decades. For example, Henri Dunant, the founder of the ICRC, brought humanitarian help and tried to negotiate the release of hostages during the Paris Commune in 1871. According to an ICRC publication from 1900, only 39% of Red Cross operations between 1863 and 1899 happened in "international wars", while 55% were carried out in contexts involving the equivalent of modern-day armed groups. These included both insurgents and non-recognized States. In the 20th century, ICRC action involved dialogue with countless armed groups. For example, following the First World War, the organization was active in Silesia (1921) and Ireland (from 1922). During the Second World War, the ICRC had contact with a number of resistance organizations in occupied Europe and tirelessly worked for better protection of their members, while also visiting German prisoners held by the French Forces Françaises de l’intérieur (1944). In the immediate aftermath of the war, it maintained contact with parties in China, Greece, Palestine under British mandate, and Vietnam. During the Cold War, the ICRC engaged in dialogue with armed groups in Africa, Asia, and Latin America, such as the New People’s Army in the Philippines, the National Union for the Total Independence of Angola (UNITA) in Angola, and the Farabundo Martí National Liberation Front (FMNL) in El Salvador.

Today, given the explosion of non-international armed conflicts and the proliferation of armed non-state actors, far from being a merely temporary phenomenon, they are here to stay as participants in armed conflict and other situations of violence. The question is not whether to deal with them, but rather how to engage them. In the ICRC perspective, dialogue with armed groups can centre around three parallel and linked goals. First, engaging armed non-state groups will serve to improve access and security for the ICRC in the field and to get a better understanding of the groups. Second, this engagement will serve to facilitate the humanitarian response and actions of the ICRC. Finally, engaging non-state armed groups on more sensitive issues such as the conduct of hostilities and the use of force can contribute to an improved respect of all relevant laws through prevention and integration of the law into the doctrines and trainings of those groups.

This news release concretely illustrates the work of the ICRC in the field. It also shows how the ICRC engages non-state armed groups in a dialogue articulated around access, humanitarian response and an improved respect of IHL. This is only one example among many. However, it is encouraging to see that IHL is being discussed more and more among armed groups as greater respect for IHL can make a huge difference for the populations affected by armed conflicts. Understanding why non-state armed groups chose to respect IHL or not is key to working with them on improving the situation. The article, "Reasons why armed groups choose to respect international humanitarian law or not" is a good starting point to make sense of the actions of non-state armed actors.

Blog Tags:

non-state armed groups

IHL

Guest Writer:

Christophe Gillioz

Challenges of compliance of non-state armed groups: one-way obligations?

hpcr — Mon, 02 Apr 2012 19:11:36 +0000

Blog Type:

IHL in Action

As we write, non-state armed groups (‘NSAGs’, also variously described as‘insurgents’, ‘rebels’, ‘insurrectionists’, etc) are mainly seen as law-takers rather than as law-makers, and thus as objects rather than subjects of international law: they are required to comply with international humanitarian law (IHL) without having had the opportunity to participate in the making of the law. This lack of participation has translated into an imposition of duties on NSAGs which is not matched by the conferral of rights. NSAG members who take part in (non-international) armed conflicts are not entitled to combatant or prisoner-of-war status, and can be punished for their mere participation in hostilities, whether or not they comply with IHL. Therefore, at first sight, compliance with IHL yields few advantages for NSAGs. To remedy this imbalance in the structure of the law of non-international armed conflict, it is key that other incentives for compliance are offered to NSAGs, with full respect for the diversity and motivation of the various NSAGs. The most potent incentive for compliance with IHL is perhaps the promise of a broader acceptance of the legitimacy of their struggle, both domestically and internationally. To obtain this legitimacy, NSAGs may want to be seen to comply with IHL by formally pledging adherence to IHL in various legal instruments. These pledges are performative speech acts in an Austinian sense: they do not simply describe a reality, but by being uttered they transform it. By formally pledging to abide by it, they exhibit an enhanced willingness and expectation that compliance will indeed be forthcoming.

There are a number of legal instruments through which NSAGs can give their actual consent to be bound. All of them—unilateral declarations, codes of conduct, special (bilateral) agreements and multilateral agreements—have their respective advantages and drawbacks. The most important drawback, as with any declaration or agreement, is that a declaration or agreement adopted by an NSAG may not be worth much if it is not backed up by credible compliance monitoring or sanctions. Monitoring and enforcement by independent and disinterested agencies may indeed be considered as the backbone of a genuine ‘rule of law’.

Interestingly, some innovating initiatives have recently been developed to monitor IHL compliance by NSAGs. Notably the Security Council’s Monitoring and Reporting Mechanism, which monitors the IHL record of NSAGs in respect of children in armed conflict, and the NGO Geneva Call’s monitoring of NSAGs compliance with the ‘Deed of Commitment’ deserve mention in this regard. Monitoring may result in naming and shaming recalcitrant NSAGs, but in case of persistent or gross violations, sanctions that bite may have to be contemplated. NSAGs’ and their members’ assets might be frozen, their travel may be restricted or they may be criminally prosecuted, possibly even by courts set up by the NSAG itself.

Blog Tags:

IHL

non-state armed groups

Guest Writer:

Cedric Ryngaert