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The legal protection of persons living under the control of non-State armed groups

Published online by Cambridge University Press:  25 August 2021

Tilman Rodenhäuser
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Abstract

In recent non-international armed conflicts in countries such as the Central African Republic, Iraq, Libya, Nigeria, South Sudan, Syria, Ukraine and Yemen, various non-State armed groups (NSAGs) have exercised control over territory and people living therein. In many cases, and for a variety of reasons, NSAGs perform some form of governance in these territories, which can include the maintenance of order or the provision of justice, health care, or social services. The significance of such measures became particularly apparent when in 2020 not only governments but also armed groups took steps to halt the spread of the COVID-19 pandemic. This article examines key legal issues that arise in these contexts. First, it analyzes the extent to which international humanitarian law protects the life and dignity of persons living under the control of NSAGs, rebutting doubts as to whether this field of international law has a role in regulating what is sometimes called “rebel governance”. Second, it provides a brief overview of aspects of the lives of people in armed group-controlled territory that are addressed by international humanitarian law and aspects that instead fall into the realm of human rights law. Third, the article discusses whether and to what extent human rights law can be said to bind NSAGs as a matter of law and flags issues that need further attention in current and future debates.

Keywords

non-State armed groupsarmed groupsinternational humanitarian lawhuman rights lawnexusnon-international armed conflictgovernanceCOVID-19scope of application
Type
Research Article
Information
International Review of the Red Cross , Volume 102 , Issue 915: Non-State armed groups , December 2020 , pp. 991 - 1020
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the ICRC

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Footnotes

*

The views expressed in this article are those of the author and do not necessarily reflect those of the ICRC.

References

1 See International Criminal Court (ICC), Prosecutor v. Al Hassan Agabdoul Azizag Mohamed Ag Mahmoud, Case No. ICC-01/12-01/18, Decision on the Confirmation of Charges, 13 November 2019, para. 94.

2 ICC, Prosecutor v. Ahmad al Faqi al Mahdi, Case No. ICC-01/12-01/15, Judgment, 27 September 2016, para. 31.

3 See ICC, Al Hassan, above note 1, paras 94–128.

4 ICC, Al Mahdi, above note 2, para. 36. The ICC has charged – or convicted – several persons who were part of the “government” established by the two NSAGs for war crimes and crimes against humanity.

5 For additional examples, see Rodenhäuser, Tilman, Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law, Oxford University Press, Oxford, 2018 pp. 3, 185–187CrossRefGoogle Scholar for de facto control over territory, 164–169; Murray, Daragh, Human Rights Obligations of Non-State Armed Groups, Studies in International Law, Hart Publishing, Oxford, 2016, pp. 2–7Google Scholar.

6 Mampilly has found that NSAGs regularly engage in governance activities, such as “providing security from violence; developing educational and health facilities; establishing a system of food production and distribution; allocating land and other resources to provide opportunities for civilians to engage in livelihood activities (agriculture, small business, etc.); providing shelter to the displaced; regulating market transactions; taxation of civilians and commercial actors; resolving civil disputes; and addressing other social problems that commonly accompany situations of internal war”. Mampilly, Zachariah, “Insurgent Governance in the Democratic Republic of the Congo”, in Krieger, Heike (ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region, Cambridge University Press, Cambridge, 2016, p. 44Google Scholar.

7 See Internal Security Forces (Assayesh) in Northeast Syria, “Self-Administration COVID-19 Response”, found on Geneva Call's COVID-19 Armed Non-State Actors’ Response Monitor, available at: www.genevacall.org/covid-19-armed-non-state-actors-response-monitor/ (all internet references were accessed in July 2021).

8 Human Rights Watch, “Colombia: Armed Groups’ Brutal Covid-19 Measures”, 15 July 2020, available at: www.hrw.org/news/2020/07/15/colombia-armed-groups-brutal-covid-19-measures.

9 Ibid. For a detailed account of what measures taken by certain groups in Colombia have meant for affected families and how other NSAGs have reacted to the challenges posed by the pandemic, see International Committee of the Red Cross (ICRC), “As If the War Was Not Enough”: Stories of Hardship and Resilience in Times of COVID-19, Geneva, 2021, pp. 46–51, available at www.icrc.org/en/document/as-if-war-was-not-enough#Colomb.

10 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2019, p. 52, available at: www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts.

11 To recall, NIACs are protracted armed confrontations occurring between governmental armed forces and the forces of one or more NSAGs, or between NSAGs.

12 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016 (ICRC Commentary on GC I), para. 517.

13 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012, p 530; Marco Sassòli, “L'administration d'un territoire par un groupe armé, peut-elle être régie par le droit?”, in Michel Hottelier, Maya Hertig Randall and Alexandre Flückiger (eds), Études en l'honneur du Professeur Thierry Tanquerel, Schulthess, Geneva, 2019, p. 271.

14 Human Rights Council, Report of the International Commission of Inquiry to Investigate All Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya, UN Doc. A/HRC/17/44, 12 January 2012, para. 62.

15 See ICRC, The Roots of Restraint in War, Geneva, 2018, p. 13.

16 See Jelena Pejic, Irénée Herbert and Tilman Rodenhäuser, “ICRC Engagement with Non-State Armed Groups: Why and How”, Humanitarian Law and Policy Blog, 2021, available at: https://blogs.icrc.org/law-and-policy/2021/03/04/icrc-engagement-non-state-armed-groups/.

17 This article does not address obligations or responsibilities of armed groups that are not parties to armed conflicts and not bound by IHL.

18 For a comprehensive analysis of what the “organization” criterion for an NSAG under IHL means, see T. Rodenhäuser, above note 5, pp. 19–120.

19 While control over territory is one element that is required for the applicability of Additional Protocol II (AP II, see Art. 1(2)), other IHL obligations – most notably those under customary IHL – are the same for all NSAGs, irrespective of whether they exercise “stable” control over territory, whether such control is exclusive, or what governance capacities a group may have. Such considerations have, however, been mentioned in discussions on whether NSAGs might be held accountable under IHRL.

20 ICC, Al Mahdi, above note 2, para. 31.

21 For in-depth legal analysis on when a situation reaches the threshold of a NIAC, see ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020, paras 448–485; Moir, Lindsay, “The Concept of Non-International Armed Conflict”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, pp. 404–414Google Scholar.

22 ICRC Commentary on GC I, above note 12, para. 232. While the fact that NSAGs are bound by IHL is broadly accepted, academic debate continues on which legal theory may explain the binding effect of IHL on NSAGs. For recent examinations of the issue, see S. Sivakumaran, above note 13, pp. 238–242; Murray, Daragh, “How International Humanitarian Law Treaties Bind Non-State Armed Groups”, Journal of Conflict and Security Law, Vol. 20, No. 1, 2015CrossRefGoogle Scholar.

23 M. Sassòli, above note 13, p. 269. While AP II mentions the fact that “organized armed groups” might “exercise such control over a part of [a High Contracting Party's] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (Art. 1(1)), the Protocol does not contain rules on the administration of such territories, other than fundamental guarantees protecting persons who do not take a direct part in or who have ceased to take part in hostilities.

24 ICRC, above note 10, p. 53.

25 S. Sivakumaran, above note 13, p. 530.

26 Dieter Fleck, “The Law of Non-International Armed Conflict”, in D. Fleck (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013, p. 605.

27 Philip Spoerri, “The Law of Occupation”, in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law of Armed Conflict, Oxford University Press, Oxford, 2014, p. 185. Similarly, Sassòli finds that IHL applicable in NIAC has a “certain utility for people who find themselves in territory administered by an armed group by protecting them against torture, summary executions, starvation as a method of war, looting, enforced disappearance or the destruction of their cultural heritage”. M. Sassòli, above note 13, p. 269.

28 See, for instance, Gilles Giacca, Economic, Social, and Cultural Rights in Armed Conflict, Oxford University Press, Oxford, 2014, p. 241; Schabas, William, “Al Mahdi Has Been Convicted of a Crime He Did Not Commit”, Case Western Reserve Journal of International Law, Vol. 49, No. 1–2, 2017, pp. 97–98Google Scholar; Fortin, Katharine, “The Application of Human Rights Law to Everyday Civilian Life Under Rebel Control”, Netherlands International Law Review, vol. 63, no. 2, 2016, pp. 172, 178CrossRefGoogle Scholar; M. Sassòli, above note 13, p. 270.

29 See, for instance, Katharine Fortin, The Accountability of Armed Groups under Human Rights Law, Oxford University Press, Oxford, 2017, pp. 47–51. As Heffes points out, proponents of human rights obligations of NSAGs have argued that there are two “protection gaps” which call for such obligations. First, there is arguably a “lack of IHL rules regulating certain issues of daily life” (this will be examined further in the section below entitled “IHL Provides Important – but Limited – Rules”); and second, “issues taking place in the everyday life of individuals with no nexus to the armed conflict fall outside the scope of IHL”. See Ezequiel Heffes, “International Human Rights Law and Non-State Armed Groups: The (De)Construction of an International Legal Discourse”, in Robert Kolb, Gloria Gaggioli and Pavle Kilibarda (eds), Research Handbook on Human Rights and Humanitarian Law: Further Reflections and Perspectives, Edward Elgar, forthcoming.

30 See the article by Jerome Drevon and Irénée Herbert in this issue of the Review.

31 See ICRC, Protracted Conflict and Humanitarian Action: Some Recent ICRC Experiences, Geneva, 2016, available at: www.icrc.org/en/document/protracted-conflict-and-humanitarian-action

32 Office of the UN High Commissioner for Human Rights (UN Human Rights), Report of the OHCHR Investigation on Sri Lanka (OISL), UN Doc. A/HRC/30/CRP.2, 16 September 2015, para. 151.

33 Ibid.

34 UN Human Rights, Human Rights in the Administration of Justice in Conflict-Related Criminal Cases in Ukraine, April 2014–April 2020, 27 August 2020, para. 25.

35 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Duško Tadić AKA “Dule”, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras 69–70 (emphasis added). This view is supported by the International Criminal Tribunal for Rwanda (ICTR), in ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4-T, Judgment (Trial Chamber), 1998, para. 636. This view has also been endorsed by the ICC; see ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment Pursuant to Article 74 of the Statute: Public with Annexes I, II, and A to F (Trial Chamber III), 21 March 2016, para. 128; ICC, Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Judgment Pursuant to Article 74 of the Statute (Pre-Trial Chamber II), 7 March 2014, paras 1172–1173.

36 AP II, Art. 2(1). Armed conflicts to which AP II applies are defined in Article 1(1) of AP II.

37 See also ICRC Commentary on GC I, above note 12, paras 455–464; L. Moir, above note 21, p. 404; Eric David, “Internal (Non-International) Armed Conflict”, in A. Clapham and P. Gaeta (eds), above note 27, pp. 261–262; Jann K. Kleffner, “Scope of Application of Humanitarian Law”, in D. Fleck (ed.), above note 26, p. 59. IHL of NIAC may also apply in certain areas outside the territory of the State on whose territory the conflict takes place, for instance in the context of spill-overs.

38 ICTY, Tadić, above note 35, para. 70. Two elements are commonly examined in this context: “The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.” ICRC, How is the Term “Armed Conflict” Defined in International Humanitarian Law?, Opinion Paper, March 2008, p. 5. For an in-depth discussion on the threshold of application of IHL of NIAC, see ICRC Commentary on GC I, above note 12, paras 414–444; L. Moir, above note 21, pp. 404–414.

39 ICTY, Tadić, above note 35, para. 70. This standard has been taken up by other tribunals, including the ICC. See ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute: Public (Trial Chamber I), 14 March 2012, paras 541, 548; ICC, Bemba, above note 35, para. 141.

40 ICC, Bemba, above note 35, para. 141.

41 Rogier Bartels, “From Jus In Bello to Jus Post Bellum: When Do Non-International Armed Conflicts End?”, in Carsten Stahn, Jennifer S. Easterday and Jens Iverson (eds), Jus post bellum: Mapping the Normative Foundations, Oxford University Press, New York, 2014, p. 301.

42 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2015, p. 10, available at: www.icrc.org/en/download/file/15061/32ic-report-on-ihl-and-challenges-of-armed-conflicts.pdf.

43 ICTY, Tadić, above note 35, paras 69–70.

44 ICRC Commentary on GC I, above note 12, para. 491. Going in a similar direction, Sivakumaran concludes that a NIAC would end only “when the fighting declines up until the point that it dissipates entirely”. S. Sivakumaran, above note 13, p. 253. The ICRC suggests the following indicators to assess whether or not this threshold has been met: “the effective implementation of a peace agreement or ceasefire; declarations by the Parties, not contradicted by the facts on the ground, that they definitely renounce all violence; the dismantling of government special units created for the conflict; the implementation of disarmament, demobilization and/or reintegration programmes; the increasing duration of the period without hostilities; and the lifting of a state of emergency or other restrictive measures”. ICRC Commentary on GC I, above note 12, para. 495.

45 As the ICTY cautioned, if the end of IHL applicability is declared too easily, “the participants in an armed conflict may find themselves in a revolving door between applicability and non-applicability, leading to a considerable degree of legal uncertainty and confusion”. ICTY, Prosecutor v. Gotovina, Case No. IT06-90-T, Judgment (Trial Chamber), 15 April 2011, para. 1694.

46 Milanovic, Marko, “The End of Application of International Humanitarian Law”, International Review of the Red Cross, vol. 96, no. 893, 2014, p. 181CrossRefGoogle Scholar.

47 Note, however, that certain rules of IHL continue to apply even after the end of a NIAC. See, for example, AP II, Art. 2(2). On the applicability of international criminal law to NSAGs, see T. Rodenhäuser, above note 5, Part 3.

48 ICRC Commentary on GC I, above note 12, para. 521. The Commentary makes reference to the ICC Elements of Crimes, which define as persons protected by common Article 3 of the Geneva Conventions: “such person or persons [who] were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities” (emphasis added).

49 ICRC Commentary on GC I, above note 12, para. 541. See also Sarah Knuckey, “Murder in Common Article 3”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 21, para. 10. This understanding can be traced back all the way to Article 44 of the Lieber Code, which prescribed severe punishment for the killing of inhabitants in an invaded country.

50 AP II, Art. 2(1). The question of when a person is affected by an armed conflict is further discussed below.

51 Ibid., Art. 4.

52 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol. 8, Geneva, 1974–77, p. 205 (emphasis added).

53 See ICRC Commentary on GC I, above note 12, para. 460; Gaggioli, Gloria, “Sexual Violence in Armed Conflicts: A Violation of International Humanitarian Law and Human Rights Law”, International Review of the Red Cross, vol. 96, no. 894, 2014, p. 514CrossRefGoogle Scholar. The notion of “nexus” is discussed further in this section.

54 As Cassese observed: “As no international rule clearly and explicitly defines the nexus under discussion, the contours and content of such nexus must be inferred from the whole spirit of IHL and international criminal law (ICL) as well as the object and purpose of the relevant international rules.” Cassese, Antonio, “The Nexus Requirement for War Crimes”, Journal of International Criminal Justice, vol. 10, no. 5, 2012, p. 1397CrossRefGoogle Scholar.

55 As the ICRC reported from the conferences of government experts preceding the actual negotiations of the Additional Protocols, some experts considered it “exaggerated to lay down the automatic application of all the Protocol provisions to the entire territory of a High Contracting Party, even though only a very small part of the country might be affected by the armed conflict”. ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Commentary, Geneva, October 1973, p. 134; see also ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Report on the Work of the Conference (Second Session, Geneva, 3 May–3 June 1972), Geneva, August 1971, p. 68.

56 See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol. 15, CDDH/III/SR.43, Geneva, 1974–77, p. 35 (US); Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Vol. 15, CDDH/III/SR.44, Geneva, 1974–77, p. 49 (Canada). This interpretation is said to respect “the jurisdiction of the Parties to the conflicts for matters of their internal competence”. Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, Leiden, 2013, p. 517. See also Meron, Theodor, “On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument”, American Journal of International Law, vol. 77, no. 3, 2017, pp. 596–597Google Scholar.

57 See Geneva Convention IV, Art. 4.

58 Nils Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, p. 143. Similarly, in an analysis of the jurisprudence of the International Military Tribunal of Nuremberg and the question of which crimes were considered to have a nexus to the Second World War, Cassese held: “There was no need to show that these civilians were up in arms against Germany or its allies, no need to show formal status of prisoners of war, and no requirement that the medical experiments were directly linked to the war efforts. The existence of the armed conflict, coupled with the fact that the medical experiments in question were carried out in unison with a persecutory plan that could not concretely have been carried out in the absence of the hostilities were sufficient to consider the conduct in question to be war crimes.” A. Cassese, above note 54, p. 1401 (emphasis in original).

59 The question of whether this understanding of the “nexus” contradicts the “equality of belligerents” principle is discussed under the heading “Caveats to a Wide Nexus Requirement” below.

60 Elvina Pothelet, “Life in Rebel Territory: Is Everything War?”, Armed Groups and International Law, 20 May 2020, available at: https://armedgroups-internationallaw.org/2020/05/20/life-in-rebel-territory-is-everything-war/. This argument is further developed in Elvina Pothelet, Searching for the Nexus: A Proposal to Refine the Scope of Applicability of International Humanitarian Law and War Crimes Law, 2021 (on file with the author).

61 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Vol. 8, CDDH/I/SR.22, Geneva, 1974–77, p. 201. In the view of Cassese, “a teleological interpretation of IHL and ICL may lead to the proper classification of the offence” (emphasis in original). Accordingly, he finds that “the aim of the whole corpus of rules of IHL is to safeguard as much as possible the life and limb of persons caught in the maelstrom of armed violence. ICL supports and enforces this aim, by providing for the prosecution and punishment of all those who, by their conduct, run counter to that aim and imperil persons involved in armed conflict”. Antonio Cassese et al., “War Crimes”, in Antonio Cassese and Paola Gaeta (eds), Cassese's International Criminal Law, 3rd ed., Oxford University Press, Oxford, 2013, fn. 33.

62 See K. Fortin, above note 28, p. 178.

63 AP II, Art. 2(1).

64 Ibid., Art. 1(1).

65 See ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II): Commentary of 1987, Geneva, 1987, para. 4568, which states: “The term ‘deprived of their liberty for reasons related to the armed conflict’ is taken from Article 2 (Personal field of application), paragraph 2, of the Protocol. At this point it is appropriate to recall its far-reaching scope. … However, there must be a link between the situation of conflict and the deprivation of liberty; consequently prisoners held under normal rules of criminal law are not covered by this provision.” It is not clear what is meant by “normal rules of criminal law”.

66 Ibid., para. 4457.

67 As Bothe explains, “[r]ules concerning the punishment of war crimes are secondary rules in relation to the primary rules concerning behaviour which is prohibited in case of an armed conflict”. Michael Bothe, “War Crimes”, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 381. Indeed, if an act is committed as part of the “official duties” of a member of the NSAG and is found to have a nexus to a conflict, the same act will also be sufficiently linked to the conflict to bring into play IHL obligations of the NSAG.

68 For war crimes committed in the context of an armed conflict not of an international character, see ICC, Elements of Crimes, 2011, Arts 8(2)(c), 8(2)(e).

69 ICTY, Prosecutor v. Tihomir Blaškić, Case No. IT-95-14, Judgment (Trial Chamber), 3 March 2000, para. 69; ICTR, Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-A, Judgment (Appeals Chamber), 26 May 2003, paras 569–570. For a more comprehensive analysis of case law, see G. Gaggioli, above note 53, pp. 513–517.

70 ICTY, Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23 & 23/1, Judgment (Appeals Chamber), 12 June 2002, para. 58; ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment (Trial Chamber), 21 March 2016, para. 142; ICC, Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07-3436-tENG, Judgement (Trial Chamber), 7 March 2014, para. 1176. Note that these elements have been criticized for being overly broad and may permit different conclusions in similar situations. See Harmen van der Wilt, “War Crimes and the Requirement of a Nexus with an Armed Conflict”, Journal of International Criminal Justice, Vol. 10, No. 5, 2012.

71 ICTY, Kunarac, above note 70, para. 59; ICTR, Rutaganda, above note 69, paras 569–570. See also ICC, Bemba, above note 70, para. 143. In the Bemba case, the ICC omitted the factor that “the victim is a member of the opposing party”.

72 As stated above, this finding is, logically, limited to issues on which IHL provides rules. As seen in the section below entitled “Do NSAGs Have Human Rights Obligations?”, there are a number of issues for which IHL does not provide any rules and for which human rights law might be relevant.

73 See ICRC Commentary on GC I, above note 12, paras 447–451; ICTY, Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66, Judgment (Trial Chamber), 30 November 2005, para. 170.

74 Based on relevant case law, Cassese has argued that for a nexus to exist, “the offence must be committed to pursue the aims of the conflict or, alternatively, be carried out with a view to somehow contributing to attain the ultimate goals of a military campaign or, at a minimum, in unison with the military campaign”. A. Cassese, above note 54, p. 1397.

75 For a similar conclusion with regard to the conduct of NSAGs in Timbuktu in 2012, see ICC, Prosecutor v. Ahmad al Faqi al Mahdi, Case No. ICC-01/12-01/15-66-Conf, version publique expurgée du “Document présentant les conclusions factuelles et juridiques du Bureau du Procureur au soutien du Chef d'accusation dans l'affaire contre Ahmad al Faqi al Mahdi”, 17 December 2015, paras 258–261.

76 A nexus to the conflict might also be said to exist if the group takes control over territory and enforces pre-existing rules, such as the territorial State's criminal law. The act would still be committed by an NSAG member in the exercise of “official duties” against a person protected by IHL, and it is likely that in many cases the consolidation of territorial control – and control over the civilians living in the territory – will align with the group's military objectives. For a different view, see W. Schabas, above note 28, p. 97, arguing that “the observation that a group may be in a position to do things after it has taken power that it was not previously able to do hardly seems an adequate nexus for war crimes law to apply”.

77 While this conclusion is based on the analysis of the understanding of the nexus and indicative factors presented by criminal tribunals, it must be noted that Articles 5 and 6 of AP II do not apply to conditions of detention of persons detained for reasons unrelated to the armed conflict or to penal prosecutions of criminal offences that are not related to the conflict.

78 See ICTR, Rutaganda, above note 69, para. 570.

79 W. Schabas, above note 28, p. 98.

80 ICRC, above note 42, p. 17.

81 Mampilly, Zachariah and Stewart, Megan A., “A Typology of Rebel Political Institutional Arrangements”, Journal of Conflict Resolution, vol. 65, no. 1, 2020, p. 8Google Scholar.

82 For several examples, See T. Rodenhäuser, above note 5, pp. 159–180.

83 See, for instance, K. Fortin, above note 28.

84 IHL rules and the related war crimes regime would continue to apply to those acts for which IHL defines rules and regardless of whether other bodies of international law, such as human rights law, may be said to also be relevant. This would be an approach analogous to how the law of occupation as applicable in international armed conflict would address the issue.

85 See the section entitled “Do NSAGs Have Human Rights Obligations?” below.

86 Note, however, that even in such situations a conflict nexus will exist if members of that administration capture and ill-treat a person who is suspected of spying for another party to the conflict – irrespective of who is conducting the ill-treatment.

87 Jaw Tu Hkawng, Emily Fishbein and Yuichi Nitta, “Myanmar's Ethnic Conflicts Obstruct COVID-19 Aid to Minorities”, Nikkei Asia, 3 May 2020, available at: https://asia.nikkei.com/Spotlight/Coronavirus/Myanmar-s-ethnic-conflicts-obstruct-COVID-19-aid-to-minorities.

88 See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rules 40, 52, 87– 99, 103–104, 136, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

89 See Ibid., Rules 53–56, 99–102, 109–111, 118–129, 131–133.

90 For an excellent analysis of this point, see K. Fortin, above note 28, p. 169.

91 See, for example, ICRC Customary Law Study, above note 88, Rules 87–95, 98–103.

92 For IHL, see Ibid., Rules 38–40. For IHRL, see International Covenant on Civil and Political Rights, 16 December 1966 (entered into force 23 March 1976) (ICCPR), Art. 27; International Covenant on Economic, Social and Cultural Rights, 16 December 1966 (entered into force 3 January 1976) (ICESCR), Art. 15.

93 For IHL rules on these issues, see ICRC Customary Law Study, above note 88, Rules 109–111, 95, 105. On education, see AP II, Art. 4(3)(a).

94 See ICCPR, Arts 16, 18, 19, 21–27; ICESCR, Arts 8–10, 15.

95 See ICCPR, Art. 2(3). With regard to reparations sought by individuals for IHL violations, see ICRC Customary Law Study, above note 88, Rule 150, discussion on “Reparation Sought Directly by Individuals”.

96 A rule that does require positive steps is, for example, the obligation of all parties to armed conflicts to collect and care for the wounded and sick. See common Article 3; ICRC Customary Law Study, above note 88, Rule 109.

97 See ICCPR, Art. 2.

98 See, for instance, Special Court of Sierra Leone, Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, para. 22.

99 ICRC, above note 10, p. 54.

100 For a comprehensive analysis of relevant resolutions of the UN Security Council and UN General Assembly, see Jessica Burniske, Naz K. Modirzadeh and Dustin A. Lewis, Armed Non-State Actors and International Human Rights Law: An Analysis of the Practice of the UN Security Council and UN General Assembly, Harvard School of Law Program on International Law and Armed Conflict, 2017, Annex II. For an overview and analysis of UN Human Rights Council practice, see Annyssa Bellal, Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council, Academy In-Brief No. 7, Geneva Academy of International Humanitarian Law and Human Rights, 2016, Annex.

101 J. Burniske, N. K. Modirzadeh and D. A. Lewis, above note 100, p. 27.

102 A. Bellal, above note 100, p. 32.

103 For discussions of many such examples, see, for instance, Andrew Clapham, “Human Rights Obligations of Non-State Actors in Conflict Situations”, International Committee of the Red Cross, Vol. 88, No. 863, 2006. For more recent and comprehensive analyses of the issue, see D. Murray, above note 5; K. Fortin, above note 29; T. Rodenhäuser, above note 5; Jean-Marie Henckaerts and Cornelius Wiesener, “Human Rights Obligations of Non-State Armed Groups: An Assessment Based on Recent Practice”, in Ezequiel Heffes, Marcos D. Kotlik and Manuel J. Ventura (eds), International Humanitarian Law and Non-State Actors: Debates, Law and Practice, Asser Press, The Hague, 2020. In 2021, a group of UN human rights experts stated jointly that “at a minimum, armed non-State actors exercising either government-like functions or de facto control over territory and population must respect and protect the human rights of individuals and groups”. “Joint Statement by Independent United Nations Human Rights Experts on Human Rights Responsibilities of Armed non-State Actors”, Geneva, 25 February 2021, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26797&LangID=E.

104 For an analysis of possible sources and legal constructs that could be invoked to argue that NSAGs have human rights obligations, see A. Clapham, above note 103; D. Murray, above note 5, pp. 167–171; K. Fortin, above note 29, pp. 273–274. See also T. Rodenhäuser, above note 5, pp. 169–177.

105 Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/21/50, 16 August 2012, Annex II, para. 10; Human Rights Council, above note 14, para. 62; UN Human Rights, above note 34, para. 31. Indeed, only two human rights treaties address armed groups: the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000; and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 23 October 2009.

106 See “Joint Statement”, above note 103. For detailed discussions on the idea that human rights obligations devolve with territory, see T. Rodenhäuser, above note 5, pp. 173–176; K. Fortin, above note 29, pp. 275–276; D. Murray, above note 5, pp. 134–138.

107 In 2018 the International Law Commission concluded that the practice of non-State actors, including NSAGs, “is not practice that contributes to the formation, or expression, of rules of customary international law”. International Law Commission, “Draft Conclusions on Identification of Customary International Law, with Commentaries”, 2018, Conclusion 4, para. 3, para. 8 of the commentary to that conclusion. The question of whether the practice of NSAGs is relevant for the identification of customary international law has been subject to debate. See Sassòli, Marco, “Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law”, Journal of International Humanitarian Legal Studies, vol. 1, no. 1, 2010, pp. 21–22CrossRefGoogle Scholar; Somer, Jonathan, “Jungle Justice: Passing Sentence on the Equality of Belligerents in Non-International Armed Conflict”, International Review of the Red Cross, vol. 89, no. 867, 2007, pp. 661–662CrossRefGoogle Scholar; Bellal, Annyssa and Heffes, Ezequiel, “‘Yes, I Do’: Binding Armed Non-State Actors to IHL and Human Rights Norms Through Their Consent”, Human Rights & International Legal Discourse, vol. 12, no. 1, 2018, pp. 125–126Google Scholar.

108 For a sceptical view on possible human rights obligations of NSAGs, see M. Sassòli, above note 13, pp. 270–273. Similarly, Ronen points out that “it is also difficult to locate articulations of states’ positions regarding [non-State actors’] human rights obligations”. Ronen, Yaël, “Human Rights Obligations of Territorial Non-State Actors”, Cornell International Law Journal, vol. 46, no. 1, 2013, p. 38Google Scholar. For views that NSAGs have human rights obligations as a matter of law, see J.-M. Henckaerts and C. Wiesener, above note 103, fn. 86, citing K. Fortin, above note 28, pp. 172–176; D. Murray, above note 5, pp. 120–154; A. Bellal, above note 100, pp. 26–30. In previous publications, the present author found that “practice remains somewhat unclear on the nature and scope of possible human rights obligations”, but noted that “State and human rights expert practice of addressing human rights obligations to armed groups indicates in which direction international human rights law develops”. T. Rodenhäuser, above note 5, p. 211.

109 See above notes 100–102. While these resolutions at times make reference to territorial control exercised by armed groups, this does not seem to be a condition. A rather broad approach to possible human rights obligations of armed groups is found in progressive statements by human rights experts, such as that “human rights obligations constituting peremptory international law (ius cogens) bind States, individuals and non-State collective entities, including armed groups”. Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/19/69, 22 February 2012, para. 106.

110 Philip Alston, Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, UN Doc. E/CN.4/2006/53/Add.5, UN Commission on Human Rights, 27 March 2006, para. 25.

111 UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/21/50, 16 August 2012, Annex II, para. 10.

112 Human Rights Council, above note 14, para. 62. See also UN Human Rights, above note 34, para. 31.

113 ICRC, above note 10, p. 54. In such cases, the ICRC explains that it “operates on the premise that ‘human rights responsibilities may be recognized de facto’ if a non-State armed group exercises stable control over territory and is able to act like a State authority”.

114 Free Syrian Army, Declaration, 2016, available at: https://tinyurl.com/58r9kxj4.

115 Justice and Equality Movement, “Statement by the Opposition Movements”, 2008, available at: https://tinyurl.com/my8c4rnc.

116 Justice and Equality Movement, “Establishment of a JEM Committee for Human Rights”, 2010, available at: https://tinyurl.com/2kyndfbm.

117 Sudan Peoples’ Liberation Movement, Office of the Chairperson, Res. (6)-2013, 10 October 2013, available at: https://tinyurl.com/498rfaks.

118 T. Rodenhäuser, above note 5, p. 116.

119 For instance, in 2020 the UN Working Group on Enforced or Involuntary Disappearances reported that it had started “documenting violations tantamount to enforced disappearance perpetrated by non-State actors” and that “during the reporting period, the Working Group transmitted 21 cases tantamount to enforced disappearance, namely to the Libyan National Army – Libya (4 cases); to the self-proclaimed “Donetsk People's Republic” – Ukraine (8 cases); to the de facto authorities in Sana'a – Yemen (5 cases); and to Hamas – State of Palestine (4 cases)”. Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/45/13, 7 August 2020, paras 23, 24. Note, however, that most human rights enforcement mechanisms, such as treaty bodies and tribunals, are currently addressing State violations of human rights, not the conduct of NSAGs.

120 On the challenge of finding a relevant reference list of human rights for different NSAGs, see T. Rodenhäuser, above note 5, pp. 177–180, 189–192, 206–208.

121 See A. Bellal, above note 100, Annex; J. Burniske, N. K. Modirzadeh and D. A. Lewis, above note 100, Annex II. Occasionally, resolutions condemn specific violations explicitly, such as violence against children and women, including child recruitment, discrimination or sexual violence, or demand protection and access for humanitarian personnel.

122 UN Mission in the Republic of South Sudan, Conflict in South Sudan: A Human Rights Report, 8 May 2014, para. 18.

123 Note, however, that with regard to some issues, such as the minimum age for recruitment, IHL and IHRL address the same issue but include different standards. Compare Article 4(3)(c) of APII with the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.

124 P. Alston, above note 110, para. 85.

125 Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Mali, UN Doc. A/HRC/22/33, 7 January 2012.

126 As the Human Rights Committee has held, “the positive obligations on States Parties to ensure [ICCPR] rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities”. Human Rights Committee, General Comment No. 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 8. See also Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, Judgment, 29 July 1988, para. 175; African Commission on Human and Peoples’ Rights, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Communication No. 245/02, Judgment, 15 May 2006, paras 143–147.

127 However, some have cautioned that addressing human rights obligations directly to NSAGs could legitimize such groups. See UN Commission on Human Rights, Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/RES/1992/72, 5 March 1992, paras 614, 627. For discussion on this issue, see G. Giacca, above note 28, pp. 248–249. For the opposing view, see Frédéric Mégret, “Detention by Non-State Armed Groups in NIACs”, in E. Heffes, M. D. Kotlik and M. J. Ventura (eds), above note 103, p. 186; J.-M. Henckaerts and C. Wiesener, above note 103, p. 207.

128 Human Rights Council, Report of the International Commission of Inquiry to Investigate all Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya, UN Doc. A/HRC/17/44, 1 June 2011, para. 218.

129 UN Human Rights, International Legal Protection of Human Rights in Armed Conflict, 2011, p. 21. For an excellent analysis of the ability of armed groups to respect, protect and fulfil human rights, see D. Murray, above note 5, pp. 181–192.

130 G. Giacca, above note 28, p. 267.

131 Human Rights Council, above note 14, para. 62.

132 See the article by Jerome Drevon and Irénée Herbert in this issue of the Review.

133 Human Rights Committee, above note 126, para. 8.

134 European Court of Human Rights, Osman v. United Kingdom, Appl. No. 87/1997/871/1083, Judgment, 28 October 1998, para. 115.

135 See Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990.

136 See T. Rodenhäuser, above note 5, pp. 161–164; G. Giacca, above note 28, p. 269; J.-M. Henckaerts and C. Wiesener, above note 103, p. 214; D. Murray, above note 5, pp. 172–202.