The first question is that of applicable law. It is only when the law to be applied has been settled that one can examine its content, which will be done in the next chapter.

Practice of international bodies convincingly demonstrates that international humanitarian law applicable to armed opposition groups extends well beyond Common Article 3 of the Geneva Conventions and Additional Protocol II to the Geneva Conventions. It remains the case, however, that the ‘new’ humanitarian law applicable to armed opposition groups concerns principles rather than detailed rules. It is unclear whether armed opposition groups are bound by human rights law. International criminal law as it currently stands does not apply to armed opposition groups as such, and probably rightly so.

Common Article 3 and Protocol II

Treaty law

International bodies have uniformly affirmed the applicability of Common Article 3 and Protocol II to armed opposition groups as a matter of treaty law.

Common Article 3 provides: ‘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.’ Despite the clarity of this provision, both states and commentators have sometimes suggested that Common Article 3 does not bind armed opposition groups or that it applies only to the individual members of these groups, rather than to the group as a whole.