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Published online by Cambridge University Press: 17 January 2008
This article considers how armed opposition groups fighting in an internal armed conflict are bound by the rules of international humanitarian law despite not being party to the relevant treaties. It assesses a number of explanations—customary international law, general principles of international humanitarian law, rules governing treaties and third parties and claims to succession—and argues that each has limited value. The ability of the state to legislate on behalf of all its individuals is considered the best explanation. This principle is explored and objections to it are countered. This article also examines the expressed commitment of armed opposition groups to the rules of international humanitarian law.
1 See Report of the High-Level Panel on Threats, Challenge and Change, ‘A More secure world: Our shared responsibility’ (2004) 11.
2 The term ‘armed opposition group’ is being used in this article to cover all armed groups that do not have a link with the government, irrespective of their political ideology. It includes those armed groups that conduct hostilities in a conflict in which the government does not participate.
3 Art 3 Common to the four Geneva Conventions of 12 Aug 1949.
4 Protocol Additional to the Geneva conventions of 12 Aug 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1997, Art 1(1).
5 1954 Hague Conventions for the Protection of Cultural Property in the Event of Armed Conflict Art 19(1)
6 Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and other Devices to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, Art 1(3).
7 Other instruments use different wording but raise issues similar to those considered in this article, eg Art 22(1) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict states ‘This Protocol shall apply in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties.’
9 In addition, Lauterpacht, HOppenheim' International law: Vol II (Longmans London 1952) 211, n 3, has stated: ‘The observance of fundamental human rights is not dependent upon the recognition of a specific status. Neither is it affected by the circumstance that the insurgents have risen in rebellion against the legitimate authority.’Google Scholar
10 Elder, DA ‘The historical background of common article 3 of the Geneva Convention of 1949’ (1979) 11 Case Western Reserve J Intl L 37, 55.Google Scholar
12 See respectively Prosecutor v Morris Kallon and Brima Bazzy Kamara SCSL-2004–15-AR72(E) Decision on Challenge to Jurisdiction, Lomé Accord Amnesty (13 Mar 2004) para 47; Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (25 Jan 2005) para 172; Military and Paramilitary Activities In and Against Nicaragua, Merits, ICJ Reports (1986) 4, 113–14.
14 Nicaragua (n 12) para 218.
15 Prosecutor v Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) It-94–1-AR72 (2 Oct 1995) para 98.
16 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4 (2 Sept 1998) para 608.
17 Lomé (n 12) para 47.
18 Tadić, (n 15) para 98.
19 Akayesu (n 16) para 608.
21 Tadić, (n 15) para 98, cited with approval in Prosecutor v Enver Hadzihasanovic and Amir kubura (Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis, Motions for Acquittal) IT-01–47-AR73.3 (11 Mar 2005) para 46.
22 Wilson, HAInternational Law and the Use of Force by National Liberation Movements (Clarendon Press Oxford 1998) 50.Google Scholar
23 ‘The Geneva Convention and the Treatment of Prisoners of War in Vietnam’ (1966–1967) 80 Harvard L rev 851, 856.
24 Statute of the International Court of Justice, Art 38(1)(b).
25 Reparations for Injuries Suffered in the Service of the United Nations  ICJ Reports 174, 178.
27 Pictet, JS et al. (eds) The Geneva Conventions of 12 August 1949: Commentary, III Geneva Convention Relative to the Treatment of Prisoners of War (ICRC Geneva 1960) 36.Google Scholar
30 Tadić (n 15) paras 103, 107, and 108.
32 Gunning, IR ‘Modernizing customary international law: the challenge of human rights’ (1991) 31 Virginia J Intl L 211, 227–34.Google Scholar
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35 Jennings and Watts (n 28) 26.
36 Tadić (n 15) para 99.
38 cf Report of the Secretary-General pursuant to para 2 of Security Council Resolution 808 (1993) Un Doc S/25704 (3 May 1993) para 34: ‘In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise.’ The Secretary-General adopted a different view as regards the ICTR: Report of the Secretary-General pursuant to para 5 of Security Council Resolution 955 (1994), S/1995/134 (13 Feb 1995) para 12.
39 Tadić (n 15) para 143; Prosecutor v Dario Kordić and Mario Čerkez (Judgment) IT-95-14/2-A (17 Dec 2004) paras 44–6.
40 Cheng considers the line between custom and general principles to be ‘not very clear’: Cheng, BGeneral Principles of Law as Applied by International Courts and Tribunals (Grotius Cambridge 1987) 23. See also Barcelona Traction, Light and Power Company, Limited  ICJ Reports 3, Separate Opinion of Judge Ammoun 286, 300–1.Google Scholar
41 The Corfu Channel Case, Merits  ICJ Reports 4, 22; Nicaragua (n 12) 14, 113–14; and Reservations to the Genocide Convention, Advisory Opinion  ICJ Reports 15, 23.
42 Tadić (n 15) para 117.
43 International Commission of Inquiry on Darfur (n 12) para 158.
44 See generally, Simma, B and Alston, P ‘The sources of human rights law: custom, jus cogens and general principles’ (1992) 12 Australian Ybk Intl L 82.Google Scholar
45 This is the version of the Martens clause that appears in preambular para 4 to Additional Protocol II.
46 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion  ICJ Reports 226, Dissenting Opinion of Judge Shahabuddeen 375, 406; Dissenting Opinion of Judge Weeramantry 429, 493; Fitzmaurice, G ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ 1957-II Rec des Cours 1, 7.Google Scholar
47 Status of Rebels (n 11) 423–9.
49 Cassese opines that, while the VCLT only relates to states, ‘the customary rules on the matter have a broader scope, in that they govern the effects of treaties on any international subject taking the position of a third party vis-àvis a treaty’ Status of Rebels (n 11) 423.
50 Vienna Convention on the Law of Treaties, Art 36(1).
51 Emphasis added.
52 Casses International Law. (n 28) 130 states: ‘it would not make sense to lay down a set of obligations solely incumbent upon the central authorities vis-à-vis all the other contracting States, while leaving rebels free from any legal trammel.’
53 Additional Protocol II, Art 1(1).
54 For additional reasons, see Status of Rebels (n 11) 424–8.
55 Status of Rebels (n 11) 428 seems to implicitly note this stating, ‘it will of course be necessary to determine in each civil war whether rebels are ready and willing to accept the Protocol’.
56 Pictet (n 27) 37.
57 Zegveld (n 31) 15.
58 Pictet (n 27) 37 (emphasis added).
59 Official Records of the Diplomatic Conference on the Reaffirmation and Development on International Humanitarian law Applicable in Armed Conflicts (1974–1977) CDDH/III/SR.32, Vol XIV, p 314, para 22 (Federal Political Department Bern 1978).
60 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. IIB, P 94 (Federal Political Department Berne 1951).
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63 Trial of major War Criminals Before the International Military Tribunal, 14 Nov 1945–1 Oct 1946, Vol 1 (Nuremberg 1947) 171, 223.
64 McNair, ADThe Law of Treaties (Clarendon Press Oxford 1961) 676. McNair adds ‘at any rate when the other party to a treaty grants recognition of belligerency to the insurgents’. However, with the decline of the recognition of belligerency, it is submitted that the redacted version holds true.Google Scholar
65 The relevant part reads: ‘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.’ That the phrase ‘High Contracting Parties’ refers only to states is confirmed by Sandoz (n 61) 1338; Takemoto, M ‘The 1977 Additional Protocols and the law of Treaties’ in Swinarski, C (ed) Studies and Essays on International Humanitarian Law and Red Cross principles in Honour of Jean Pictet (ICRC Geneva 1984) 257–8.Google Scholar
66 Pictet (n 27) 57.
67 Official records of the Diplomatic Conference on the Reaffirmation and Development on International Humanitarian Law Applicable in Armed Conflicts (1974–1977), Volume VIII (Federal Political Department Bern 1978) 213. All references to this phrase were subsequently dropped.
68 Bothe, M, Partsch, KJ, and Solf, WANew Rules of Victims of Armed Conflicts; Commentary on the two 1977 protocols additional to the Geneva Conventions of 1949 (Martinus Nijhoff The Hague 1982) 700. See also Status of Rebels (n 11) 429;Google ScholarFlenier-Gerster, T and Meyer, MA ‘New Developments in Humanitarian Law: A Challenge to the Concept of Sovereignty’ (1985) 34 International and Comparative law Quarterly 267, 272 and 277 who ask, if the obligation of armed opposition groups to observe common Art 3 is taken for granted, ‘are the revolutionary forces then subjects of international law, or are they bound to apply Article 3 because that provision has been incorporated into their State's internal law?’CrossRefGoogle Scholar
69 Meron, THuman Rights in Internal Strife: Their International Protection (Grotius Cambrigge 1987) 39.Google Scholar
70 Status of Rebels (n 11) 429.
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73 Jurisdiction of the Courts of Danzig (1928) PCIJ Series B, No 15, p 17.
76 Lauterpacht, HThe Development of International Law by the International Court (Stevens & Sons Londson 1958) 176.Google Scholar
77 Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal Principle I.
78 Report of the International Law Commission covering its second session, 5 June–29 July 1950, A/1316 (1950) Formulation of the Nurnberg principles, para 99.
79 1954 Draft Code, Art 1; 1996 Draft Code and ILC Commentaries thereto.
80 See also Cassese International Law (n 52) 144–5 who notes that there are a number of international rules that directly impose obligations upon individuals ‘regardless of whether the national legal system within which individuals live contains a similar or the same obligation’, ie whether they have been translated into domestic law. Although limited by Cassese to customary rules, there would seem to be no reason why such a principle cannot be extended to treaty rules.
81 Status of Rebels (n 11) 16.
82 While certain national liberation movements participated in the diplomatic conference that culminated in Additional Protocol I, no armed oppositions groups were invited to participate in the formation of Additional Protocol II.
83 An interesting question is to what extent the degree of legitimacy of certain rules affects their degree of compliance by armed opposition groups.
85 ‘Peace overtures from Colombia's king of the paramilitaries’ The Gurardian (9 Sept 2002).
86 Pictet (n 27) 37–8.
87 ‘Money and the Sri Lankan Tigers’ The Economist (8 Mar 2001).
88 Forsythe (n 84) 292, n 93.
90 Zegveld (n 31) 14, n 18.
91 Roberts, A and Guelff, RDocuments on the Laws of War (Clarendon Press Oxford 2000) 362.Google Scholar
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95 Forsythe (n 84) 275.
96 Veuthey (n 93) 139.
97 KLA spokesman cited in Human Rights Watch Under Orders: War Crimes in Kosovo (Human Rights Watch New York 2001) 492–3.
98 Human Rights Watch Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal's Civil War(Human Rights Watch New York 2004) 22–3, in 58.
99 FMLN La legitimidad de nuestros metodos de lucha (Secretaria de promocion y proteccion de lo Derechos Humanos del FMLN EL Salvador 10 Oct 1988) 89 quoted in Tadić (n 15) para 107.
100 Moir (n 72) 131; Veuthey (n 93) 140.
101 Akayesu (n 16) para 627.
102 Commission on Human Rights Report of Special Rapporteur on extrajudicial, summary or arbitrary executions: visit to Sri Lanka UN Doc E/CN.4/1998/68/Add.2, Para II.B.1.
103 Inter-American Commission on Human Rights Third Report on the Human Rights Situation in Colombia, Chapter IV, para 20, n 11.
105 See eg Prosecutor v Stanislav Gali´ (Judgment and Opinion) IT-98-29-T (5 Dec 2003) paras 22–5.
106 See the definition in Bernhardt (n 48) 927: ‘A treaty is a consensual agreement between two or more subjects of international law intended law intended to be and considered by the parties as binding and containing rules of conduct under international law for at least one (normally for all) of the parties.’
107 1962 Yearbook of the International Law Commission: Vol II, 161 (emphasis added).
109 Vienna Convention on the Law of Treaties, Art 3.
110 1966 Yearbook of the International Law Commission: Vol II, 177.
111 Tadić (n 15) para 143.
112 ibid paras 88–9. Zegveld (n 31) 30 notes that ‘At the time the Appeals Chamber made this statement, it had not decided whether the conflict in the former Yugoslavia was international or internal in nature. It may be inferred that the Tribunal referred to agreements concluded by both states and armed opposition groups.’
113 Lomé (n 12) para 42.
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117 H Blix ‘Contemporary Aspects of Recognition’ 1970-II Rec des Cours 617, 618; Jennings and watts (n 28) 165.
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120 Status of Rebels (n 11) 428 Citing the ICRC Bulletin No 27 (5 Apr 1978) P 2.
121 Zegveld (n 31) 29. See also Veuthey (n 93) 141.
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125 Comprehensive agreement on respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic front of the Philippines.
126 Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Rule of Law, Ch IV.
127 Sectretariat for Coordiniating the Peace Process, Press Release: Rehabilitation and Human Rights Issues Addressed (19 Mar 2003).
128 International Commission on Inquiry (n 12) para 155.
129 Ground Rules available at <http://www.unicef.org/path/Documents/Session%204%20Humanitarian%20Principles/Trainer%20Resources/4.11%20SPLM%20Operation%20Lifeline%20Sudan%20Ground%20Rules.doc>.
130 See <http://www.un.org/special-rep/children-armed-conflict/English/Commitments.html>.
131 See <http://www.genevacall.org/resources/testi-referencematerials/deeds-signatory-groups.htm>. Listing 26 such armed opposition groups.
132 A standara ‘deed’ is available at <http://www.genevacall.org>.
133 Treatment of Prisoners (n 23) 853; Forsythe (n 84) 292.
134 Second Report of ONUSAL A/46/658, S/23222 at paras 64/5 cited in Zegveld (n 31) 17, n 27.
135 Human Rights Watch War Without Quarter: Colombia and International Humanitarian Law Ch II. Available at <http://www.hrw.org/reports98/Colombia/>.
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