Obligations of non-State armed actors in internal armed conflicts

162 Pages·2009·1.14 MB·English

FACULTY OF LAW
Lund University

Sally Alexandra Longworth

Obligations of non-State armed
actors in internal armed conflicts

Master thesis
20 credits (30 ECTS)

Supervisor: Professor Ilaria Bottigliero

Master’s Programme in International Human Rights Law

Spring 2008
Contents
SUMMARY 1
ABBREVIATIONS 2
1 INTRODUCTION, SCOPE AND METHODOLOGY 3
1.1 Scope 6
1.1.1 Armed opposition groups in internal armed conflicts 6
1.1.2 Colombia 7
1.1.3 Uganda 9
1.2 Research Method 11
2 APPLYING INTERNATIONAL HUMANITARIAN LAW TO
ARMED OPPOSITION GROUPS 13
2.1 The path from rebellion to insurgency to belligerency - definitions 13
2.1.1 Rebellion 14
2.1.2 Insurgency 15
2.1.3 Recognition of belligerency 16
2.1.4 Common Article 3 and APII 18
2.2 Conditions of applicability and the definition of non-international
armed conflict 21
2.2.1 Common Article 3 21
2.2.2 The impact of APII on the defition of “non-international armed
conflicts” 24
2.2.3 Definition of “non-international armed conflict” under
international criminal law 27
2.2.3.1 The International Criminal Tribunals 27
2.2.3.2 The Rome Statute of the International Criminal Court 1998 30
2.3 Applying international humanitarian law to armed opposition
groups 32
2.3.1 Colombia 39
2.4 Obligations beyond international humanitarian law – compliments
of human rights law? 42
3 SUBSTANTIVE OBLIGATIONS OF ARMED OPPOSITION
GROUPS DURING HOSTILITIES 51
3.1 The parameters of obligations - geographical and temporal
application 52
3.2 Obligations to treat persons humanely, notably obligations to
protect civilians 53
3.2.1 Humane treatment 53
3.2.1.1 Respect for the wounded and sick 57
3.2.1.2 Protection of children 58
3.2.1.3 Prohibition of violence to life and person 60
3.2.1.4 Prohibition against cruel treatment, torture and mutilation 61
3.2.2 Protection of the civilian population 62
3.2.2.1 Protection of civilian objects 65
3.2.2.2 Provision of relief 67
3.3 Obligations relevant to detained persons and penal prosecutions of
persons 69
3.3.1 Penal prosecutions - Common Article 3(1)(d) 70
3.3.2 Penal prosecutions - article 6 APII 73
3.3.3 Treatment of detained persons - article 5 APII 74
3.3.4 Obligation to prosecute those who violate international
humanitarian law? 77
3.4 Limitations on means and methods of warfare 80
3.4.1 Prohibition of starvation 80
3.4.2 Prohibition against the use of land mines and other
indiscriminate weapons 81
4 ENFORCING INTERNATIONAL HUMANITARIAN
OBLIGATIONS AND ESTABLISHING PEACE AND
ACCOUNTABILITY 88
4.1 The duty to enforce humanitarian obligations 90
4.2 The interplay and adaptablility of enforcement mechanisms as used
in Colombia and Uganda 93
4.3 Colombia – amnesties and prosecution – in the interest of truth
justice and reconciliation? 95
4.4 Uganda’s peace agreement and the ICC arrest warrants 106
4.4.1 The ICC as a means of enforcing international humanitarian law106
4.4.2 Possible options within the framework of the Rome Statute 111
4.4.2.1 Article 16: Security Council deferral 112
4.4.2.2 Article 19(2)(b): Admissibility 114
4.4.2.3 Article 53(2)(c): Prosecutor deferral in the “interests of justice” 122
4.4.3 Implications for the future of ICC investigation in Uganda 126
4.5 Enforcement through human rights mechanisms - Colombia 128
5 CONCLUDING REMARKS 131
BIBLIOGRAPHY 134
TABLE OF CASES 156
Summary
Internal armed conflicts are today the more common mode of warfare and a
growing concern for the international community to address. In this, the
difficulty of addressing non-State armed groups has grown in salience and
importance. Non-State armed actors are held by the international community
as responsible for their actions based on international humanitarian law. As
such, if international humanitarian law is to be effective in non-international
armed conflicts, it is essential to fully understand what these standards are
and what armed opposition groups must do to fulfil their obligations under
international humanitarian law.
Both Common Article 3 and Additional Protocol II to the Geneva
Conventions of 1949 state they are applicable to both parties to a conflict
and are addressed in absolute terms. As such, the duties flowing from these
provisions bind not only States, but also non-State armed groups. However,
international practice has rarely indicated which measures groups must take
to comply with the wide range of international norms applicable to such
armed opposition groups. Human rights treaties provide a valuable
interpretative device to expand upon and clarify the obligations imposed on
the parties under international humanitarian law. Indeed, the necessity to
utilise human rights law draws attention to the lack of efficient and effective
enforcement mechanisms in international humanitarian law. Furthermore,
the implementation of obligations on non-State actors is still inherently tied
up with age-old problems of State sovereignty, but without State measures
to enforce compliance with the minimum of standards the all too common
reality of internal armed conflicts can escalate, with horrific consequences.
International humanitarian law developed around the notion that the legal
norms provide actual restraints to guide the conduct of individuals and are
not mere theoretical matters between States. To fulfil this purpose, the facts
on the ground need to be recognised and the challenge of addressed armed
groups confronted.
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Abbreviations
ACHR American Convention on Human Rights

API Additional Protocol I to the Geneva Conventions of
1949, 1977

APII Additional Protocol II to the Geneva Conventions of
1949, 1977

ECHR Convention for the Protection of Human Rights and
Fundamental Freedoms [European Convention on
Human Rights]

GA Res. General Assembly Resolution

IACHR Inter-American Commission on Human Rights

IACtHR Inter-American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Convention on Economic, Social and
Cultural Rights

ICJ International Court of Justice

ICRC International Committee of the Red Cross and Red
Crescent

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former
Yugoslavia

SC Res. Security Council Resolution

SCSL Special Court for Sierra Leone

UN United Nations

UNHCHR United Nations High Commissioner for Human
Rights

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1 Introduction, Scope and
Methodology
Internal armed conflicts are the more common mode of warfare today and a
growing concern for the international community. In 1998, only two of the
twenty-five major armed conflicts in the world were waged between States.1
Similarly, in 2002 there was only one inter-State conflict, while there were
sixty-six intrastate conflicts.2 However, the historical development of the
law of armed conflict was primarily aimed at preventing humanitarian
abuses by States. This dramatically changed with the adoption of the four
Geneva Conventions of 1949,3 all of which include Common Article 3 as a
means to regulate armed conflict not of an international character.4
Common Article 3, applicable to all parties to the conflict, including
non-State armed actors, was a significant development for the protection of
civilians during internal armed conflict and a move from a State-centric
perspective of warfare. The subsequent adoption of the Additional Protocol
II to the Geneva Conventions5 took this a step further, outlining wide-
ranging obligations parties to the conflict must undertake where the

1 SIPRI, Armaments, Disarmament and International Security, SIPRI Yearbook 1999
(Oxford University Press, Oxford, 1999). Note law stated in thesis research as at 31 August
2008.
2 D. Capie and P. Policzer, Keeping the Promise of Protection: Holding Armed Groups to
the Same Standard as States, A Policy Brief Commissioned for the UN-Secretary-General’s
High Level Panel on Global Security, The Armed Groups Project University of British
Columbia, 15 January 2004, p. 1, available at <www.armedgroups.org/the-armed-groups-
project/working-papers> (last visited 24 July 2008) [hereinafter Capie and Policzer 2004].
Of these 66 intrastate conflicts, 35 were internal conflicts involving only non-State actors.
See further Uppsala Universitet, UCDP Database, available at
www.pcr.uu.se/gpdatabase/search.php. See also L. Harborn and P. Wallensteen, Pattern of
major armed conflicts, 1990-2006, SIPRI Yearbook 2007, (Oxford, Oxord University
Press, 2007).
3 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field 75 U.N.T.S. 31 (1949) [hereinafter GCI]; Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GCII];
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T.
3316, 75 U.N.T.S. 135 [hereinafter GCIII]; Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
[hereinafter GCIV].
4 Common Article 3 of GCI, GCII, GCIII, and GCI, ibid [hereinafter Common Article 3].
5 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, opened for signature 12
December 1977, 1125 U.N.T.S. 609 [hereinafter APII].
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threshold for applicability of the Protocol has been met. In creating these
obligations, the international community has clearly indicated that internal
wars are a concern of international law.
As non-international armed conflicts have become more prevalent in
the post-World World II era, the consequences and effects of these conflicts
have impacted on international peace and security, demanding the
international community to address the regulation of these conflicts once
again.6 In turn, the difficulty of addressing non-State armed groups has
grown in salience and importance.
Armed non-State actors are held responsible for their actions by the
international community based on international humanitarian law. This
trend appears likely to grow as the work of the International Criminal Court
evolves, which has jurisdiction for international crimes committed during
the course of internal armed conflicts.7 As such, if international
humanitarian law is to be effective in non-international armed conflict, it is
essential to fully understand what these standards are and what armed
opposition groups must do to fulfil their obligations under international
humanitarian law.
The asymmetry between States and armed opposition groups creates
difficulties in the application of international humanitarian rules.8 Despite
this, it is possible to discern a minimum set of obligations to which non-
State actors will be held by the international community. This thesis outlines
the obligations of non-State armed actors during internal armed conflicts
under Common Article 3 and APII, using the conflicts in Colombia and
Uganda as illustrative examples throughout. Several determinations are
necessary to facilitate this investigation: in what way are non-State actors

6 See for example SC Res. 660, UN Doc.S/RES/660 (1990), adopted in 2932nd meeting, 2
August 1990; SC Res. 794 (1992), UN Doc. S/RES/79, adopted in 3145th meeting, 3
December 1992; SC Res. 864 (1993), UN Doc. S/RES/864, adopted in 3208 th meeting, 6
May 1993. See further G. J. Andreopoulos, ‘Violations of Human Rights and Humanitarian
Law and Threats to International Peace and Security’, in R. Thakur and P. Malcontent
(eds.), From Sovereign Impunity to International Accountability: The Search for Justice in
a World of States, (Tokyo, United Nations University Press, 2004).
7 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998)
[hereinafter Rome State 1998].
8 R. Geiß, ‘Asymmetric conflict structures’, IRRC Vol. 88, No. 664 pps. 757-777
(December 2006).
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bound by international law, what international instruments and rules address
non-State actors, and what mechanisms have been adopted to ensure
compliance with international humanitarian obligations on non-State actors
will be reviewed.
Before analysing what obligations non-State actors have under
international humanitarian law, it is important to establish when
international humanitarian law applies to non-State armed actors and what
exactly they are bound by. Chapter two gives an overview of how
international humanitarian law applied to non-State actors prior to the
adoption of the Geneva Conventions 1949 and Additional Protocols 1977,9
how this changed with the adoption of Common Article 3 and APII, and the
thresholds of applicability for these two instruments. Also addressed are the
problems associated with applying humanitarian law to non-State actors and
whether non-State actors are bound beyond international humanitarian law
by international human rights law. A number of obligations flow from
international humanitarian law that must be respected during the armed
conflict. Chapter three analyses the provisions of Common Article 3 and
APII to identify the obligations contained therein, as well as standards and
measures necessary to ensure compliance. Finally, Chapter four analyses the
various mechanisms employed by States to enforce international
humanitarian law obligations on non-State armed actors in order to establish
peace and accountability. From this analysis, it is clear that although
international humanitarian law standards for non-State armed actors have
been established, ensuring such standards are met and maintained remains
difficult and rare. Lingering problems associated with State sovereignty
have affected implementation, yet without State measures to enforce
compliance with the minimum of standards, the all too common reality of
internal armed conflicts can escalate with horrific consequences.

9 Supra notes 3 and 5; Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and
Relating to the Protection of Victims of International Armed Conflicts, opened for signature
Dec. 12, 1977, 1125 U.N.T.S. 3 [hereinafter API].
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1.1 Scope
International humanitarian law and the position of non-State actors under
international law are vast and complex subjects. Therefore, the scope of this
thesis is principally limited to the obligations of non-State armed actors in
internal armed conflicts under international humanitarian law. However, the
obligations of States will be addressed where appropriate, particularly in the
Chapter four discussion regarding the duty to enforce humanitarian
obligations. The purpose of using Colombia and Uganda as illustrative
examples is not to list violations of international humanitarian law
committed by parties to the conflict, but to demonstrate some of the legal
complexities involved in applying international humanitarian law to non-
State actors and enforcing these obligations.

1.1.1 Armed opposition groups in internal
armed conflicts
The terms of “internal armed conflicts” and “non-international armed
conflicts” are defined explicitly in Chapter 2.2 and are used interchangeably
throughout the thesis.
Armed groups are very diverse, in their aims, degree of organisation,
control over their members, territory or people, and particularly in their
inclination to respect humanitarian rules.10 In general, such groups are
armed, use force to achieve their objective and are not under State control.11
A wide variety of actors have been included in this definition, including
guerrillas, rebel groups, militias, insurgents and their variants. Private
security or private military corporations are not included in the remit of this

10 M. Sassòli, ‘Possible Legal Mechanisms to Improve Compliance by Armed Groups with
International Humanitarian Law and International Human Rights Law’, paper submitted at
the at the Armed Groups Conference, Vancouver, 13-15 November 2003, available at
http://www.c-r.org/our-work/accord/engaging-groups/index.php p. 4 (last visited 24 July
2008) [hereinafter Sassòli 2003].
11 Definition used by International Council on Human Rights Policy, ‘Ends & means:
human rights approaches to armed groups – Main Report’, (ICHRP, Geneva, 2000), p. 5
available at www.reliefweb.int/library/documents/2001/EndsandMeans.pdf (last visited 24
July 2008).
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definition.12 For the purposes of this study, “non-State armed actors” will be
used interchangeably with “armed opposition groups”, “armed dissident
groups”, “insurgencies” and “insurgent movements”. National liberation
movements as defined under Article 1(4) of Additional Protocol I to the
Geneva Conventions 194913 are not discussed. Likewise, discussion of the
obligations of States in internal armed conflicts is limited to specific areas,
although it is recognised that the obligations on armed opposition groups
and State actors in an internal armed conflict are intertwined.

1.1.2 Colombia
The conflict in Colombia has been chosen as an illustrative example for a
number of reasons. The length, intensity of the conflict, and variety of
actors involved were key to including Colombia as an illustrative example
because they demonstrate a number of important factors in the application
of international humanitarian law to non-State armed actors. Furthermore,
the mechanisms employed by the Colombian government in enforcing
humanitarian obligations highlight the complexities involving in achieving
justice and preventing further violations.
The origins of the conflict can be traced back to the mid-1960s,
making it one of the world’s longest non-international armed conflicts.14
Although its intensity has varied during the forty-plus years of conflict,15 no
resolution has been found to date and there are approximately three million
people internally displaced recorded.16

12 Ibid.
13 API, supra note 9, article 1(4).
14 A. Cariollo-Suarez, ‘Hors de Logique: Contemporary Issues in International
Humanitarian Law as Applied to Internal Armed Conflict’, 15 Am. U. Int'l L. Rev. 1 (1999)
p. 10 [hereinafter Cariollo-Suarez 1999]. See also The Center for International Policy’s
Colombia Program, www.ciponline.org/colombia/index.htm (last visited 24 July 2008) for
an account of the conflict.
15 For example, there was a sharp escalation of the conflict during the 1980s, following a
repressive military response to the insurgency movement. Despite the variance in intensity,
the conflict has not abated in over forty-years, Cariollo-Suarez 1999, supra note 14, pps.
10-11.
16 Security Council Report, Update Report No. 4: Protection of Civilians in Armed Conflict,
16 November 2007, available at
<http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.3588183/>. Human Rights
Watch, World Report 2007, (Human Rights Watch, New York, January 2008) pps. 199-204
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