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Accountability of Armed Opposition Groups
in International Law


Who is accountable under international law for the acts committed
by armed opposition groups? In today™s world the great majority of
political con¬‚icts involve non-state actors attempting to exert a
political in¬‚uence (such as overthrowing a government or bringing
about secession). Notwithstanding their impact on the course of
events, however, we tend to know little about these groups, and even
less about how to treat their actions legally.
In this award-winning scholarship, Liesbeth Zegveld examines the
need to identify legally the parties involved when internal con¬‚icts
arise, and the reality of their demands for rights. Her study draws
upon international humanitarian law, human rights law and
international criminal law to consider a fundamental question: who
is accountable for the acts committed by non-state actors, or for the
failure to prevent or repress these acts?
This study will be of interest to academics, postgraduate students
and professionals involved with armed con¬‚ict and international
relations.

l i e s b e t h z e g v e l d practises as an international and criminal
lawyer. In 1998, she received a Fulbright Scholarship to do research at
New York University and the Inter-American Commission on Human
Rights in Washington, DC. For her dissertation on armed opposition
groups she received the degree ˜cum laude™ and the Netherlands™
Human Rights Award, 2000. She is the co-author, with Frits Kalshoven,
of the third edition of Constraints on the Waging of War: an Introduction
to International Humanitarian Law (ICRC 2001).
cambridge studies in international and comparative law

This series (established in 1946 by Professors Gutteridge, Hersch
Lauterpacht and McNair) is a forum of studies of high quality in the ¬elds
of public and private international law and comparative law. Although
these are distinct legal subdisciplines, developments since 1946 con¬rm
their interrelationship.
Comparative law is increasingly used as a tool in the making of law at
national, regional and international levels. Private international law is
increasingly affected by international conventions, and the issues faced by
classical con¬‚icts rules are increasingly dealt with by substantive
harmonization of law under international auspices. Mixed international
arbitration, especially those involving state economic activity, raise mixed
questions of public and private international law. In many ¬elds (such as
the protection of human rights and democratic standards, investment
guarantees and international criminal law) international and national
systems interact. National constitutional arrangements relating to
˜foreign affairs™, and to the implementation of international norms, are a
focus of attention.
Professor Sir Robert Jennings edited the series from 1981. Following his
retirement as General Editor, an editorial board has been created and
Cambridge University Press has recommitted itself to the series, af¬rming
its broad scope.
The Board welcomes works of a theoretical or interdisciplinary
character, and those focusing on new approaches to international or
comparative law or con¬‚icts of law. Studies of particular institutions or
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Cambridge Studies in International and Comparative Law (CSICL)

general editors

Professor James Crawford SC FBA
Whewell Professor of International Law, Faculty of Law and Director,
Lauterpacht Research Centre for International Law
University of Cambridge
Member of the International Law Commission

Professor John S. Bell FBA
Professor of Law
Faculty of Law
University of Cambridge
editorial board
Professor Hilary Charlesworth, University of Adelaide
Professor Lori Damrosch, Columbia University Law School
Professor John Dugard, Universiteit Leiden
Professor Mary-Ann Glendon, Harvard Law School
Professor Christopher Greenwood, London School of Economics
Professor David Johnston, University of Edinburgh
Professor Hein K¨ tz, Max-Planck-Institut, Hamburg
o
Professor Donald McRae, University of Ottawa
Professor Onuma Yasuaki, University of Tokyo
Professor Reinhard Zimmermann, Universit¨ t Regensburg
a

advisory committee
Professor Sir D. W Bowett QC
Judge Rosalyn Higgins QC
Professor Sir Robert Jennings QC
Professor J. A. Jolowicz QC
Professor Sir Eli Lauterpacht QC
Professor Kurt Lipstein QC
Judge Stephen Schwebel

A list of the books in this series can be found at the end of this book
Accountability of Armed Opposition
Groups in International Law


Liesbeth Zegveld
©¤§ µ®©© °
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge  µ, United Kingdom
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521811309

© Liesbeth Zegveld 2002


This book is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2002

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©®-± 978-0-521-81130-9 hardback

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Contents




Table of treaties and declarations page ix
Table of cases xiii
Table of other documents xviii
List of abbreviations xxvii
Introduction 1

PART 1 THE NORMATIVE GAP
1 Legal restraints on armed opposition groups as such 9
Common Article 3 and Protocol II 9
Other rules of humanitarian law 26
Human rights law 38
International criminal law 55
2 Substantive obligations of armed opposition
groups as such 59
Humane treatment of prisoners 59
Protection of civilians 75
Underdevelopment of the law 92

PART 2 THE ACCOUNTABILITY GAP
3 Accountability of group leaders 97
Crimes 99
Command responsibility of group leaders 111
Criteria for accountability of group leaders 121
Limited prospects for prosecution 131
4 Accountability of armed opposition groups as such 133
Evidence for accountability of armed opposition groups 134


vii
viii contents

Attributing acts to armed opposition groups 152
Successful armed opposition groups 155
Finding a suitable forum 157
5 Accountability of the state for acts of armed
opposition groups 164
Applicable law 166
The obligation of the state to take action 180
The pertinence of territorial control 207
6 The quest for accountability 220
Group versus individual accountability 220
Group versus state accountability 224
Conclusion 229

Bibliography 231
Index 242
Table of treaties and declarations




1907 Hague Convention (IV) Respecting the Laws and Customs of
War on Land, reprinted in Schindler and Toman, Laws of Armed
Con¬‚icts 57 103, 114
1945 Charter of the Nuremberg Tribunal, reprinted in Schindler and
Toman, Laws of Armed Con¬‚icts 826 (Agreement for the Prosecution
and Punishment of the Major War Criminals of the European
Axis) 55, 56, 98, 105, 106
1945 Charter of the United Nations, reprinted in Brownlie BDIL 1 2, 4,
88, 144
1945 Statute of the International Court of Justice, reprinted in
Brownlie BDIL 438 4, 26
1946 Charter for the International Military Tribunal for the Far East,
Special Proclamation of the Supreme Commander for the Allied
Powers of 19 January 1946, reprinted in: Department of State
Bulletin, Vol. XIV, No. 349 (10 March 1946) 98
1948 Convention on the Prevention and Punishment of the Crime of
Genocide, reprinted in Brownlie BDHR 31 44, 108, 109, 178, 185,
186, 189, 197, 219, 221
1949 Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field (Geneva Con-
vention I) 75 UNTS 31 111
1949 Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea (Geneva Convention II) 75 UNTS 85 111
1949 Geneva Convention Relative to the Treatment of Prisoners of War
(Geneva Convention III) 75 UNTS 135 29, 38, 69, 70, 71, 111



ix
x table of treaties


1949 Geneva Convention Relative to the Protection of Civilian Persons
in Time of War (Geneva Convention IV) 75 UNTS 287 29, 65, 66,
67, 71, 103, 104, 111, 200
1950 Convention for the Protection of Human Rights and Fundamental
Freedoms, reprinted in Brownlie BDHR 326 39, 45, 161, 162, 166,
167, 168, 170, 171, 173, 180, 184, 186, 191, 198, 204, 209, 216
1951 Convention Relating to the Status of Refugees, reprinted in
Brownlie BDHR 64 180
1954 Convention for the Protection of Cultural Property in the Event of
Armed Con¬‚ict, reprinted in Schindler and Toman, Laws of Armed
Con¬‚icts 661 27, 28, 36, 81, 93, 146, 147, 148, 177, 185, 197
1961 European Social Charter, reprinted in Brownlie BDHR 363
1966 International Covenant on Economic, Social and Cultural Rights,
reprinted in Brownlie BDHR 114 43, 44
1966 International Covenant on Civil and Political Rights, reprinted in
Brownlie BDHR 125 38, 39, 43, 44, 45, 50, 64, 66, 70, 149, 161,
166, 168, 172, 173, 179, 180, 181, 183, 184, 185, 187, 198, 210“11,
216
1969 American Convention on Human Rights, reprinted in Brownlie
BDHR 495 39, 40, 41, 45, 47, 50, 61, 159, 160, 161, 166, 167, 177,
180, 184, 198, 212, 216
1969 Vienna Convention on the Law of Treaties, reprinted in Brownlie
BDIL 388 30, 45, 209, 212, 215, 216
1975 UN Declaration on the Protection of All Persons from being
Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, UN General Assembly Res. 3452 (XXX)
149
1977 Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of International Armed
Con¬‚icts (Protocol I) 16 ILM 1391 (1977) 17, 18, 27, 29, 32, 33, 34,
35, 38, 65, 66, 73, 75, 76, 77, 78, 79, 80, 82, 102, 114, 115, 120,
122, 124, 128, 129, 130, 194
1977 Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of Non-International
Armed Con¬‚icts (Protocol II) 6 ILM 1442 (1977) 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 21, 22, 25, 26, 29, 30, 33, 34, 37, 42, 50, 51,
52, 53, 57, 59, 60, 61, 62, 63, 64, 65, 67, 69, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 83, 85, 86, 87, 89, 91, 92, 93, 99, 100, 101, 102,
103, 105, 112, 117, 136, 141, 142, 143, 144, 145, 146, 147, 148,
xi
table of treaties


157, 158, 166, 174, 175, 176, 177, 178, 180, 184, 187, 189, 198,
199, 200, 206, 207, 218, 221, 225
1984 Convention against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment, reprinted in Brownlie BDHR 38
178, 179, 180
1989 Convention on the Rights of the Child, reprinted in Brownlie
BDHR 182 63
San Jos´ Agreement on Human Rights (El Salvador “ Frente
1990 e
Farabundo Marti para la Liberacion Nacional (FMLN)), UN Doc.
A/44/971, S/21541, Annex 49“50, 51, 186, 212
1992 Declaration on the Protection of all Persons from Enforced
Disappearance, UN General Assembly Res. 47/133 198, 206
1993 Statute of the International Tribunal for the Prosecution of Per-
sons Responsible for Serious Violations of International Humani-
tarian Law Committed in the Territory of the Former Yugoslavia
Since 1991, reprinted in Brownlie BDIL 456 107, 109, 112, 113,
115, 116, 117, 118, 119, 120, 121, 124, 125, 128, 130, 131, 200, 222
1994 Statute of the International Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations
of International Humanitarian Law Committed in the Territory
of Rwanda and Rwandan Citizens Responsible for Genocide and
Other Such Violations Committed in the Territory of Neighbour-
ing States Between 1 January 1994 and 31 December 1994, 33 ILM
1602 (1994) 100, 107, 109, 112, 114, 115, 116, 117, 118, 119, 120,
121, 124, 125, 128, 130, 131, 136, 200, 222
1996 Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices as Amended on 3 May 1996 (entry
into force 3 December 1998), 35 ILM 1206 (1996) (Protocol II to the
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) 26, 36, 85, 86, 146,
147, 177, 184, 185, 187, 188, 197, 212, 218
1997 Convention on the Prohibition of the Use, Stockpiling, Production
and Transfer of Anti-Personnel Mines and on their Destruction
(entry into force 1 March 1999), 36 ILM 1507 (1997) 27, 177, 184,
185, 188, 197
1998 Statute of the International Criminal Court, 37 ILM 999 (1998) 55,
57, 58, 98, 101, 103, 104, 105, 106, 108, 109, 111, 113, 117, 119,
120, 124, 127, 128, 130, 141, 142, 200, 221, 222
xii table of treaties


1998 United Kingdom Human Rights Act 1998, 38 ILM 464 (1999)
1999 Second Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Con¬‚ict,
text available on www.icrc.org/ihl (visited, 1 January 2001) 27, 28,
82, 146, 147, 177, 185, 189, 197
Table of cases




International Court of Justice
Case Concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina
versus Federal Republic of Yugoslavia) Application of 20 March 1993
178
Corfu Channel Case (UK versus Albania) (Judgment of 9 April 1949)
(Merits) 1949 ICJ Rep. 4 209
Difference Relating to Immunity From Legal Process of a Special Rap-
porteur of the Commission on Human Rights (Advisory Opinion of
29 April 1999) 1999 ICJ Rep. 62 214
Gabcíkovo“Nagymaros Project (Hungary versus Slovakia) ( Judgment of
25 September 1997) 37 ILM 162 (1998) 211, 212
Legal Consequences for States of the Continued Presence of South Africa
in Namibia (Advisory Opinion of 21 June 1971) 1971 ICJ Rep. 16 209
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of
8 July 1996) 35 ILM 809 (1996) 19, 26, 85, 227
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua
versus US) (Judgment of 27 June 1986) (Merits) 1986 ICJ Rep. 14 10, 13,
19, 20, 24, 174
Reservations to the Convention on Genocide (Advisory Opinion of 28 May
1951) 1951 ICJ Rep. 15 108
United States Diplomatic and Consular Staff in Teheran Case (US versus
Iran) (Judgment of 24 May 1980), 1980 ICJ Rep. 3 182, 183
Vienna Convention on Consular Relations (Germany versus US) (Request
for the Indication of Provisional Measures, 3 March 1999), 37 ILM 810
(1998) 214



xiii
xiv table of cases

European Court of Human Rights
Akkoc versus Turkey ( Judgment of 10 October 2000) 193
Cakici versus Turkey (Judgment of 8 July 1999) (not yet published) 171
¸
Ergi versus Turkey (Judgment of 28 July 1998) 81 Reports (1998-IV) at 1751
168, 190, 192, 194, 199, 204
HLR versus France (Judgment of 29 April 1997) 36 Reports (1997-III) at 745
167
Kaya versus Turkey (Judgment of 19 February 1998) 204
Kilic versus Turkey (Judgment of 28 March 2000) 193
Kurt versus Turkey (Judgment of 25 May 1998) 74 Reports (1998-III) at 1152
170, 204
Loizidou versus Turkey (Judgment of 23 March 1995) (Preliminary Objec-
tions) Ser. A 310 (1995) 209
¨ ¨
Platform ˜ Arzte Fur Das Leben™ ( Judgment of 21 June 1988) Ser. A 139
(1988) 167, 182, 195
Yasa versus Turkey (Judgment of 2 September 1998) 88 Reports (1998-VI)
at 2411 193, 198, 203
X and Y versus Netherlands ( Judgment of 26 March 1985) Eur. Ct. HR
Ser. A 91 (1985) 185


European Commission of Human Rights
W. versus United Kingdom, Appl. 9348/81, 32 DR 190 (1983) 191, 195,
199
X versus Ireland, Appl. 6040/73 (Decision of 20 July 1973) 16 YB ECHR 388
(1973) 185
Yasa versus Turkey, Appl. 22495/93, Report of the Commission (8 April
1997) 88 Reports (1998-VI) 193, 204


Inter-American Court of Human Rights
Las Palmeras ( Judgment of 4 February 2000) 161
´
Velasquez Rodríguez versus Honduras, Ser. C 4 (1988) 167, 171, 182, 184,
196, 198


Inter-American Commission on Human Rights
Rep. No 26/97, Case No 11.142 (Colombia) (30 September 1997) 10
Tablada Case, Rep. No 55/97, Case No 11.137 (Argentina) (30 October 1997)
10, 41, 61, 136, 137, 138, 146, 160
xv
table of case s


International Criminal Tribunal for the Former Yugoslavia
Aleksovski Case, Prosecutor versus Aleksovski, Case No. IT-95-14/1-T
(25 June 1999) 98“9, 106, 113, 116, 119, 120, 122, 123, 126, 127, 129,
130, 131, 142, 223
Aleksovski Case, Prosecutor versus Zlatko Aleksovski, Case No. IT-95-14/1-A
(24 March 2000) (Appeal) 116
Blaˇki´ Case, Prosecutor versus Tihomir Blaˇki´ , Decision on the Defence
sc sc
Motion to Strike Portions of the Amended Indictment Alleging ˜Failure
to Punish Liability™, Case No. IT-95-14-PT (4 April 1997) 129
Blaˇki´ Case, Prosecutor versus Tihomir Blaˇki´ , Case No. IT-95-14-T
sc sc
(3 March 2000) 104
Celebici Case, Prosecutor versus Zejnil Delalic, Zdravko Mucic, Hazim
Delic, Esad Landzo, Case No. IT-96-21-T (16 November 1998) 24, 31,
100, 101, 103, 110, 111, 117, 118, 119, 121, 122, 125, 126, 127, 129
Furundˇ ija Case, Prosecutor versus Anto Furundˇ ija, Case No. IT-95-17/1-T
z z
(10 December 1998) 100, 112, 205
Furundˇ ija Case, Prosecutor versus Anto Furundˇ ija, Case No. IT-95-17/1-A
z z
(21 July 2000) (Appeal)
Karadzi´ Case, Prosecutor versus Radovan Karadzi´ and Ratko Mladic,
c c
Review of Indictment Pursuant to Rule 61 of the Rules of Procedure
and Evidence, Case No. IT-95-5-R61 & No. IT-95-18-R61 (11 July 1996)
110, 117
Kordi´ Case, Prosecutor versus Dario Kordi´ , Mario Cerkez, Decision
c c
on the Joint Defence Motion to Dismiss the Amended Indictment for
Lack of Jurisdiction Based on the Limited Jurisdictional Reach of
Articles 2 and 3, Case No. IT-95-14/2-PT (2 March 1999) 20“1, 104,
129
Kupreski´ Case, Prosecutor versus Kupreski´ et al., Case No. IT-95-16-T
c c
(14 January 2000) 23, 60, 91
Marti´ Case, Prosecutor versus Milan Marti´ , Review of Indictment Pur-
c c
suant to Rule 61 of the Rules of Procedure and Evidence, Case No.
IT-95-11-R61 (8 March 1996) 90, 91
Milosovi´ Case, Prosecutor versus Slobodan Milosovic, Milan Miluti-
c
novic, Nikola Sainovic, Dragoljub Ojdanic, Vlajko Stojilkovic, Decision
on Review of Indictment and Application for Consequential Orders
(24 May 1999) 117
Nikoli´ Case, Prosecutor versus Dragon Nikoli´ , Review of Indictment
c c
Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case
No. IT-94-2-R61 (20 October 1995) 107
xvi table of cases

Tadi´ Case, Decision on the Defence Motion for Interlocutory Appeal on
c
Jurisdiction, Case No. IT-94-1-AR72 (2 October 1995) 19, 20, 21, 23, 25,
26, 27, 28, 29, 30, 31, 32, 34, 36, 61, 62, 77, 80, 81, 100, 101, 102, 104,
105, 107, 135, 144, 147, 148
Prosecutor versus Duˇ ko Tadi´ , Case No. IT-94-1-T (7 May 1997) (Merits)
s c
60, 105, 107, 112
Prosecutor versus Duˇ ko Tadi´ , Case No. IT-94-1-A (15 July 1999) (Appeal
s c
on Merits) 35, 103, 112, 123


International Criminal Tribunal for Rwanda
Akayesu Case, Prosecutor versus Jean-Paul Akayesu, Case No. ICTR-96-4-T
(2 September 1998) 11, 16, 19, 21, 100, 105, 108, 135, 136, 143, 145
Kayishema Case, Prosecutor versus Cl´ ment Kayishema and Obed Ruzin-
e
dana, Case No. IT-95-14-PT & No. ICTR-95-1-T (21 May 1999) 16, 61, 75,
105, 110, 118, 121, 122, 123, 124, 128, 129
Musema Case, Prosecutor versus Musema, Case No. ICTR-96-13 (27 January
2000) 75, 105, 165
Rutaganda Case, Prosecutor versus Rutaganda, Case No. ICTR-96-3
(6 December 1999) 100


European Court of Justice
A. Racke GmbH & Co. versus Hauptzollamt Mainz, Case C-162/96
( Judgment of 16 June 1998), [1998-6] ECR, I-3655 215


Human Rights Committee
A. and H. Sanjuan Arevalo versus Colombia, Comm. No. 181/1984 (View
adopted on 3 November 1989) Of¬cial Records of the Human Rights
Committee 1989/90, Vol. II, at 392“4 171, 172


Committee against Torture
GRB versus Sweden, Comm. 83/1997, CAT/C/20/D/83/1997 (View adopted
on 15 May 1998) 179


Mexican General Claims Commission
US versus Mexican General Claims Commission, Youmans Claim, US versus
Mexico (1926), 4 RIAA 110 155
xvii
table of case s

National Courts
USA versus Pohl 116
US versus Wilhelm von Leeb et al. (the High Command Case), Trials of
War Criminals before the Nuremberg Military Tribunals under Control
Council Law No. 10 1946“9, Vol. XI, at 543“4 (Washington DC, US
Government Printing Of¬ce, 1950) 124
Yamashita Case, Trial of General Tomoyuki Yamashita (US Military Com-
mission, Manila, 8 October “ 7 December 1945), United Nations War
Crimes Commission, 4 Law Reports of Trials of War Criminals, 1, 88
(1945) 98
Table of other documents




Human Rights Committee
General Comment 6/16 (27 July 1982) on Article 6 of the International
Covenant, reproduced in A/37/40, Annex V 180, 181, 198
General Comment 20/44 (3 April 1992) on Article 7 of the Covenant,
reproduced in A/47/40, Annex VI 185, 206
Decision of the Human Rights Committee on State Succession to the
Obligations of the Former Yugoslavia under the International
Covenant on Civil and Political Rights, reprinted in 15 EHRR, 233
(1992) 149
Concluding Observations on Sri Lanka, CCPR/C/79/Add.56 (3 October
1995) 199
Concluding Observations on Algeria, CCPR/C/79/Add.95 (4 August 1998)
169, 189, 199
Summary Records of the 19th Sess., CCPR/C/SR.442“444 (summer 1983)
211, 214
Summary Records of the 29th Sess., CCPR/C/SR.716 (8 April 1987) 201
Summary Records of the 42nd Sess., CCPR/C/SR.1067 (summer 1991)
185
Summary Records of the 54th Sess., CCPR/C/SR.1436 (28 June 1995) 196
Yearbook of the Human Rights Committee 1983“84, Vol. II., CCPR/4/Add.1
195, 199


Inter-American Commission on Human Rights
Report on the Situation of Human Rights in Nicaragua, OEA/Ser.L/V/II.45,
Doc. 16 rev.1 (17 November 1978)
Report on the Situation of Human Rights in the Republic of Colombia,
OEA/Ser.L/V/II.53, Doc. 22 (30 June 1981) 160

xviii
xix
table of other documents

Report on the Situation of Human Rights in the Republic of Nicaragua,
OEA/Ser.L/V/II.53, Doc. 25 (30 June 1981)
Report on the Situation of Human Rights in the Republic of Guatemala,
OEA/Ser.L/V/II.61, Doc. 47, rev.1 (5 October 1983) 189
Second Report on the Situation of Human Rights in Colombia,
OEA/Ser.L/V/II.84 (4 October 1993) 39, 62, 69, 158, 185, 192, 195
Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/II.85,
Doc. 28, rev. (11 February 1994) 205, 212
Third Report on the Situation of Human Rights in Colombia,
OEA/Ser.L/V/II.102, Doc. 9, rev.1 (26 February 1999) 11“12, 16, 20, 21,
32, 36, 41, 54, 61, 65, 67, 75, 76, 79, 80, 81, 82, 84, 85, 145, 155, 158,
160, 196, 206
Annual Reports 1971“81, in Inter-American Commission on Human
Rights, Ten Years of Activities 1971“1981 (1982) 170, 180, 199
Annual Report 1992“3, OEA/Ser.L/V/II.83 Doc. 14, corr.1 (12 March 1993)
47, 159
Annual Report 1996, OEA/Ser.L/V/II.95, Doc. 7, rev. (14 March 1997) 47,
62, 64, 69, 90, 169


Committee against Torture
General Comment on the Implementation of Article 3 in the Context of
Article 22 of the Convention Against Torture, A/53/44, Annex IX (1998)


UN Security Council
Res. 733 on Somalia (23 January 1992)1 88
Res. 788 on Liberia (19 November 1992) 32, 139
Res. 794 on Somalia (3 December 1992) 11, 32, 88, 113
Res. 808 on the Tribunal for the Former Yugoslavia (22 February 1993)
20, 111
Res. 812 on Rwanda (12 March 1993) 11
Res. 814 on Somalia (26 March 1993) 32, 138
Res. 993 on Georgia (12 May 1993) 31
Res. 837 on Somalia (6 June 1993) 113
Res. 851 on Angola (15 July 1993) 77, 88
Res. 955 on the Establishment of the Rwanda Tribunal (8 November 1994)
111
Res. 968 on Tajikistan (16 December 1994) 67
1 The text of resolutions of the UN Security Council is available on www/un.org.
xx table of other documents

Res. 972 on Liberia (13 January 1995) 32
Res. 1001 on Liberia (30 June 1995) 32
Res. 1076 on Afghanistan (22 October 1996)
Res. 1193 on Afghanistan (28 August 1998) 11, 48, 104, 113, 150
Res. 1212 on Angola (3 December 1998) 48
Res. 1261 on Children in Armed Con¬‚ict (25 August 1999) 63
Res. 1265 on the Protection of Civilians in Armed Con¬‚ict (17 September
1999)
Res. 1315 on the Establishment of a Special Court for Sierra Leone
(14 August 2000) 37
Res. 1325 on Women, Peace and Security (31 October 2000) 68
Final Report of the Commission of Experts for Yugoslavia Established
Pursuant to Security Council Resolution 780 (1992) S/1994/674, Annex
(27 May 1994) 100, 118
Final Report of the Commission of Experts for Rwanda Established Pur-
suant to Security Council Resolution 935, S/1994/1405, Annex (1994)
105, 107, 109


UN General Assembly
Final Declaration and Programme of Action of the 1993 World Confer-
ence on Human Rights, A/Conf.157/23, reprinted in 32 ILM 166 (1993)
Res. 174 (II) on the Establishment of the International Law Commission,
A/519, at 105 ff. (1947)
Res. 2444 (XXIII) Respect for Human Rights in Armed Con¬‚icts (19 De-
cember 1968), reprinted in Schindler and Toman, Laws of Armed Con¬‚icts
199 31, 32, 76, 78
Res. 2675 (XXV) Basic Principles for the Protection of Civilian Populations
in Armed Con¬‚icts (9 December 1970), reprinted in Schindler and
Toman, Laws of Armed Con¬‚icts 203 31, 32, 76, 77, 78, 80, 87, 90, 91
Res. 40/32 Basic Principles on the Independence of the Judiciary
(29 November 1985) 72
Res. 40/146 Basic Principles on the Independence of the Judiciary
(13 December 1985) 72
Report of the Preparatory Committee, United Nations Diplomatic Con-
ference of Plenipotentiaries on the Establishment of an International
Criminal Court, A/CONF.183/2/Add.1 (14 April 1998) 56
Working Group on General Principles of Criminal Law, United Nations
Diplomatic Conference of Plenipotentiaries on the Establishment
of an International Criminal Court, A/Conf.183/C.1/WGGP/L.5/Rev.2
(3 July 1998) 57
xxi
table of other documents

UN Commission on Human Rights
Res. 1984/52, ˜Situation of Human Rights in El Salvador™ (14 March 1984)2
88
Res. 1986/39, ˜Situation of Human Rights in El Salvador™ (12 March 1986)
89
Res. 1988/65, ˜Situation of Human Rights in El Salvador™ (8 March 1988)
63
Res. 1989/67, ˜Question of Human Rights and Fundamental Freedoms in
Afghanistan™ (8 March 1989) 67, 69, 88, 90
Res. 1989/68, ˜Question of Human Rights and Fundamental Freedoms in
El Salvador™ (8 March 1989) 81, 145
Res. 1990/53, ˜Situation of Human Rights in Afghanistan™ (6 March 1990)
77
Res. 1990/75, ˜Consequences of Acts of Violence Committed by Irregu-
lar Armed Groups and Drug Traf¬ckers for the Enjoyment of Human
Rights™ (7 March 1990) 46
Res. 1990/77, ˜Situation of Human Rights in El Salvador™ (7 March 1990)
48
Res. 1991/29, ˜Consequences on the Enjoyment of Human Rights of Acts
of Violence Committed by Armed Groups that Spread Terror Among
the Population and by Drug Traf¬ckers™ (5 March 1991) 43, 46
Res. 1991/75, ˜Situation of Human Rights in El Salvador™ (6 March 1991)
Res. 1992/42, ˜Consequences on the Enjoyment of Human Rights of Acts
of Violence Committed by Armed Groups that Spread Terror Among
the Population and by Drug Traf¬ckers™ (28 February 1992) 46
Res. 1993/48, ˜Consequences on the Enjoyment of Human Rights of Acts
of Violence Committed by Armed Groups that Spread Terror Among
the Population and by Drug Traf¬ckers™ (9 March 1993) 46
Res. 1993/60, ˜Situation of Human Rights in Sudan™ (10 March 1993)
46
Res. 1993/66, ˜Situation of Human Rights in Afghanistan™ (10 March 1993)
22, 65, 91
Res. 1993/71, ˜Extrajudicial, Summary or Arbitrary Executions™ (10 March
1993) 199
Res. 1993/83, ˜Effects of Armed Con¬‚icts on Children™s Lives™ (10 March
1993)
Res. 1994/39, ˜Question of Enforced Disappearances™ (4 March 1994)
Res. 1994/46, ˜Human Rights and Terrorism™ (4 March 1994) 48, 181
2 The text of resolutions of the UN Commission on Human Rights is available on
www/unhcr.ch.
xxii table of other documents

Res. 1995/74, ˜Situation of Human Rights in Afghanistan™ (8 March 1995)
48, 66
Res. 1995/77, ˜Situation of Human Rights in Sudan™ (8 March 1995) 33,
65, 69
Res. 1996/47, ˜Human Rights and Terrorism™ (19 April 1996) 42
Res. 1996/73, ˜Situation of Human Rights in Sudan™ (23 April 1996) 88
Res. 1997/42, ˜Human Rights and Terrorism™ (11 April 1997) 48
Res. 1997/47, ˜Assistance to Somalia in the Field of Human Rights™
(11 April 1997) 150
Res. 1997/59, ˜Situation of Human Rights in Sudan™ (15 April 1997) 11,
88
Res. 1998/59, ˜Assistance to Somalia in the Field of Human Rights™
(17 April 1998) 139
Res. 1998/67, ˜Situation of Human Rights in Sudan™ (21 April 1998) 11,
22, 145
Res. 1998/70, ˜The Question of Human Rights in Afghanistan™ (21 April
1998) 150
Res. 1999/1, ˜Situation of Human Rights in Sierra Leone (6 April 1999)
104, 139
Res. 1999/18, ˜The Situation of Human Rights in the Federal Republic
of Yugoslavia (Serbia and Montenegro), the Republic of Croatia and
Bosnia and Herzegovina (23 April 1999) 11
Res. 1999/65, ˜Fundamental Standards of Humanity™ (28 April 1999) 46
Res. 2000/18, ˜Situation of Human Rights in the Democratic Republic of
the Congo™ (18 April 2000) 37, 87
Res. 2000/69, ˜Fundamental Standards of Humanity™ (27 April 2000) 46
Summary Records of the 2nd Sess., E/CN.4/SR.431 (1947) and E/CN.4/AC.1/
SR.34 (1948)
Report of the Working Group on Enforced or Involuntary Disappear-
ances, E/CN.4/1435 (26 January 1981) 209
Final Report on the Situation of Human Rights in El Salvador of the Spe-
cial Representative for El Salvador, J. A. Pastor Ridruejo, E/CN.4/1502
(18 January 1982) 202
Report by the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, S. Amos Wako, E/CN.4/1983/16 (31 January 1983) 69
Final Report on the Situation of Human Rights in El Salvador of the Spe-
cial Representative for El Salvador, J. A. Pastor Ridruejo, E/CN.4/1984/25
(19 January 1984) 11, 33, 202
Report on the Situation of Human Rights in El Salvador of the Spe-
cial Representative, J. A. Pastor Ridruejo, E/CN.4/1985/18 (1 February
1985) 11, 13, 145
xxiii
table of other documents

Report on the Situation of Human Rights in Afghanistan of the Special
Rapporteur, F. Ermacora, E/CN.4/1985/21 (19 February 1985) 11, 13, 29,
48
Final Report on the Situation of Human Rights in El Salvador of the
Special Representative, J. A. Pastor Ridruejo, E/CN.4/1987/21 (2 February
1987) 81
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, S. Amos Wako, E/CN.4/1988/22 (19 January 1988) 64
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, S. Amos Wako, E/CN.4/1989/25 (6 February 1989) 175
Report on the Situation in Afghanistan by the Special Rapporteur,
F. Ermacora, E/CN.4/1989/24 (16 February 1989) 150, 211
Report on the Situation of Human Rights in Afghanistan by the Special
Rapporteur, F. Ermacora, E/CN.4/1990/25 (31 January 1990) 79
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, S. A. Wako, E/CN.4/1991/36 (3 February 1991) 42
Report of the Special Rapporteur on Torture, N. S. Rodley, E/CN.4/1992/17
(27 December 1991) 48
Report by the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Bacre Waly Ndiaye, E/CN.4/1994/7 (7 December 1993) 88,
181, 190, 201, 206
Report of the Special Rapporteur on Question of Torture, N. S. Rodley,
E/CN.4/1994/31 (6 January 1994) 12, 42
´´ ´
Report of the Special Rapporteur for Sudan, Gaspar Bíro, E/CN.4/1994/48
(1 February 1994) 42
Final Report on the Situation of Human Rights in Afghanistan by
F. Ermacora, E/CN.4/1994/53 (14 February 1994) 211
Report of Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Bacre Waly Ndiaye, E/CN.4/1995/61 (14 December 1994)
175, 194
Joint Report of the Special Rapporteur on Question of Torture,
N. S. Rodley, and the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions, Bacre Waly Ndiaye, E/CN.4/1995/111 (16 January
1995) 11, 145, 192, 202
´´ ´
Report of the Special Rapporteur for Sudan, Gaspar Bíro, E/CN.4/1995/58
(30 January 1995) 22
´´ ´
Report of the Special Rapporteur for Sudan, Gaspar Bíro, E/CN.4/1996/62
(20 February 1996) 68
Final Report on the Situation of Human Rights in Afghanistan of the
Special Rapporteur, Choong-Hyun Paik, E/CN.4/1996/64 (27 February
1996) 214
xxiv table of other documents

Statement of the Chairman on Chechnya, E/CN.4/1996/177 (24 April 1996)
67
Report of the Meeting of Special Rapporteurs/Representatives Experts
and Chairpersons of Working Groups of the Special Procedures of the
Commission on Human Rights and the Advisory Services Programme,
E/CN.4/1997/3 (30 September 1996) 39, 42, 45
Report of the Special Rapporteur on Extrajudicial, Summary or Arbi-
trary Executions, Bacre Waly Ndiaye, E/CN.4/1997/60/Add.1 (23 Decem-
ber 1996) 48, 64, 77, 175, 200
Final Report on the Situation of Human Rights in Afghanistan of the
Special Rapporteur, Choong-Hyun Paik, E/CN.4/1997/59 (20 February
1997) 154, 211
Guiding Principles on Internal Displacement, Report of the Repre-
sentative of the Secretary-General, F. M. Deng, E/CN.4/1998/53/Add.2
(11 February 1998) 49, 52
Interim Report of the Special Representative on Children in Armed Con-
¬‚ict, O. A. Otunnu, E/CN.4/1998/119 (12 March 1998) 63


UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities
Res. 1994/26, ˜Minimum Humanitarian Standards™ (26 August 1994)3 49
Report of the Special Rapporteur of the Sub-Commission on Preven-
tion of Discrimination and Protection of Minorities, L. Joinet, Study
on Amnesty Laws and their Role in the Safeguard and Promotion of
Human Rights, E/CN.4/Sub.2/1985/16 (21 June 1985) 206


UN High Commissioner for Human Rights
Report on the Situation of Human Rights in Kosovo, HC/Kosovo
(7 September 1999)


UN Secretary-General
Report ˜Respect for Human Rights in Armed Con¬‚icts™, A/7720 (20 Novem-
ber 1969) 15
Report ˜Respect for Human Rights in Armed Con¬‚icts™, A/8052 (18 Sep-
tember 1970)
3 Text available on www.unhcr.ch.
xxv
table of other documents

Report ˜Respect for Human Rights in Armed Con¬‚icts™, A/83/70 (2 Septem-
ber 1971)
Report of the UN Secretary-General on the Situation in Somalia,
Recommending the Establishment of UNOSOM, S/23829, and add. 1“2
(21 April 1992) 139
Report of the Secretary-General Pursuant to Paragraph 2 of Security
Council Resolution 808 (1993), S/25704 (3 May 1993) 20, 55, 113
Report Pursuant to Paragraph 5 of Security Council Resolution 955
(1994), S/1995/134 (13 February 1995) 100
˜Analytical Report on Minimum Humanitarian Standards™, E/CN.4/
1998/87 (5 January 1998) 12, 42“3, 45, 46, 52, 54, 109, 143, 144, 227
Report ˜Fundamental Standards of Humanity™, E/CN.4/1999/92 (18 Decem-
ber 1998) 46, 47, 200
Report on the Protection of Civilians in Armed Con¬‚ict, S/1999/957
(8 September 1999) 63
Report ˜Fundamental Standards of Humanity™, E/CN.4/2000/94 (27 Decem-
ber 1999) 46


Human Rights Division of the United Nations Observer Mission
in El Salvador (ONUSAL)
First Report, A/45/1055, S/23037 (16 September 1991) 50, 145
Second Report, A/46/658, S/23222 (15 November 1991) 17, 51, 63, 69, 77,
78, 85, 153, 187
Third Report, A/46/876, S/23580 (19 February 1992) 70, 71, 72, 78, 82, 85,
86, 153, 186, 187


International Law Commission
Draft Code of Offences against Peace and Security of Mankind, A/2693
(1954), reprinted in ILCYb 1950, Vol. II, at 11 107, 175
Draft Articles on State Responsibility provisionally adopted by the Com-
mission on ¬rst reading, A/51/10 (1996) 133
Draft Code of Crimes against the Peace and Security of Mankind, A/51/10,
Supp. No. 10 (1996) 100, 106, 107, 109, 111, 118, 125, 200
Draft Articles on State Responsibility provisionally adopted by the Draft-
ing Committee on second reading in 1998, A/CN.4/L.569 (4 August
1998) 133, 153, 154, 155, 156, 166, 181, 182, 212, 213, 215, 217, 226
First Report of the Special Rapporteur on State Responsibility,
J. Crawford, A/CN.4/490/Add.5 (22 July 1998) 133, 156, 157, 182
xxvi table of other documents

ILCYb 1962, Vol. II (Law of Treaties) 30, 50
ILCYb 1975, Vol. II (Commentary to Draft Articles on State Responsibility)
157, 176
ILCYb 1979, Vol. II (Commentary to Draft Articles on State Responsibility)
217


General Assembly of the Organization of American States
Res. ˜Consequences of Acts of Violence Perpetrated by Irregular Armed
Groups on the Enjoyment of Human Rights™, AG/RES.1043, (XX-0/90)
(1990), reproduced in Inter-American Yearbook on Human Rights 1990, at
352“4 40
Res. ˜Respect for International Humanitarian Law™, AG/RES. 1335 (XXV-
O/95) (9 June 1995), reproduced in: Inter-American Yearbook on Human
Rights 1995, at 970“2


Other
1995 Turku Declaration on Minimum Humanitarian Standards (adopted
at a meeting of experts convened in Turku/…bo, Finland, 1990), revised
version reprinted in (1995) 89 AJIL 218“23 48, 49, 55, 200
Abbreviations




AI Amnesty International
American Journal of International Law
AJIL
American University Journal of International Law
Am. UJ Int™l L. & Pol™y
and Policy
Annuaire Suisse de Droit International
Ann. SDI
Appl. Application
I. Brownlie (ed.), Basic Documents on Human
Brownlie BDHR
Rights (Clarendon Press, Oxford, 3rd edn,
reprint 1994) (1992)
I. Brownlie (ed.), Basic Documents in
Brownlie BDIL
International Law (Clarendon Press, Oxford,
4th edn. 1995)
British Yearbook of International Law
BYIL
Comm. Communication
Denver Journal of International Law and Policy
Denv. J. Int™l L. & Pol™y
Doc. Document
Decisions and Reports of the European Commission
DR
of Human Rights
European Court Reports. Reports of the Court
ECR
of Justice of the European Communities
European Human Rights Reports
EHRR
European Journal of International Law
EJIL
Encyclopedia of Public International Law
EPIL
Eur. Ct. HR European Court of Human Rights
Georgia Journal of International and Comparative
Ga. J. Int™l & Comp. L.
Law
German Yearbook of International Law
GYIL
Humanit¨ res V¨ lkerrecht
a o
HV

xxvii
xxviii list of abbreviations


ICJ International Court of Justice
International Court of Justice, Reports of Judgments,
ICJ Rep.
Advisory Opinions and Orders
International and Comparative Law Quarterly
ICLQ
ICRC International Committee of the Red Cross
ILC International Law Commission
Yearbook of the International Law Commission
ILCYb
International Legal Materials
ILM
Inter-Am. Ct. HR Inter-American Court of Human Rights
International Review of the Red Cross
IRRC
Israel Yearbook on Human Rights
Israel YBHR
Michigan Journal of International Law
Mich. J. Int™l L.
Military Law Review
Mil. L. Rev.
Manitoba Law Journal
MLJ
n. note
Netherlands International Law Review
NILR
Nederlands Juristenblad
NJB
Netherlands Quarterly of Human Rights
NQHR
Naval War Review
NWR
Netherlands Yearbook of International Law
NYIL
New York University Journal of International Law
NYUJ Int™l L & Pol.
and Politics
ONUSAL United Nations Observer Mission in El Salvador
para. paragraph
pr. preamble
Revue Belge de Droit International
RBDI
Rep. Report
Reports of Judgments and Decisions. Publication
Reports
of the Case Law of the European Commission
and Court of Human Rights (as from 1996).
Res. Resolution
RIAA Reports of International Arbitral Awards
Ser. Series
UN United Nations
US United States
vol. volume
Yale Law Journal
Yale L J.
Yearbook of the European Convention of Human
YB ECHR
Rights
Yearbook of International Humanitarian Law
YIHL
Yearbook of the International Law Commission
YB ILC
Introduction




This study examines the international accountability for acts committed
by armed opposition groups during internal armed con¬‚ict. It aims to
contribute to the improvement of the protection of civilian populations
from abuses committed by these groups.
Armed opposition groups, as de¬ned in this study, operate in inter-
nal armed con¬‚ict. These groups generally ¬ght against the government
in power, in an effort to overthrow the existing government, or alter-
natively to bring about a secession so as to set up a new state. The
objectives of these groups may also include the achievement of greater
autonomy within the state concerned. In other situations, where the
existing government has collapsed or is unable to intervene, armed
groups ¬ght among themselves in pursuit of political power.
The degree of organization of armed opposition groups, their size,
and the extent to which they exercise effective authority vary from one
situation to the next. At one extreme, such groups resemble de facto
governments, with control over territory and population. At the other
extreme, they are militarily and politically inferior to the established
government, exercising no direct control over territory and operating
only sporadically. Some armed groups operate under clear lines of com-
mand and control; others are loosely organized and various units are
not under effective central command.
Today, the majority of armed con¬‚icts are internal, as opposed to
international. In its 1998 Yearbook, the Stockholm International Peace
Research Institute reported that of the twenty-¬ve major armed con¬‚icts
that were waged in 1997 all but one were internal.1 During mid-1997 to
1 The Stockholm International Peace Research Institute (SIPRI), SIPRI Yearbook 1998:
Armaments, Disarmament and International Security, (Oxford University Press, Oxford,
1998), cited in A. McDonald, ˜The Year in Review™ (1998) 1 YIHL 113, 121.

1
2 introduction

mid-1998 alone, there were fourteen internal con¬‚icts, in each of which
more than 1,000 people were killed, and which have, cumulatively, led
to approximately 5 million deaths2 since the con¬‚icts ¬rst broke out,
which, in some cases, was many years ago.
While in many cases the government is responsible for the great-
est number of deaths, surveys of Amnesty International and Human
Rights Watch show that armed opposition groups have also created many
victims, primarily civilians. This is even clearer in con¬‚icts where the
government has collapsed, as occurred, for example, in Somalia in 1991,
and in Afghanistan in 1992.
Neither the Charter of the United Nations, nor any other rule of in-
ternational law, prohibits the use of force by armed opposition groups
within a state. The mere fact of starting or engaging in an internal
armed con¬‚ict does not entail the responsibility of the armed groups
concerned. International law does, however, contain rules on the pre-
vention, regulation, and punishment of violence committed by these
groups against civilians. The applicable law is commonly divided into
three specialized ¬elds of international law: international humanitar-
ian law, international criminal law and international human rights law.
Prior to 1949, in certain circumstances, customary humanitarian law
applicable to international con¬‚icts was also applied to large-scale
internal con¬‚icts. Armed opposition groups were then equated with
governments. Such recognition of belligerent status has been very in-
frequent, however. The reason is that the criteria for applicability of
the humanitarian rules were high. The armed opposition groups had to
control and govern a substantial part of the state territory and engage
in a widespread armed con¬‚ict. Even then, in practice, the consent of
the government of the state against which they were ¬ghting was re-
quired for the humanitarian rules to be applied. Also today, there are
few situations to which these criteria apply. The adoption, in 1949, of
Article 3 common to the four Geneva Conventions was meant to change
the legal situation in internal con¬‚icts. While recognition of belligerency
was also concerned with the interests of third states (the wish to protect
their property and economic relations in territory controlled by armed
opposition groups) and their right to intervene in the armed con¬‚ict
on behalf of one side or the other, the Geneva Conventions placed greater
emphasis on the interests of humanity.
2 So-called ˜high intensity con¬‚icts™, con¬‚ict level 5 on the PIOOM scale, PIOOM
(Interdisciplinary Research Program on Causes of Human Rights Violations) World
Con¬‚ict and Human Rights Map (Leiden University, The Netherlands, 1998).
introduction 3

International law has a legitimate and increasing interest in armed
opposition groups but is inadequate to this task. The aim of this study
is to deal with a major question which arises in all internal armed
con¬‚icts and which has not been addressed before: Who is accountable
under international law for the acts committed by armed opposition
groups or for the failure to prevent or repress these acts?
The problem of accountability is that, in order to have effective en-
forcement of international law relevant to the acts of armed opposition
groups, we should be able, so to speak, to climb up a chain of command,
so as to reach to the top. It is easily seen how this is done on the
government side, i.e. in traditional international law. Then there are
three levels of accountability. At the ¬rst and lowest level, individu-
als who actually committed the crime can be held accountable. At the
second level, superiors are potentially accountable on the basis of the
principle of command responsibility. At the third level, the state itself
may be accountable, in that it is responsible for acts committed by its
agents. My concern is to discuss the extent to which there is “ or can be “
a parallel chain of accountability on the insurgent side which is a coun-
terpart to the one just outlined, applicable to the government side. The
¬rst question then is whether members and leaders of armed opposition
groups can be held criminally accountable for violations of international
law. The second level of accountability would be the accountability of
the armed opposition groups as such. A ¬nal possibility is to make the
state accountable in certain cases for acts committed on its territory by
armed opposition groups.
This study thus assumes the perspective of the subjects of the law rel-
evant to the conduct of armed opposition groups in internal armed
con¬‚ict. In doing so, it deviates from the common approach to internal
con¬‚icts focusing on the rights of victims. So far, the victim-oriented
approach has not provided satisfactory answers to the problem of the
protection of civilians from armed opposition groups. It has been estab-
lished that civilians caught up in internal con¬‚icts have fundamental
rights and that these rights are apt to be abused by armed opposition
groups. However, it remains unclear in relation to whom these rights
apply, or, formulated differently, who is obliged to respect or ensure
respect of these rights.
The term ˜armed opposition groups™ is preferred to other expres-
sions such as ˜rebels™ or ˜terrorists™, as the former expression has the
merit of being less emotive. The word ˜group™ points to a collectivity,
being more than the sum of its members. While the word ˜opposition™
4 introduction

refers primarily to the con¬‚ict against the established government, it is
proposed to use the same term even when the government does not par-
ticipate in the hostilities, i.e. when armed opposition groups are ¬ghting
among themselves.
This study will evaluate the law relevant to armed opposition groups as
applied and developed by international bodies. International bodies play an
important role in the application and development of the law on armed
groups. Various international bodies (international courts and tribunals
and other bodies whose creation is related to speci¬c treaties or the
UN Charter) have been and are being confronted with abuses by armed
opposition groups and, in response, have dynamically interpreted and
developed the relevant law. In doing so, these bodies have exercised con-
siderable in¬‚uence on international treaty and customary law. Although
Article 38 of the Statute of the International Court of Justice does not
mention the practice of international bodies as a separate source of law,
the practice of these bodies can provide decisive evidence of the law.
The focus on international bodies as important initiators of the de-
velopment of the law relevant to armed groups implies that this study
does not search for detailed rules relevant to the conduct of armed
opposition groups. Such rules actually exist only to a limited extent.
Applicable treaties contain only general norms rarely dealing in so many
words with the acts of armed opposition groups. Relevant customary law
is undeveloped and still in a state of development. A better approach is
to identify trends in decision making in international law in the light of
treaty and customary law which are relevant to the acts of these groups.
Fifteen internal armed con¬‚icts serve as frame of reference through-
out this study. The selection of these con¬‚icts is based on the fact that
they have been quali¬ed as internal armed con¬‚icts in terms of interna-
tional humanitarian law, either by one or more international bodies,
or by (specialized) non-governmental organizations, or authoritative
commentators.
These con¬‚icts are: the con¬‚ict in Afghanistan (1978“present); Algeria
(1992“present); Cambodia (1980“present); Chechnya, Russian Federation
(1994“96, and 1999“present); Colombia (1964“present); El Salvador
(1981“92); Lebanon (1975“90); Nicaragua (1978“79 and 1981“90);
Rwanda (1990“94); Somalia (1991“present); Sri Lanka (1983“present);
Sudan (1983“present); Turkey (1983“present); Northern Ireland, United
Kingdom (1969“present); and ¬nally, the internal aspects of the con¬‚ict
in the former Yugoslavia (1991“95), including the con¬‚ict in Kosovo,
Federal Republic of Yugoslavia (1998“99).
introduction 5

The con¬‚icts selected provide suf¬cient geographical coverage and
diversity as regards their intensity and duration. In addition, together
the chosen con¬‚icts cover a wide period of time, namely from 1964
until the present. These conditions allow me to draw conclusions that
are relevant for each of the con¬‚icts or categories of con¬‚icts exam-
ined, notwithstanding the fact that substantial differences exist between
them, and between different periods within one con¬‚ict. It also allows
me to comment on the law relevant to other internal con¬‚icts not
covered in detail by this study.
Accountability is an overarching term, which covers both the sub-
stantive obligations of the relevant actors and their responsibility for
breaches of these obligations. The applicable substantive rules and the
rules on responsibility operate as a coherent body of law. The standard
for accountability of the leaders of armed opposition groups, armed
opposition groups themselves, and the territorial state has thus to be
found in the applicable substantive law and in the rules that render
their responsibility operational. Accordingly this book is divided into
two parts. Part 1 analyses the substantive law applicable to armed op-
position groups as such. Part 2 addresses the problem of accountability.
Successively, the accountability of leaders of armed opposition groups,
armed opposition groups themselves, and the accountability of the
territorial state will be addressed.
PART 1 · THE NORMATIVE GAP
Legal restraints on armed opposition
1
groups as such




The ¬rst 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 in-
ternational 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 opposi-
tion 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 af¬rmed the applicability of Com-
mon Article 3 and Protocol II to armed opposition groups as a matter
of treaty law.
Common Article 3 provides: ˜In the case of armed con¬‚ict not of an
international character occurring in the territory of one of the High Con-
tracting Parties, each Party to the con¬‚ict 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

9
10 the normative gap

a whole.1 The proponents of this argument may support their view by
pointing to Protocol II which does not refer to ˜parties to the con¬‚ict™,
but only mentions the High Contracting Parties to the Protocol, which
are states.2
Wide international practice con¬rms, however, that armed opposition
groups are bound by Common Article 3 and Protocol II, and that they
are so as a group. In Military and Paramilitary Activities In and Against
Nicaragua, the International Court of Justice observed that the acts of the
Contras, ¬ghting against the Nicaraguan Government, were governed by
the law applicable to armed con¬‚ict not of an international character,
i.e. Common Article 3.3 Similarly, in the so-called Tablada case, the Inter-
American Commission considered:

Common Article 3™s mandatory provisions expressly bind and apply equally to
both parties to internal con¬‚icts, i.e., government and dissident forces. Moreover,
the obligation to apply Common Article 3 is absolute for both parties and in-
dependent of the obligation of the other. Therefore, both the MTP attackers
[the armed opposition group ¬ghting in the con¬‚ict under consideration] and
the Argentine armed forces had the same duties under humanitarian law.4

1 During the First Periodical Meeting on Humanitarian Law in 1998, several states
re-emphasized their objections to the quali¬cation of armed opposition groups as a
party to the con¬‚ict within the meaning of international humanitarian law. In their
view, the better way to deal with internal con¬‚icts is through international criminal
prosecution of individuals. The conclusions of the conference drawn up by the
chairman avoid any reference to armed opposition groups as bearers of obligations
under international humanitarian law, Chairman™s Report of the First Periodical
Meeting on International Humanitarian Law (Geneva, 19“23 January 1998) in ICRC,
International Federation of Red Cross and Red Crescent Societies, Compendium of
Documents, prepared for the 27th International Conference of the Red Cross and Red
Crescent 31 October “ 6 November 1999, Annex II (1999) (hereafter, Compendium of
Documents); see also D. Plattner, ˜The Penal Repression of Violations of International
Humanitarian Law Applicable in Non-International Armed Con¬‚icts™ (1990) 30 IRRC 409,
at 416 (hereafter, ˜Penal Repression™).
2 See G.I.A.D. Draper, ˜Humanitarian Law and Human Rights™ (1979) Acta Juridica 199“206,
reprinted in M. A. Meyer and H. McCoubrey (eds.) Re¬‚ections on Law and Armed Con¬‚icts,
(Kluwer Law International, The Hague, 1998) pp. 145“6 (hereafter, Re¬‚ections on Law and
Armed Con¬‚icts) (˜The rules established in the Protocol [II] . . . are not express obligations
imposed upon the parties to the internal con¬‚ict, but are established as between the
States which are parties to the Protocol, limited to the States Parties to the Geneva
Convention of 1949™) (hereafter, ˜Humanitarian Law and Human Rights™).
3 Nicaragua v. US ( Judgment of 27 June 1986) (Merits) 1986 ICJ Rep. 14, at 114, para. 119
(hereafter, Nicaragua Case).
4 Report No 55/97, Case No 11.137 (Argentina), para. 174 (30 October 1997) (hereafter,
Tablada case) (footnotes omitted); see also Report No 26/97 Case No 11.142 (Colombia),
para. 131 (30 September 1997).
legal restraints on armed opposition groups as such 11

The UN Security Council and the UN Commission on Human Rights,
in the context of various internal con¬‚icts, have frequently called upon
all parties to the hostilities, namely the government armed forces and
armed opposition groups “ to respect fully the applicable provisions of
international humanitarian law, including Common Article 3.5
Similar practice can be found with regard to Protocol II. In Prosecutor v.
Akayesu, the Rwanda Tribunal indicated that the Protocol states ˜norms
applicable to States and Parties to a con¬‚ict™.6 Similarly, in resolution
1987/51, the UN Commission on Human Rights requested the armed
opposition groups involved in the con¬‚ict in El Salvador to observe the
Geneva Conventions and the Protocols, which includes Protocol II.7 The
Commission™s Special Representative on the Situation of Human Rights
in El Salvador observed:
The Republic of El Salvador is a party to the four Geneva Conventions of 1949
and the Additional Protocols of 1977 on the protection of victims of war. Since
the current con¬‚ict in El Salvador is an ˜armed con¬‚ict not of an international
character™ within the meaning of the Conventions and Protocols, the relevant
rules apply, particularly those contained in Article 3 of each of the Conventions
and in Protocol II, and must be observed by each of the parties to the con¬‚ict “ in other
words, by the Salvadorian regular armed forces and the opposition guerrilla forces.8

5 UN Security Council, Res. 1193 (1998), para. 12 (28 August 1998) (on Afghanistan); UN
Security Council, Res. 812 (1993), para. 8 (12 March 1993) (on Rwanda); UN Security
Council, Res. 794 (1992), para. 4 (3 December 1992) (on Somalia); UN Commission on
Human Rights, Res. 1999/18, para. 17 (23 April 1999) (˜condemns abuses by elements of
the Kosovo Liberation Army, in particular killings in violation of international
humanitarian law™); UN Commission on Human Rights, Res. 1997/59, para. 7 (15 April
1997) (on Sudan); Commission on Human Rights, Res. 1998/67, para. 6 (21 April 1998)
(on Sudan); see also UN Commission on Human Rights, E/CN.4/1985/21, at 43, para. 161
(Report of the Special Rapporteur, 19 February 1985) (hereafter, 1985 Report of the
Special Rapporteur on Afghanistan).
6 No. ICTR-96-4-T, at 248, para. 611 (2 September 1998) (hereafter, Akayesu case).
7 Para. 3 (11 March 1987); see also UN Commission on Human Rights, Res. 1997/59,
para. 7 (15 April 1997) (on Sudan).
8 UN Commission on Human Rights, E/CN.4/1985/18, at 37 (Report of the Special
Representative, 1 February 1985) (hereafter, 1985 Final Report of the Special
Representative on El Salvador) (emphasis added); see also UN Commission on Human
Rights, E/CN.4/1984/25, at 34 (Final Report on the Situation of Human Rights in El
Salvador of J. A. Pastor Ridruejo, 19 January 1984); UN Commission on Human Rights,
E/CN.4/1995/111, para. 129 ( Joint Report of the Special Rapporteur on Question of
Torture, N.S. Rodley, and the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions, Bacre Waly Ndiaye, 16 January 1995) (hereafter, 1995 Joint Report
of the Special Rapporteur on Question of Torture, and the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions); Inter-American Commission on
Human Rights, Third Report on the Situation of Human Rights in Colombia,
12 the normative gap

This practice, demonstrating that armed opposition groups are bound by
Common Article 3 and Protocol II,9 also shows that international bodies
have assumed competence to determine the applicability of these norms
in speci¬c cases. Commentators have often raised the problem of the
absence of an international machinery competent to characterize the
con¬‚ict and therewith the applicability of the relevant law.10 Were such
machinery to exist, they suggest, the common state practice of denying
the applicability of Common Article 3 and Protocol II to situations in
which they clearly should be applied, might be reversed.
It is true that, in principle, states are free to interpret their rights
and duties under international humanitarian law, as under general in-
ternational law, without such interpretation having binding force upon
other states.11 Accordingly, during the drafting of Protocol II, several
states emphasized that it is a matter solely for the state affected by
a con¬‚ict to determine whether the conditions for applicability of the
Protocol were ful¬lled.12 International bodies generally acknowledge the
relevance of states™ views, in particular the view of the territorial state,
on the question whether the norms apply to a particular situation.13

OEA/Ser.L/V/II.102, Doc. 9, rev. 1, at 77“8, para. 20 and accompanying footnote 11, at
81“111, paras. 36“150 (26 February 1999) (hereafter, Third Report on Colombia)
(applying Protocol II to the Colombian armed opposition groups).
9 See also J. S. Pictet (ed.), Commentary IV Geneva Convention Relative to the Protection of
Civilian Persons in Time of War (International Committee of the Red Cross, Geneva,
reprint 1994) (1958) p. 37 (hereafter, Commentary 4th Geneva Convention); S-S. Junod,
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949, eds. Y. Sandoz et al. (Martinus Nijhoff, Geneva, 1987), p. 1345 (hereafter,
Commentary Additional Protocols).
10 F. Kalshoven, Constraints on the Waging of War (International Committee of the Red
Cross, Geneva, 2nd edn., 1991), p. 138 (hereafter, Constraints); T. Meron, Human Rights in
Internal Strife: their International Protection (Grotius Publications Limited, Cambridge,
1987) p. 43“4 (hereafter, Internal Strife).
11 P. Weil, ˜Le droit international en quˆte de son identit´ ™ (1992) 237“VI Recueil des Cours
e e
at 222.
12 F. Kalshoven, ˜Reaf¬rmation and Development of International Humanitarian Law
Applicable in Armed Con¬‚icts: the Diplomatic Conference Geneva 1974“1977™ (1997) 8
NYIL 107, at 112 (hereafter, ˜Reaf¬rmation™).
13 Commission on Human Rights, E/CN.4/1998/87, para. 79 (Analytical Report of the
Secretary General on Minimum Humanitarian Standards, 5 January 1998) (hereafter,
UN Secretary-General 1998 Report on Minimum Humanitarian Standards); compare
also Commission on Human Rights, E/CN.4/1994/31, para. 13 (Report of the Special
Rapporteur on Question of Torture, N. S. Rodley, 6 January 1994) (asking whether, in
determining whether an armed con¬‚ict exists and what entities may be appropriately
considered as parties to the con¬‚ict, he should be guided by the view of the
Government of the member state concerned) (hereafter, 1994 Report of the Special
Rapporteur on Torture).
legal restraints on armed opposition groups as such 13

The freedom of states is, however, limited when courts and tribunals
exist that are competent to interpret the law. There is no doubt that
the International Court of Justice, the Yugoslavia and Rwanda Tribunals,
and the future International Criminal Court, can make a legally binding
declaration as to whether a con¬‚ict is an ˜armed con¬‚ict not of an inter-
national character™ and thereby as to the applicability of international
humanitarian law to the parties involved in the con¬‚ict.14 Moreover, the
UN Security Council, when acting under Chapter VII, has claimed the
authority to make a legally binding decision as to whether an armed
con¬‚ict exists and whether the humanitarian rules apply to these sit-
uations. The effect of decisions of these bodies is to have a minimum
legal standard apply, independently of the desire of the government, as
soon as the violence and the armed opposition groups pass a certain
threshold as to their organization and military power.
Other bodies, such as the Inter-American Commission, the UN Com-
mission on Human Rights, and its rapporteurs, have also regularly
quali¬ed situations as internal armed con¬‚icts within the meaning
of international humanitarian law. Signi¬cantly, in some cases these
bodies made such declarations contrary to the views of the governments
concerned.15 The views of these bodies are, however, not binding upon
states.
Thus, while the determination of applicability of Common Article 3
and Protocol II is largely left to auto-interpretation, international bodies
increasingly play a role in this determination. A different question,
14 In the Nicaragua case, the International Court of Justice held that the con¬‚ict between
the Contras and the Government of Nicaragua was an armed con¬‚ict not of an
international character in terms of international humanitarian law; it made this
decision in de¬ance of the position of the Government of Nicaragua, which refused to
formally acknowledge the applicability of Common Article 3, Americas Watch
Committee, Violations of the Laws of War by Both Sides in Nicaragua 1981“1985 (New York,
March 1985), p.16.
15 Both the Governments of El Salvador and Afghanistan refused to acknowledge the
applicability of Common Article 3 to the respective con¬‚icts. Nonetheless, the UN
Commission on Human Rights™ Special Representative on the Situation of Human
Rights in El Salvador, Pastor Ridruejo stated that the con¬‚ict in El Salvador was
governed by Common Article 3 and Protocol II, 1985 Final Report of the Special
Representative for El Salvador, see above, n. 8, at 37. Similarly, the UN Commission on
Human Rights™ Special Rapporteur on Afghanistan, Ermacora, considered that the
con¬‚ict in Afghanistan ˜must be considered as one of a non-international character
within the meaning of Article 3 of the Geneva Conventions™, 1985 Report of the
Special Rapporteur on Afghanistan, above, n. 5, at 43; see also A/40/40 at 122 (1985),
General Assembly of the United Nations (the Government of Afghanistan denying that
the situation in that country constituted an armed con¬‚ict within the meaning of
Common Article 3).
14 the normative gap

which will be addressed later, is whether third party monitoring can
be improved by the creation of machinery speci¬cally mandated to de-
cide on the applicability of international humanitarian law in speci¬c
cases.


Origin of the obligations of armed groups under inter-state treaties
A dif¬cult question remains, namely the origin of the obligations of
armed opposition groups under multilateral treaties to which they are
not a party. The Geneva Conventions and Protocol II are international
agreements concluded between states. Armed opposition groups have
not rati¬ed or acceded to these treaties, nor are they able to become par-
ties to the Geneva Conventions or Protocol II. The Geneva Conventions
admit only states as ˜High Contracting Parties™.16 The same holds for
Protocol II, since only the State Parties to the Geneva Conventions
can become parties to the Protocol.17 Furthermore, the applicability
of Common Article 3 and Protocol II to armed opposition groups does
not depend on their express declaration that they consider themselves
bound by these rules.
Several armed opposition groups have tried to adhere to the 1949
Geneva Conventions. However, they have been challenged by their op-
ponents and also by Switzerland, the depository of the Conventions.18
Third states take the traditional view that when two authorities claim to

16 Article 1 common to the Geneva Conventions stipulates that ˜the High Contracting
Parties undertake to respect and to ensure respect for the present Convention in all
circumstances™; the notion ˜High Contracting Parties™ refers to the states for which the
Conventions are in force, S-S. Junod, Commentary Additional Protocols, see above, n. 9,
p. 1338; see also M. Takemoto, ˜The 1977 Additional Protocols and the Law of Treaties™,
in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross
Principles in Honour of Jean Pictet (International Committee of the Red Cross, Martinus
Nijhoff, Dordrecht, 1984) pp. 247“60 (hereafter, Pictet).
17 Articles 20 and 22 of Protocol II.
18 Both France and Switzerland challenged efforts by the Provisional Revolutionary
Government of Algeria to adhere to the Conventions. Switzerland also challenged the
attempted adherence by the Smith government in Rhodesia, D. P. Forsythe, ˜Legal
Management of Internal War: the 1977 Protocol on Non-International Armed Con¬‚icts™
(1978) 72 AJIL 272, 292, n. 93; also the Kosovo Liberation Army (KLA) has expressed its
wish to sign the Geneva Conventions and other humanitarian instruments,
˜Spokesman Explains Structure of Rebel Army™, BBC Summary of World Broadcast,
from Koha Ditore in Albania, 12 July 1998, and ˜Koha Ditore Interview with Jakup
Krasniqi, KLA Spokesman “ Part II™, Arta 12 July 1998, cited in: Human Rights Watch,
˜Violations of the Rules of War by the Insurgent Forces™, in Federal Republic of Yugoslavia:
Humanitarian Law Violations in Kosovo, vol. X, No 9(D).
legal restraints on armed opposition groups as such 15

represent the government, only the authority that existed before the con-
¬‚ict, may bind the state to the Geneva Conventions and the Additional
Protocols. When the established authority is challenged by another de
facto authority, the latter will not be accepted as new accessor to the
treaties.19
As armed opposition groups cannot become parties to the Geneva
Conventions or Additional Protocols, and are not required to declare
themselves bound by the relevant norms, they derive their rights and
obligations contained in Common Article 3 and Protocol II through the
state on whose territory they operate.20 Once the territorial state has rat-
i¬ed the Geneva Conventions and Protocol II, armed opposition groups
operating on its territory become automatically bound by the relevant
norms laid down therein. The question arises as to the origin of the obli-
gations of armed opposition groups under multilateral treaties. There is
no international practice explicitly dealing with this question. However,
in view of the fact that humanitarian law has great dif¬culty in regulat-
ing the behaviour of armed opposition groups, it is appropriate to give
this question some consideration.
Two arguments, re¬‚ecting different conceptions of the international
legal status of armed opposition groups, have been put forward to ex-
plain their obligations under interstate treaties. First, one may argue
that they are bound as de facto authorities in a particular territory.21
Armed opposition groups are then regarded as independent entities
that exist side-by-side with the established authorities. This argument
recognizes the reality of the internal con¬‚ict and the politically weak-
ened position of the established authorities. It abandons the traditional
conception of the state as an impermeable whole. This argument can,
however, only apply to those groups which actually exercise de facto
authority over persons or territory. It is unable to explain the obligations
of groups lacking such authority, but which are, nonetheless bound by
Common Article 3.22

19 See S-S. Junod, Commentary Additional Protocols, above, n. 9, p. 1338.
20 A/7720, para. 171 (Report of the Secretary General ˜Respect for Human Rights in
Armed Con¬‚icts™ 20 November 1969); see also S-S. Junod, Commentary Additional
Protocols, see above n. 9, p. 1345.
21 R. Baxter, ˜Jus in Bello Interno: the Present and Future Law™, in J. Moore (ed.), Law and
Civil War in the Modern World ( Johns Hopkins University Press, Baltimore, 1974),
pp. 518, 527“8.
22 Unlike Protocol II, Common Article 3 does not require armed opposition groups to
exercise territorial control in order to be bound by the provisions set forth in this
article, see below, Chapter 4, Section 1.
16 the normative gap

The obligations of this latter type of group can only be clari¬ed by the
second argument, namely that they are bound by humanitarian norms
because they are inhabitants of the state that has rati¬ed the relevant
conventions.23 This explanation views the relationship between the es-
tablished government and armed opposition groups as hierarchical in
nature. However, this is dif¬cult to uphold. Armed opposition groups

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