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seek to exercise public authority, and in doing so they question the au-
thority of the established government, including the government™s laws.
In this regard it must also be pointed out that armed groups must be dis-
tinguished from individuals. Like armed opposition groups, individuals
cannot accede to international treaties, they derive their international
rights and obligations through the state under which jurisdiction they
live. However, the international rules applicable to individuals are lim-
ited to prohibitions on committing a limited number of international
crimes. Common Article 3 and Protocol II do not merely require armed
opposition groups not to commit the most serious crimes. In their posi-
tion as a de facto authority, these groups are required to make a much
greater effort to comply with international humanitarian law.24
There is some evidence that international bodies acknowledge the
problem of the origin of the obligations of armed opposition groups
under multilateral treaties. They have occasionally recognized the rel-
evance of consent by armed opposition groups to the applicability of
international norms to these groups. The Rwanda Tribunal, in its deci-
sion on the applicability of Protocol II to the con¬‚ict in Rwanda, took
into account that the Rwandan Patriotic Front (RPF) had expressly de-
clared that it considered itself bound by the rules of international hu-
manitarian law.25 The Human Rights Division of the United Nations
Observer Mission in El Salvador (ONUSAL), in reviewing the legality of the
´
acts of Frente Farabundo Mart´ para la Liberacion Nac´ ±onal (FMLN), gen-
±
erally referred to the San Jos´ Agreement on Human Rights, concluded
e
23 Above, n. 21.
24 For example, Protocol II prescribes various measures that armed opposition groups
must take to ensure humane treatment of interned and detained persons, including
separate accommodation of men and women and provision of medical examinations,
Article 5(2)(a), and (d); see below, Chapter 2, discussing the substantive obligations of
armed opposition groups.
25 Akayesu case, above n. 6, at 248, para. 627; see also Prosecutor v. Cl´ment Kayishema and
e
Obed Ruzindana, No. ICTR-95-1-T, para. 156 ( Judgment of 21 May 1999) (hereafter,
Kayishema case); Inter-American Commission on Human Rights, Third Report on
Colombia, above, n. 8, at 78, para. 20, n. 11 (noting that the ELN [Army of National
Liberation] had speci¬cally declared that it considered itself to be bound by the 1949
Geneva Conventions and Protocol II).
legal restraints on armed opposition groups as such 17

between the Salvadorian Government and FMLN, in which FMLN agreed
to comply with Common Article 3 and Protocol II. ONUSAL thus pre-
ferred the Agreement to the Geneva Conventions and Protocol II, which
were also binding upon FMLN. In the next section (Other rules of
humanitarian law), I shall deal with special agreements concluded by
armed opposition groups.
Special agreements and ad hoc declarations by armed opposition
groups by which they expressly agree to comply with Common Article 3
and Protocol II do indeed remedy their failure to ratify these treaty
rules.26 Such agreements and declarations serve two purposes. First, they
compel these groups to explicitly state their will and capacity to adhere
to the relevant norms.27 Secondly, they induce the state to accept the
applicability of the relevant norms to the con¬‚ict in question.
However, the consent by armed opposition groups to rules imposed on
them has played only a small role in international practice. International
bodies have generally considered the rati¬cation of the relevant norms
by the territorial state to be a suf¬cient legal basis for the obligations of
armed opposition groups. These bodies thereby establish the conception
of international law as a law controlled by states, under which states
can simply decide to confer rights and impose obligations on armed
opposition groups.
It is noteworthy that a different construction applies to national lib-
eration movements.28 Like armed opposition groups, national liberation
movements are not entities that are able to become a party to the
26 M. Bothe et al., New Rules for Victims of Armed Con¬‚icts (Martinus Nijhoff, The Hague,
1982) p. 608 (hereafter, New Rules).
27 The following example in the practice of the UN Mission in El Salvador, ONUSAL,
shows the pertinence of this aspect. FMLN had detained an ambulance, while it knew
that it was transporting a wounded man. The FMLN Political and Diplomatic
Commission informed ONUSAL ˜that no agreement existed between the parties for
the evacuation of armed forces wounded and dead by road from war zones™. It added
˜that a pledge is needed that armed forces and ambulances will not be used for
military purposes and that the army will not obstruct the evacuation of FMLN
wounded and disabled by the ICRC™. ONUSAL responded that, according to
international humanitarian law, wounded persons, whether or not they have taken
part in the armed con¬‚ict, must be respected and protected. It referred to Article 7,
Protocol II. However, apparently, the FMLN did not consider itself bound by
Protocol II, unless it had concluded an agreement to this effect, Second Report of
ONUSAL, A/46/658, S/23222, paras. 64“5 (Human Rights Division, 15 November 1991)
(hereafter, Second Report of ONUSAL), reprinted in United Nations, The United Nations
and El Salvador 1990“1995 (UN Blue Book Series, United Nations, New York, 1995) p. 179,
vol. IV (hereafter, UN and El Salvador).
28 These movements are covered by Article 1(4) of Additional Protocol I, which stipulates
that the Protocol shall also apply to ˜armed con¬‚icts in which peoples are ¬ghting
18 the normative gap

Geneva Conventions and the Protocols. However, unlike armed oppo-
sition groups, national liberation movements only become subject to
Additional Protocol I on an equal footing with a High Contracting Party
if they make a special declaration to this effect.29 Apparently, it was
thought that to give effect to the relevant rules, an explicit declara-
tion by national liberation movements that they considered themselves
bound was necessary.
The difference, at least formally, between national liberation move-
ments and armed opposition groups is that the former are considered
to ¬ght in an international con¬‚ict. Armed groups on the other hand are a
party to an internal con¬‚ict. Inclusion in Common Article 3 or Protocol II
of a clause requiring armed opposition groups to make a declaration in
which they agree to comply with the relevant norms would add to the in-
ternationalization of the con¬‚ict. The reason is that the applicability of
these norms would then depend on the consent of an armed opposition
group, which puts these groups on an equal footing with the state. This
consequence has clearly been unacceptable for states and international
bodies.


Customary law
Having demonstrated the applicability of Common Article 3 and
Protocol II to armed opposition groups as treaty law, the question
should be addressed as to the applicability of these norms as a matter
of customary law. Until recently, there was only limited international
precedent dealing with the customary law nature of international hu-
manitarian law applicable in internal con¬‚ict.30 However, since the

against colonial domination and alien occupation and against racist r´ gimes in the
e
exercise of their right of self-determination™.
29 For that purpose, Article 96(3) provides: ˜The authority representing a people engaged
against a High Contracting Party in an armed con¬‚ict of the type referred to in
Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in
relation to that con¬‚ict by means of a unilateral declaration addressed to the
depository. Such declaration shall, upon its receipt by the depository, have in relation
to that con¬‚ict the following effects: (a) the Conventions and this Protocol are brought
into force for the said authority as a Party to the con¬‚ict with immediate effect;
(b) the said authority assumes the same rights and obligations as those which have
been assumed by a High Contracting Party to the Conventions and this Protocol; and
(c) the Conventions and this Protocol are equally binding upon all Parties to the
con¬‚ict™.
30 In fact, it was widely believed that no customary rules applied to internal con¬‚icts.
That is why the short version of the Martens Clause in Paragraph 4 of the Preamble of
Protocol II, unlike the Martens Clause in Article 1(2) of Additional Protocol I, does not
legal restraints on armed opposition groups as such 19

establishment of the Yugoslavia and Rwanda Tribunals this situation
has changed.31
There is ample evidence of international bodies having accepted the
applicability of Common Article 3 and major parts of Protocol II to
armed opposition groups as customary law. In the case of the Military
and Paramilitary Activities in and against Nicaragua, the International Court
of Justice pointed out that Common Article 3 re¬‚ects ˜elementary con-
siderations of humanity™.32 The Court subsequently pointed out that the
Contras were bound by Common Article 3.33 In the Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons, the Court reinforced
its view, stating that the fundamental rules of the Geneva Conventions,
which undoubtedly include Common Article 3, are principles of custom-
ary law.34 Similarly, in Prosecutor v. Duˇ ko Tadi´ (Appeal on Jurisdiction)
s c
the Yugoslavia Tribunal observed:
The emergence of international rules governing internal strife has occurred at
two different levels: at the level of customary law and at that of treaty law.
Two bodies of rules have thus crystallised, which are by no means con¬‚icting or
inconsistent, but instead mutually support and supplement each other. Indeed,
the interplay between these two sets of rules is such that some treaty rules have
gradually become part of customary law. This holds true for Common Article 3
of the 1949 Geneva Conventions.35

In Prosecutor v. Akayesu, the Rwanda Tribunal af¬rmed the above observa-
tion of the Yugoslavia Tribunal, accepting the customary law status of
Common Article 3.36
It is reasonable to assume that the Tribunals regarded the customary
rules identi¬ed to be applicable to all parties to an internal con¬‚ict,
including armed opposition groups. Although the criminal tribunals

refer to established custom. A commentary to the Protocol explains that ˜this is
justi¬ed by the fact that the attempt to establish rules for a non-international con¬‚ict
only goes back to 1949 and that the application of Common Article 3 in the practice
of States has not developed in such a way that one could speak of “established custom”
regarding non-international con¬‚icts™, M. Bothe et al., New Rules, above, n. 26, p. 620.
31 Mention must be made here of the ICRC study being prepared on customary
humanitarian law applicable in, inter alia, non-international armed con¬‚icts. The
study re¬‚ects on practice of states and international bodies. Publication is scheduled
for 2002, Compendium of Documents, above, n. 1, Annex I, at 3.
32 33 Ibid., para. 219.
Nicaragua Case, n. 3, para. 218.
34 Opinion of 8 July 1996, 35 ILM 809, para. 79 (1996) (hereafter, Advisory Opinion on
Nuclear Weapons).
35 No. IT-94-1-AR72, para. 98 (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995), (hereafter, Tadi´ Interlocutory Appeal).
c
36 Akayesu case, above, n. 6, para. 608.
20 the normative gap

are concerned with individual rather than group accountability, they
have developed substantive humanitarian norms applicable to internal
con¬‚ict. Since international humanitarian law applicable in internal
con¬‚ict generally applies to all parties to the con¬‚ict, including armed
opposition groups, it is reasonable to assume that the law as developed
by the criminal tribunals also applies to armed opposition groups. The
relevance of the jurisprudence of the Yugoslavia and Rwanda Tribunals
is also evidenced by the fact that, in their analysis of the law applicable
to internal con¬‚ict, these tribunals have often referred to agreements
concluded by, and the conduct of, armed opposition groups.37
While the customary law status of Common Article 3 is generally of
limited relevance because of the universal acceptance of the Geneva
Conventions qua binding treaties,38 this is different with regard to
Protocol II. With 150 States Parties,39 the customary law status of the
rules contained in the Protocol is important with regard to armed oppo-
sition groups operating in the territory of states that have not rati¬ed
the Protocol.
There is ample evidence that various articles of Protocol II constitute
customary law. Thus, in the Tadi´ appeal case, the Yugoslavia Tribunal
c
considered: ˜Many provisions of this Protocol can now be regarded as
declaratory of existing rules or as having crystallised emerging rules of
customary law or else as having been strongly instrumental in their
evolution as general principles™.40 The Tribunal did not specify which
37 Also, the fact that other international bodies have taken the jurisprudence of these
criminal tribunals as a guide for the international accountability of armed opposition
groups indicates the relevance of this practice to the law applicable to armed
opposition groups, Inter-American Commission on Human Rights, Third Report on the
Situation of Human Rights in Colombia, above, n. 8, at 82, para. 39
38 In the Nicaragua case the customary law status was relevant because the ˜multilateral
treaty reservation™ of the United States might have precluded the International Court
of Justice from considering the applicability of the 1949 Geneva Conventions, above,
n. 3. For the Yugoslavia Tribunal the customary law status of Common Article 3 also
has practical importance because the principle of nullum crimen sine lege requires that
the tribunal only applies rules of international humanitarian law which are beyond
any doubt part of customary law, Tadi´ Interlocutory Appeal, above, n. 35, para. 143, and
c
Report of the UN Secretary-General Pursuant to Paragraph 2 of Security Council
Resolution 808 (1993), S/25704, para. 34 (3 May 1993) (hereafter, 1993 Report of the UN
Secretary-General); see further T. Meron, ˜The Geneva Conventions as Customary Law™
(1987) 81 AJIL 348, 361 (discussing the additional reasons for the relevance of the
customary law status of the Geneva Conventions) (hereafter, ˜Geneva Conventions as
Customary Law™).
39 www.icrc.org (visited, 1 January 2001).
40 Tadi´ Interlocutory Appeal, above, n. 35, para. 117; see also ibid., para. 98; Prosecutor v.
c
Dario Kordi´, Mario Cerkez, Decision on the Joint Defence Motion to Dismiss the
c
Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional
legal restraints on armed opposition groups as such 21

provisions of Protocol II it considered to be customary law. On closer
analysis, it appears that the Tribunal particularly referred to the norms
in the Protocol which overlap with Common Article 3, and which the
Tribunal for that reason considered to be customary law.41 These norms
include Article 4(2) of Protocol II, providing fundamental guarantees to
persons taking no active part in the hostilities. The Tribunal possibly
also regarded Articles 5 and 6 of Protocol II as customary law, as these
norms are also re¬‚ected in Common Article 3. These articles prescribe
humane treatment of persons whose liberty has been restricted and
provide rules on penal prosecution. In Prosecutor v. Kordi´ and Others, the
c
Yugoslavia Tribunal extended the list of customary law provisions with
Article 13(2) of Protocol II, concerning unlawful attacks on civilians.42
The Inter-American Commission, in its Third Report on the Situation of
Human Rights in Colombia, considered Articles 4(2) and 13 of Protocol II
to re¬‚ect customary law.43 In addition, the Commission identi¬ed as
customary law the prohibition of recruitment of children under the age
of ¬fteen or allowing them to take part in the hostilities, prohibition
of starvation of civilians as a method of combat, attacks against cul-
tural objects and places of worship and forced movement of civilians,
rules which are laid down in Articles 4(3), 14, 16 and 17 of Protocol II,
respectively.44
The Rwanda Tribunal took a more cautious position as to the custom-
ary law status of Protocol II. In Prosecutor v. Jean-Paul Akayesu, the Tribunal,
following the UN Secretary-General, found that Article 4(2) of Protocol II
re¬‚ects custom. However, it did not recognize the Protocol as a whole
to be customary law:
As aforesaid, Protocol II as a whole was not deemed by the Secretary-
General to have been universally recognized as part of customary international
law . . . Whilst the Chamber is very much of the same view as pertains to Protocol
II as a whole, it should be recalled that the relevant Article in the context of the
ICTR is Article 4(2) (Fundamental Guarantees) of Protocol II. All of the guarantees,
as enumerated in Article 4 reaf¬rm and supplement Common Article 3 and, as
discussed above, Common Article 3 being customary in nature, the Chamber is
of the opinion that these guarantees did also at the time of the events alleged
in the Indictment form part of existing international customary law.45

Reach of Articles 2 and 3, No. IT-95-14/2-PT, para. 30 (2 March 1999) (˜while both
Protocols [I and II] have not yet achieved the near universal participation enjoyed by
the Geneva Conventions, it is not controversial that major parts of both Protocols
re¬‚ect customary law™) (hereafter, Kordi´ case).
c
41 42 Above, n. 40, para. 31.
Tadi´ Interlocutory Appeal, above, n. 35, para. 117.
c
43 44 Ibid.
Above, n. 8, at 83, para. 42, and at 94“5, para. 82.
45 Above, n. 6, paras. 609“10 (footnotes omitted).
22 the normative gap

However, the viewpoint of the Rwanda Tribunal is isolated in interna-
tional practice.
Attention should also be paid to the practice of the UN Commission
on Human Rights. The Commission applied Protocol II to armed oppo-
sition groups operating in states that have not rati¬ed the Protocol. For
example, in resolution 1993/66, the Commission urged ˜all the Afghan
parties™ ˜to respect accepted humanitarian rules, as set out in the Geneva
Conventions of 12 August 1949 and the Additional Protocols thereto of
1977™.46 Afghanistan has not accepted Protocol II as binding upon it. The
reference to the ˜accepted humanitarian rules™ may suggest that the
Commission regards Protocol II in its entirety as re¬‚ecting customary
law.47 In any case, this and other resolutions of the Commission point
towards a development of international humanitarian law, so that, in
the course of time, international bodies may regard the entire Protocol II
as having acquired the status of customary law.
Finally, a brief remark on how international bodies consider the
customary law examined above to be made and changed is in order.
Tribunals that have addressed the issue of customary humanitarian law
have generally taken a rather liberal approach in this matter. More par-
ticularly, they have tended to avoid the dif¬cult question of state prac-
tice, concentrating primarily on opinio iuris.48 The Yugoslavia Tribunal
af¬rms this trend:
Before pointing to some principles and rules of customary law that have emerged
in the international community for the purpose of regulating civil strife, a word
of caution on the law-making process in the law of armed con¬‚ict is necessary.
When attempting to ascertain State practice with a view to establishing the exis-
tence of a customary rule or a general principle, it is dif¬cult, if not impossible,
to pinpoint the actual behaviour of the troops in the ¬eld for the purpose of
establishing whether they in fact comply with, or disregard, certain standards
of behaviour. This examination is rendered extremely dif¬cult by the fact that
not only is access to the theatre of military operations normally refused to in-
dependent observers (often even to the ICRC) but information on the actual
conduct of hostilities is withheld by the parties to the con¬‚ict; what is worse,
46 Para. 6 (10 March 1993).
47 See also UN Commission on Human Rights, Res. 1998/67, para. 6 (21 April 1998) (on
Sudan) (calling on all parties to the hostilities to respect Common Article 3 and the
Additional Protocols). The Commission on Human Rights™ Special Rapporteur for
´ ´ ±´
Sudan, Gaspar B´ro, recommended that the Government sign Protocol II,
E/CN.4/1995/58, para. 63(c) (30 January 1995). The Commission referred to the
˜applicable provisions of international humanitarian law™ (emphasis added), which
included Protocol II.
48 T. Meron, ˜Geneva Conventions as Customary Law™, above, n. 38, at 361.
legal restraints on armed opposition groups as such 23

often recourse is had to misinformation with a view to misleading the enemy
as well as public opinion and foreign Governments. In appraising the formation
of customary rules or general principles one should therefore be aware that, on
account of the inherent nature of this subject-matter, reliance must primarily be
placed on such elements as of¬cial pronouncements of States, military manuals
and judicial decisions.49

In effect, the Tribunal considered not only of¬cial pronouncements of
states, military manuals and judicial decisions relevant to the formation
of customary law, but also resolutions of the UN General Assembly and
the UN Security Council.
The Tribunal™s assertion that, because of the ˜inherent nature of the
subject-matter™, the formation of customary humanitarian law is differ-
ent from the formation of customary law in other ¬elds of international
law, should be questioned. The peculiarity of international humanitar-
ian law would lie, according to the Tribunal, in the fact that soldiers
withhold information on the military conduct so that the Tribunal is
unable to determine the actual behaviour of the troops in the ¬eld. In
view of the numerous detailed reports on internal con¬‚icts produced
by non-governmental organizations such as Amnesty International and
Human Rights Watch, as well as extensive media services, giving de-
tailed accounts of the events in today™s armed con¬‚icts, this statement
should be questioned. Rather the peculiarity of international humanitar-
ian law seems to lie in the gap that exists between the actual behaviour
on site and the behaviour prescribed by international legal standards.
This discrepancy between the actual and the prescribed conduct forced
Kalshoven to express his ˜misgivings about the notion of customary law
of armed con¬‚ict and about the frequency and occasional lighthearted-
ness [with which] the phrase is currently used™.50
I do not intend to examine in detail all the problems relating to
the making of customary humanitarian law. An extensive literature
has already been devoted to these problems.51 Suf¬ce it to say that

49 Tadi´ Interlocutory Appeal, above, n. 35, para. 99. See also Yugoslavia Tribunal Prosecutor v.
c
Kupreski´ et al., Case No. IT-95-16-T, para. 527 (14 January 2000) (hereafter, Kupreski´ case
c c
(2000)) (˜Principles of international humanitarian law may emerge through a
customary process under the pressure of the demands of humanity or the dictates of
public conscience, even when State practice is scant or inconsistent™).
50 F. Kalshoven, ˜Development of Customary Law of Armed Con¬‚ict™ (Asser Colloquium,
27 November 1998) p. 1 (on ¬le with author).
51 T. Meron, ˜Geneva Conventions as Customary Law™, above, n. 38; T. Meron, ˜Is
International Law Moving Towards Criminalization?™ (1998) 9 EJIL 18, 28“30 (hereafter,
˜Criminalization™).
24 the normative gap

the Tribunal™s approach to identifying customary law, relying mainly on
opinio iuris and largely disregarding actual practice, does not differ from
that taken by other courts and tribunals. Further, the primary role inter-
national bodies play in articulating opinio iuris ¬ts in with the current
trend that the practice of international bodies is becoming increasingly
important at the expense of the actual practice of states.52
Related to the question how customary law is made and changed
is the question how international bodies disentangle customary law
from treaty obligations. It is dif¬cult, if not impossible, to distinguish
Common Article 3 as customary from these norms as treaty law and to
separately determine customary law as to its content. This is so because
188 states have rati¬ed the Geneva Conventions. This may have been the
problem Judge Sir Robert Jennings hinted at when he questioned, in
his dissenting opinion on the Nicaragua case, the customary law status
of Common Article 3.53 The problem with identifying practice, which
is not, or not only, based on treaties, is also prevalent in the practice
of the Yugoslavia Tribunal. In the Celebici case, the Yugoslavia Tribunal
recognized this problem:

The evidence of the existence of such customary law “ State practice and opinio
juris “ may, in some situations, be extremely dif¬cult to ascertain, particularly
where there exists a prior multilateral treaty which has been adopted by the vast
majority of States. The evidence of State practice outside of the treaty, providing
evidence of separate customary norms or the passage of the conventional norms
into the realms of custom, is rendered increasingly elusive, for it would appear
that only the practice of non-parties to the treaty can be considered as relevant.
Such is the position of the four Geneva Conventions, which have been rati¬ed
or acceded to by most States. Despite these dif¬culties, international tribunals
do, on occasion, ¬nd that custom exists alongside conventional law, both having
the same substantive content.54

52 T. Meron, ˜Criminalization™, above, n. 51, at 28.
53 Above, n. 3, at 537 ( Jennings, J., dissenting) (˜there must be at least very serious
doubts whether those conventions [the 1949 Geneva Conventions] could be regarded
as embodying customary law. Even the Court™s view that the Common Article 3, laying
down a ˜minimum yardstick™ (para. 218) for armed con¬‚icts of a non-international
character, is applicable as ˜elementary considerations of humanity™ is not a matter
free from dif¬culty). It was also the problem of separating customary law from treaty
law that compelled Meron to argue that ˜it cannot be said that the Court has
succeeded in clarifying the status of the Geneva Conventions as customary law™,
T. Meron, ˜Geneva Conventions as Customary Law™, above, n. 38, at 358.
54 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, No. IT-96-21-T,
paras. 302“3 (16 November 1998) (hereafter, Celebici case).
legal restraints on armed opposition groups as such 25

The Trial Chamber did thus not consider the dif¬culty of separate iden-
ti¬cation of customary law to be prohibitive for its ¬nding of customary
law. At the same time, it failed to indicate how it circumvents this dif-
¬culty. The problem of disentanglement raises pertinent questions as
to the reality of customary law identi¬ed by international bodies. Con-
sider the following example, which provided, according to the Yugoslavia
Tribunal, evidence of the customary law status of Common Article 3 and
Protocol II:
A more recent instance of this tendency [of the formation of customary law for
internal armed con¬‚icts] can be found in the stand taken in 1988 by the rebels
(the FMLN) in El Salvador, when it became clear that the Government was not
ready to apply the Protocol II it had previously rati¬ed. The FMLN undertook to
respect both Common Article 3 and Protocol II: ˜The FMLN shall ensure that its
combat methods comply with the provisions of Common Article 3 of the Geneva
Conventions and Protocol II, take into consideration the needs of the majority
of the population, and defend their fundamental freedoms.™55

However, it can be questioned whether FMLN practice evidences cus-
tomary law. Because this group was also bound by Common Article 3
and Protocol II qua treaty law, this practice could just as well involve
the application of treaty law.56 The fact that El Salvador refused to ap-
ply Protocol II does not affect the obligations of the FMLN under this
Protocol, since the applicability of these norms does not depend on
reciprocity.57
A similar problem exists with the suggestion of the Yugoslavia
Tribunal that the conclusion of special agreements by parties to an in-
ternal con¬‚ict, bringing into force articles of the Geneva Conventions
other than Common Article 3, would evidence the customary law status
of these articles. Common Article 3 expressly provides for the possibil-
ity to extend the applicable law to other provisions of the four Geneva
Conventions through the conclusion of agreements. In consequence, it
is dif¬cult to establish whether a particular agreement to apply the re-
mainder of the Geneva Conventions evidences the customary law status
of these articles or merely shows the application of treaty law.58
55 Tadi´ Interlocutory Appeal, above, n. 35, para. 107 (FMLN, La legitimidad de nuestros
c
metodos de lucha, ecretaria de promocion y proteccion de lo Derechos Humanos del
FMLN, El Salvador, 10 October 1988, at 89) (unof¬cial translation).
56 Several international bodies have indicated that the armed con¬‚ict between El
Salvador and FMLN ful¬lled the criteria for applicability of Protocol II.
Commentary 4th Geneva Convention, above, n. 9, p. 37.
57
58 Tadi´ Interlocutory Appeal, above, n. 35, para. 103.
c
26 the normative gap

Origin of the obligations of armed groups under customary law
The question of the origin of the obligations of armed opposition groups
under customary law needs to be addressed. This is similar to the ques-
tion posed earlier with regard to the obligations of armed opposition
groups under inter-state treaties. Do armed opposition groups derive
their obligations through the state on whose territory they are estab-
lished or is their consent to these norms necessary in order for the
norms to be binding upon them?
Article 38 of the Statute of the International Court of Justice states
that the Court will apply ˜evidence of a general practice accepted as
law™. This article does not state that ˜general practice™ must concern
state practice that is accepted by states as law. While there is no evi-
dence of the International Court applying rules based on practice of
armed opposition groups,59 there is such evidence in the practice of the
Yugoslavia Tribunal. In the Tadi´ appeal case, the Tribunal considered
c
the behaviour of insurgents as ˜instrumental in bringing about the for-
mation of customary rules™.60 Accordingly, in order to identify the cus-
tomary norms applicable in internal con¬‚ict, it reviewed the practice
of FMLN engaged in the con¬‚ict in El Salvador.61 Similarly, the Tribunal
considered agreements concluded by armed opposition groups to be
evidence of customary law.62 Thus, although the practice is still limited,
there is some evidence that the consent of armed opposition groups is
relevant for their obligations under international customary law.


Other rules of humanitarian law

Multilateral treaties
Three humanitarian treaties, other than the Geneva Conventions and
Protocol II, apply to armed opposition groups: Amended Protocol II
on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices to the Conventional Weapons Convention, of 3 May 1996;

59 In its Advisory Opinion on Nuclear Weapons, the Court decided that the substance
of customary law must be ˜looked for primarily in the actual practice and opinio
iuris of States™, above, n. 34, para. 64; R. Jennings, A. Watts, Oppenheim™s International
Law (Longman, London, 9th edn., 1996) p. 26 (stating that ˜the substance of this
source of international law is to be found in the practice of states™) (hereafter,
Oppenheim).
60 61 Ibid., para. 107.
Tadi´ Interlocutory Appeal, above, n. 35, para. 108.
c
62 Ibid., para. 103.
legal restraints on armed opposition groups as such 27

the 1954 Cultural Property Convention; and the Second Protocol to the
Cultural Property Convention of 26 March 1999 (not yet in force).
Article 1 of Amended Protocol II to the Conventional Weapons Con-
vention provides that the Protocol applies to situations referred to in
Common Article 3 and that each party to the con¬‚ict is bound by it.
It expands Protocol II to the 1980 Conventional Weapons Convention,
which does not apply to armed opposition groups.63 Amended Protocol II
has not yet been applied by international bodies. The Protocol, however,
codi¬es the long-standing view of international bodies, that armed op-
position groups are prohibited from using landmines against civilians.
Section 2 of the next chapter (on the substantive obligations of armed
opposition groups) examines this prohibition in more detail.64
The Cultural Property Convention extends its core article to armed
opposition groups. Article 19(1) requires armed opposition to implement
the rules ˜which relate to respect for cultural property™.65 In the Tadi´
c

63 Article 1 of the 1980 Conventional Weapons Convention provides that the annexed
Protocols shall apply to situations referred to in Article 2 common to the 1949 Geneva
Conventions, including situations referred to in Article 1(4) of Additional Protocol I.
64 Another recent treaty on the use of land mines, the Ottawa Convention on Prohibition
of the Use of Anti-Personnel Mines of 18 September 1997, does not apply to armed
opposition groups. This is noteworthy since this treaty is meant to apply speci¬cally
during internal armed con¬‚icts. With the formulation that states shall ˜never under
any circumstances™ use, develop, produce, acquire, stockpile or transfer anti-personnel
mines, states secured the application of the Convention to internal con¬‚icts, but
circumvented its applicability to armed opposition groups. The treaty has been
criticized for this, S. D. Goose, ˜The Ottowa Process and the 1997 Mine Ban Treaty™
(1998) 1 YIHL 269, 289; the International Campaign to Ban Landmines (ICBL) intends
to press governments to improve the treaty on this point during the Annual Meetings
of States Parties, the Review Conference and any Amendment Conference, ibid. An
explanation for this omission may be that the Ottowa Convention has been negotiated
by experts in the ¬eld of arms control rather than humanitarian law experts.
65 While it is not entirely clear which rules are referred to, as a minimum it would seem
that armed opposition groups are bound by Article 4 of the Convention, which
provides: ˜1. The High Contracting Parties undertake to respect cultural property
situated within their own territory as well as within the territory of other High
Contracting Parties by refraining from any use of the property and its immediate
surroundings or of the appliances in use for its protection for purposes which are
likely to expose it to destruction or damage in the event of armed con¬‚ict; and by
refraining from any act of hostility directed against such property. 2. The obligations
mentioned in paragraph I of the present Article may be waived only in cases where
military necessity imperatively requires such a waiver. 3. The High Contracting Parties
further undertake to prohibit, prevent and, if necessary, put a stop to any form of
theft, pillage or misappropriation of, and any acts of vandalism directed against,
cultural property. They shall refrain from requisitioning movable cultural property
situated in the territory of another High Contracting Party. 4. They shall refrain from
any act directed by way of reprisals against cultural property. 5. No High Contracting
28 the normative gap

appeal case, the Yugoslavia Tribunal af¬rmed that this convention ap-
plies to internal armed con¬‚icts.66 However, otherwise, there is little
practice applying the Cultural Property Convention to armed opposition
groups.
The Second Protocol to the Cultural Property Convention, which aims
to reinforce and supplement the Convention, applies in its entirety to
armed opposition groups.67 The Protocol refrained, however, from ex-
plicitly referring to armed opposition groups. While there is no doubt
that armed opposition groups are bound by the rules in the Protocol, the
absence of any reference to these groups reveals the trouble states had
with the idea of armed opposition groups as bearers of international
obligations. As said, this Protocol has not yet entered into force. It re-
mains to be seen whether it will change the silence that has prevailed in
international practice on the accountability of armed opposition groups
for violations of norms relating to cultural property.


Special agreements
As explained earlier, special agreements concluded by armed opposi-
tion groups are another source of humanitarian obligations of these
groups. These agreements are particularly important. Unlike multilat-
eral treaties and customary law, the norms of which generally apply to
armed opposition groups through the territorial state, the norms con-
tained in special agreements have been explicitly consented to by them.
This may contribute to greater willingness of armed opposition groups
to comply with these norms. While by no means trying to provide a
complete picture, I will touch upon some main points concerning inter-
national practice on special agreements.
Common Article 3 recognizes the legal capacity of armed opposi-
tion groups to conclude agreements, stipulating: ˜The Parties to the
con¬‚ict should further endeavour to bring into force, by means of
special agreements, all or part of the other provisions of the present

Party may evade the obligations incumbent upon it under the present Article, in
respect of another High Contracting Party, by reason of the fact that the latter has not
applied the measures of safeguard referred to in Article 3™, see below, Chapter 2,
Section 2.
66 Tadi´ Interlocutory Appeal, above, n. 35, para. 98; see also C. Greenwood, ˜International
c
Humanitarian Law™ in F. Kalshoven (ed.), The Centennial of the First International Peace
Conference (Kluwer Law International, Netherlands, 2000) pp. 161, 237, n. 138
(hereafter, ˜International Humanitarian Law™).
67 Article 22.
legal restraints on armed opposition groups as such 29

Convention.™68 This article does thus not contain a legal obligation to
conclude agreements. It only encourages the parties to the con¬‚ict
to conclude agreements supplementing this article.69
Common Article 3 does not state with whom armed opposition groups
should conclude agreements. An obvious option would be with the ter-
ritorial state or other armed opposition groups, possibly with the co-
operation of third states or international organizations. Further, armed
opposition groups may also commit themselves to the ICRC or interna-
tional organizations.
As far as the substantive norms are concerned, there are two types
of agreement. First, there are agreements that restate the norms of
Common Article 3 and Protocol II, which are already applicable to armed
opposition groups as treaty law. This category of agreement has been
addressed in the previous section. As it does not raise speci¬c legal
problems, it will not be discussed here further. A second type of agree-
ment, to which Common Article 3 refers and with which I am concerned
here, extends the law applicable to armed opposition groups to humani-
tarian rules other than Common Article 3, which were originally applica-
ble only to international con¬‚icts. This type of agreement can bring into
force rules of the Geneva Conventions and Additional Protocols I and II.
An example is provided by the agreement concluded by the Afghan op-
position groups, who agreed to apply the principles of the Third Geneva
Convention relative to the Treatment of Prisoners of War.70
The Yugoslavia Tribunal af¬rmed that agreements constitute evidence
of legal obligations of the parties to an armed con¬‚ict. In the Tadi´ ap-
c
peal case, in the section entitled ˜May The International Tribunal Also
Apply International Agreements Binding Upon The Con¬‚icting Parties?™,
the Tribunal considered that it was authorized to apply, in addition to
customary international law, any treaty which: ˜(i) was unquestionably
binding on the parties at the time of the alleged offence; and (ii) was not
in con¬‚ict with or derogated from peremptory norms of international

68 Para. 2, 3rd sentence.
Commentary 4th Geneva Convention, above, n. 9, p. 42 (˜legally . . . the Parties to the
69

con¬‚ict are bound to observe Article 3 and may ignore all the other Articles™). At the
same time, the ICRC (International Committee of the Red Cross) commentary adds
that the words ˜should further endeavour™ indicate that the conclusion of agreements
is not merely a ˜convenient possibility™ but points out an obligation ˜to try to bring
about™ the application of the remaining articles of the Geneva Conventions. Kalshoven
points out that the conclusion of such agreements is more likely in con¬‚icts
resembling international armed con¬‚icts, Constraints, above, n. 10, p. 60.
70 1985 Report of the Special Rapporteur on Afghanistan, above, n. 5, paras. 104, 163.
30 the normative gap

law™.71 At the time the Appeals Chamber made this statement, it had not
decided whether the con¬‚ict 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.
When evaluating whether an agreement is ˜unquestionably binding™
upon armed opposition groups, it should be noted that the Vienna
Convention on the Law of Treaties is not applicable to agreements con-
cluded by these groups. Article 1 of the Convention stipulates that it
applies to treaties between states.72 The Draft Articles on the Law of
Treaties, which were adopted by the International Law Commission in
1962, employed a wider de¬nition of a treaty, namely ˜any international
agreement . . . concluded between two or more States or other subjects
of international law™.73 This wording was intended to include inter alia
the case of armed groups opposing the established authorities in an
armed con¬‚ict, which may in some circumstances enter into treaties.74
The phrase was, however, left out in the ¬nal version of the Convention.
International agreements outside the scope of the Vienna Convention
may nevertheless be binding upon their parties, as the Convention ex-
pressly provides.75 One therefore can legitimately conclude that special
agreements concluded by armed opposition groups are binding upon
them. This determination is supported by Common Article 3 and the
practice of international bodies.


Customary law
The Yugoslavia Tribunal, the Inter-American Commission, and the UN
Commission on Human Rights have taken the view that certain rules,
other than Common Article 3 and Protocol II, apply, as a matter of
customary law, to armed opposition groups in internal con¬‚ict. This
practice is groundbreaking. Until recently, the general belief was that
no customary law existed with regard to internal con¬‚icts.76 The relevant
rules concern primarily the protection of civilians from the conduct of

71 Tadi´ Interlocutory Appeal, above, n. 35, para. 143; compare P. H. Kooijmans, ˜The Security
c
Council and Non-State Entities as Parties to Con¬‚icts™, in K. Wellens (ed.), International
Law: Theory and Practice (Kluwer Law International, The Netherlands, 1998) pp. 333, 338
(˜insurrectionist movements who are parties to an internationalized peace-agreement
or who have committed themselves in such an agreement have legal obligations
under international law™) (hereafter, ˜Non-State Entities as Parties to Con¬‚icts™).
72 73 ILCYb 1962, vol. II, p. 161.
Article 2(1)(a).
74 75 Article 3. 76 Above, n. 30.
Ibid., p. 162, para. 8; see also ibid., p. 164.
legal restraints on armed opposition groups as such 31

hostilities, rules which were traditionally considered to apply only to
international con¬‚icts.
In the Tadi´ appeal case, the Yugoslavia Tribunal determined that a
c
corpus of general principles and norms applies to internal con¬‚icts,
which has a much greater scope than Common Article 3:

It cannot be denied that customary rules have developed to govern internal strife.
These rules . . . cover such areas as protection of civilians from hostilities, in par-
ticular from indiscriminate attacks, protection of civilian objects, in particular
cultural property, protection of all those who do not (or no longer) take active
part in hostilities, as well as prohibition of means of warfare proscribed in inter-
national armed con¬‚icts and ban of certain methods of conducting hostilities.77

The Tribunal founded its statement, inter alia, on resolutions of the UN
General Assembly and the UN Security Council. It referred to resolu-
tion 2444 (1968) on ˜Respect for Human Rights in Armed Con¬‚icts™, in
which the General Assembly determined that basic humanitarian prin-
ciples on the conduct of hostilities apply ˜in all armed con¬‚icts™, and
must be observed ˜by all governmental and other authorities respon-
sible for action in armed con¬‚icts™.78 The Yugoslavia Tribunal further
mentioned General Assembly resolution 2675 (1970), containing ˜Basic
Principles for the Protection of Civilian Populations in Armed Con¬‚icts™,
which elaborated on General Assembly resolution 2444.79 The Yugoslavia
Tribunal found these two resolutions to be declaratory of customary
law. It also considered that these resolutions stimulated the adoption of
treaties progressively developing the humanitarian principles contained
therein. Thus, in the view of the Tribunal, these resolutions, apart from
re¬‚ecting existing law, play a separate role in the development of the
law.80
In addition to resolutions of the General Assembly, the Tribunal also
pointed to Security Council resolutions. It mentioned, inter alia, Security
Council resolution 993 (1993), on Georgia, in which the Council reaf-
¬rmed ˜the need for the parties to comply with international human-
itarian law™.81 Because the Security Council in this resolution, as in

77 Tadi´ Interlocutory Appeal, above, n. 35, para. 127; the Yugoslavia Tribunal reaf¬rmed
c
this decision in the Celebici case, above, n. 54, para. 301.
78 Res. 2444 (XXIII) (19 December 1968), reprinted in D. Schindler, J. Toman, The Laws of
Armed Con¬‚icts (Sijthoff & Noordhoff, Alphen aan den Rijn, 1981) p. 199 (hereafter,
Schindler and Toman, Laws of Armed Con¬‚icts).
79 Res. 2675 (XXV) (9 December 1970), reprinted in Schindler and Toman, Laws of Armed
Con¬‚icts, above, n. 78, p. 203.
80 81 Res. of 12 May 1993, pr.
Tadi´ Interlocutory Appeal, above, n. 35, para. 112.
c
32 the normative gap

other resolutions,82 did not mention Common Article 3 of the Geneva
Conventions, but adverted to ˜international humanitarian law™, the
Tribunal found that the Council ˜clearly articulat[ed] the view that there
exists a corpus of general principles and norms on internal armed con-
¬‚ict embracing Common Article 3 but having a much greater scope™.83
This is a notable interpretation of the term ˜international humanitarian
law™. The Security Council may not have intended to identify primary
sources of the applicable law.84 Nevertheless, this has not prevented
the Yugoslavia Tribunal from interpreting the Council™s resolutions as
evidence of a broad set of legal norms applicable to armed opposi-
tion groups, which goes beyond Common Article 3. The Inter-American
Commission embraced the conclusions of the Yugoslavia Tribunal laid
out above concerning the state of customary law applicable in internal
con¬‚icts. In particular, it af¬rmed the Tribunal™s decision that General
Assembly resolutions 2444 (1968) and 2675 (1970) re¬‚ect customary law
applicable to armed opposition groups in internal con¬‚ict.85
In addition, the Commission on Human Rights appears to have sug-
gested that Additional Protocol I, which applies qua treaty law only to in-
ternational armed con¬‚icts, may be applied to armed opposition groups
in internal con¬‚icts. For instance, in resolution 1987/51 on the internal
armed con¬‚ict in El Salvador, the Commission expressed its concern at
the fact that:
serious and numerous violations of human rights continue to take place in El
Salvador owing, inter alia, to the non-compliance with the humanitarian rules of
war, and therefore requests the Government of El Salvador and the insurgent forces

82 The Yugoslavia Tribunal referred also to UN Security Council Res. 788 (1992), para. 5
(19 November 1992) (Liberia); UN Security Council Res. 972 (1995) (13 January 1995)
(Liberia); UN Security Council Res. 1001 (1995) (30 June 1995) (Liberia); UN Security
Council Res. 794 (1992) (3 December 1992) (Somalia); UN Security Council Res. 814
(1993) (26 March 1993) (Somalia), Tadi´ Interlocutory Appeal, above, n. 35, para. 114.
c
83 Ibid., para. 116.
84 T. C. van Boven, ˜Reliance on Norms of Humanitarian Law by United Nations™ Organs™
in A. J. M. Delissen, G. J. Tanja (eds.), Humanitarian Law of Armed Con¬‚ict “ Challenges
Ahead (Martinus Nijhoff, The Hague, 1991) pp. 495, 502 (hereafter, Challenges Ahead).
85 Third Report on the Situation of Human Rights in Colombia, above, n. 8 at 82,
para. 39. See also International Institute of Humanitarian Law, ˜R` gles du droit
e
`
international humanitaire relatives a la conduite des hostilit´ s dans les con¬‚its arm´ s
e e
non internationaux™ (XIVth mtg, San Remo, 14 September 1989), reprinted in (1990)
785 IRRC 415, 419 (af¬rming the customary law status of UN General Assembly Res.
2444 (1968) and Res. 2675(1970)). See also F. Kalshoven, De Positie van de Niet-Bezette
Burgerbevolking in een Gewapend Con¬‚ict, in het Bijzonder met het Oog op de Massaal
Werkende Strijdmiddelen (NBC-Wapens) (Mededelingen van de Nederlandse Vereniging
voor Internationaal Recht No. 61, Kluwer, Deventer, February 1970) pp. 16, 17
(discussing the legal status of UN General Assembly Res. 2444 (1968)).
legal restraints on armed opposition groups as such 33

to adopt measures conducive to the humanization of the con¬‚ict by observing
scrupulously the Geneva Conventions of 1949 and the Additional Protocols thereto
of 1977.86

In this resolution the Commission refers to the Additional Protocols (in
plural) namely Protocols I and II.87 Maybe this resolution uses imprecise
language, which may be a consequence of insuf¬ciently precise knowl-
edge of the Commission. It could also be interpreted as re¬‚ecting the
Commission™s view that the norms enshrined in Additional Protocol I
apply as a matter of customary law to internal con¬‚icts. Or, at the least,
the resolution indicates the Commission™s view that the law is develop-
ing in this direction.88


Diminishing relevance of the distinction between international
and internal con¬‚icts
At this point, some re¬‚ections regarding the consequences of the prac-
tice examined above for the traditional distinction between interna-
tional and internal con¬‚icts are in order.
Under existing conventional law the distinction between interna-
tional and internal con¬‚icts is important because the legal protection
of civilians in international con¬‚icts is considerably better than their
protection in internal con¬‚icts.89 In the previous sections, I showed,
however, that, according to international practice, treaty and customary
norms that traditionally apply only to international con¬‚icts now also
govern internal con¬‚icts and armed opposition groups active in such
con¬‚icts. With regard to conduct of hostilities, the use of land mines
and protection of cultural property, armed opposition groups are under
comparable basic constraints as national armed forces. Furthermore, as
I will explain in the next chapter, it is common practice for interna-
tional bodies to read the substantive norms of Protocol I and the Geneva

86 Para. 3 (11 March 1987) (emphasis added); possibly, the Commission was encouraged
to apply Additional Protocol I by the fact that FMLN suggested that Additional
Protocol I applied to its acts, 1985 Final Report of the Special Representative on El
Salvador, above, n. 8, at 34, para. 113.
87 The Commission adopted similar resolutions on Sudan, see, for example, Res. 1995/77,
para. 15 (8 March 1995). Sudan has not rati¬ed Additional Protocol I.
88 Chapter 4 will show that, apart from direct application, the importance of Additional
Protocol I in international practice lies primarily in its indirect application as a
standard of interpretation of Common Article 3 and Protocol II.
89 R. Abi-Saab, ˜Humanitarian law and internal con¬‚icts: the evolution of a legal
concern™, in: A. J. M. Delissen and G. J. Tanja (eds.), Humanitarian law of armed con¬‚ict “
challenges ahead (Martinus Nijhoff, The Hague, 1991) pp. 209, 212.
34 the normative gap

Conventions into Common Article 3 and Protocol II. Common Article 3
and Protocol II contain few and simple provisions, which are not always
suited to the complex realities of internal con¬‚icts. International bodies
have therefore resorted to Protocol I and the Geneva Conventions, which
serve as a standard of interpretation of Common Article 3 and Protocol
II. International practice thus demonstrates a trend to diminish the rel-
evance between the law applicable to international and internal armed
con¬‚icts.
The primary argument put forward by international bodies to ground
this tendency is that from the perspective of protection of individuals,
there is no reason to make a distinction between one and the other type
of con¬‚ict. So the Yugoslavia Tribunal considered:

It follows that in the area of armed con¬‚ict the distinction between interstate
wars and civil wars is losing its value as far as human beings are concerned.
Why protect civilians from belligerent violence, or ban rape, torture or the wan-
ton destruction of hospitals, churches, museums or private property, as well as
proscribe weapons causing unnecessary suffering when two sovereign States are
engaged in war, and yet refrain from enacting the same bans or providing the
same protection when armed violence has erupted ˜only™ within the territory of
a sovereign State? If international law, while of course duly safeguarding the
legitimate interests of States, must gradually turn to the protection of human
beings, it is only natural that the aforementioned dichotomy should gradually
lose its weight.90

Not only from the perspective of the protection of individuals, but also
from the viewpoint of the subjects who must implement the law, is
there no good reason for not further reducing the distinction between
international and internal con¬‚icts. An internal con¬‚ict distinguishes
itself from an international con¬‚ict in that the parties involved are not
exclusively states but also armed opposition groups. The involvement of
armed opposition groups in internal con¬‚ict, in particular their capa-
bility to comply with humanitarian norms for international con¬‚icts,
means that there is no reason not to impose similar restraints on them
as on national armies. I will explain this below.
First, the legal relevance of the capability of armed opposition groups
to comply with such norms should not be overestimated. International
bodies have rarely considered such capability to be a relevant fac-
tor when applying humanitarian law other than Common Article 3
and Protocol II. As I will explain in Chapter 4 (which deals with the

90 Tadi´ Interlocutory Appeal, above, n. 35, para. 97.
c
legal restraints on armed opposition groups as such 35

criteria for accountability of armed opposition groups), international
bodies have held armed opposition groups passing the threshold for
applicability of Common Article 3 accountable under other humani-
tarian rules; no additional requirements were imposed. Moreover, the
ability to comply with the law was not explicitly considered necessary
for a national liberation movement to be able to apply the provisions of
the Geneva Conventions and Protocol I. For example, national liberation
movements are not required to exercise territorial control.91
Second, also as a matter of fact, the inability of armed opposition
groups to comply with the humanitarian norms, which are tradition-
ally only applicable in international con¬‚icts does not hold true for all
armed opposition groups operating in internal con¬‚ict. It is true that
the organization of armed opposition groups is generally different from
that of state armed forces: they are often primarily guerrilla armies with
no rigid hierarchical structure, and with separate internal factions.92
However, the fact that armed opposition groups are organized differ-
ently does not necessarily mean that they are not able to comply with
the humanitarian standards. The point is that it is generally not known
or understood how these entities function and, in consequence, they are
easily quali¬ed as chaotic and unorganized.93 It is also important to dis-
tinguish between the possible reluctance by armed opposition groups to
comply with the rules and their actual capability to do so. Furthermore,
it should be noted that parties to an international armed con¬‚ict might
not be as organized as one might think. As the Yugoslavia Tribunal ob-
served with regard to present-day international con¬‚icts: ˜While previ-
ously wars were primarily between well-established States, in modern
inter-ethnic armed con¬‚icts such as that in the former Yugoslavia, new
States are often created during the con¬‚ict.™94
While there is thus a clear trend in international practice to diminish
the distinction between humanitarian law for international as opposed
to for internal con¬‚icts, the distinction between these con¬‚icts has not
been abolished. The Yugoslavia Tribunal considered:

91 Articles 1(4) and 96(3) Additional Protocol I, although Article 43(1) of Additional
Protocol I requires them to be organized, under responsible command and subject to
discipline.
92 For an excellent analysis of the structure, organization and functioning of armed
´
opposition groups, see J-M. Balencie, A. de la Grange, Mondes Rebelles (Editions
Michalon, Paris, 1996) vol. II, pp 117“47 (hereafter, Mondes Rebelles).
93 Ibid., at II.
94 Prosecutor v. Duˇ ko Tadi´, IT-94-1-A, para. 166 (Appeals Chamber, 15 July 1999) (appeal on
s c
merits) (hereafter, Tadi´ case (1999, appeal on merits)).
c
36 the normative gap

The emergence of the . . . general rules on internal armed con¬‚icts does not imply
that internal strife is regulated by general international law in all its aspects. Two
particular limitations may be noted: (i) only a number of rules and principles
governing international armed con¬‚icts have gradually been extended to apply
to internal con¬‚icts; and (ii) this extension has not taken place in the form of
a full and mechanical transplant of those rules to internal con¬‚icts; rather, the
general essence of those rules, and not the detailed regulation they may contain,
has become applicable to internal con¬‚icts.95

There is uncertainty also exactly which rules apply to internal con¬‚icts.
Which rules can and should be transplanted to such con¬‚icts is still to
be examined.
The strongest argument against the abolition of the distinction
seems to lie, however, in the premise underlying the Prisoners of War
Convention, where it is maintained that members of armed forces ¬ght-
ing in an international con¬‚ict may not be subjected to punishment for
the mere act of participating in hostilities.96 States do not, and presum-
ably will not in the future, accept the application of this principle to
armed opposition groups.97 Their position is re¬‚ected in the rule laid
down in Common Article 3 stipulating that ˜the application of the pre-
ceding provisions shall not affect the legal status of the Parties to the
con¬‚ict™.98 The aim of this provision is to preclude a claim by armed
opposition groups to recognition as belligerents and the application of
rules on prisoners of war to them.99 Thus armed opposition groups can-
not, on the basis of Common Article 3, claim immunity from prosecu-
tion and punishment when captured by the territorial state for their
acts contrary to the laws of the territorial state.100
While the position of states is understandable, at the same time,
it seriously compromises the effectiveness of international humanitar-
ian law for internal con¬‚icts. As Bond rightly points out, ˜the rebel

95 Tadi´ Interlocutory Appeal, above, n. 35, para. 126.
c
96 C. Greenwood, ˜International Humanitarian Law™ above, n. 66, p. 234.
97 Note, however, that not only armed opposition groups run the risk of being punished
for having participated in the hostilities. The same treatment may fall to members of
the national forces, during the con¬‚ict when they fall in to the hands of armed
opposition groups, and after the con¬‚ict when the established authorities have lost
the con¬‚ict and armed opposition groups have taken over power.
98 Also Article 19(4) of the 1954 Cultural Property Convention; Article 1(6) Amended
Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices.
Commentary 4th Geneva Convention, above, n. 9, p. 44.
99
100 Inter-American Commission on Human Rights, Third Report on Colombia, above,
n. 8, at 77, para. 18.
legal restraints on armed opposition groups as such 37

presently ¬ghts in a twilight zone between lawful combatancy and com-
mon criminality™.101
In this regard, it is noteworthy that international practice indicates
that states do not in all cases have to make full use of their author-
ity to punish rebels for mere participation in the con¬‚ict. This practice
is in conformity with Article 6(5) of Protocol II which provides: ˜At the
end of the hostilities, the authorities in power shall endeavor to grant
the broadest possible amnesty to persons who have participated in the
armed con¬‚ict, or those deprived of their liberty for reasons related to
the con¬‚ict, whether they are interned or detained™.102 Accordingly, the
UN Commission on Human Rights welcomed the general amnesty an-
nounced by President Kabila on 19 February 2000, under which 200
persons accused, convicted or detained for crimes against the inter-
nal or external security of the State of Congo have been released, as
a ˜timely and signi¬cant step towards reconciliation™.103 Also the peace
agreement signed by the warring sides in Sierra Leone™s eight-year civil
war, in July 1999, granted amnesty to the rebels.104 The United Nations
signed this agreement, entering a reservation to the effect that, for the
United Nations, the amnesty could not cover crimes under international
law.105 The Secretary-General, in his report accompanying the Statute
for the Sierra Leone Court, recognized that, although amnesty could
not be granted in respect of international crimes, ˜amnesty is an ac-
cepted legal concept and a gesture of peace and reconciliation at the
end of a civil war or an internal armed con¬‚ict™.106

101 J. E. Bond, ˜Application of the Law of War to Internal Con¬‚icts™ (1973) 3 Ga. J. Int™l &
Comp. L. 345, 367 (hereafter, ˜Internal Con¬‚icts™).
102 See on this article also Chapter 5, Section 2 (The obligation of the state to take
action).
103 Res. 2000/18, para 1f (18 April 2000); compare also, the Special Rapporteur on
Afghanistan, in 1985, recommended that: ˜Members of all forces engaged in the
con¬‚ict, those of Governments as well as of the opposition, should be recognized as
combatants within the framework of international humanitarian law™, 1985 Report
of the Special Rapporteur on Afghanistan, above, n. 5, at 50, para. 192.
104 N. Onishi, ˜Foes Agree on Ending Civil War in Sierra Leone™ International Herald Tribune
(8 July 1999) p. 1 (hereafter, ˜Civil War in Sierra Leone™).
105 Security Council Res. 1315, pr. (14 August 2000) See below, Chapter 5, Section 2 (The
obligation of the state to take action).
106 UN Secretary-General, S/2000/915 (4 October 2000) (Report of the Secretary-General on
the establishment of a Special Court for Sierra Leone) (hereafter, Statute Sierra Leone
Court and SG Report on Sierra Leone Court). The Secretary-General referred here to
Article 6 of Protocol II. (For the texts of the Statute of the Special Court and the
Agreement between the UN and Sierra Leone, see Annex to the Report of the
Secretary-General. See also UN Security Council Res. 1315 (14 August 2000)).
38 the normative gap

Even if members of armed opposition groups are granted some kind
of immunity from prosecution for having participated in the con¬‚ict,107
this does not mean that members of these groups need to be classi¬ed
as prisoners of war.108 Rather than using existing legal forms that are
applicable to combatants ¬ghting in international con¬‚ict with all the
legal consequences such a status entails, it may be more fruitful to
re¬‚ect upon whether members of armed opposition groups in internal
con¬‚ict should be accorded equivalent treatment to some extent.
To summarize, international practice is clearly moving towards de-
creasing the distinction between the law applicable to parties to
international as opposed to internal con¬‚icts. In pursuing this course of
action, international bodies should not aim at a full equation between
the two types of con¬‚icts. Rather those rules and principles should be
adopted which are relevant to the speci¬c context existing in internal
con¬‚icts and to the parties to such con¬‚icts, in particular armed oppo-
sition groups.


Human rights law
According to their wording, multilateral human rights treaties impose
obligations only on the state. Article 2 of the International Covenant
on Civil and Political Rights stipulates: ˜Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in

107 Support for the limitation of the state™s right to prosecute and punish members of
armed opposition groups can also be found in the literature. In view of the fact that
the enforcement of international humanitarian law in internal con¬‚icts presents
great dif¬culties, Draper proposed to abolish the execution of death penalties on
either side during the con¬‚ict, G.I.A.D. Draper, ˜The Relationship Between the Human
Regime and the Law of Armed Con¬‚ict (1971) 1 Israel YBHR 191“207, reprinted in
Re¬‚ections on Law and Armed Con¬‚icts, above, n. 2, pp. 125, 139. In the same vein,
Plattner has questioned the wisdom of the authority of the state to prosecute and try
the authors of violations of international humanitarian law when the con¬‚ict is still
continuing. She suggested, following a proposal of the ICRC in 1949, authorizing the
repression of violations only after the end of the hostilities, D. Plattner, ˜Penal
Repression™, above, n. 1, at 415. She also noted that internal con¬‚icts generally end
with a national reconciliation, which includes an amnesty for members of armed
opposition groups, ibid., 416“17.
108 Even if the Prisoners of War Convention were applicable, many members of armed
opposition groups may not qualify as prisoners of war. Article 4(A)(2) of the Third
Geneva Convention and Article 44(3) of Additional Protocol I list a number of
requirements that must be ful¬lled in order for a person to qualify as a prisoner of
war. Members of armed opposition groups may frequently not qualify for
prisoners-of-war status under these conditions.
legal restraints on armed opposition groups as such 39

the present Covenant™.109 Hence, the Covenant, like the European and
American Conventions on Human Rights, does not bind armed opposi-
tion groups. However, the impact of armed opposition groups on civilian
suffering, both through their own acts and through the acts of the state
being challenged by them to resort to ruthless counter-insurgency, as
well as the substantive overlap between human rights and international
humanitarian law have encouraged international bodies to examine
the question whether armed opposition groups are capable of violating
human rights standards. International bodies have af¬rmed that, in prin-
ciple, human rights treaties do not bind armed opposition groups. Their
practice is not entirely consistent, however. Occasionally, these bodies
have asserted the applicability of human rights law to armed opposition
groups. This section evaluates this practice. It closes with some re¬‚ec-
tions on the desirability of extending international human rights law
to armed opposition groups.
The quali¬cation of particular acts of armed opposition groups as hu-
man rights violations must be distinguished from the denunciation of
these acts as ˜abuses™ of human rights. International bodies have often
condemned acts of armed opposition groups as harming human rights
without considering their acts to be breaches of human rights law. Thus,
the Inter-American Commission stated that acts of armed opposition
groups ˜are detrimental to the exercise of the most important human
rights™.110 The special rapporteurs and chairpersons of working groups
of the UN Commission on Human Rights spoke of ˜the adverse effects
their action [of armed opposition groups] might have on the enjoyment
of human rights™.111 Below, I shall examine the practice imposing a le-
gal obligation on armed opposition groups to respect human rights and
holding them responsible under human rights law.


Practice denying the applicability of human rights treaties to armed
opposition groups
Various bodies, including the Inter-American Commission, the special
rapporteurs and working groups of the UN Commission on Human
109 Emphasis added.
110 Second Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, at
213 (1993) (hereafter, Second Report on Colombia).
111 UN Commission on Human Rights, E/CN.4/1997/3, para. 44 (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, 30 September 1996) (hereafter, 1996 Report of the Meeting of
Special Rapporteurs).
40 the normative gap

Rights, and the UN Secretary-General have answered the question
whether human rights treaties can be applied to armed opposition
groups negatively. The principal reason is that human rights regulate
the relationship between the government and the governed and aim to
check the exercise of state power.
In 1990, pursuant to a resolution of the General Assembly of the
Organization of American States,112 the Inter-American Commission ex-
amined whether armed opposition groups can violate the rights laid
down in the American Convention on Human Rights. To this end, the
Commission looked back at the origin of the human rights concept and
how it materialized in the American Convention. It considered:
The concept of human rights is often used to refer to acts that adversely affect
the exercise of individual rights. In a very broad sense, the fundamental rights
of a person, individual rights and human rights would seem to be synonymous:
anything related to the attributes of the person is a right and, by extension, a
human right. This idea is so sweeping, however, that the element of speci¬city
is lost.113

The Commission did not agree with such a broad concept of human
rights, including anything that bene¬ted the human person. In particu-
lar, the Commission considered the state to be an essential element of
the human rights concept. It is worth looking at the Commission™s view
in length:
In the case of the standards of international law that govern the international
obligation of States in the matter of human rights, the type of juridical rela-
tionship that the respective rules formalize is a speci¬c one. Here it should be
noted that the individual rights or rights of the person are those recognized in
the constitutions of the States as those attributes of the person that the State
has the duty to protect by reaf¬rming them when they are in danger of being
violated or by establishing some type of compensation when the violation has
already been committed. This is the classic notion of the role of the State as an
organ charged with protecting the individual vis-` -vis the actions of other indi-
a
viduals or groups. The situations that arose in Europe between the two world
wars dramatically demonstrate the need to develop a system that contemplates
those situations in which the State, whose function is to protect the individual,
becomes his assailant. When it comes to the State, the individual is defense-
less because he lacks the means to protect himself. This is where the rights of
112 AG/RES.1043 (XX-0/90) para. 3, reprinted in Inter-American Yearbook on Human Rights
1990, at 354 (recommending the Inter-American Commission that ˜in reporting on
the status of human rights in the American states, it include reference to the action
of irregular armed groups in such states™).
113 Inter-American Yearbook on Human Rights 1990, at 356.
legal restraints on armed opposition groups as such 41

the individual acquire an added dimension that puts them above the rights of
States and makes the individual a subject under international law. Thus, his
individual rights can be protected by the international community, organized
and juridically regulated by means of treaties. This is the substance of the legal
contract between the individual and the State that is formalized in the concept
of human rights. This is the underlying principle of the international legal in-
struments on human rights. The American Convention concerns the duties of
States vis-` -vis the rights and freedoms of persons, the full and free exercise
a
of which they must not only respect but also guarantee. The entire system for
protecting human rights is designed on the basis of the State™s acknowledgment
of itself as a party to a fundamental legal contract on the matter of human
rights and it is against the State that complaints alleging violation of the rights
upheld in the Convention are brought.114

The Commission thus put forward two arguments to support its view
that the scope of the American Convention should be limited to states.
First, the state has formally accepted human rights treaties as binding
upon it and it has agreed that complaints can be brought against it. The
second, more substantive, argument is that human rights treaties aim
to regulate the relationship between the government and the governed.
Both arguments exclude the application of human rights treaties to
armed opposition groups. These groups have not rati¬ed human rights
treaties, nor are they able to do so. Furthermore, the relationship be-
tween armed opposition groups and the individuals to be protected can
generally not be equated with a relationship between the government
and governed, although there may be some analogous characteristics.
The Inter-American Commission found that bringing acts of armed
groups under the American Convention would mean expanding the con-
cept of human rights, and found that it was the states™ responsibility to
decide whether such an expansion were desirable.115 The Commission
recently af¬rmed this viewpoint in its Third Report on Colombia, where
it stated that the American Convention on Human Rights generally ap-
plies only to the state and that ˜international humanitarian law provides
the only legal standard for analysing the activities of armed dissident
groups™.116 Thus, in the Commission™s view, a distinction must be made
in this regard between human rights law and international humanitar-
ian law.
In 1996, the special rapporteurs and working groups of the UN
Commission on Human Rights, pursuant to a resolution of the
114 115 Ibid., 370.
Ibid., 356, 358.
116 Third Report on the Situation of Human Rights in Colombia, above, n. 8, at 75“6,
paras. 13“14; see also Inter-American Commission, Tablada case, above, n. 4, para 174.
42 the normative gap

Commission,117 convened in a special meeting to discuss ˜the problem
of the relationship between terrorist activities and human rights in the
context of participants™ mandates™.118 They disapproved of the applica-
tion of human rights treaties to armed opposition groups:
It was recognized that States were accountable for human rights violations be-
cause they had undertaken obligations to respect such rights and to guarantee
their enjoyment and exercise to any person within their jurisdiction. It was
also recognized that if ever a state of belligerency existed, namely a civil war,
Protocol II additional to the Geneva Conventions, relating to the protection of
victims of non-international armed con¬‚icts should apply, as well as Common
Article 3 of the Conventions. In such cases, international humanitarian law
imposed obligations that to some extent were similar to those embodied in
international human rights treaties. However, parties bound by international
humanitarian law were not necessarily in a position to become parties of inter-
national human rights treaties.119

Thus, like the Inter-American Commission, the rapporteurs and working
groups considered that armed opposition groups were not bound by hu-
man rights treaties, because they were not parties to these treaties, nor
should they become so. Further, like the Inter-American Commission,
the meeting noted that human rights law is distinct from international
humanitarian law. The fact that armed opposition groups are bound by
Common Article 3 and Protocol II does not imply that they can also
be bound by human rights treaties.120 Moreover, the meeting observed
that, because they are bound by humanitarian standards, it may not be
necessary to extend human rights treaties to them. In conformity with
this standpoint, the special rapporteurs to the UN Commission have in
their reports generally avoided characterizing armed opposition groups
as human rights violators.121
Finally, the UN Secretary-General, in his 1998 report on Minimum
Humanitarian Standards to the UN Commission on Human Rights,
117 Res. 1996/47, para. 6 (19 April 1996) (urging ˜all thematic special rapporteurs and
working groups to address as appropriate the consequences of the acts, methods and
practices of terrorist groups in their forthcoming reports to the Commission™).
118 1996 Report of the Meeting of Special Rapporteurs, above, n. 111.
119 120 Ibid., paras. 46“7.
Ibid., para. 46.
121 See, e.g., UN Commission on Human Rights, E/CN.4/1994/48, para. 121 (Special
´ ´ ±´
Rapporteur for Sudan, Gaspar B´ro, 1 February 1994) (concluding that the
Government had committed human rights violations, while members of the SPLA
factions had committed abuses); 1994 Report of the Special Rapporteur on Torture,
above, n. 13, para. 13; UN Commission on Human Rights, E/CN.4/1991/36, para. 593
(Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,
S. A. Wako, 3 February 1991).
legal restraints on armed opposition groups as such 43

analysed whether armed opposition groups were or should be bound by
multilateral human rights treaties.122 His ¬nal conclusion corresponds
with the conclusion of the Inter-American Commission and the rappor-
teurs and working groups to the UN Commission on Human Rights, in
that he considers human rights treaties to be restricted to states.123
Nevertheless, unlike the Inter-American Commission and the rappor-
teurs and working groups, the Secretary-General does not categorically
exclude extension of these treaties to armed opposition groups in the
future. He proposed several arguments that he believed could support ex-
tension of the applicability of human rights to armed opposition groups:
This conception of human rights [applicable only to the state] (while dominant,
and rightly so given the scale of violations of human rights by Governments)
has never provided a fully adequate description of the scope of international hu-
man rights concern. The Universal Declaration of Human Rights, as well as the
two International Covenants, in their preambular paragraphs recognize duties
on individuals to promote respect for human rights. The two Covenants include
this statement in their preambles: ˜Realizing that the individual, having duties to
other individuals and to the community to which he belongs, is under a respon-
sibility to strive for the promotion and observance of the rights recognized in
the present Covenant.™ Such references clearly indicate the responsibility of indi-
viduals to promote human rights, although it is not clear whether that includes
legal obligations regarding human rights violations.124

While this argument is a useful starting-point when exploring possi-
ble human rights obligations of armed opposition groups, its strength
should not be overestimated. It is doubtful, as the Secretary-General
already suggested, whether preambular paragraph 5 common to both
International Human Rights Covenants imposes on armed opposition
groups the human rights norms stipulated in the Covenants.125 It calls
upon individuals to strive for the promotion and observance of human
rights, rather than obliging them to do so.126 Furthermore, it deals with
122 UN Secretary-General 1998 Report on Minimum Humanitarian Standards, above,
n. 13.
123 124 Ibid., paras. 62“3.
Ibid., paras. 59“61.
125 Article 29 of the Universal Declaration of Human Rights contains a provision
comparable to preambular paragraph 5 of the two Covenants. In Res. 1991/29 pr.
(5 March 1991) on ˜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™ the UN Commission on Human Rights referred to this norm
enshrined in the Covenants.
126 N. S. Rodley, ˜Can Armed Opposition Groups Violate Human Rights Standards?™, in
K. H. Mahoney, P. Mahoney, (eds.), Human Rights in the Twenty-First Century (Martinus
Nijhoff, The Hague, 1993), p. 307 (hereafter, ˜Armed Opposition Groups™). Rodley has
44 the normative gap

individuals rather than groups. The latter comment also applies to the
Secretary-General™s second argument:
The very ¬rst United Nations-sponsored human rights treaty, the Convention
on the Prevention and Punishment of the Crime of Genocide, clearly applied
to ˜constitutionally responsible rulers, public of¬cials or private individuals™. More
recently, resolutions adopted on ˜Human rights and terrorism™ in the Sub-
Commission and Commission on Human Rights have expressed concern about
the ˜gross violations of human rights perpetrated by terrorist groups™. Also rel-
evant is the fact that certain acts committed by individuals can attract interna-
tional criminal responsibility regardless of whether the individual acts on behalf
of a State or not. These include acts which violate human rights law. The crime
of genocide, noted above, is an example, but it is just one of several crimes
against humanity which can be committed by non-State agents.127

Crimes under international law create responsibility of individuals and
not of armed opposition groups. As will be discussed in Chapter 3, the
criminalization of acts committed by members and leaders of armed
opposition groups is an appropriate way of regulating the behaviour of
these groups. Nevertheless, armed opposition groups and their individ-
ual members are different subjects in international law.128
In spite of the fact that the UN Secretary-General regarded the
International Covenants and international criminal law standards as
providing some support for the extension of human rights treaties to
armed opposition groups, he refrained from concluding that they in fact
have obligations under human rights treaties. This cautious attitude was
in part due to his fear that shifting the attention from state behaviour
to the behaviour of the armed groups entailed the risk of undermining



examined several other articles of the Universal Declaration, the International
Covenant on Civil and Political Rights, and the Convention on the Elimination of All
Forms of Racial Discrimination on the question of obligations of armed opposition
groups. In particular, he analysed Article 5 of the International Covenant, which
virtually repeats Article 30 of the Universal Declaration, stating that ˜Nothing in this
Declaration may be interpreted as implying for any State, group or person any right
to engage in any activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth herein™; Article 20 of the International Covenant
prohibiting war propaganda and Article 2(1)(d) and Article 4 of the Convention on
the Elimination of Racial Discrimination. He concludes that these provisions do not
contain obligations for armed opposition groups, ibid., 305“9.
127 Above, n. 124 (footnotes omitted, emphasis added).
128 The same criticism applies to Rodley. In his analysis of possible accountability of
armed opposition groups for human rights violations, he mixes group accountability
with individual accountability, above, n. 126, at 302, 304.
legal restraints on armed opposition groups as such 45

the achievements of human rights law in protecting individuals from
the state:

Clearly, given the divergent views on this issue, and its complexity, further study
is needed. It seems beyond doubt that when an armed group kills civilians,
arbitrarily expels people from their homes, or otherwise engages in acts of
terror or indiscriminate violence, it raises an issue of potential international
concern. This will be especially true in countries where the Government has
lost the ability to apprehend and punish those who commit such acts. But very
serious consequences could follow from a rushed effort to address such acts
through the vehicle of existing international human rights law, not least that
it might serve to legitimize actions taken against members of such groups in
a manner that violates human rights. The development of international hu-
man rights law as a means of holding Governments accountable to a com-
mon standard has been one of the major achievements of the United Nations.
The challenge is to sustain that achievement and at the same time ensure
that our conception of human rights remains relevant to the world around
us.129

The argument, which has also been made by other international
bodies,130 that the characterization of acts committed by armed opposi-
tion groups as human rights violations might legitimize human rights
violations by the state must, however, be rejected. Unlawful acts by the
adverse party do not justify failure on the part of the state to ful¬l its
obligations under human rights or humanitarian law treaties.131

129 UN Secretary-General 1998 Report on Minimum Humanitarian Standards, above,
n. 13, para. 64 (footnotes omitted).
130 See, e.g., 1996 Report of the Meeting of Special Rapporteurs, above, n. 111, para. 44
(˜giving terrorist groups the quality of violators of human rights would be dangerous
and could amount to a sort of justi¬cation of human rights violations by
Governments™).
131 No measure of suspension taken by way of reciprocity or of reprisal is admissible
under the International Covenant and the European and American Convention.
Furthermore, it is a clear rule of international humanitarian law that the
prohibition of inhumane treatment or attacks against the civilian population
remains valid, even if the adversary has committed breaches, Yugoslavia Tribunal
Kupreski´ case (2000) above, n. 49, paras 517“20; S-S. Junod, Commentary Additional
c
Protocols, above, n. 9, p. 1452. See also Article 60(5) Vienna Convention on the Law of
Treaties stipulating that the rules on termination or suspension of the operation of a
treaty as a consequence of its breach do not apply ˜to provisions relating to the
protection of the human persons contained in treaties of a humanitarian character,
in particular provisions prohibiting any form of reprisals against persons protected
by such treaties™. Although some dif¬culties exist as to the scope of this article, it has
been claimed to cover both international humanitarian law treaties and human
rights treaties, P. Reuter, Introduction to the Law of Treaties (Kegan Paul International,
London, 1995) pp. 200“1 (hereafter, Law of Treaties).
46 the normative gap

In taking a cautious approach, the Secretary-General has avoided
distancing himself from the UN Commission on Human Rights. The
Commission™s position on the relationship between human rights and
armed opposition groups has been ambiguous. Nevertheless, since 1990,
when Peru, Colombia, and the Philippines brought the operations of
armed opposition groups to its attention, the Commission has been un-
willing to explicitly agree that armed opposition groups could directly
violate human rights norms.132 Similarly, when discussing the Secretary-
General™s aforementioned 1998 report, many states in the Commission
objected to his suggestion that there may be the need to move ˜beyond
the duty of States to respect and ensure the observance of human rights
and towards the creation of obligations applicable also to private indi-
viduals and other non-State actors including liberation movements and
terrorist organizations™.133 Hence, the Commission™s resolution 1998/29
only asked that the Secretary-General, in coordination with the ICRC,
continued to study the issues identi¬ed in the report and to submit a
report to the ¬fty-¬fth session in 1999.134 In the report submitted pur-
suant to this request, the Secretary-General adopted a more cautious
approach, con¬ning himself to saying that ˜some argue that non-State ac-
tors should also be held accountable under international human rights
law, especially in situations where the State structures no longer exist
or where States are unable or unwilling to mete out punishment for
crimes committed by non-State actors™.135

132 See, e.g., UN Commission on Human Rights, Res. 1990/75, para. 1 (7 March 1990)
(referring to the ˜adverse effects on the enjoyment of human rights™ of acts
committed by irregular armed groups); UN Commission on Human Rights, Res.
1991/29, para. 1 (5 March 1991); UN Commission on Human Rights, Res. 1992/42,
para. 1 (28 February 1992); UN Commission on Human Rights, Res. 1993/48, para. 1
(9 March 1993); UN Commission on Human Rights, Res. 1993/60, para. 2 (10 March
1993) (urging ˜the Government of Sudan to respect fully human rights and calls upon
all parties to cooperate in order to ensure such respect™).
133 UN Secretary-General 1998 Report on Minimum Humanitarian Standards, above,
n. 13, para. 65 (the Secretary-General cited here an earlier working paper by the
Sub-Commission expert K. Koufa on ˜Terrorism and Human Rights™, E/CN.4/sub.2/
1997/28 (26 June 1997)); see M. J. Dennis, ˜The Fifty-Fourth Session of the UN
Commission on Human Rights™ (1999) 93 AJIL 246, 248 (reporting the discussion in
the Commission).
134 Para. 5 (17 April 1998), see also UN Commission on Human Rights Res. 1999/65
(28 April 1999) and Res. 2000/69 (27 April 2000). The subsequent report of the
Secretary-General on this subject merely lists the different views of governments and
non-governmental organizations E/CN.4/2000/94 (27 December 1999).
135 UN Commission on Human Rights, E/CN.4/1999/92, para. 13 (Report of the
Secretary-General on ˜Fundamental Standards of Humanity™, 18 December 1998)
legal restraints on armed opposition groups as such 47

Practice asserting the applicability of human rights treaties to armed
opposition groups
According to the international practice analysed above, armed oppo-
sition groups are not parties to multilateral human rights treaties.
Furthermore, the Inter-American Commission and the rapporteurs and
working groups of the UN Commission on Human Rights found that an
expansion of the applicability of human rights treaties to armed opposi-
tion groups is not desirable. There is, however, also a tendency in interna-
tional practice, partly by the same bodies, to challenge this conclusion.
Occasionally, the Inter-American Commission, the UN Commission on
Human Rights, and the UN Security Council have applied human rights
treaties to armed opposition groups.
In its Annual Report 1992“3, the Inter-American Commission ob-
served: ˜There has been increasing concern in international and regional
human rights organizations with activities that constitute violations of
internationally guaranteed human rights by armed groups that operate
over a period of time and control, in varying degrees, the territory in
which they operate™.136 Similarly, in a press release of 3 June 1996, the
Commission urged a Colombian armed group to respect the life and the
personal safety of a person it was holding captive and which it threat-
ened to execute, stating:
The American Convention on Human Rights expressly stipulates, with regard to
states of emergency, that the right to life is absolute with no exception of any
kind. This protection of the right to life is so important that violations of that
right cannot be justi¬ed even in reprisal to violations of any kind committed by
the other side in a con¬‚ict . . . Whatever the reasons given and regardless of any
claims of justice or injustice that the group holding Juan Carlos Gaviria captive
may use to explain its actions, kidnapping and taking the life of a defenseless
person can never be justi¬ed under the rules and principles of international
human rights law.137

Similarly, as from 1994, the UN Commission on Human Rights adopted
various resolutions suggesting that armed opposition groups can vio-
late human rights. The most notable illustrations are the Commission™s

(hereafter, 1998 Report of the Secretary-General on Fundamental Standards of
Humanity).
136 OEA/Ser.L/V/II.83 Doc.14, corr.1, at 215“16 (12 March 1993) (hereafter, Annual Report
1992“3).
137 Annual Report of the Inter-American Commission on Human Rights 1996,
OEA/Ser.L/V/II.95, Doc. 7, rev., at 818“19 (14 March 1997) (hereafter, Annual Report
1996).
48 the normative gap

resolutions on ˜Human rights and terrorism™, where the Commission
expressed concern about the ˜gross violations of human rights perpe-
trated by terrorist groups™.138 In the same vein, the rapporteurs of the UN
Commission on Human Rights have occasionally suggested that armed

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