<<

. 3
( 9)



>>

opposition groups can violate human rights law. For example, with re-
gard to the Liberation Tigers of Tamil Eelam (LTTE), the armed opposition
group active in the con¬‚ict in Sri Lanka, the Special Rapporteur on Extra-
judicial, Summary or Arbitrary Executions expressed his concern about:

the alleged large number of violations of the right to life resulting from mili-
tary activities in Sri Lanka, especially in the northern peninsula. While he recog-
nizes the dif¬cult circumstances arising from the situation of con¬‚ict between
the Government and LTTE, he urgently calls upon the parties to the con¬‚ict to
comply with international humanitarian and human rights standards. The Special
Rapporteur wishes to reiterate that the right to life is absolute and must be
respected even under exceptional circumstances.139

Finally, several UN Security Council resolutions show the same tendency.
For example, in resolution 1193 (1998), the Council urged ˜the Afghan
factions™ ˜to put an end to the discrimination against girls and women
and to other violations of human rights . . . and to adhere to the inter-
nationally accepted norms and standards in this sphere™.140
This trend in the practice of international bodies to apply human
rights norms to armed opposition groups ¬nds support in several
unof¬cial texts not formally agreed to by states: most important has
been the Turku Declaration on Minimum Humanitarian Standards.

138 E.g., UN Commission on Human Rights, Res. 1997/42, pr (11 April 1997); UN
Commission on Human Rights, Res. 1994/46, pr. (4 March 1994); see also UN
Commission on Human Rights, Res. 1990/77, para. 7 (7 March 1990) (expressing its
concern ˜that the indiscriminate actions by Frente Farabundo Mart´para la Liberaci´ n
o
±
Nacional [FMLN] in towns and cities . . . represent serious and unpunished violations of
human rights™); UN Commission on Human Rights, Res. 1995/74, para. 12 (8 March
1995) (urging ˜all the Afghan parties to ensure respect for the human rights and
fundamental freedoms of women in accordance with international human rights
instruments™).
139 Special Rapporteur, Bacre Waly Ndiaye, made clear that the ¬rst con¬‚ict in the
Republic of Chechnya was covered by international humanitarian law, UN
Commission on Human Rights, E/CN.4/1997/60/Add.1, para. 450 (Report of the Special
Rapporteur, 23 December 1996) (emphasis added) (hereafter, 1996 Report of the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions). See also UN
Commission on Human Rights, E/CN.4/1992/17, para. 279 (Special Rapporteur on
Torture, N. S. Rodley, 27 December 1991); 1985 Report of the Special Rapporteur on
Afghanistan, above, n. 5, para. 184.
140 Para. 14 (28 August 1998); see also UN Security Council, Res. 1212, para. 7
(3 December 1998) (calling on UNITA [in Angola] to respect international human
rights law).
legal restraints on armed opposition groups as such 49

Since the beginning of the 1980s, experts have promoted the idea of de-
veloping a set of minimum humanitarian standards to provide a greater
protection for human beings, inter alia, from armed opposition groups
in internal armed con¬‚ict. The idea was ¬rst put forward by Meron, in
1983. In 1990, a group of experts embodied the idea in the Declaration
of Minimum Humanitarian Standards in Turku/…bo, Finland, also
known as the Turku Declaration.141 In 1994, the UN Sub-Commission
on Prevention of Discrimination and Protection of Minorities to the UN
Commission on Human Rights transmitted the Declaration for adoption
to the UN Commission on Human Rights, which has not happened so
far.142 The Turku Declaration applies in all situations, including internal
armed con¬‚ict, and applies to ˜all persons, groups and authorities™.143
It draws on both humanitarian and human rights norms. As suggested,
one of the main reasons for developing the Declaration was the fact
that armed opposition groups are not subjects of human rights treaties,
which the drafters considered to be a major inadequacy of the law pro-
tecting human beings in internal armed con¬‚ict.144
Another relevant text is the Guiding Principles on Internal
Displacement.145 These Principles, also written by experts, apply to ˜all
authorities, groups and persons™, in time of peace and war.146 They in-
clude rules of international humanitarian law and human rights law.147
Like the Turku Declaration, by regulating acts of armed opposition
groups, the Guiding Principles intend to ¬ll the gap in human rights
law binding only states.148

Special agreements
Armed opposition groups may agree to apply human rights norms.
An example, which has been mentioned before, is provided by the
San Jos´ Agreement on Human Rights, concluded between FMLN and
e
141 Turku Declaration on Minimum Humanitarian Standards (adopted at a meeting of
experts convened in Turku/…bo, Finland, 1990), revised version reprinted in (1995) 89
AJIL 218“23.
142 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Res. 1994/26, para. 1 (26 August 1994).
143 Articles 1 and 2.
144 A. Eide et al., ˜Combating Lawlessness in Gray Zone Con¬‚icts Through Minimum
Humanitarian Standards™ (1995) 89 AJIL 215, 217.
145 UN Commission on Human Rights, E/CN.4/1998/53/Add.2 (Report of the
Representative of the Secretary-General, F. M. Deng, 11 February 1998).
146 Ibid., para. 2 of the Introduction to the Principles and Principle 2.
147 Ibid., para. 3 of the Introduction to the Principles.
148 R.K. Goldman, ˜Codi¬cation of International Rules on Internally Displaced Persons™
(1998) 324 IRRC 463“6, text available on: www.icrc.org (visited, 1 January 2001).
50 the normative gap

the Salvadorian Government, in 1990.149 The involvement of ONUSAL,
charged with veri¬cation of this Agreement, indicates the international
character of the Agreement; FMLN must be assumed to have committed
itself not only to the Government, but also to the United Nations.
The Agreement contained a number of human rights norms, which
the Salvadorian Government and the FMLN accepted to respect. These
norms were derived from international human rights treaties to which
El Salvador was a party, including the International Covenant and the
American Convention on Human Rights. Some of these rights were also
enshrined in Common Article 3 and Protocol II and as such were appli-
cable to FMLN, such as the right to life, integrity and security, and the
freedom of the individual.150 Through the Agreement, FMLN accepted
to respect also various human rights to which it was not bound under
international humanitarian law. These included the freedom of associ-
ation, religion, expression, movement, and the effective enjoyment of
labour rights.151 It is particularly with regard to the latter category of
human rights that the question arises whether FMLN was legally capa-
ble of agreeing to comply with these norms and thereby whether these
norms were binding upon this group.
Armed opposition groups do not derive the capacity to conclude agree-
ments in which they agree to be bound by human rights norms from
a written rule of international law. The provision in Common Article 3
on special agreements only encourages these groups to agree to apply
other norms of the Geneva Conventions. Yet, there appears to be no
legal rule which would prevent the representatives of an armed op-
position group, in the case of FMLN with the co-operation of interna-
tional bodies, from making agreements with the established government
that are valid on the international plane.152 In this speci¬c case, the

149 Agreement of 26 July 1990, A/44/971, S/21541, Annex, also reprinted in UN and El
Salvador, above, n. 27.
150 Articles 1“4 of the San Jos´ Agreement on Human Rights, ibid., see for the
e
interpretation of these articles, First Report of ONUSAL, A/45/1055, S/23037
(16 September 1991) reprinted in UN and El Salvador, above n. 27, at 155“6, paras.
40“9 (hereafter, First Report of ONUSAL).
151 Articles 5“9 of the San Jos´ Agreement on Human Rights, above, n. 149.
e
152 Above, Section 2 and n. 74; see also ILCYb 1962, vol. II, p. 164 (Article 3 of the
International Law Commission™s Draft Articles on the Law of Treaties provides:
˜Capacity to conclude treaties under international law is possessed by States and by
other subjects of international law™. In its commentary to this article, the
International Law Commission explains that the phrase ˜other subjects of
international law referred, inter alia, to insurgent communities to which a measure
of recognition has been accorded).
legal restraints on armed opposition groups as such 51

Preamble of the San Jos´ Agreement expressly stipulated that FMLN was
e
considered to have the legal capacity to conclude this agreement. It read:
˜Bearing in mind that the FMLN has the capacity and the will and as-
sumed the commitment to respect the inherent attributes of the human
person™.153 Furthermore, the Agreement had been concluded with the ex-
press consent of the parent state, and applied solely to the territory of El
Salvador.154 Thus, it seems that the Agreement created legal obligations
for FMLN.
Nevertheless, ONUSAL made no attempt whatsoever to monitor FMLN™s
compliance with the human rights standards set forth in the Agreement.
This body reviewed the acts of FMLN only under the Geneva Conventions
and Protocol II.155 By refraining from requiring FMLN™s compliance with
the Agreement, it implicitly questioned the instrument™s binding force
on this group. The Agreement between El Salvador and FMLN creating
human rights obligations for both parties appeared rather to have a
symbolic function, than intending to give equal rights and duties to
each of them.156


Towards a reconceptualization of human rights?
The question has been addressed above whether international bodies
are moving towards inclusion of armed opposition groups under the
umbrella of human rights law, thereby going beyond the traditional
dichotomy in human rights law of individual versus state. The practice
discussed above reveals that international bodies are still far from achiev-
ing a consensus view “ or even uni¬ed thinking “ on this issue.
One reason for the practice extending human rights law to armed
opposition groups may be that this law, as opposed to international

153 Above, n. 152.
154 The case may be different when the parent state has not consented to commitment
of an armed opposition group to an international agreement, compare R. Jennings,
A. Watts, Oppenheim, above, n. 59, p. 1218.
155 Second Report of ONUSAL, above, n. 27, para. 147 (˜FMLN, for its part, as indicated in
the preamble to the Agreement, has declared that it has the capacity and the will
and assumes the commitment to respect the inherent attributes of the human
person. In particular, it must be understood that this declaration includes the rules
of international humanitarian law contained in Article 3 of the four Geneva
Conventions of 12 August 1949 and in the Protocol additional to those conventions,
and relating to the protection of victims of non-international armed con¬‚icts
(Protocol II)™).
156 Interview with F. Vendrell, Director Department of Political Affairs of the United
Nations (New York, 26 February 1998).
52 the normative gap

humanitarian law, has fairly extensive supervisory mechanisms. Because
there is no body speci¬cally mandated to supervise compliance by armed
opposition groups with the humanitarian rules, human rights bodies
have assumed this task. Their primary ¬eld of law is, however, human
rights law, which encourages them to apply this law to armed opposition
groups.
However, it would seem that the contrary practice is insuf¬cient both
in quantity and quality to challenge the principle that human rights
law binds only the state in its relation with individuals living under
its jurisdiction and not armed opposition groups involved in internal
con¬‚ict. The examples of international bodies imposing human rights
obligations on armed opposition groups are limited in number and not
very authoritative. Besides, the Inter-American Commission, which in the
past has applied human rights standards to armed opposition groups,
has abandoned this practice in its most recent report on Colombia, of
1999. Furthermore, the practice asserting the applicability of human
rights law to armed opposition groups is con¬ned to unsupported state-
ments. The practice disclaiming this applicability, on the other hand, is
validated with detailed reasoning. These quali¬cations may suggest that
the application of human rights treaties to armed opposition groups has
been exceptional, not re¬‚ecting general practice of the relevant bodies.
With these points in mind, some pertinent questions nevertheless re-
main as to the need to extend human rights law to armed opposition
groups. The ¬rst question is whether the asserted gap in substantive
norms protecting individuals during internal con¬‚ict indeed exists. The
drafters of the Minimum Humanitarian Standards and the Guiding
Principles on Internal Displacement have argued the need for exten-
sion of human rights law to armed opposition groups, inter alia, because
the scope of international humanitarian law would be too narrow to
effectively protect persons in internal con¬‚ict. I do not believe such a
gap to exist. Common Article 3 and Protocol II provide the most essen-
tial protections. The speci¬c contribution of human rights standards to
the content of these instruments is not signi¬cant, because the non-
derogable norms are in essence re¬‚ected in international humanitarian
law.
Related to this point is that the problems characteristic of internal
con¬‚ict differ so markedly from the human rights context that the ap-
plication of the same human rights principles will yield different rules,
adjusted to the speci¬c circumstances prevailing in con¬‚ict situations.
This means that when applied in time of armed con¬‚ict, human rights
legal restraints on armed opposition groups as such 53

norms will lose their speci¬city and come very close to or will even
be identical to norms of international humanitarian law. If one accepts
this argument, then there are strong reasons not to use the term human
rights in connection with armed opposition groups, because it does not
add anything.
Arguably, the relevance of human rights treaties is greater where
states question the applicability of Common Article 3 or Protocol II to
a concrete situation. In particular, one may argue that the threshold
set by Protocol II is too high to be applied in most internal con¬‚icts.
Armed opposition groups would then at least remain bound by human
rights law.157 While I shall examine the threshold for the applicabil-
ity of humanitarian norms to armed opposition groups in Chapter 4
(dealing with the accountability of armed opposition groups), here it
suf¬ces to say that, while this problem may exist, I doubt whether it
provides an argument for extending human rights law to armed oppo-
sition groups. First, the dif¬culties of the threshold for applicability of
Protocol II appear to have been overcome through identi¬cation of cus-
tomary humanitarian law governing internal con¬‚icts. As I will explain
later, these norms apply when the lower threshold of Common Article 3
has been ful¬lled. Second, I believe that rather than stretching human
rights law to armed opposition groups, efforts should be directed to-
wards promoting the application of Common Article 3 and Protocol II
in all situations that arguably constitute internal armed con¬‚icts within
the meaning of these rules.158 Finally, international bodies should aim
at a progressive and ¬‚exible interpretation of the application clauses of
Protocol II.
A second question that arises when considering the need to apply
human rights law to armed opposition groups is of a conceptual nature.
The main feature of human rights is that these are rights that peo-
ple hold against the state only. Human rights law purports to govern
the relations between the government representing the state and the
governed by setting limits to the intrusion by the government upon
those areas of human freedom thought to be essential to the proper
functioning of the human being in society and for his development
therein. These freedoms, as internationalized in human rights treaties,
are neither intended, nor adequate, to govern an armed con¬‚ict between
157 R. Abi-Saab, ˜Humanitarian Law and Internal Con¬‚icts: the Evolution of Legal
Concern™, in Challenges Ahead, above, n. 84, p. 222.
158 See D. Petrasek, ˜Moving Forward on the Development of Minimum Humanitarian
Standards™ (1998) 92 AJIL 557, 559.
54 the normative gap

the state and armed opposition group(s). The relationship between gov-
ernment and governed and the relationship between parties to the
con¬‚ict and civilians are different in kind. Accordingly, the law that
applies to these relationships has the same differences.159 Human rights
law and international humanitarian law do not represent alternative
bodies of law for wartime. The common feature of the two regimes,
which is the shared idea of humanity, is too vague to justify the applica-
tion of human rights law to armed opposition groups by international
bodies.
The above considerations leave room for application of human rights
law to armed opposition groups that act as de facto governments or
groups with a stable presence in part of the state territory. In those cases,
the basic feature of human rights law namely the relationship between
government and governed, is present. Chapter 4 examines whether prac-
tice of international bodies offers support for the argument that the
exercise of government-like functions is indeed a ground for imposing
human rights obligations on armed opposition groups. It should be re-
membered, however, that the number of armed opposition groups acting
as de facto governments, or groups with a stable presence in a particular
part of the territory, is small.
These propositions imply that the term ˜human rights™ should be re-
served for the relationship between the established government and the
governed and should not be applied to the relationship between par-
ties to the con¬‚ict and persons not participating in the hostilities. This
means, in turn, that the application of human rights law during in-
ternal con¬‚ict should be limited to cases not related to the con¬‚ict,
in which the government still has suf¬cient control. Accordingly, the
Inter-American Commission on Human Rights, in its Third Report on
Colombia, considered that it would apply human rights norms ˜alone
in those cases involving alleged abuses by State agents which do not
occur in the context of the hostilities™.160 The Commission applied inter-
national humanitarian law, on the other hand, to all cases arising out
of the context of the internal armed con¬‚ict.
It is dif¬cult to predict the developments in the practice of in-
ternational bodies in the future. The UN Commission on Human
Rights™ request for the report of the Secretary-General on Minimum
Humanitarian Standards indicates that the proposal ¬rst made in the

159 See G.I.A.D. Draper, ˜Humanitarian Law and Human Rights™, above, n. 2, p. 148.
160 Third Report on the Situation of Human Rights in Colombia, above, n. 8 at 74,
para. 11.
legal restraints on armed opposition groups as such 55

Turku Declaration of Humanitarian Minimum Standards to extend
human rights standards to armed opposition groups is now receiving
serious attention. The issue is on the Commission™s agenda.


International criminal law
Currently international criminal law does not extend to armed opposi-
tion groups as such.161 The Nuremberg Charter162 and the draft texts of
the Statute of the International Criminal Court suggest, however, that
prosecuting armed opposition groups under international law may be
conceivable. This section will brie¬‚y examine these texts.
Article 9 of the Nuremberg Charter provided: ˜At the trial of any indi-
vidual member of any group or organization the Tribunal may declare
(in connection with any act of which the individual may be convicted)
that the group or organization of which the individual was a member
was a criminal organization.™163 The purpose of this provision was three-
fold. First, it aimed to outlaw certain organizations the purpose of which
was military government or occupation. A second aim was to punish
membership of criminal organizations, in particular the SS (SchutzStaffen)
Of¬cers. Third, it intended to control the assets of such criminal organi-
zations, partly with the purpose of making reparations or of paying dam-
ages for violations of international law.164 On the basis of this article,
161 See 1993 Report of the UN Secretary-General, above, n. 38, para. 51 (˜the question
arises . . . whether a juridical person, such as an association or organization, may be
considered criminal as such and thus its members, for that reason alone, be made
subject to the jurisdiction of the International [Yugoslavia] Tribunal. The
Secretary-General believes that this concept should not be retained in regard to the
International Tribunal. The criminal acts set out in this statute are carried out by
natural persons; such persons would be subject to the jurisdiction of the
International Tribunal irrespective of membership in groups™); see also V. Morris,
M. P. Scharf, The International Criminal Tribunal for Rwanda (Transnational Publishers,
Inc. New York, 1998) vol. I, pp. 268“9 (hereafter, Rwanda Tribunal); S. R. Ratner,
J. S. Abrams, Accountability for Human Rights Atrocities in International Law (Clarendon
Press, Oxford, 1997) p. 15 (stating that it is unclear whether international law
generally imposes criminal responsibility on groups) (hereafter, Accountability for
Human Rights Atrocities).
162 Reprinted in Schindler and Toman, Laws of Armed Con¬‚icts, above, n. 78, p. 826
(Agreement by the Government of the United Kingdom of Great Britain and
Northern Ireland, the Government of the United States of America, the provisional
Government of the French Republic and the Government of the Soviet Socialist
Republics for the prosecution and Punishment of the Major War Criminals of the
European Axis, signed at London, 8 August 1945).
163 Ibid.
164 J. J. Paust et al., International Criminal Law “ Cases and Materials, (Carolina Academic
Press, Durham, 1996), pp. 73“4.
56 the normative gap

the International Military Tribunal declared several Nazi organizations
to be criminal in character, notably the Leadership Corps of the Nazi
Party and the SS.165 Of course, these were all state-linked organizations.
While the Nuremberg Charter recognized for the ¬rst time the pos-
sibility of individual criminal responsibility under international law
based on membership in a criminal group, it did not empower the
International Military Tribunal to hold organizations as such criminally
responsible. Indeed, the primary aim of this Tribunal was not to crim-
inalize organizations, but to convict individuals against whom other
evidence might be lacking.
The draft statute of the International Criminal Court166 went further
in this respect. Article 23 of the draft, as it was presented at the start of
the Rome Conference, provided (between brackets) that the International
Criminal Court had jurisdiction not only over natural persons, but also
over legal persons:
23 [5. The Court shall have jurisdiction over legal persons, with the exception
of States, when the crimes committed were committed on behalf of such legal
persons or by their agencies or representatives.
6. The criminal responsibility of legal persons shall not exclude the criminal
responsibility of natural persons who are perpetrators or accomplices of the
same crime.]167

Article 76 of the draft statute de¬ned the penalties applicable to legal
persons, which included ¬nes, dissolution, prohibition of the exercise
of certain activities, closure, forfeiture of proceeds, property and assets
obtained by criminal conduct, and, ¬nally, payment of reparation.168
The draft statute did not de¬ne the term ˜legal person™. It may be in-
terpreted as referring to organizations with legal status under national
or international law or both.169 Armed opposition groups will gener-
ally have no legal status under national law applicable in the territory
where they are active, because domestic law is likely to have prohibited
these groups. This means that under national law these groups are
non-existent, legally speaking. Nevertheless, the absence of national
165 Judgment of 1 October 1946, (1947) AJIL 172“333.
166 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of
an International Criminal Court, A/CONF.183/2/Add.1 (Report of the Preparatory
Committee on the Establishment of an International Criminal Court, 14 April 1998).
167 Ibid.
168 Ibid. Article 99 of the draft statute regulated the enforcement of ¬nes and forfeiture
measures, stipulating that the relevant provisions of this article shall apply in a like
manner to individuals and to legal persons.
169 Some delegations found that the notion ˜legal person™ should be extended to
organizations lacking any legal status, ibid., footnote 3 to Article 23.
legal restraints on armed opposition groups as such 57

legal personality should not be a prohibitive obstacle in the criminal
prosecution of armed opposition groups. These groups clearly exist in
international law “ they have limited legal personality, inter alia, under
Common Article 3 and Protocol II.
During the Rome Conference, a new draft statute of the International
Criminal Court was developed.170 Unlike earlier draft texts, this text in-
cluded a de¬nition of a ˜juridical person™, which term replaced the term
˜legal person™ in older versions. The relevant part of draft Article 23 read
as follows: ˜For the purpose of this Statute, ˜juridical person™ means
a corporation whose concrete, real or dominant objective is seeking
private pro¬t or bene¬t, and not a State or other public body in the
exercise of State authority, a public international body or an organiza-
tion registered, and acting under national law of a State as a non-pro¬t
organization.™171
According to this text ˜juridical person™ thus referred only to corpora-
tions. This means that armed opposition groups were excluded from the
draft statute, because these groups generally exist primarily for political
aims.172 The restriction to corporations also implied that it must con-
cern entities registered under national law. Thus, it appears that draft
Article 23 would not have covered armed opposition groups.
In any case, draft Article 23 did not survive the discussions in Rome.
In consequence, the Statute as ¬nally adopted on 18 July 1998 does not
include a reference to legal or juridical persons. In fact, there was a deep
divergence of views as to the advisability of including criminal responsi-
bility of legal persons in the Statute. Some states feared that it could be
used against those struggling for self-determination.173 This fear is not
wholly unfounded. Indeed, criminalization of these groups may imply a
de facto prohibition of rebellion against the state.174 It may also imply

170 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of
an International Criminal Court, A/Conf.183/C.1/WGGP/L.5/Rev.2 (Working Group on
General Principles of Criminal Law, 3 July 1998) reprinted in A. Clapham, ˜The
Question of Jurisdiction under International Criminal Law over Legal Persons:
Lessons from the Rome Conference on an International Criminal Court™, in
M. T. Kamminga, S. Zia-Zari¬ (eds.) Liability of Multinational Corporations Under
International Law (Kluwer Law International, 2000) (hereafter, ˜Legal Persons™).
171 Ibid., Article 23 (5)(d) (footnotes omitted).
172 A. Clapham, ˜Legal Persons™, above, n. 170.
173 Ibid. Furthermore states perceived procedural problems to exist relating to who
would represent the legal person in court and how assets could be obtained without
affecting the rights of third persons, id.
174 Compare H. Lauterpacht, Development of International Law by the International Court of
Justice (Cambridge University Press, Cambridge, reprint 1996) (1958) p. 147 (noting
that the institution of asylum as related to prosecution of revolutionary activities is a
58 the normative gap

that armed opposition groups aiming, for example, to overthrow a
dictator, may be outlawed under international law for having commit-
ted war crimes, not an uncommon practice of these groups.
The merit of this approach is unclear, save that the effect of the Court™s
declaration is to stigmatize armed opposition groups with criminality. In
addition there are doubts as to the legal validity of criminalizing armed
opposition groups. For the purpose of enforcing international law, it
would seem that civil responsibility of the armed opposition groups and
criminal responsibility of their individual members and leaders would
be adequate. Criminal responsibility of the groups as a whole is then
unnecessary. Moreover, dif¬culties will arise as to the de¬nition of armed
groups™ for the purposes of criminal prosecutions (see on this matter
Chapter 4, Sections 1 and 2).175
In sum, while the Nuremberg trials criminalized certain organiza-
tions in order to hold the individual members of these organizations
criminally responsible, the concern here is different. The question here
is whether criminal responsibility by armed opposition groups in their
own right can be established. While it was touched upon in the draft
texts of the Rome Statute, the ¬nal Statute dropped any reference to
criminal responsibility of collective entities as distinguished from crim-
inal responsibility of natural persons.

regional custom and that ˜it may be a matter of dispute whether it is within the
province of an international tribunal to discourage or to refuse full recognition to a
typical regional custom for some such reason as that the institution of asylum
results in protecting the actual leaders while exposing the mass of their supporters
to all the risks and perils of the revolutionary struggle™).
175 See for an excellent description of the dif¬culties that arose at the prosecution of the
German groups and organizations indicted before the Nuremberg tribunal, T. Taylor,
The Anatomy of the Nuremberg Trials (Bloomsbury, London, 1993).
Substantive obligations of armed
2
opposition groups as such




Now that the question of applicable law has been settled, the contents
of the law applicable to armed opposition groups can be examined in
some detail. International practice has given ample application to the
obligation of armed opposition groups to treat persons in their power
humanely, including obligations relevant to detained persons and penal
prosecution of persons. Furthermore, there is considerable practice on
the protection of civilians from the conduct of hostilities, including the
prohibition on the use of land mines and the prohibition of starvation of
civilians. Finally, international bodies have accepted the prohibition on
reprisals with regard to armed opposition groups. However, although
international bodies have accepted the applicability of a wide range
of international norms to armed opposition groups, they have rarely
indicated which measures these groups must take to be in compliance
with these norms.
In the previous chapter it has been shown, on the basis of interna-
tional practice, that armed opposition groups may, under particular cir-
cumstances, incur accountability for violations of human rights law.
However, and notably, to the extent armed opposition groups are bound
by human rights law, there is little discussion in international practice
of the speci¬c contents of their obligations under this law. This might
be taken to suggest that this law does not add much to international
humanitarian law from the point of view of substance, a point which
will be addressed below.


Humane treatment of prisoners
Common Article 3 and Articles 4 to 6 of Protocol II oblige armed oppo-
sition groups to treat humanely all persons outside combat who have

59
60 the normative gap

fallen into their hands and to protect them from abuse of power. The
general obligation to provide humane treatment consists of several
speci¬c obligations, three of which have been applied and developed
by international bodies: the obligation to provide certain fundamental
guarantees; obligations relating to detention and internment of persons;
and obligations concerning penal prosecution. International bodies have
applied the norms prescribing humane treatment both to acts commit-
ted outside and inside combat. Here I am, however, only concerned
with the application of these norms to acts committed outside com-
bat, against persons in the power of armed opposition groups. The next
section will elaborate on the application of Common Article 3 to military
operations.
I shall ¬rst address the personal, geographical and temporal scope of
application of Common Article 3 and Articles 4 to 6 of Protocol II.
Which persons are entitled to humane treatment under Common
Article 3 and Articles 4 to 6 of Protocol II? Common Article 3 stipu-
lates that it protects ˜Persons taking no active part in the hostilities,
including members of the armed forces who have laid down their arms
and those placed hors de combat by sickness, wounds, detention or any
other cause™. Article 2 of Protocol II provides that it applies to ˜all per-
sons affected by an armed con¬‚ict as de¬ned in Article 1™. According
to these rules, armed opposition groups must guarantee humane treat-
ment to all persons not involved in the hostilities and falling under their
control. This conclusion is con¬rmed by the Yugoslavia Tribunal, which
determined, in the Tadi´ case (1997, merits), that the test to be applied
c
to establish if a person is protected under Common Article 3 is:
to ask whether, at the time of the alleged offence, the alleged victim of the
proscribed acts was directly taking part in hostilities, being those hostilities in
the context of which the alleged offences are said to have been committed. If the
answer to that question is negative, the victim will enjoy the protection of the
proscriptions contained in Common Article 3.1

The Inter-American Commission applied a similar test in the Tablada
case. In this case, involving an attack by an armed opposition group on
military barracks of the Argentine Armed Forces, the attackers claimed
that, after the ¬ghting had ceased, state agents participated in the sum-
mary executions of some of the captured members of the armed group.
The Commission observed:
1 Prosecutor v. Duˇ ko Tadi´, Case No. IT-94-1-T, para. 615 (7 May 1997) (Merits) (hereafter,
s c
Tadi´ case (1997 Merits)); see also Yugoslavia Tribunal, Kupreski´ case (2000) above,
c c
Chapter 1, n. 49, paras. 522“4.
substantive obligations of armed opposition groups as such 61

The persons who participated in the attack on the military base were legitimate
military targets only for such time as they actively participated in the ¬ghting.
Those who surrendered, were captured or wounded and ceased their hostile
acts, fell effectively within the power of Argentine state agents, who could no
longer lawfully attack or subject them to other acts of violence. Instead, they
were absolutely entitled to the non-derogable guarantees of humane treatment
set forth in both Common Article 3 of the Geneva Conventions and Article 5 of
the American Convention. The intentional mistreatment, much less summary
execution, of such wounded or captured persons would be a particularly serious
violation of both instruments.2

The notion ˜civilians™ is therefore irrelevant for the question of protected
persons under Common Article 3 and Articles 4 to 6 of Protocol II “
although international bodies have sometimes used this term in the
context of humane treatment. Neither Common Article 3 nor Articles
4 to 6 of Protocol II employ the term ˜civilians™. This term is applicable
in the context of hostilities, with regard to persons not in the power of
armed opposition groups.
With regard to the geographical applicability of Common Article 3
and Articles 4 to 6 of Protocol II the Yugoslavia and Rwanda Tribunals
determined that this extends beyond the scene of military operations.3
In its Third Report on Colombia, the Inter-American Commission took a
similar position:

The Commission also wishes to emphasize that, in internal armed con¬‚icts, hu-
manitarian law applies throughout the entirety of national territory, not just
within the speci¬c geographical area(s) where hostilities are underway. Thus,
when humanitarian law prohibits the parties to the con¬‚ict from directing at-
tacks against civilians or taking hostages in all circumstances, it prohibits these
illicit acts everywhere. Thus, such acts of violence committed by the parties in
areas devoid of hostilities are no less violative of international humanitarian
law than if committed in the most con¬‚ictive zone of the country.4

Finally, as to the temporal applicability of Common Article 3 and Articles
4 to 6 of Protocol II, the Yugoslavia Tribunal determined that the tem-
poral scope of internal con¬‚icts extends beyond the exact time of hos-
tilities. The relevant provisions therefore continue to apply after the
hostilities have ended. It referred in this regard to Article 2(2) of Protocol
II which speci¬es that:

2 Tablada case, above, Chapter 1, n. 4, para. 189 (emphasis omitted).
3 Yugoslavia Tribunal, Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, paras. 69“70;
c
Rwanda Tribunal, Kayishema case, above, Chapter 1, n. 25, paras. 182“3.
4 Above, Chapter 1, n. 8, at 95, para. 83.
62 the normative gap

At the end of the armed con¬‚ict, all the persons who have been deprived of their
liberty or whose liberty has been restricted for reasons related to such con¬‚ict,
as well as those deprived of their liberty or whose liberty is restricted after the
con¬‚ict for the same reasons, shall enjoy the protection of Articles 5 and 6 until
the end of such deprivation or restriction of liberty.
The Tribunal found that this provision clearly shows that the temporal
scope of the applicable rules reaches beyond the actual hostilities.5
Having set the scope of application of Common Article 3 and Articles
4 to 6 of Protocol II, I shall now turn to the contents of the obligations
of armed opposition groups as they emerge from international practice.
Successively the obligation to provide certain fundamental guarantees,
obligations relating to detention and internment of persons and obliga-
tions on penal prosecution shall be dealt with.


Fundamental guarantees
Common Article 3 prohibits, in addition to the general prohibition of
inhumane treatment, a number of speci¬c acts, including ˜(a) violence
to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture; (b) taking of hostages; (c) outrages upon personal
dignity, in particular humiliating and degrading treatment™. Article 4(2)
of Protocol II reiterates the essence of Common Article 3.6 International
bodies, such as the Inter-American Commission, the UN Commission
on Human Rights and the UN Mission for El Salvador, have widely
applied these norms, particularly the prohibition of violence to life
and person. For example, in its 1996 Annual Report, the Inter-American
Commission reported: ˜The extremely dif¬cult conditions caused by
the various guerrilla movements in Colombia continued in 1996. These
groups committed numerous violent acts, many of which constitute
violations of humanitarian law applicable to the internal armed con¬‚ict
in Colombia. These acts included killings outside of armed con¬‚ict,
kidnapping for ransom.™7
5 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, paras. 67, 69“70.
c
6 This article prohibits the following acts: ˜(a) violence to the life, health and physical or
mental well-being of persons, in particular murder as well as cruel treatment such as
torture, mutilation or any form of corporal punishment; (b) collective punishments;
(c) taking of hostages; (d) acts of terrorism; (e) outrages upon personal dignity, in
particular humiliating and degrading treatment, rape, enforced prostitution and any
form of indecent assault; (f ) slavery and the slave trade in all their forms; (g) pillage;
(h) threats to commit any of the foregoing acts.™
7 Annual Report 1996, above, Chapter 1, n. 137, at 662, para. 53; see also Inter-American
Commission on Human Rights, Second Report on Colombia, above, Chapter 1, n. 110,
substantive obligations of armed opposition groups as such 63

Alongside the prohibition of violence to life and person, international
bodies urged armed opposition groups not to recruit children or allow
them to take part in the hostilities. This rule is laid down in Article
4(3)(c) of Protocol II, which provides that ˜children who have not attained
the age of ¬fteen years shall neither be recruited in the armed forces
or groups nor allowed to take part in hostilities™. The Human Rights
Division of the United Nations Observer Mission in El Salvador (ONUSAL)
gave a broad interpretation to this prohibition. According to ONUSAL,
the prohibition did not only amount to an ˜all-out ban on the voluntary
enlistment of children under the age of 15™ by FMLN; equally prohib-
ited by Article 4(3) of Protocol II was ˜the participation of minors in
such military operations as gathering information, transmitting orders,
transporting ammunition and foodstuffs and engaging in sabotage™.8
According to this interpretation, armed opposition groups are thus not
only prohibited to allow direct, but also indirect, participation of chil-
dren in the hostilities, for example, through the transportation of food.9
While the internationally accepted minimum age for recruitment and
participation in hostilities is currently ¬fteen years, the international
effort is aimed at raising the minimum age to eighteen. Thus, the UN
Secretary-General demanded that ˜non-state actors involved in con¬‚ict
not use children below the age of eighteen in hostilities, or face the
imposition of targeted sanctions if they do not comply™.10
There is some evidence that the obligation to provide fundamental
guarantees of protection to persons in the power of armed opposition
groups exists not only under international humanitarian law but also
under human rights law. For instance, in resolution 1988/65, the UN
Commission on Human Rights requested that ˜the Government of El
Salvador . . . and FMLN should take appropriate measures to put an end

at 219; UN Commission on Human Rights, Res. 1995/77, para. 15 (8 March 1995)
(Sudan); Second Report of ONUSAL, above, Chapter 1, n. 27, at 25, para. 88.
8 Second Report of ONUSAL, above, Chapter 1, n. 27, at p. 30, para. 116.
9 See also S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1380.
10 UN Security Council, S/1999/957, paras. 40“2, recommendation 9 (Report of the
Secretary-General on the Protection of Civilians in Armed Con¬‚ict, 8 September 1999).
The UN Commission on Human Rights aims at the adoption of an optional protocol
to the Convention on the Rights of the Child, which would prohibit the recruitment
and participation of children below the age of eighteen in hostilities; however, as the
Convention on the Rights of the Child does not apply to armed opposition groups, it
would seem that the optional protocol would not apply to these groups either, see e.g.
UN Commission on Human Rights, E/CN.4/1998/119, para. 26 (Interim Report of the
Special Representative on Children in Armed Con¬‚ict, Olara A. Otunnu, 12 March
1998). See further UN Security Council, Res. 1261 (1999), paras. 2“3 (25 August 1999).
64 the normative gap

to attempts on the life and physical integrity of individuals, both in non-
combat situation and in or as a result of combat, as well as to . . . all types
of action constituting a violation of the fundamental rights and freedoms
of the Salvadorian people™.11
By referring to ˜fundamental rights and freedoms™, the Commission
suggested that it relied on human rights law. Another example is pro-
vided by the UN Commission™s Special Rapporteur for Afghanistan, con-
cerning executions by the Taliban movement:

The Special Rapporteur . . . received distressing information indicating that in the
areas under Taliban control, court-ordered executions of adulterers by stoning
were reinstated . . . He calls on all warring factions in the country to respect
international human rights and humanitarian law standards and, in particular, to
protect at all times the right to life of civilians and other non-combatants.12

This practice demonstrates that there is a minimum standard of pro-
tection on the prohibition of violence to life and person in internal
con¬‚icts under humanitarian and human rights law, which is to some
extent identical. This is not surprising since the norms protecting life
and physical integrity in Article 4 of Protocol II are in¬‚uenced by hu-
man rights law, in particular the International Covenant on Civil and
Political Rights.13 Consequently, there is a degree of homogeneity as to
the substance between this fundamental rule in the Protocol and the
Covenant.
At the same time, this practice also demonstrates that human rights
law has little to add to international humanitarian law. The Special
Rapporteur, in his report referred to above, like many other interna-
tional bodies, mentioned human rights law together with international
humanitarian law. They do not specify the relevant human rights stan-
dards, indicating that human rights law has little value in addition to
international humanitarian law.

11 Para. 5 (emphasis added).
12 1996 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, above Chapter 1, n. 139, paras. 4, 7 (emphasis added); see also UN
Commission on Human Rights, E/CN.4/1988/22, para. 182 (Report of the Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions, S. Amos Wako,
19 January 1988) (Lebanon) (reporting the ˜non-respect for the right to life by groups
opposing the Government or not under its control™) (hereafter, 1988 Report of the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions); Annual
Report of the Inter-American Commission on Human Rights 1996, above, Chapter 1,
n. 137, at 818“19.
13 S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1365.
substantive obligations of armed opposition groups as such 65

Detention and internment
The ¬rst question to be addressed under this heading concerns the au-
thority of armed opposition groups to detain or intern persons.
Under Common Article 3 and Protocol II, armed opposition groups
are not prohibited from restricting the liberty of persons. These norms
do not prescribe the reasons for which persons may be detained or
interned, nor do they dictate the right to judicial control during de-
tention or internment. International bodies have, however, prohibited
detention or internment other than necessary for reasons related to
the con¬‚ict. The Inter-American Commission stated, with regard to
detentions carried out by the Colombian armed opposition groups,
that ˜international humanitarian law also prohibits the detention or in-
ternment of civilians except where necessary for imperative reasons of
security™.14 Similarly, the UN Commission on Human Rights appealed
to armed opposition groups to refrain from ˜arbitrary™ detention of
civilians.15 These bodies appear to have derived this prohibition from
conventional humanitarian law applicable to international con¬‚icts.
While Common Article 3 and Protocol II are silent on lawful reasons for
detention, the Fourth Geneva Convention permits internment only when
the party to the con¬‚ict considers a person dangerous to its security.16
The Fourth Geneva Convention must also have served as a guideline for
the UN Commission on Human Rights when it stated that the Afghan
armed opposition groups were prohibited from detaining persons un-
less these persons were tried within due time: ˜[The Commission] urges
the unconditional release of all prisoners detained without trial on
the Afghan territory by rival groups™.17 Again, Common Article 3 and
Protocol II do not contain such a norm. The Fourth Geneva Convention,
on the other hand, prescribes the obligation to guarantee detained

14 Third Report on Colombia, above, Chapter 1, n. 8, at 105, para. 122.
15 Res. 1995/77, para. 15 (8 March 1995) (Sudan).
16 Articles 42 and 43 of the Fourth Geneva Convention deal with the grounds and
procedure for internment or assigned residence of aliens who are in the territory of a
party to the con¬‚ict when hostilities break out; Articles 68 and 78 of the Convention
deal with the position of persons deprived of their liberty in occupied territory; see
also Article 75(3) of Protocol I, stipulating: ˜Any person arrested, detained or interned
for actions related to the armed con¬‚ict shall be informed promptly, in a language he
understands, of the reasons why these measures have been taken. Except in cases of
arrest or detention for penal offences, such persons shall be released with the
minimum delay possible and in any event as soon as the circumstances justifying the
arrest, detention or internment have ceased to exist.™
17 Res. 1993/66, para. 8 (10 March 1993).
66 the normative gap

persons accused of penal offences a fair and regular trial, including
the right to be brought to trial as soon as possible.18
Thus, the power of armed opposition groups to detain or intern per-
sons has been limited by the procedures and rules laid down in the
Fourth Geneva Convention.
In one case, the UN Commission on Human Rights absolutely denied
the power of armed opposition groups to detain persons. In resolution
1995/74, the Commission called ˜for the abolition of prisons run by polit-
ical parties and armed groups™ in Afghanistan.19 This resolution departs
from Common Article 3 and Protocol II. As these norms expressly reg-
ulate the treatment of detained persons, they acknowledge that armed
opposition groups do detain persons. The Commission™s resolution may
be explained on the basis of human rights law, which is the primary
¬eld of activity of the Commission. Human rights treaties presume the
state to be the only authority within the state territory, and under this
law the state, represented by a government, is the only authority enti-
tled to arrest and detain persons on such grounds and in accordance
with the law.20
A question different from the authority of armed opposition groups
to detain and intern persons, concerns the treatment of detained and
interned persons. The obligation to provide humane treatment, as ex-
amined above, remains fully valid in relation to persons in prison or
interned. Common Article 3 applies to all persons taking no active part
in the hostilities, including those placed hors de combat by detention.
Article 5 of Protocol II speci¬es a number of concrete measures armed
opposition groups must take with regard to interned and detained
persons, such as the provision of food and drinking water.21 The UN
18 Article 71 of the Fourth Geneva Convention (dealing with the penal procedure to be
followed by the Occupying Power prosecuting accused persons).
19 Para. 9 (8 March 1995).
20 See, e.g., Article 9 of the International Covenant on Civil and Political Rights.
21 Article 5(1) Protocol II further prescribes safeguards regarding health and hygiene, and
protection against the climate and the dangers of the con¬‚ict; permission to receive
individual or collective relief; permission to practise their religion; working conditions
and safeguards equivalent to those of the local civilian population. In addition to
these unconditional obligations; Article 5(2) of Protocol II prescribes obligations which
take into account the resources available to armed opposition groups to provide, inter
alia, separate quarters for men and women and to protect the physical and mental
health and integrity of persons whose liberty has been restricted. This obligation of
humane treatment, laid down in Common Article 3 and Protocol II, protects both
detained persons, namely persons being penally prosecuted, and interned persons
namely those deprived of their liberty for security reasons not being prosecuted under
penal law, S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1386.
substantive obligations of armed opposition groups as such 67

Commission on Human Rights, like other international bodies, af¬rmed
the humanitarian norms guaranteeing detained persons humane treat-
ment. In resolution 1989/67, the Commission urged ˜all parties to the
con¬‚ict™ in Afghanistan ˜to treat all prisoners in their custody in accor-
dance with the internationally recognized principles of humanitarian
law and to protect them from all acts of reprisal and violence, including
ill-treatment, torture and summary execution™.22
The UN Commission on Human Rights and the UN Security Council
have stated that armed opposition groups must permit the International
Committee of the Red Cross (ICRC) to go to places of internment and de-
tention held by these groups. Thus, in 1994, the Security Council called
for ˜unhindered access to the ICRC . . . to all persons detained by all par-
ties in relation to the armed con¬‚ict™ in Tajikistan.23 The Security Council
appears to rely here on the law applicable to international con¬‚icts.
Neither Common Article 3 nor Protocol II expressly entitle the ICRC
to carry out visits to places where protected persons are held. Under
Common Article 3 such visits are considered as being merely one of the
˜services™ which the ICRC may offer to the parties to the con¬‚ict and
which they are free to reject. The Fourth Geneva Convention, on the
other hand, sets forth the right of civilians detained or interned to be
visited by the ICRC.24


Prosecution
Common Article 3 and Protocol II do not expressly oblige armed op-
position groups to prosecute violations of these norms by members of
these groups or other persons under their control. Such an obligation
may be deduced from Article 1 common to the Geneva Conventions,
which obliges the States Parties to ˜ensure respect™ for the Conventions
˜in all circumstances™. As will be demonstrated later on, this article
also applies in internal armed con¬‚icts. It may be inferred that it ap-
plies equally to armed opposition groups involved in these con¬‚icts.
International practice provides little support for the obligation of armed
22 Para. 11 (8 March 1989); see also Inter-American Commission, Third Report on
Colombia, above, Chapter 1, n. 8, at 106“7, paras. 129“30.
23 Res. 968 (1994) para. 10 (16 December 1994); UN Commission on Human Rights,
E/CN.4/1996/177, para. 371 (Statement of the Chairman, 24 April 1996) (calling for the
ICRC to be permitted to have regular access to all persons detained by the parties to
the con¬‚ict in Chechnya).
24 Articles 76 and 143 Fourth Geneva Convention. See on access of the ICRC to persons
under control of armed opposition groups, Section 2 (Protection of Civilians).
68 the normative gap

opposition groups to prosecute violators of humanitarian standards. The
general feeling expressed by Plattner, that ˜it is dif¬cult to conceive
of international humanitarian law giving insurgents the authority to
prosecute and try authors of violations™, thus ¬nds wide recognition in
international practice.25
An exception is provided by the UN Commission™s Special Rapporteur
for Sudan, indicating that armed opposition groups are not only obliged
to respect the applicable norms, but that they also have to enforce com-
pliance with the norms by those under their control. Pursuant to an inci-
dent in Ganyiel region, in Sudan, on 30 July 1995, where a large group of
men attacked two villages, 210 people being reported killed, the Special
Rapporteur concluded that the killings of civilians were committed
by dissident commanders, mainly those who had split from the South
Sudan Independence Army (SSIA) and by the Sudan People™s Liberation
Army (SPLA) both armed opposition groups involved in the con¬‚ict in
Sudan. The Rapporteur stated that the SSIA and the SPLA must comply
with the special agreement concluded by the leaders of the SSIA and the
SPLA in which they expressed their support for the Convention on the
Rights of the Child, the 1949 Geneva Conventions and the Additional
Protocols of 1977. The Rapporteur observed that ˜both the SPLA and the
SSIA senior leadership should take the necessary measures without delay
to prevent future violations by investigating the cases brought to their
attention and holding the perpetrators responsible with special regard
to the Ganyiel incident™.26
However, apart from this example, international bodies have not ac-
cepted an obligation by armed opposition groups to prosecute violations
of international humanitarian law. Instead they have focused on the
rules on a fair trial, which restrain prosecutions and punishments ac-
tually carried out by these groups. Common Article 3(d) prohibits ˜the
passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized
peoples™. In a great number of resolutions and reports, international
25 D. Plattner, ˜Penal Repression™, above, Chapter 1, n. 1, at 415. See UN Security Council
Res. 1325 paras. 10, 11 (31 October 2000) (calling on ˜all parties to armed con¬‚ict™ ˜to take
special measures to protect women and girls from gender-based violence . . . ™,
emphasizing ˜the responsibility of all States to put an end to impunity and to
prosecute those responsible for genocide, crimes against humanity and war crimes™
(emphasis added)).
26 UN Commission on Human Rights, E/CN.4/1996/62, at 24, paras. 73 and 87 (Report of
´ ´ ±´
the Special Rapporteur for Sudan, Gaspar B´ro, 20 February 1996).
substantive obligations of armed opposition groups as such 69

bodies have applied this norm to armed opposition groups, denouncing
in particular the practice of summary executions.27
Apart from the general prohibition on summary executions, the lan-
guage of Common Article 3 does not make clear what speci¬cally is
expected from armed opposition groups. Phrases such as ˜a regularly
constituted court™ and ˜judicial guarantees which are recognized as in-
dispensable by civilized peoples™ are ambiguous. The Special Rapporteur
on Extrajudicial, Summary or Arbitrary Executions has proposed that
Protocol II and the Third Geneva Convention on Prisoners of War provide
adequate points of reference in this regard.28 Article 6 of Protocol II
supplements and develops Common Article 3. It clari¬es the notion of
˜judicial guarantees™ as prescribed in Common Article 3, providing a
list of such essential guarantees.29 The Protocol does not mention the
notion ˜regularly constituted court™; instead it prescribes a ˜court offer-
ing the essential guarantees of independence and impartiality™, which is
reproduced from Article 84 of the Third Geneva Convention on Prisoners
of War. In fact, during the drafting of the Protocol, some experts argued
that it was unlikely that armed opposition groups could ˜regularly
constitute™ a court under national law.30 Article 84 of the Third
Geneva Convention adds to Protocol II the rule that prisoners must be
tried by military courts.31 Article 105 of the same convention explicates
˜the rights and means of defense™ to which Protocol II refers. These
include the right to defence by an advocate, who must have appropriate
27 Annual Report of the Inter-American Commission on Human Rights 1996, above,
Chapter 1, n. 137, at 662, para. 53; Second Report on Colombia, above, Chapter 1,
n. 110, at 219; UN Commission on Human Rights, Res. 1995/77, para. 15 (8 March
1995) (Sudan); UN Commission on Human Rights, Res. 1989/67, para. 11 (8 March 1989)
(Afghanistan); Second Report of ONUSAL, above, Chapter 1, n. 27, at 20, paras. 62“3.
28 Commission on Human Rights, E/CN.4/1983/16, at 13, para. 56 (Report by the Special
Rapporteur, S. Amos Wako, 31 January 1983).
29 These include the right to information and defence; the principle of individual
responsibility; the principle of non-retroactivity; the principle of presumption of
innocence; the right of the accused to be present at his own trial; and the right not
to be compelled to testify against oneself or to confess guilt. In addition, the Protocol
prescribes the right to be informed of judicial remedies and of the time-limits in
which they must be exercised and the prohibition on pronouncing the death
sentence upon persons under eighteen years and on carrying out the death sentence
on pregnant women and mothers of young children, Article 6(2), (3) and (4) of
Protocol II.
30 S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1398.
31 This article adds: ˜Unless the existing laws of the Detaining Power expressly permit
the civil courts to try a member of the Detaining Power in respect of the particular
offence alleged to have been committed by a prisoner of war™, Article 84 of the Third
Geneva Convention.
70 the normative gap

time and facilities to conduct the defence.32 The total of the norms in
Protocol II and Article 84 of the Third Geneva Convention, provides the
essential rights of an accused subjected to penal prosecution as recog-
nized by international law.
The UN Mission for El Salvador, ONUSAL, has further clari¬ed what
is expected from armed opposition groups with regard to penal prose-
cution. ONUSAL reviewed the penal laws made by FMLN. In 1991, FMLN
issued a document entitled ˜Principles, Norms and Measures Ordered by
FMLN in the Course of the War™.33 In this document, the group estab-
lished the fundamental norms applicable to its penal system.
At the outset it should be noted that ONUSAL did not make any objec-
tions to FMLN™s laws as such. The fact that ONUSAL examined whether
FMLN™s penal document was in conformity with international humani-
tarian law implies that it accepted the group™s competence to issue laws.
This practice suggests that the requirement in Article 6 of Protocol II
that penal prosecutions must be in accordance with the ˜law™, refers not
only to the laws of the state, but also to laws that may have been adopted
by armed opposition groups.34 As the term ˜law™ has been copied from
the International Covenant on Civil and Political Rights, one may think
that it refers to the laws enacted by the existing government represent-
ing the state. This interpretation is, however, put in perspective by the
practice of ONUSAL.
ONUSAL does not clarify the relationship between the laws of the
Salvadorian State and the laws of FMLN. As will be explained in

32 Furthermore, this article provides for the right to call witnesses and a competent
interpreter.
33 ˜Principios, Normativos y Medidas Dispuestos por el FMLN en el Transcurso de la
Guerra™. This document, from September 1991, consists of four parts. The ¬rst part is
the introduction; the second part is entitled ˜Norms ruling the conduct of military
forces of the FMLN and the proceedings for the administration of justice in the
controlled zones™ (˜Normativos reguladores de la conducta de la fuerza militar del
´
FMLN y de los procedimientos para la administracion de justicia en las zonas de
control™); the third part is entitled ˜Measures to protect the human rights of the
civilian population in the context of war™ (Medidas para proteger los derechos
´
humanos de la poblacion civil en el contexto de la guerra™); the fourth part concerns
the ˜Norms to promote a respectful conduct to prisoners of war and special provisions
regarding the respect of spies serving the FAES™ (˜Normas para promover una conducta
de respeto a los prisioneros de guerra y disposiciones especiales respecto a los esp´as
±
al servicio de la FAES™), see Third Report of ONUSAL, A/46/876, S/23580, at 29, para. 113
and accompanying footnotes (Human Rights Division, 19 February 1992) (hereafter,
Third Report of ONUSAL).
34 See e.g., Article 6(2)(d) (stipulating that ˜anyone charged with an offence is presumed
innocent until proven guilty according to law™).
substantive obligations of armed opposition groups as such 71

Chapter 5, as a matter of principle, the laws of the established govern-
ment continue to apply during internal armed con¬‚ict.35 In dealing with
the problem of the relationship between state laws and laws of armed op-
position groups, international bodies will have to ¬nd a balance between
the principle of continuity of the national legal system and the reality
of a plurality of authorities. In this regard, the principles laid down in
Article 64 of the Fourth Geneva Convention applicable to international
con¬‚icts, dealing with the relation between domestic legislation and the
legislation of the occupying authorities, may be applied by analogy to
internal con¬‚icts. The basic rule would then be that armed opposi-
tion groups are to respect the domestic laws in force in the territory
under their control. Only in exceptional situations, involving their own
security, would these groups be permitted to adopt their own laws.
ONUSAL found that the ˜Principles, Norms and Measures ordered by
FMLN in the course of the War™ were not in conformity with Article 6
of Protocol II. In its Third Report, ONUSAL stressed the lack of essential
norms in this document, stating that it was ˜far from being a com-
pendium of the basic norms of a penal system™.36
ONUSAL expressed three criticisms. First, it found that FMLN™s penal
document did not establish the necessary rights and means of defence in
the pre-trial and the trial phase, as required by Article 6(2)(a) of Protocol
II. According to the commentary to this provision, the necessary rights
and means include the right of the accused to be informed as soon as
possible of the alleged offence; the right to be heard; the right to call
witnesses for the defence; and the right to produce evidence. ONUSAL
considered these procedural guarantees to be especially important in
cases involving possible application of the death penalty.37
Secondly, ONUSAL criticized FMLN™s penal document for the absence
of a right to appeal.38 Notably, Article 6 of Protocol II does not pre-
scribe a right to appeal. This article merely provides that if judicial or
other remedies exist, armed opposition groups must inform the person
in question about them and the time-limits within which they must
be exercised. In determining a right to appeal, ONUSAL presumably re-
lied on Article 73 of the Fourth Geneva Convention and Article 106 of
the Third Geneva Convention: these provisions guarantee civilians and
prisoners of war, respectively, the right to appeal sentences pronounced
upon them.
35 Below, Chapter 5, Section 2 (The obligation of the state to take action “ Legislation).
36 Third Report of ONUSAL, above, n. 33, at 29, para. 113 and accompanying footnotes.
37 38 Ibid., para. 113.
Ibid., para. 114.
72 the normative gap

Finally, ONUSAL denounced the lack of independence and impartiality
of FMLN courts, in violation of Article 6(2) of Protocol II. In order to estab-
lish the exact meaning of the notions ˜impartiality™ and ˜independence™,
ONUSAL referred to the Basic Principles on the Independence of the
Judiciary, con¬rmed by the UN General Assembly in resolutions 40/32
(1985) and 40/146 (1985),39 and which ONUSAL considered to be the ˜most
authoritative interpretative elements on the independence and impar-
tiality of the courts™.40 Signi¬cantly, according to their wording, the
Principles do not apply to armed opposition groups, but only to states.
On the basis of these ˜Basic Principles™, ONUSAL criticized the political
composition of FMLN courts, in particular, judicial powers that were
given to local commanders of FMLN, which enabled them to pronounce
sentences, including the death penalty. Other de¬ciencies highlighted by
ONUSAL were the lack of legal training of the persons who pronounced
sentences.41
In view of this practice, it is legitimate to ask whether the require-
ments of Article 6 of Protocol II and the additional requirements
imposed in international practice, such as the right to appeal, may in
some cases exceed the capabilities of armed opposition groups. These
groups may not always be able to set up a system of courts. Lack of stable
territorial presence and lack of facilities in which to house prisoners may
be one explanation for a policy by armed opposition groups of executing
all captured persons. In any event, any proceedings instituted by armed
groups will necessarily be ad hoc. ONUSAL acknowledged that it would
be very dif¬cult for the insurgent forces in an armed con¬‚ict to try ac-
cused persons before a court meeting the requirements of Protocol II.
Nevertheless, ONUSAL observed that ˜it has been considered that any
39 Resolutions of 29 November and 13 December 1985, respectively, cited in Third Report
of ONUSAL, above, n. 33, p. 29, para. 112.
40 Third Report of ONUSAL, above, n. 33, at 29, para. 112. The Mission mentioned in
particular the second principle of the Basic Principles, which provides: ˜The judiciary
shall decide matters before them impartially, on the basis of facts and in accordance
with the law, without any restrictions, improper in¬‚uences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any reason™, ibid.,
p. 29, para. 112, footnote 34.
41 Ibid., FMLN made several attempts to adjust the fundamental principles of its criminal
prosecutions. In the ¬rst months of 1991, the group presented to the ICRC a proposal
for a system of internal judicial administration that aimed to resolve the de¬ciencies.
Several norms included in Article 6 of Protocol II were envisaged in this document.
The ICRC rejected FMLN™s proposal, alleging that it did not observe the essential
norms stipulated in Article 6 of the Protocol, T. F. Acu˜ a, The United Nations Mission in
n
El Salvador “ A Humanitarian Law Perspective (Kluwer Law International, The Hague,
1995) p. 61, footnote 247 (hereafter, UN Mission in El Salvador).
substantive obligations of armed opposition groups as such 73

responsible and organized entity can and must observe the principles
established in Article 6 of Protocol II, which make up the right to an
impartial trial™.42 ONUSAL stated that these principles would continue
to enjoy their validity and mandatory character, even if the dissident
forces did not have a judicial administration similar to that of the state.
When FMLN™s penal system did not contain the norms required, ONUSAL
observed, it should be modi¬ed. Moreover, if the group™s penal system
continued to be inadequate, ONUSAL suggested that it should apply the
law of the Salvadorian Government in the zones under its control.43
Furthermore, ONUSAL maintained that when the person charged with
the offence was a member of the governmental armed forces, FMLN
would be obliged to liberate the person and notify the governmental
authorities about the violations committed.44 The ICRC stated that even
in response to serious violations of international humanitarian law, the
rebels should have recourse to the national system of administration of
justice.45
The above practice shows that to the extent armed opposition groups
are unable to comply with the relevant norms, they must leave prosecu-
tions to the governmental authorities.46 ONUSAL preferred this approach
to assisting FMLN in improving the group™s penal procedure. Indeed,
ONUSAL made no effort to instruct FMLN on the establishment of a
42 Ibid., p. 28, para. 111.
43 Compare K. J. Partsch, ˜Individual Penal Responsibility Provided by the Additional
Protocols to the Geneva Conventions™ (Second Round Table on Current Problems of
International Humanitarian Law, San Remo, 3“6 September 1975) pp. 6“7 (˜The
insertion of “principles of penal law and of penal prosecutions” in Protocol II is based
on the assumption that in an internal con¬‚ict also the adverse party is bound by the
provisions of the Conventions and Protocols. If this basis is not accepted, Protocol II
has no chance to be applied . . . The question whether these forces shall be able in fact
to respect the same judicial guarantees as the State, against whom they ¬ght, is not
put into doubt. It is left open, whether the material penal law remains in force or if it
is substituted by new laws. It is also left open, whether the existing courts are
continuing their activity or whether they shall be substituted by new courts™).
44 45 Ibid., footnote 247.
T. F. Acu˜ a, UN Mission in El Salvador, above, n. 41, p. 61.
n
46 Compare G. I. A. D. Draper, ˜Wars of National Liberation and War Criminality™, in
Restraints on War: Studies in the Limitation of Armed Con¬‚ict (Oxford University Press,
Oxford, 1979) pp. 135“162 reprinted in Re¬‚ections on Law and Armed Con¬‚icts, above,
Chapter 1, n. 2, 180, p. 190 (stating with regard to national liberation movements that
˜It is clear that NLMs normally do not have the legislative and judicial apparatus
required to meet the stringent requirements of the Conventions and of Protocol I as
to the trial of a person accused of “grave breaches” of those instruments . . . An NLM
might, if it had prima facie evidence of commission, hand over a suspected offender
to a neighbouring State which was a Party to the instruments for trial. Here the
absence of an NLM legal system will not inhibit the rendition™) (hereafter, ˜Wars of
National Liberation and War Criminality™).
74 the normative gap

proper criminal procedure. Even in cases where armed opposition
groups can implement the applicable standards, international practice
suggests that they may be obliged to leave prosecution to the govern-
ment. This practice joins with the absence in international practice,
referred to earlier, of a recognition of the obligation of armed opposition
groups to prosecute violations of international humanitarian law com-
mitted by persons under their control. It reveals the ambiguity of
humanitarian law for internal con¬‚icts. On the one hand, this law
recognizes the factual situation of a civil war in which at least two
authorities exist concurrently. Accordingly, it imposes equal obligations
on all parties, both on the government and armed opposition groups,
which may result in two separate systems of courts in the territory of a
single state. On the other hand, humanitarian law for internal con¬‚icts
aims, albeit indirectly, at the re-establishment of the authority of the ex-
isting government and thus to elimination of the opposite party(ies), the
armed opposition group(s).47 This paradox may explain why ONUSAL,
while accepting the reality of the existence of FMLN, refrained from
assisting the movement in the setting up of a properly functioning
penal system, and even denied its competence to prosecute. ONUSAL
may well have feared that full application of international humanitar-
ian law to FMLN would create a risk of institutionalization, at the cost
of the restoration of peace.
ONUSAL™s practice is not without problems. Its lack of attention to
the special characteristics of FMLN or even denial of its authority to
prosecute caused a situation of legal discrimination, favouring the legal
institutions of the state to those of the armed opposition group.48
Moreover, one may pose the question whether ONUSAL™s policy resulted
in the partial protection of the individuals living in areas controlled by
FMLN, subjecting them to penal prosecutions by this group. The answer
to this cannot be a categorical ˜no™.
47 See, e.g., Article 3(1) of Protocol II (stating that the state retains the right to restore
law and order and to defend its territorial integrity). Also the state™s competence to
punish members of armed opposition groups for participating in the con¬‚ict supports
the re-establishment of the state™s authority.
48 T. F. Acu˜ a, UN Mission in El Salvador, above, n. 41, p. 62 (criticizing ONUSAL for having
n
failed to guide the Salvadorian opposition group in their penal procedures. Acu˜ a n
recommended that international organizations in charge of supervision of
compliance with international humanitarian law should undertake coordinated
efforts to improve the application of the law by armed opposition groups. These
efforts should be oriented towards advising the insurgent force in the constitution of
their own penal system, and in the practical application of the legal provisions
required by due legal process).
substantive obligations of armed opposition groups as such 75


Protection of civilians
The previous section examined the duty of armed opposition groups to
provide humane treatment to all persons outside hostilities and under
their control. Here the obligation of armed opposition groups to protect
civilians who are not in their power in the course of military opera-
tions will be addressed. I will discuss successively the general obligation
to protect civilians and civilian objects; the prohibition on using land
mines; the prohibition on starvation of civilian populations; and ¬nally,
the prohibition on taking reprisals.
A preliminary question that arises is the de¬nition of persons entitled
to protection from military operations namely civilians and the civilian
population. This question is of great importance since the distinction
between civilians and those involved in the hostilities, and therefore
not entitled to protection from hostilities, is often extremely dif¬cult
to draw in internal con¬‚ict. Members of armed opposition groups do
not always wear uniforms; they may live or seek shelter in villages;
and civilians may provide material support to armed opposition groups,
voluntarily or by force, and as a consequence, become targeted.
Protocol II refers to civilians and the civilian population, but does
not de¬ne these terms. Given the absence of a de¬nition, the Rwanda
Tribunal and the Inter-American Commission on Human Rights found
that they had to look to the de¬nitional standards in Article 50 of
Protocol I for authoritative guidance.49 Accordingly, these bodies de¬ned
civilians as anyone who is not a member of the parties to the con¬‚ict
within the meaning of international humanitarian law.
In order to determine the scope of civilian immunity, the Inter-
American Commission tried to clarify the dividing line between direct
and indirect participation in the hostilities. The Commission af¬rmed
Article 13(3) of Protocol II, stipulating that civilians will forfeit pro-
tection when and for such time as they take a direct part in military
operations. The Commission emphasized that these persons nevertheless
retain their status as civilians: once they cease their hostile acts, they
can no longer be the object of an attack.50 Remarkably, the Commission
49 Rwanda Tribunal, Kayishema case, above, Chapter 1, n. 25, paras. 179“80; Rwanda
Tribunal, Prosecutor v. Musema, case No. ICTR-96-13, para. 280 (27 January 2000)
(hereafter, Musema case); Inter-American Commission, Third Report on Colombia,
above, Chapter 1, n. 8, at 83“4, paras. 43“6. Article 50 of Protocol I de¬nes the term
˜civilian population™ as comprising ˜all persons who are civilians™ and de¬nes a
˜civilian™ negatively as anyone who is not a member of the armed forces or of an
organized group of a party to the con¬‚ict.
50 Third Report on Colombia, above, Chapter 1, n. 8, paras. 53“5.
76 the normative gap

suggested that civilians are even obliged to refrain from participating in
the hostilities and that ˜international humanitarian law is violated if
this duty is not respected™.51 However, apart from this example, interna-
tional practice provides no support for such an obligation. Furthermore,
such an obligation does not ¬t into the humanitarian law system. On
the contrary, Article 13(3) of Protocol II providing that civilians shall
enjoy protection ˜unless and for such time as they take a direct part in
hostilities™, suggests that civilians are not prohibited from participation
in the hostilities.52
The Commission also pointed out that indirect participation in hostil-
ities, which supports the war effort of one of the parties to the con¬‚ict,
does not affect civilian immunity. The Commission provided several
examples of indirect participation: selling of goods to one or more of
the parties to the con¬‚ict; expressing sympathy for the aim of one of
the parties; and not preventing an attack by one of the parties.53


General protection of civilians and civilian objects
Part IV of Protocol II, entitled ˜Civilian Population™, contains general
rules on the protection of civilians from hostilities. Article 13(1)
prescribes that ˜the civilian population and individual civilians shall
enjoy general protection against the dangers arising from military op-
erations™. Article 13(2) of Protocol II prohibits direct attacks against the
civilian population: ˜The civilian population as such, as well as individ-
ual civilians, shall not be the object of attack. Acts or threats of violence
the primary purpose of which is to spread terror among the civilian
population are prohibited.™
These general rules of protection are re¬‚ected in UN General Assembly
resolutions 2444 (1968) and 2675 (1970) on the protection of the civilian
population,54 which, according to the Yugoslavia Tribunal, are declara-
tory of customary law.55 Resolution 2444, applicable in all armed con-
¬‚icts and to all authorities in armed con¬‚icts, adds to Protocol II
the principle of distinction: ˜Distinction must be made at all times
51 Ibid., 87, para. 58.
52 The argument of the Commission may go as follows: on the basis of the Hague
Regulations and Protocol I, combatants have an exclusive right to take part in
hostilities. Civilians do not have this right. Therefore, if they participate nonetheless,
they do this without right, therefore, unlawfully.
53 Third Report on Colombia, above, Chapter 1, n. 8, at 87, para. 56.
54 Above, Chapter 1, nn. 78, 79.
55 Above, Chapter 1, Section 2 (Other rules of humanitarian law).
substantive obligations of armed opposition groups as such 77

between persons taking part in the hostilities and members of the
civilian population to the effect that the latter be spared as much
as possible.™56 Resolution 2675 goes further than Protocol II by requir-
ing precautionary measures in attack to prevent damage to the civilian
population.57
These rules “ the prohibition on making civilians the object of attack,
the duty to distinguish between civilians and those taking part in the
hostilities, and the duty to take precautions “ have been af¬rmed and
developed in international practice. The Security Council, in resolution
851 (1993) on Angola, strongly condemned the attack by UNITA forces,
on 27 May 1993, against a train carrying civilians, reaf¬rming that
˜such criminal attacks are clear violations of international humanitarian
law™.58 In the Tadi´ appeal case, the Yugoslavia Tribunal stated that civil-
c
ians enjoy protection from hostilities, in particular from indiscriminate
attacks.59
International bodies have further developed the norms of Protocol II
and the General Assembly resolutions on protection of civilians from
hostilities by applying, by analogy, norms of Protocol I. International
bodies considered the application of Protocol I by analogy to be nec-
essary in order to ensure the effectiveness of Common Article 3 and
Protocol II. Part IV of Protocol II provides only the principles and not
the rules of application. It does not make clear which measures armed
opposition groups are obliged to take during the planning, decision,
and action stages of an attack or when being attacked. By applying
the more speci¬c regulation of Protocol I, international bodies have
sought to overcome the lacunae of Protocol II. The Protocols have been
drafted simultaneously. In consequence, many terms and principles of
Protocol I can also be found in Protocol II.60 The analogical applica-
tion by international bodies of certain provisions of Protocol I reinforces
the conclusion drawn earlier, that the distinction between the law for
56 Para. 1(c).
57 Para. 3 (providing: ˜In the conduct of military operations, every effort should be made
to spare civilian populations from the ravages of war, and all necessary precautions
should be taken to avoid injury, loss or damage to civilian populations™).
58 Para. 18 (15 July 1993); see also UN Commission on Human Rights, Res. 1990/53, para.
5 (6 March 1990) (urging all parties to the con¬‚ict in Afghanistan to halt the use of
weapons against the civilian population); 1996 Report of the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, above, Chapter 1, n. 139, paras. 4, 7,
450“1; Second Report of ONUSAL, above, Chapter 1, n. 27, at 18 para. 57.
59 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 127.
c
60 See S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1450,
footnote 9.
78 the normative gap

international armed con¬‚icts and the law for internal con¬‚icts is subject
to erosion.61
An example of analogical application of Protocol I to armed oppo-
sition groups is provided by the UN Mission for El Salvador, ONUSAL.
The Mission took this approach when considering FMLN™s ¬ring of
heavy artillery at a populated area. According to ONUSAL, it was pre-
dictable that these attacks would cause casualties among the civilian
population. It quali¬ed the attacks as indiscriminate and appealed to
FMLN to refrain from attacks ˜which may strike military objectives and
civilians . . . without distinction™.62 In particular, it stressed the excessive
character of these attacks in relation to the speci¬c and direct military
advantage that could be anticipated. To support its ¬nding, ONUSAL
not only referred to the norms laid down in Article 13(2) of Protocol II
and General Assembly resolutions 2444 (1968) and 2675 (1970), but also
applied, by analogy, Articles 51(4) and 51(5) of Protocol I, prohibiting
indiscriminate attacks.63
In the same way, ONUSAL has stressed the obligation to take pre-
cautionary measures in attack, as laid down in UN General Assembly
resolution 2675 (1970). It stated that for the determination of which
precautionary measures FMLN should adopt, Article 57 of Protocol I
contains information ˜useful in its analogous application to internal
armed con¬‚icts™.64 ONUSAL also applied, again by analogy, Article 58(b)

61 See above, Chapter 1, Section 2 (Relevance of the distinction between internal and
international con¬‚icts).
62 Second Report of ONUSAL, above, Chapter 1, n. 27, at 21, paras. 68“71.
63 Ibid., para. 69, footnote 18; see also Third Report of ONUSAL, above, n. 33, at 34, para.
134. Article 51(4) of Protocol I provides: ˜Indiscriminate attacks are prohibited.
Indiscriminate attacks are: (a) those which are not directed at a speci¬c military
objective; (b) those which employ a method or means of combat which cannot be
directed at a speci¬c military objective; or (c) those which employ a method or means
of combat the effects of which cannot be limited as required by this Protocol; and
consequently, in each such case, are of a nature to strike military objectives and
civilians or civilian objects without distinction.™ Article 51(5) of Protocol I stipulates:
˜Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single
military objective a number of clearly separated and distinct military objectives
located in a city, town, village or other area containing a similar concentration of
civilians or civilian objects; and (b) an attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated.™
64 Third Report of ONUSAL, above, n. 33, at 33, para. 131. Article 57 of Protocol I
provides: ˜1. In the conduct of military operations, constant care shall be taken to
spare the civilian population, civilians and civilian objects. 2. With respect to attacks,
substantive obligations of armed opposition groups as such 79

of Protocol I, which prohibits the location of military objectives within
or near densely populated areas.65 ONUSAL also invoked Article 51(7) of
Protocol I, which prohibits the use of the civilian population as a
shield.66 The Inter-American Commission considered the prohibition
against attacking, without the required precautions, to be a rule of cus-
tomary law applicable to armed opposition groups.67
In addition to the obligation to protect civilian persons, armed oppo-
sition groups are obliged to protect civilian objects against the effects
of hostilities. While Protocol II contains no rules expressly forbidding

the following precautions shall be taken: (a) those who plan or decide upon an attack
shall: (i) do everything feasible to verify that the objectives to be attacked are neither
civilians nor civilian objects and are not subject to special protection but are military
objectives within the meaning of paragraph 2 of Article 52 and that it is not
prohibited by the provisions of this Protocol to attack them; (ii) take all feasible
precautions in the choice of means and methods of attack with a view to avoiding,
and in any event to minimizing, incidental loss of civilian life, injury to civilians and
damage to civilian objects; (iii) refrain from deciding to launch any attack which may
be expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated; (b) an attack shall be cancelled or
suspended if it becomes apparent that the objective is not a military one or is subject
to special protection or that the attack may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military advantage
anticipated; (c) effective advance warning shall be given of attacks which may affect
the civilian population, unless circumstances do not permit. 3. When a choice is
possible between several military objectives for obtaining a similar military
advantage, the objective to be selected shall be the attack which may be expected to
cause the least danger to civilian lives and to civilian objects. 4. In the conduct of
military operations at sea or in the air, each Party to the con¬‚ict shall, in conformity
with its rights and duties under the rules of international law applicable in armed
con¬‚ict, take all reasonable precautions to avoid losses of civilian lives and damage to
civilian objects. 5. No provision of this Article may be construed as authorizing any
attacks against the civilian population, civilians or civilian objects™.
65 Ibid., 34, para. 134, and accompanying footnote 42. Article 58(b) of Protocol I provides:
˜The Parties to the con¬‚ict shall, to the maximum extent feasible: avoid locating
military objectives within or near densely populated areas.™
66 Ibid. Article 51(7) of Protocol I stipulates: ˜The presence or movements of the civilian
population or individual civilians shall not be used to render certain points or areas
immune from military operations, in particular in attempts to shield military
objectives from attacks or to shield, favour or impede military operations. The Parties
to the con¬‚ict shall not direct the movement of the civilian population or individual
civilians in order to attempt to shield military objectives from attacks or to shield
military operations.™ See also UN Commission on Human Rights, E/CN.4/1990/25, at 16,
para. 10 (Report on the Situation of Human Rights in Afghanistan by the Special
Rapporteur, F. Ermacora, 31 January 1990) (providing another example of analogous
application of Protocol I to acts of armed opposition groups).
67 Third Report on Colombia, above, Chapter 1, n. 8 at 82, para. 40.
80 the normative gap

armed opposition groups to attack civilian objects, UN General Assembly
resolution 2675 (1970) provides: ˜Dwellings and other installations that
are used only by civilian populations should not be the object of mili-
tary operations . . . Places or areas designated for the sole protection of
civilians, such as hospital zones or similar refuges, should not be the
object of military operations.™68 According to the Yugoslavia Tribunal,
customary law on the protection of civilian objects has developed to
govern internal strife, although it did not elaborate on this statement.69
The Inter-American Commission has stated that Protocol I can func-
tion as a point of reference on the protection of civilian objects:
˜Inasmuch as certain provisions of Protocol I codify for the ¬rst time
customary law rules designed to protect . . . civilian objects from indis-
criminate or disproportionate attacks, these provisions provide authori-
tative guidance for interpreting the extent of similar protection for
these . . . objects during all internal con¬‚icts.™70 Accordingly, the Commis-
sion determined that the terms ˜civilian objects™ and ˜military objects™
in Article 52 of Protocol I should be given similar meanings for the
purposes of Protocol II.71 It is on the basis of these rules that the
Commission subsequently reviewed attacks of the Colombian armed
opposition groups:

Armed dissident groups frequently attack objects which would normally be con-
sidered civilian in nature, such as cars, buses, stores and residences. Although
a civilian object may become a legitimate military target in certain cases, the
information received by the Commission indicates that these groups generally
attack these objects without having veri¬ed whether they were, at the time, mak-
ing an effective contribution to military action, thereby losing their protection
against attack. Armed dissident groups therefore act in a manner incompatible
with the norms of international humanitarian law as a result of these attacks.72

68 69 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 127.
c
Paras. 5 and 6.
70 Third Report on Colombia, above, Chapter 1, n. 8, at 92, para. 75.
71 Ibid., 89“90, paras. 67“8. Article 52 of Protocol I provides: ˜1. Civilian objects shall not
be the object of attack or of reprisals. Civilian objects are all objects which are not
military objectives as de¬ned in paragraph 2. 2. Attacks shall be limited strictly to
military objectives. In so far as objects are concerned, military objectives are limited
to those objects which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a de¬nite military
advantage. 3. In case of doubt whether an object which is normally dedicated to
civilian purposes, such as a place of worship, a house or other dwelling or a school, is
being used to make an effective contribution to military action, it shall be presumed
not to be so used.™
72 Ibid., 108“9, para. 139.
substantive obligations of armed opposition groups as such 81

The Commission paid particular attention to the attacks by the
Colombian armed opposition groups on electric towers and oil and gas
pipelines. It noted that these facilities have ˜dual-uses™ during hostili-
ties, meaning that they may not always enjoy immunity from attack. It
continued:

However, in order to be lawfully attacked, the object in question must meet the
test of a military objective in the circumstances ruling at the time of the attack.
That is, the object must make an effective contribution to military action and
its destruction must offer a ˜de¬nite military advantage™. Even in those cases
where such objects may legitimately be attacked, international humanitarian
law requires the attacker to take precautions to ensure that collateral damage
to the civilian population is minimized and to cancel an attack if the collat-
eral damage expected would be excessive in relation to the clear-cut advantage
anticipated by the target™s destruction or neutralization.73

The Commission concluded that some of the attacks on oil pipelines did
not aim at obtaining a military advantage, but instead were intended
to promote the ELN™s ideology of opposition to foreign exploitation of

<<

. 3
( 9)



>>