<<

. 4
( 9)



>>

Colombian resources. These attacks were held to constitute violations
of international humanitarian law.74
In the view of the Yugoslavia Tribunal, civilian objects must be un-
derstood as including cultural property.75 Article 19(1) of the Cultural
Property Convention obliges armed opposition groups to apply as a min-
imum ˜the provisions of the present Convention which relate to respect
of cultural property™. The principal rule on respect for cultural property,
as laid down in Article 4(1) of the Convention, obliges armed opposition
groups to refrain ˜from any use of the property and its immediate sur-
roundings or of the appliances in use for its protection for purposes
which are likely to expose it to destruction or damage in the event of
armed con¬‚ict™ and to refrain ˜from any act of hostility directed against
such property™.76 In the Tadi´ appeal case, the Yugoslavia Tribunal found
c

73 Third Report on Columbia, 109, para. 141.
74 Ibid., 109“10, para. 143; see also UN Commission on Human Rights, Res. 1989/68, para.
5 (8 March 1989) (requesting that the Government of El Salvador and FMLN: ˜should
take appropriate measures to put an end to . . . attacks on the economic
infrastructure™); UN Commission on Human Rights, E/CN.4/1987/21, at 27 para. 133
(Final Report on the Situation of Human Rights in El Salvador by J. A. Pastor Ridruejo,
2 February 1987) (calling on the forces of FMLN to refrain from attacking El Salvador™s
economic infrastructure).
75 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 127.
c
76 Article 4(2) of the Cultural Property Convention adds that the obligations mentioned
in the ¬rst paragraph of this article ˜may be waived only in cases where military
82 the normative gap

that cultural property is protected in internal con¬‚ict as a matter of
customary law.77
From the above practice, it is apparent that the obligation of armed
opposition groups to protect civilians against the effects of hostilities
is not absolute. Armed opposition groups, like parties to an interna-
tional con¬‚ict, are subject to obligations of due diligence and non-
discrimination.78 They are obliged to balance military necessity with
the protection of the civilian population and civilian objects. At a
minimum, armed groups must distinguish between military and non-
military targets, so that civilians and civilian objects are spared as much
as possible. Furthermore, they must respect the principle of proportion-
ality, and they must take precautions in attack. For the identi¬cation of
these obligations, international bodies have relied extensively on rules of
Protocol I.
Finally, a few words about the relevance of Common Article 3 for the
conduct of hostilities are in order. International bodies have generally
derived the norms on the protection of civilians and civilian objects from
the 1977 Protocols. They have, however, occasionally based such obliga-
tions on Common Article 3 of the Geneva Conventions. For example, the
Inter-American Commission stated that the immunity of the civilian
population from direct attack is codi¬ed in Common Article 3, in par-
ticular in the prohibition, in all circumstances, against ˜violence to life
and person™ to persons who ˜do not or no longer actively participate in
hostilities™.79 Similarly, the UN Mission for El Salvador, ONUSAL, argued
that the obligation to distinguish between civilians and participants in
hostilities follows from Common Article 3(1)(a) prohibiting violence to
life.80
Common Article 3 was never intended to have implications for the
conduct of hostilities. The prohibition on violence to life was not

necessity imperatively requires such a waiver™. The Second Protocol to this convention
supplements the Cultural Property Convention. In particular, the Protocol de¬nes the
notion ˜military necessity™ as used in Article 4(2) of the Convention (Article 6, Second
Protocol); it prescribes precautions in attack (Article 7, Second Protocol); and it
prescribes precautions against the effects of hostilities (Article 8, Second Protocol).
77 Above, n. 75.
78 See G. Abi-Saab, ˜Non-International Armed Con¬‚icts™ in International Dimensions of
Humanitarian Law (UNESCO, Martinus Nijhoff, Dordrecht, 1988) pp. 217, 235 (hereafter,
˜Non-International Armed Con¬‚icts™).
79 Third Report on Colombia, above, Chapter 1, n. 8, at 83, para. 41.
80 Third Report of ONUSAL, above, n. 33, para 131.
substantive obligations of armed opposition groups as such 83

intended to constitute a prohibition against attacking civilians.81 This
article intended to guarantee humane treatment of all persons who are
in the power of one of the parties to the con¬‚ict. This follows from the
notion of ˜treatment™ employed in Common Article 3 which presupposes
a degree of control over the person in question.82 The argument that pro-
visions for humane treatment in Common Article 3 are not applicable
to hostilities is supported by the fact that Protocol II deals with humane
treatment and protection of the civilian population in separate parts.83
The only conventional rules on protection of civilians from hostilities
are laid down in Protocol II. As will be described later, however, the
accountability of armed opposition groups under the Protocol has been
held to be very limited so that Common Article 3 is readily available
as a source of a duty by armed opposition groups to provide general
protection to civilians in their military operations.84 It may be doubted
whether such a use of Common Article 3 is really justi¬ed. For one thing,
it would seem that the acceptance of international bodies of the custom-
ary status of rules governing the conduct of hostilities makes a resort to
Common Article 3 for this purpose unnecessary.85 Also, it is submitted
that a distinction between the two categories of persons “ detainees and
civilian populations in general “ is still relevant and useful.
A possible explanation for applying Common Article 3 to the con-
ducting of hostilities may be that in internal con¬‚icts the distinction
between out-of-combat and combat situations is not always easily made.

81 G. I. A. D. Draper, ˜Wars of National Liberation and War Criminality™, above, n. 46,
p. 183. For this reason, the notions ˜law of Geneva™ and ˜law of The Hague™ are still
useful as they indicate the distinction between obligations of humane treatment and
conduct of hostilities, respectively. But see J. E. Bond, ˜Internal Con¬‚icts™, above,
Chapter 1, n. 101, at 348 (˜to the extent that the Hague rules are intended to protect
noncombatants, they are, as limited by reasonable interpretation, incorporated into
Article 3).
82 This also holds true for Article 4 of Protocol II.
83 Compare G. Abi-Saab, ˜Non-International Armed Con¬‚icts™, above, n. 78, p. 235 (˜If
Part II [of Protocol II] clearly follows a “human rights” approach, Part IV on “Civilian
Population” is by contrast strongly in¬‚uenced by a “law of war” approach. The
difference is particularly clear when it comes to determining the protected persons.
Part II prescribes “humane treatment” of all persons in their power by the parties to
the con¬‚ict, without distinguishing between those who had taken part in hostilities
and those who had not . . . Part IV on the other hand, necessarily distinguishes civilians,
de¬ned in Article 13 para. 3, as those who (and “for such time as they”) do not “take a
direct part in hostilities” and who are consequently entitled to “general protection
against the dangers arising from military operations”™).
84 85 See above, Chapter 1, Section 1.
See below, Chapter 4, Section 1.
84 the normative gap

Consider the following statement of the Inter-American Commission
in its 1999 Report on Colombia, in a chapter entitled ˜Protection for
Civilians Against Direct Attacks™:

The Commission is extremely concerned . . . that the deliberate targeting of civil-
ians has become a routine, if not systematic, tactic employed by all the parties to
the con¬‚ict in Colombia in varying degrees . . . The FARC, [Armed Revolutionary
Forces of Colombia], the ELN [Army of National Liberation] and their allied
groups have attacked, executed and abducted or taken hostage government of-
¬cials, including local mayors and council members, and other civilians whom
they believe are part of the State™s ˜repressive™ apparatus or are otherwise danger-
ous to the security of their combatants and sympathizers. Thus, for example, the
ELN has admitted that it carries out ˜political detentions of persons who have
been implicated in acts of administrative corruption or who have taken part
in the dirty war as promoters of political groups referring to paramilitaries™.
Given the practice of the ELN, it must be assumed that the organization applies
an extremely broad de¬nition to the term ˜promoters of the paramilitaries™, in-
cluding all those individuals believed to have some connection to paramilitary
groups, including family members of paramilitary group members. The ELN
states that the persons it detains are subjected to ˜popular revolutionary trials™
where they are convicted or acquitted. In each of these cases, the responsible
parties have erroneously equated the vocations and/or the non-hostile activi-
ties of their victims with actual participation in hostilities, thereby justifying
attacks against them. Acceptance of such claims for attacking these and like
civilians would not only obliterate any meaningful distinction between civilians
and combatants, but could also lead to total unregulated warfare in Colombia.
The Commission believes, therefore, that it is necessary to clarify the distinction
between ˜direct™ or ˜active™ and ˜indirect™ participation by civilians in hostilities
in order to identify those limited situations where it is not unlawful to attack
civilians.86

This statement shows that it may be dif¬cult to distinguish between
in-combat and out-of-combat situations. The Commission was not able
to indicate whether the above acts committed by the Colombian armed
opposition group must be quali¬ed as attacks or as inhumane treatment
of persons in the power of the armed opposition group. The result is that
it is unclear what protection the victims are entitled to. The protection
provided by the Protocols sweeps more widely (i.e. covers the whole
civilian population), but it is not absolute. The protection provided by
Common Article 3 is absolute, but its sweep is narrower (i.e. it is con¬ned
to protecting persons in detention).

86 Third Report on Colombia, above, Chapter 1, n. 8, at 84“6, paras. 47, 51“3 (footnotes
omitted).
substantive obligations of armed opposition groups as such 85

Land mines
Protocol II does not explicitly prohibit the use of land mines, or indeed
any other weapon. Part IV of the Protocol, however, contains general
rules on the protection of civilians from hostilities. As noted above,
these rules, which also apply as a matter of customary law, oblige
armed opposition groups to distinguish in their military operations
between military and non-military targets and to take certain precau-
tionary measures when attacking. According to international practice,
the prohibition of the use of land mines against civilians is incorpo-
rated in the general rule of protection of civilians because these weapons
necessarily violate the principle of distinction. Accordingly, the Interna-
tional Court of Justice, in its 1996 Advisory Opinion on Legality of the
Threat or Use of Nuclear Weapons, stated that the principle of protection
of the civilian population and the related principle of distinction bet-
ween civilians and persons involved in the hostilities mean that states
must never make civilians the object of attack and must consequently
˜never use weapons that are incapable of distinguishing between civilian
and military targets™.87 Although this prohibition is addressed to states,
the general principle of protection of civilians applies also to armed op-
position groups in internal con¬‚icts. It may therefore be inferred that
the prohibition against indiscriminate weapons also applies to armed
opposition groups. The Inter-American Commission, in its Third Report
on Colombia, has made it clear that it considers the ban on land mines
to be a general obligation applicable to any group conducting military
operations.88
Apart from the general norm of protecting civilians from hostilities,
a speci¬c norm has recently been laid down by Amended Protocol II on
Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices.89 This Protocol clearly applies to armed opposition groups as
well as to states. Article 1 provides:

87 Above, Chapter 1, n. 34, para. 78.
88 Third Report on Colombia, above, Chapter 1, n. 8, at 100, para. 102“5. In addition, the
International Court of Justice and ONUSAL have invoked the principle of humanity, as
prescribed in the preambular para. 4 of Protocol II, which is inspired by the Martens
Clause (providing: ˜recalling that in cases not covered by the law in force, the human
person remains under the protection of the principles of humanity and the dictates
of the public conscience™), as a basis for the prohibition of the use of indiscriminate
weapons, Advisory Opinion on Nuclear Weapons, above, Chapter 1, n. 34, para. 78;
Second Report of ONUSAL, above, Chapter 1, n. 27, at 22, para. 74.
89 Article 3(7) prohibits the directing of mines covered by the Protocol against the
civilian population, individual civilians or civilian objects.
86 the normative gap

2. This Protocol shall apply, in addition to situations referred to in Article 1 of
this Convention, to situations referred to in Article 3 common to the Geneva
Conventions of 12 August 1949 . . .
3. In case of an armed con¬‚ict not of an international character occurring in
the territory of one of the High Contracting Parties, each party to the con¬‚ict
shall be bound to apply the prohibitions and restrictions of this Protocol.

It may be noted that the UN Mission for El Salvador deemed the princi-
ples contained in the predecessor of Amended Protocol II to be custom-
ary international law applicable in non-international armed con¬‚icts.90


Starvation
Armed opposition groups target civilians by, inter alia, restricting their
access to food and other humanitarian relief, or, even purposely starving
them. For example, in Somalia armed opposition groups impeded the
delivery of vital food and medical supplies, because they felt it favoured
the other parties to the con¬‚ict. They then kept the supplies for them-
selves. Such practices have given rise to a number of legal issues. One
question is whether the consent of armed opposition groups is required
when humanitarian bodies seek to operate in areas that they control.91
Protocol II states that access of humanitarian relief organizations is de-
pendent on the permission of the state. The commentary to the relevant
article suggests that this requirement of governmental consent extends
to the entire state territory, including areas under the control of armed
opposition groups.92 The commentary adds that, in rare cases, when it
is unclear which entity must be quali¬ed as the government, ˜consent
is to be presumed in view of the fact that assistance for the victims is of
paramount importance and should not suffer any delay™.93 In any case,
it would seem that, under Protocol II, the consent of armed opposition
groups even when they are in effective control of a part of the state ter-
ritory, is not required for humanitarian relief to be provided to civilians
in distress.94
90 Third Report of ONUSAL, above, n. 33, at 36, para. 143. ONUSAL mentioned in
particular Article 3 of Protocol II to the Convention on Conventional Weapons,
prohibiting the indiscriminate use of mines, booby-traps and other weapons.
Commentary 4th Geneva Convention, above, Chapter 1, n. 9, p. 41.
91
92 The Protocol applies only to con¬‚icts where armed opposition groups exercise
territorial control, see below, Chapter 4, Section 1.
93 S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1479.
94 Green has given another interpretation to this article, suggesting that ˜since there is
speci¬c reference to the consent of only the High Contracting Party, it would appear
substantive obligations of armed opposition groups as such 87

Another crucial legal question is whether armed opposition groups
have a legal duty to allow humanitarian deliveries to areas under their
control even if they have not themselves consented to those deliveries be-
forehand. In this regard, Article 14 of Protocol II, prohibiting starvation
of civilians as a method of warfare, is pertinent: ˜Starvation of civilians
as a method of combat is prohibited. It is therefore prohibited to attack,
destroy, remove or render useless, for that purpose, objects indispensable
to the survival of the civilian population, such as foodstuffs, agricultural
areas for the production of foodstuffs, crops, livestock, drinking water
installations and supplies and irrigation works.™
This prohibition appears to apply to armed opposition groups as well
as to states. It may be understood as imposing on armed opposition
groups a positive duty to accept humanitarian relief and to facilitate
distribution of relief.95
While there are few resolutions or statements from international
bodies referring to the general prohibition of starvation,96 the obliga-
tion of armed opposition groups to allow the delivery of relief has
been af¬rmed by various international bodies. UN General Assembly
resolution 2675 (1970), which, according to various international bod-
ies, is declaratory of customary law,97 sets forth such an obligation. It
builds on the ˜Declaration of Principles for International Humanitarian
Relief of the Civilian Populations in Disaster Situations™, adopted by the
International Conference of the Red Cross in 1969.98 The Declaration
requests states ˜to exercise their sovereign and other legal rights so as
to facilitate the transit, admission and distribution of relief supplies
provided by impartial international humanitarian organizations for the
bene¬t of civilian populations in disaster areas when disaster situations
imperil the life and welfare of such populations™.99 While the Declara-
tion applies to states and makes no speci¬c reference to armed con¬‚icts,
resolution 2675 (1970) of the UN General Assembly stated that it extends
that those in the hands of revolutionaries are not entitled to similar assistance™, L. C.
Green, The Contemporary Law of Armed Con¬‚ict (Manchester University Press, Manchester,
1993) p. 133 (hereafter, Armed Con¬‚ict).
95 See S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1479;
Commentary 4th Geneva Convention, above, Chapter 1, n. 9, p. 41.
96 UN Commission on Human Rights, Res. 2000/18, para 8d (18 April 2000) indirectly
refers to the prohibition of starvation of civilians (urging ˜all Afghan parties™ to
refrain from the wanton destruction of food crops and civilian property™).
97 Above, Chapter 1, Section 2.
98 Resolution XXVI, XXIst International Conference of the Red Cross (Istanbul, 1969)
cited in: S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1476.
99 Ibid., sub-para. 5.
88 the normative gap

to situations of armed con¬‚ict, including internal armed con¬‚icts, and
to all parties to armed con¬‚icts.100
The UN Security Council has invariably quali¬ed the refusal of armed
opposition groups to permit access to humanitarian organizations to
territory under their control as a violation of international humanitar-
ian law. In resolution 851 (1993), the Council appealed to ˜both parties™
to the con¬‚ict in Angola ˜strictly to abide by applicable rules of interna-
tional humanitarian law, including to guarantee unimpeded access for
humanitarian assistance to the civilian population in need™.101 Similarly,
in resolution 1989/67, the UN Commission on Human Rights called upon
˜all parties to the con¬‚ict™ in Afghanistan, ˜in order to alleviate the se-
rious suffering of the Afghan people, strictly to respect human life and
the principles and provisions of international humanitarian law and
to co-operate fully and effectively . . . with international humanitarian
organizations, in particular by granting them, and especially the Inter-
national Committee of the Red Cross, unrestricted access to all parts of
the country™.102
International bodies have stated that armed opposition groups should
cooperate with humanitarian organizations, in particular by facili-
tating the rapid transit of relief consignments and by ensuring the
safety of convoys. In resolution 794 (1992), the Security Council de-
manded that ˜all parties, movements and factions in Somalia™ desist
from all breaches of humanitarian law, including ˜the deliberate im-
peding of the delivery of food and medical supplies essential for the
survival of the civilian population™.103 In resolution 1984/52, the UN
Commission on Human Rights appealed to ˜all Salvadorian parties in
100 Para. 8 (˜The provision of international relief to civilian populations is in conformity
with the humanitarian principles of the Charter of the United Nations, the Universal
Declaration of Human Rights and other international instruments in the ¬eld of
human rights. The Declaration of Principles for International Humanitarian Relief to
the Civilian Population in Disaster Situations, as laid down in resolution XXVI
adopted by the 21st International Conference of the Red Cross, shall apply in
situations of armed con¬‚ict, and all parties to a con¬‚ict should make every effort to
facilitate this application™).
101 Para. 19 (15 July 1993).
102 Para. 4 (8 March 1989); see also UN Commission on Human Rights, Res. 1997/59, para.
18 (15 April 1997) (Sudan); UN Commission on Human Rights, Res. 1996/73, para. 17
(23 April 1996) (Sudan); UN Commission on Human Rights, E/CN.4/1994/7, paras. 707
(Report by the Special Rapporteur, Bacre Waly Ndiaye, 7 December 1993) (hereafter,
1993 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions).
103 Para. 5 (3 December 1992); see also UN Security Council, Res. 733, para. 7 (23 January
1992) (Somalia).
substantive obligations of armed opposition groups as such 89

the con¬‚ict™ ˜to co-operate fully and not to interfere with the activities
of humanitarian organizations dedicated to alleviating the suffering of
the civilian population . . . , wherever these organizations operate in the
country™.104
The conclusion would appear to be that armed opposition groups are
not to prohibit or interfere with deliveries of humanitarian relief. If
this conclusion is correct then it must be concluded that Protocol II,
making humanitarian relief dependent on the consent of the state, tells
only part of the story. The state has the prerogative of consenting to
the deliveries “ and the armed opposition groups have a duty to allow
distribution in areas that they control once consent has been given by
the state.


Reprisals
In the context of internal con¬‚icts, reprisals may be de¬ned as acts of
retaliation, normally illegal, in response to prior unlawful acts by the
adverse party for the purpose of coercing the latter to comply with
international humanitarian law.105 Common Article 3 and Protocol II
are both silent on the question of legality of reprisals taken by armed
opposition groups against persons in their power. In fact, during the
drafting of Protocol II, states contended that armed opposition groups
are inherently incapable of committing reprisals. The rationale is that
reprisals concern only relations between states which, as subjects of
international law, possess the exclusive legal capacity to conduct war.
Armed opposition groups might take analogous measures, but such
acts could not be considered as means of enforcing international
law.106
This reasoning is dif¬cult to accept. Armed opposition groups are sub-
jects of international law in that they have international rights and
obligations. The obligations of armed opposition groups under Common
Article 3 and Protocol II imply a corresponding right on their part
to demand that their governmental adversaries comply with the same
rules.107 This in turn implies a right to enforce compliance with the

104 Para. 5 (14 March 1984); see also UN Commission on Human Rights, Res. 1986/39,
para. 6 (12 March 1986).
105 L. C. Green, Armed Con¬‚ict, above, n. 94, p. 56, footnote 22.
106 S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1372, n. 18.
107 See P. H. Kooijmans, ˜Non-State Entities as Parties to Con¬‚icts™, above, Chapter 1, n.
71, p. 338.
90 the normative gap

relevant norms by the other party, including the possible resort to
reprisals.108 This argument is supported by UN General Assembly res-
olution 2675 (1970). This resolution uses the term ˜reprisals™ in relation
to armed opposition groups, thereby implying that these groups are
capable of committing these acts.109
While armed opposition groups are (it is submitted) able to commit
reprisals, the trend in international practice is towards placing greater
limits on the right of reprisal generally. There is, for example, a gen-
eral rule against reprisals against detained persons (such as prisoners
of war) and also against reprisals directed at civilian populations. These
limitations apply equally to government and opposition forces. The UN
Commission on Human Rights, in 1989, urged ˜all parties to the con¬‚ict™
in Afghanistan “ clearly including armed opposition groups “ ˜to treat
all prisoners in their custody in accordance with the internationally
recognized principles of humanitarian law and to protect them from
all acts of reprisal™.110 Similarly, in a case involving hostage taking by a
Colombian armed opposition group, accompanied by a threat to execute
the hostage, the Inter-American Commission considered that ˜violations
of [the right to life] cannot be justi¬ed even in reprisal to violations of
any kind committed by the other side in a con¬‚ict™.111
With regard to military attacks against civilians by way of reprisal, the
General Assembly, in resolution 2675 (1970), af¬rmed as a basic principle
for all armed con¬‚icts that ˜civilian populations or individual members
thereof, should not be the object of reprisals™.112 In the Marti´ case,113
c
before the Yugoslavia Tribunal, the defendant was accused of knowingly
and wilfully ordering the shelling of Zagreb in May 1995. The Yugoslavia
Tribunal emphasized the absolute character of the rule: ˜The prohibi-
tion against attacking the civilian population as such as well as indi-
vidual civilians must be respected in all circumstances regardless of the
behaviour of the other party . . . No circumstances would legitimise an

108 See F. Kalshoven, Belligerent Reprisals (A. W. Sijthoff, Leiden, 1971) pp. 35, 266“7
(linking reprisals with acts committed by armed opposition groups in internal
con¬‚icts) (hereafter, Reprisals).
109 110 Resolution 1989/67, para. 11 (8 March 1989).
Para. 7.
111 Annual Report of the Inter-American Commission on Human Rights 1996, above,
Chapter 1, n. 137, at 818.
112 Ibid.
113 Prosecutor v. Milan Marti´, Review of Indictment Pursuant to Rule 61 of the Rules of
c
Procedure and Evidence, Case No. IT-95-11-R61 (8 March 1996) (hereafter, Marti´ c
case).
substantive obligations of armed opposition groups as such 91

attack against civilians even if it were a response proportionate to a
similar violation perpetrated by the other party.™114
The Tribunal derived this norm not only from General Assembly res-
olution 2675, but also from Article 4 of Protocol II. It found that such
reprisals were contrary to the absolute and non-derogable prohibitions
enumerated in that provision.115
Particular mention may be made of the prohibition against collective
punishment, enshrined in Article 4(2)(b) of Protocol II. The Yugoslavia
Tribunal found that this prohibition strengthened the prohibition of
reprisals against civilians in internal con¬‚icts.116 Collective punishment
may be de¬ned as ˜measures aimed against the collectivity of the
population of a town, village or other locality and based on the collec-
tive responsibility of the population for a hostile act committed in or
near the locality™.117 Measures of collective punishment are distinguished
from reprisals by the fact that they are intended to affect the conduct
of the adverse party. They are in the nature of collective criminal law
enforcement. However, because of the close connection between collec-
tive punishment and reprisals, Kalshoven has quali¬ed the former as
˜quasi-reprisals™.118 The decision of the Yugoslavia Tribunal in the Marti´
c
case shows that the prohibition of reprisals should be understood to
extend to the prohibition of collective punishments.119

114 Ibid., para. 15; see also Yugoslavia Tribunal, Kupreski´ case (2000) above, Chapter 1,
c
n. 49, paras. 526“7.
Ibid., paras. 10“18. Compare Commentary 4th Geneva Convention, above, Chapter 1, n. 9,
115

pp. 39“40 (˜the acts referred to under items (a) to (d) [of Common Article 3] are
prohibited absolutely and permanently, no exception or excuse being tolerated.
Consequently, any reprisal which entails one of these acts is prohibited, and so,
speaking generally, is any reprisal incompatible with the “humane treatment”
demanded unconditionally in the ¬rst clause of sub-paragraph (1)™); J. E. Bond,
˜Internal Con¬‚icts™, above, Chapter 1, n. 101, at 359“60.
116 117 F. Kalshoven Reprisals, above, n. 108, p. 39.
Marti´ case, above, n. 113, para. 16.
c
118 Ibid., 38.
119 See also S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1374 (˜to
include the prohibition on collective punishments amongst the acts unconditionally
prohibited by Article 4 is virtually equivalent to prohibiting “reprisals” against
protected persons™). To support its argument that reprisals are prohibited in internal
con¬‚icts, the Yugoslavia Tribunal also referred to common Article 1 of the Geneva
Conventions. According to the Tribunal, the obligation to ˜respect and to ensure
respect™ for the Conventions ˜in all circumstances™ would apply even when the
behaviour of the other party might be considered wrongful, Marti´ case, above,
c
n. 113, para. 15. See for other examples of the prohibition of reprisals in the context
of military operations, UN Commission on Human Rights, Res. 1993/66, para. 6
(10 March 1993) (Afghanistan).
92 the normative gap

Thus, although international humanitarian law on internal con¬‚icts
does not expressly either permit or prohibit reprisals, Common Article 3
and Protocol II implicitly permit reprisals equally by both sides “ while
simultaneously placing important limits on the circumstances in which
either side can actually resort to them.


Underdevelopment of the law
From the practice of international bodies analysed in this chapter, it is
apparent that the substantive obligations of armed opposition groups
are limited to the duty to respect elementary norms of humanity.
International practice leaves no doubt that armed opposition groups are
prohibited from killing outside combat, torturing, summarily executing
persons, or otherwise in¬‚icting inhumane treatment. Also, there is uni-
form and consistent practice prohibiting armed opposition groups from
attacking civilians or civilian objects, using land mines against civilians,
starving the civilian population, prohibiting or impeding humanitarian
relief, and taking reprisals against civilians or detained persons.
International bodies have formulated these norms applicable to armed
opposition groups invariably in terms of ˜prohibitions™. They have rarely
indicated which measures armed opposition groups must take to be in
compliance with their obligations. Or, in other words, international
bodies have focused on what armed opposition groups must not do.
Examples of practice according rights to armed opposition groups have
been exceptional.
The obligations to respect and to ensure respect are, however, com-
plementary. When penal prosecutions conducted by armed opposition
groups must be in accordance with the law, it appears that these groups
must adopt such law. Similarly, when a group must abstain from doing
harm, it seems logical that it must take all necessary steps to make
sure that all those over whom it has authority abstain from doing
harm, including prosecution and punishment of these persons. Indeed,
in many cases, the effectiveness of the law requires that armed oppo-
sition groups not merely respect the rules, but do everything in their
power to make sure that humanitarian rules are complied with by the
groups themselves and by everyone in their power.
Although Common Article 3 and Protocol II do not expressly oblige
the parties to the con¬‚ict to ensure respect for the norms, convention-
al law does provide some support for such an obligation. For example,
Article 1 common to the Geneva Conventions, applicable in internal
substantive obligations of armed opposition groups as such 93

armed con¬‚ict,120 refers to the obligation to ensure respect for the norms
in the Geneva Conventions. Furthermore, Article 5(2)(e) of Protocol II
prescribes that armed opposition groups shall not endanger the health
and integrity of detained or interned persons ˜by any unjusti¬ed act or
omission™. The reference to ˜omission™ indicates that, in particular cir-
cumstances, armed opposition groups must take measures to guarantee
the objective of this article. Another example is contained in the Cultural
Property Convention. Article 4(3) obliges armed opposition groups to ˜un-
dertake to prohibit, prevent and, if necessary, put a stop to any form of
theft, pillage or misappropriation of, and any acts of vandalism directed
against, cultural property™.
However, international practice provides little support for the obliga-
tion of armed opposition groups to ensure respect for the applicable law.
It means that international bodies have done little to make the applica-
ble law effective. It also means that international bodies do not regard
armed opposition groups as responsible actors, exercising political and
military authority over other persons. By limiting their duties to a duty
to abstain, the position of armed opposition groups under international
law has in fact become very similar to that of individuals, prohibited
from committing international crimes.
120 See Chapter 5, Section 3.
PART 2 · THE ACCOUNTABILITY GAP
Accountability of group leaders
3




Part 1 identi¬ed the substantive law applicable to armed opposition
groups. It appeared that restraints indeed exist, although the relevant
law is still primitive. The next question to be addressed is: who can be
held accountable for violating these norms or for failure to prevent or
redress such violations? This chapter will deal with the lowest level of
accountability: leaders of armed opposition groups. The next two chap-
ters will examine the accountability of armed opposition groups as such,
and of the territorial state.
The ¬rst and lowest level of accountability for acts of armed opposition
groups holds that the military and civilian leadership of these groups
can be held accountable. The role of leaders is decisive in order to en-
sure observance of international norms by armed opposition groups.
Whether the norms are concerned with the military operations, places
of internment or detention, superiors of armed opposition groups must
supervise their proper application in order to avoid a fatal gap between
the obligations of the armed opposition group and the conduct of its
individual members. If the leaders permit or condone violations of inter-
national humanitarian law, this law is unlikely to have any effectiveness.
Accountability of leaders of armed opposition groups manifests itself
in the form of the individual criminal responsibility of these persons.
The responsibility of leaders of armed opposition groups must be distin-
guished from the responsibility of ordinary members of armed opposi-
tion groups. As will be shown later, leaders of armed opposition groups
can be held criminally responsible for acts committed by their subordi-
nates. Ordinary members, on the other hand, can be held responsible
only for their own acts.1
1 B. V. A. R¨ ling, ˜Aspects of the Criminal Responsibility for Violations of the Laws of
o
War™, in A Cassese (ed.), The New Humanitarian Law of Armed Con¬‚ict, Editoriale

97
98 the accountability gap

The principle of command responsibility for the leaders of armed
forces is well established in traditional international law. One of the
leading cases is the Yamashita case, decided ultimately by the United
States Supreme Court.2 But the question of the criminal responsibility
of leaders of armed opposition groups has not come before international
tribunals prior to the events of the 1990s. The international tribunals
at Nuremberg and Tokyo only dealt with government or ruling party
of¬cials.3 Furthermore, until recently, no international treaty existed
imposing international criminal responsibility onto individuals not con-
nected with the state.
The establishment of the Yugoslavia and Rwanda Tribunals has
changed the legal situation. The Statutes and jurisprudence of these
two tribunals envisage criminal responsibility for non-state leaders,
whether in a purely military context or not. Moreover, these Statutes
and case law show that the nature of the con¬‚ict “ international or
internal “ , as well as the status of the superior “ state agent or mem-
ber of an armed opposition group “ are irrelevant for the question of
superior responsibility. The Rome Statute of the International Criminal
Court of 1998 (not yet in force) re¬‚ects a similar tendency. Furthermore,
present plans for a Special Court for Sierra Leone envisage the prosecu-
tion of the leadership of the Revolutionary United Front (RUF), the
armed opposition group involved in the con¬‚ict in Sierra Leone since
1991.4 International practice is still limited. So far, there has been
only one judgment directly dealing with the responsibility of a supe-
rior of an armed opposition group, the Aleksovski judgment, passed by

Scienti¬ca S.r.l., Napoli, 1979) pp. 199, 203 (distinguishing system criminality from
individual criminality, considering the ¬rst type as the most important one).
2 Trial of General Tomoyuki Yamashita (US Military Commission, Manila, 8 October “
7 December 1945), United Nations War Crimes Commission 4 Law Reports of Trials of War
Criminals, 1, 88 (1945); see for the history of the doctrine of command responsibility, W.
Parks, ˜Command Responsibility for War Crimes™ (1973) 62 Mil. L. Rev. 1“104 (hereafter,
˜Command Responsibility™); L. C. Green, ˜War Crimes, Crimes against Humanity, and
Command Responsibility™ (Spring 1997) NWR 26“68 (for an overview of recent
application of the principle of command responsibility) (hereafter, ˜Command
Responsibility™).
3 Article 6 of the Nuremberg Charter, above, Chapter 1, n. 162 (which gave the
international tribunal the authority to punish persons ˜acting in the interests of the
European Axis countries, whether as individuals or as members of organizations™);
Article 5 of the Charter for the International Military Tribunal for the Far East, Special
Proclamation of the Supreme Commander for the Allied Powers of 19 January 1946,
reprinted in Department of State Bulletin, Vol. XIV, No. 349 (10 March 1946).
4 Statute of the Sierra Leone Court of 4 October 2000, not yet in force, and SG Report on
Sierra Leone Court, above, Chapter 1, n. 106.
accountability of group leaders 99

the Yugoslavia Tribunal in 1999.5 However, the legal principle has been
established.
This chapter will ¬rst identify the substantive crimes for which lead-
ers of armed opposition groups can be held responsible. There will then
be an examination of international practice showing the applicability
of the principle of command responsibility to these superiors, being a
speci¬c type of individual responsibility and hence a separate ground
of attribution of criminal responsibility. Then the criteria for the re-
sponsibility of leaders of armed opposition groups will be discussed “
speci¬cally, the question of whether these criteria differ in any respect
from the criteria for responsibility of superiors of state armies will be
addressed. There will then be an evaluation of whether international
practice provides suf¬cient basis for allocating accountability for acts
committed by armed opposition groups to the leaders of these groups.


Crimes
Before appraising the applicability of the principle of command responsi-
bility to group leaders, the crimes giving rise thereto warrant de¬nition.
Superior responsibility of leaders of armed opposition groups presumes
that there are crimes the commission of which entails individual crim-
inal responsibility of these leaders.
The crimes fall into three major areas: war crimes, crimes against hu-
manity, and genocide. While these areas are still evolving, they provide
for individual responsibility in internal con¬‚icts, including responsibil-
ity of leaders of armed opposition groups. It will be seen that the tra-
ditional distinction between international and internal con¬‚icts for the
application of substantive international criminal law has been largely “
though not fully “ abolished.


War crimes
War crimes are offences against particular norms of international hu-
manitarian law. Until recently, the common belief was that war crimes
could not be committed in internal armed con¬‚ict by insurgents.
Common Article 3 and Protocol II, which have been speci¬cally written
for application to armed opposition groups, do not expressly address

5 Prosecutor v. Aleksovski, No. IT-95-14/1-T, paras. 58“65 ( Judgment of 25 June 1999)
(hereafter, Aleksovski case).
100 the accountability gap

individuals; these provisions refer only to the parties to the con¬‚ict.6
At present, however, although international practice has occasionally
been inconsistent, it is safe to say that serious violations of Common
Article 3 and part of Protocol II entail, both as a matter of treaty and
customary law, individual criminal responsibility of leaders of armed
opposition groups. For example, in the Furundˇ ija case, the Yugoslavia
z
Tribunal considered:

The treaty and customary rules referred to above [inter alia Common Article 3
and Protocol II] impose obligations upon States and other entities in an armed
con¬‚ict, but ¬rst and foremost address themselves to the acts of individuals,
in particular to State of¬cials or more generally, to of¬cials of a party to the
con¬‚ict or else to individuals acting at the instigation or with the consent or
acquiescence of a party to the con¬‚ict. Both customary rules and treaty provi-
sions applicable in time of armed con¬‚ict prohibit any act of torture. Those who
engage in torture are personally accountable at the criminal level for such acts.7

Similar evidence can be found in the Statute and case law of the Rwanda
Tribunal and in the work of the International Law Commission.8

6 The commentaries to Common Article 3 and Protocol II do not make any reference to
the criminal character of these provisions; see also D. Plattner, ˜Penal Repression™,
above, Chapter 1, n. 1, at 414“17.
7 Furundzjia case, No IT-95-17/1-T, para. 140 (10 December 1998) (hereafter, Furundzjia
case); see also Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 134; Yugoslavia
c
Tribunal, Celebici case, above, Chapter 1, n. 54, para. 308.
8 Article 4 of the Statute of the Rwanda Tribunal gives the Tribunal jurisdiction to
prosecute violations of Common Article 3 and Protocol II; see also Akayesu case, above,
Chapter 1, n. 6, para. 613“15; Prosecutor v. Rutaganda, No. ICTR-96-3, para. 88
(6 December 1999) (hereafter, Rutaganda case (1999)); International Law Commission™s
Draft Code of Crimes Against the Peace and Security of Mankind, A/51/10, Supp.
No. 10, Article 20 (f ) and Commentary (War crimes); (1996) (hereafter, ILC Draft Code of
Crimes); see also T. Meron, ˜International Criminalization of Internal Atrocities™, (1995)
89 AJIL 561“2 (hereafter, ˜Internal Atrocities™); S. R. Ratner, J. S. Abrams, Accountability for
Human Rights Atrocities, above, Chapter 1, n. 161, pp. 94“9. Notwithstanding the practice
of the two ad hoc tribunals and the International Law Commission, maintaining the
applicability of the principle of individual criminal responsibility to persons violating
Common Article 3 and Protocol II as a matter of treaty and customary law, there is
also contrary evidence. The Commission of Experts for the Former Yugoslavia and the
Secretary-General in his report on the Statute of the Rwanda Tribunal, adopted a
restrictive approach as to the customary law applicable to internal armed con¬‚icts.
These bodies found that it was still necessary to distinguish between customary law
applicable to international con¬‚icts and to internal con¬‚icts, and they considered the
customary law for internal con¬‚icts ˜debatable™ and not incorporating individual
criminality, Final Report of the Commission of Experts S/1994/674, Annex, at 13,
para. 42, and at 16, para. 52 (27 May 1994) (hereafter, 1994 Final Report of the
Commission of Experts); Report of the UN Secretary-General, S/1995/134, para. 12
including footnote 8 (1995); see also D. Shraga, R. Zacklin, ˜The International Criminal
accountability of group leaders 101

The substantive norms of Common Article 3 and some norms of
Protocol II have recently been incorporated into two criminal law
treaties, the Rome Statute of the International Criminal Court and the
Statute of the Sierra Leone Court. Article 3 of the Sierra Leone Statute
criminalizes violations of Common Article 3 and Protocol II. Article
8(2)(c) of the Rome Statute classes serious violations of Common Article 3
as war crimes.
The question arises whether the Rome Statute is a source of substan-
tive criminal law or only a treaty delimiting the jurisdiction of the Inter-
national Criminal Court. The reference in Article 1 of the Statute that
the Court ˜shall have the power to exercise its jurisdiction over per-
sons for the most serious crimes of international concern, as referred to
in this Statute™ may suggest that only the jurisdictional aspects of the
crimes listed in the Statute are provided for. However, Article 22 of the
Statute requires that persons can only be held criminally responsible un-
der the Statute when the conduct concerned at the time it took place,
constituted a crime within the jurisdiction of the Court. This nullum
crimen sine lege rule indicates that the norms in the Statute are not
only jurisdictional but also substantive in nature.9 This argument is sup-
ported by the Yugoslavia Tribunal, which refers to the Statute as having
a penal law content and not only as having a jurisdictional character.10

Tribunal for the Former Yugoslavia™, (1994) 5 EJIL 360, at 366, footnote 22. However,
notwithstanding this contrary practice, it would appear that the practice of the
Yugoslavia Tribunal and Rwanda Tribunal, and the work of the International Law
Commission can be considered to be the accurate re¬‚ection of the state of the law
applicable to internal con¬‚icts. The contrary evidence dates from before the decisions
of the Yugoslavia Tribunal and Rwanda Tribunal determining criminal responsibility
under Common Article 3 and Protocol II. Signi¬cantly, the International Law
Commission has changed its position, denying the criminal character of these
provisions under customary law, pursuant to the adoption of the Statute of the
Rwanda Tribunal and the judgment of the Yugoslavia Tribunal in the Tadi´ case (1995
c
Interlocutory Appeal on Jurisdiction); compare B. Simma, A. L. Paulus, ˜The
Responsibility of Individuals for Human Rights Abuses in Internal Con¬‚icts: a
Positivist View™, (1999) 93 AJIL 310“13 (discussing the criminal law status of violations
of international humanitarian law in internal con¬‚icts).
9 H. Fischer, ˜The International Criminal Court: a Critical Review of the Results of the
Rome Conference™ (Paper delivered at Symposium in Honour of Judge Antonio Cassese
at the Occasion of the Award of an Honorary Doctorate by Erasmus University
Rotterdam, Rotterdam, 5 November 1998) pp. 3“5 (on ¬le with author).
10 Celebici case, above, Chapter 1, n. 54, para. 309; see also Aleksovski case, above, n. 5,
Dissenting Opinion of Judge Rodrigues, 17, paras 41, 43, 49 (arguing that Article 2 of
the Statute of the Yugoslavia Tribunal has separate legal meaning); compare T. Meron,
˜Crimes under the Jurisdiction of the International Criminal Court™, in H. A. M. von
Hebel et al., eds., Re¬‚ections on the International Criminal Court (T. M. C. Asser Press, The
102 the accountability gap

According to the practice of the Yugoslavia Tribunal, leaders of armed
opposition groups in internal con¬‚ict can incur criminal responsibility
not only for violations of Common Article 3 and Protocol II, but also
for violations of other humanitarian norms. In the Tadi´ appeal case,
c
the Appeals Chamber stated that ˜customary international law imposes
criminal responsibility for serious violations of Common Article 3, as
supplemented by other general principles and rules on the protection
of victims of internal armed con¬‚ict, and for breaching certain funda-
mental principles and rules regarding means and methods of combat in
civil strife™.11 The Tribunal did not identify the speci¬c laws and customs
of warfare that impose obligations on individuals in internal armed con-
¬‚icts. Earlier in the Tadi´ judgment, the Tribunal stated that the laws and
c
customs of war applicable in internal con¬‚icts covered such areas as
protection of civilians from hostilities, prohibition of means of warfare
proscribed in international con¬‚icts and the banning of certain methods
of conducting hostilities. The Tribunal probably regarded these norms
in these ¬elds as also entailing individual criminal responsibility.12
The Rome Statute has given some clarity in this respect by thoroughly
listing the laws and customs of war other than Common Article 3, giv-
ing rise to individual criminal responsibility in internal con¬‚icts. Article
8(2)(e) exhaustively enumerates the crimes falling within this category of
war crimes. In addition to Protocol II, this article draws from Protocol I,

Hague, 1999) pp. 47, 48 (˜now part of treaty law, these Articles [6 to 8 of the Statute]
not only constitute the principal offenses that the ICC will try, but will take a life of
their own as an authoritative and largely customary statement of international
humanitarian and criminal law™) (hereafter, ˜International Criminal Court™); but see
A. Cassese, ˜The Statute of the International Criminal Court: Some Preliminary
Re¬‚ections™ (1999) 10 EJIL 144, 151 (suggesting that the reference in Article 8(2)(e) of
the Statute to ˜the established framework of international law™ may be interpreted as
meaning that the war crimes laid down therein do not constitute a self-contained
legal regime, but require the Court to determine the customary law status of each of
the relevant crimes).
11 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 134.
c
12 The Tribunal™s ¬‚exible approach when interpreting the scope of the notion ˜laws and
customs of war™ of Article 3 of its Statute stands in sharp contrast to its rather
conservative attitude towards the question of the applicability of grave breaches in
internal con¬‚icts, see main text below. Apparently, the boundaries of custom were
less clear than those of treaty law; see Tadi´ Interlocutory Appeal, above, Chapter 1,
c
n. 35, Separate Opinion of Judge Li, para. 13 (criticizing the paucity of the Tribunal™s
argumentation substantiating its conclusion on individual responsibility for
violations of the laws and customs of war other than Common Article 3); T. Meron,
˜The Continuing Role of Custom in the Formation of International Humanitarian Law™
(1996) 90 AJIL 238, 242.
accountability of group leaders 103

the Geneva Conventions and the Hague Conventions.13 The Statute of
the Sierra Leone Court also gives an exhaustive list of ˜other serious vio-
lations of international humanitarian law™, including attacks against
the civilian population, attacks against humanitarian personnel and
installations, and abduction and forced recruitment of children under
the age of ¬fteen years into the armed forces.14
While there is at present little doubt that Common Article 3, the core
of Protocol II, supplemented with some other humanitarian norms, is
part of international criminal law, the grave breaches provisions present
a more dif¬cult case. The 1949 Geneva Conventions characterize as grave
breaches a number of acts committed against persons or property pro-
tected by these Conventions, including wilful killing, torture, and wilful
deprivation of the rights to a fair trial.15 These norms overlap to a great
extent with Common Article 3 and Protocol II. An important difference
between grave breaches and serious violations of Common Article 3 and
Protocol II, however, is that the grave breaches provisions confer univer-
sal criminal jurisdiction onto national courts “ and even make the ex-
ercise of that jurisdiction mandatory. It was this difference which made
the Yugoslavia Tribunal, following the UN Secretary-General, decide that
the grave-breaches regime is not applicable to internal con¬‚icts.16 The
position may change in the near future. The Yugoslavia Tribunal did
not wholly exclude extension, at some point in the future, of the grave
breaches provisions to internal con¬‚ict.17 This standpoint of the Tribunal

13 M. H. Arsanjani, ˜The Rome Statute of the International Criminal Court™, (1999) 93 AJIL
22, at 32“3 (hereafter, ˜Rome Statute™); see also T. Meron, ˜International Criminal
Court™, above, n. 10, p. 53.
14 Art. 4 of the Statute. The Secretary-General, in his report accompanying the Statute of
the Court, noted that while child recruitment, whether forced or voluntary, has
reached by now the status of customary law, it is not clear whether it is customarily
recognized as a war crime entailing individual criminal responsibility. This crime in
the Sierra Leone Statute is therefore not the equivalent of Art. 8 (e) (vii) of the ICC
Statute, which does criminalize the (voluntary or forced) conscription or enlistment of
children under the age of ¬fteen years, SG Report on Sierra Leone Court, above,
Chapter 1, n. 109, paras. 17, 18.
15 See e.g., Article 147 of the Fourth Geneva Convention.
16 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 80; 1993 Report of the
c
Secretary-General, above, Chapter 1, n. 38, para. 37. The Tribunal reinforced its
standpoint in several other cases, see e.g., Tadi´ case (1999, appeal on merits), above,
c
Chapter 1, n. 97, para. 80; Celebici case, above, Chapter 1, n. 54, para. 317.
17 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 83; see also Aleksovski case,
c
above, n. 5, Dissenting Opinion of Judge Rodrigues, para. 44 (˜I consider that the
development of the rules of customary law since 1949 tends to advocate the extension
of the grave breaches system to internal con¬‚icts and, accordingly to reinforce the
104 the accountability gap

may have induced the UN Commission on Human Rights to accept the
applicability of the grave breaches provisions in internal armed con-
¬‚ict. In 1999, it adopted a resolution characterizing the acts of torture
and wilful killing being committed in the con¬‚ict in Sierra Leone, as
grave breaches of international humanitarian law, obliging all countries
to prosecute such persons before their own courts regardless of their
nationality.18 A grave-breaches provision, however, was not included in
autonomy of Article 2 of the Statute in relation to the Geneva Conventions™); Kordi´ c
case, above, Chapter 1, n. 40, para. 15; see also UN Security Council res. 1193 (1998)
para. 12 (28 August 1998) (reaf¬rming that ˜all parties to the con¬‚ict [in Afghanistan]
are bound to comply with their obligations under international humanitarian law
and in particular the Geneva Conventions of 12 August 1949, and that persons who
commit or order the commission of grave breaches of the Conventions are
individually responsible in respect of such breaches™); Tadi´ Interlocutory Appeal, above,
c
Chapter 1, n. 35, Separate Opinion of Judge Abi-Saab, at 5“6; T. Meron, ˜Internal
Atrocities™, above, n. 8, at 569“70 (suggesting that we should take a new look at the
question of universal jurisdiction in internal con¬‚icts. In his view Article 1 of the
Geneva Conventions obliging states to respect and ensure respect could be a proper
legal basis); T. Meron, ˜International Criminal Court™, above, n. 10, p. 48 (arguing that
Articles 6 to 8 of the Statute of the International Criminal Court ˜may become a
model for national laws to be enforced under the principle of universality of
jurisdiction™). Since parties to an internal con¬‚ict are entitled, under Common
Article 3 ˜to bring into force by means of special agreements, all or part of the other
provisions of the present Convention™, it would appear that, if the parties agree in
concrete cases to try and punish those responsible for grave breaches, such an
agreement provides an international legal basis for their individual accountability for
such breaches, Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, paras. 89, 136; see also
c
Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, Separate Opinion of Judge Abi-Saab,
c
at 6; as explained above, Chapter 1, Section 2, the Yugoslavia Tribunal considered
special agreements to constitute evidence of legal obligations of the parties to an
armed con¬‚ict. A different way of enlarging the applicability of the grave breaches
provisions is to diminish the distinction between international and internal con¬‚icts.
Accordingly, the Yugoslavia Tribunal put in perspective the concept of nationality of
persons protected under Article 4 (1) of the Fourth Geneva Convention. In the Blaˇ ki´ sc
case, the Tribunal considered that in an inter-ethnic armed con¬‚ict, a person™s ethnic
background may be regarded as a decisive factor in determining his or her nationality
for the purpose of de¬ning his or her protected status. When it comes to determining
the nationality of a group of people, its ethnicity rather than its citizenship plays the
leading role. Clearly, this approach considerably lowers the threshold of applicability
of the grave breaches provisions, Prosecutor v. Tihomir Blaˇ ki´, No. IT-95-14-T, paras.
sc
125“33 (3 March 2000).
18 Res. 1999/1, para. 2 (6 April 1999) (reminding ˜all factions and forces in Sierra Leone
that in any armed con¬‚ict, including an armed con¬‚ict not of an international
character, the taking of hostages, wilful killing and torture or inhuman treatment of
persons taking no active part in the hostilities constitute grave breaches of
international humanitarian law, and that all countries are under the obligation to
search for persons alleged to have committed, or ordered to be committed, such grave
breaches and to bring such persons, regardless of their nationality, before their own
courts™).
accountability of group leaders 105

the Statute of the Sierra Leone Court. At present, classi¬cation of the
con¬‚ict as an internal one is still relevant to establish the applicable
war crimes and universal jurisdiction.
One point needs to be emphasized. The Rwanda Tribunal determined
that, in order to be convicted of war crimes, a person needs to have
a demonstrable link with a party to the con¬‚ict namely state armed
forces or an armed opposition group. According to this view, because
violations of Common Article 3 and Protocol II can only be commit-
ted by the parties to the con¬‚ict, only members of organized groups
can be held individually responsible for war crimes. In the words of the
Tribunal, ˜individuals of all ranks belonging to the armed forces under
the military command of either of the belligerent Parties fall within the
class of perpetrators. If individuals do not belong to the armed forces,
they could bear the criminal responsibility only when there is a link
between them and the armed forces™.19 Accordingly, in the Kayishema
case, the absence of a link between Kayishema and the armed forces
meant that he could not be held responsible for war crimes.20 The re-
quirement of membership of an armed force does not apply, however, to
crimes against humanity or genocide because these crimes can also be
committed outside armed con¬‚ict “ namely in situations where armed
opposition groups, or other parties to the con¬‚ict, do not exist.21

19 Kayishema case, above, Chapter 1, n. 25, para. 175.
20 See also Rwanda Tribunal, Musema case, above, Chapter 2, n. 49 , paras. 264“6. The
Tribunal made clear that this does not mean that civilians cannot commit war crimes,
provided that they have a link with a party to the con¬‚ict, Musema case, paras. 267“74.
21 Although constrained by the language of the Yugoslavia Tribunal Statute (which
explicitly requires a nexus to the armed con¬‚ict), the Yugoslavia Tribunal Appeals
Chamber observed that the requirement of a nexus to the armed con¬‚ict was peculiar
to the Nuremberg Charter and does not appear in subsequent instruments, Tadi´ c
Interlocutory Appeal, above, Chapter 1, n. 35, paras. 140“1. The Statute of the
International Criminal Court makes no reference to a nexus to armed con¬‚ict.
Still, crimes against humanity cannot be the work of isolated individuals alone.
These crimes require an organizational policy and an entity behind that policy, either
a government, or in the words of the Yugoslavia Tribunal ˜forces which although not
those of the legitimate government, have de facto control over, or are able to move
freely within, de¬ned territory™, Tadi´ case (1997 merits), above, Chapter 2, n. 1,
c
para. 654, see also Rwanda Tribunal, Akayesu case, above, Chapter 1, n. 6, para. 580;
Final Report of the Commission of Experts for Rwanda, S/1994/1405, Annex para. 135
(1994) reprinted in V. Morris, M. P. Scharf, Rwanda Tribunal, above, Chapter 1, n. 161,
vol. II, p. 150 (hereafter, Final Report of the Commission of Experts for Rwanda).
Similarly, the ILC Draft Code requires that, in order to constitute a crime against
humanity, the enumerated acts must be ˜instigated or directed by a Government or by
any organization or group™. The commentary clari¬es: ˜This alternative is intended to
exclude the situation in which an individual commits an inhumane act while acting
106 the accountability gap

The Rwanda Tribunal differs from the Yugoslavia Tribunal on this
point. While in the view of the latter body, war crimes must be commit-
ted in the context of an armed con¬‚ict, it required no direct connection
between the superior and a party to the con¬‚ict.
The approach of the Yugoslavia Tribunal shows that the concept of
parties to a con¬‚ict is of minor relevance for command responsibility
and individual criminal responsibility in general. As Judge Rodrigues
noted in his dissenting opinion to the Aleksovski case: ˜International hu-
manitarian law has, to a large extent, grown beyond its state-centered
beginnings . . . The principle is to prosecute natural persons individu-
ally responsible for serious violations of international humanitarian law
irrespective of their membership in groups.™22


Crimes against humanity
The predominant view of the past was that crimes against humanity
require the involvement of the state.23 However, recent international
practice recognizes that members of armed opposition groups can incur
individual criminal responsibility “ and that, by extension, leaders can
be held responsible on command responsibility grounds “ for order-
ing these crimes or for failing to prevent or repress them. Leaders of

on his own initiative pursuant to his own criminal plan in the absence of any
encouragement or direction from either a Government or a group or organization.
This type of isolated criminal conduct on the part of a single individual would not
constitute a crime against humanity . . . The instigation or direction of a Government
or any organization or group, which may or may not be af¬liated with a Government,
gives the act its great dimension and makes it a crime against humanity imputable to
private persons or agents of a State,™ ILC Draft Code of Crimes, above, n. 8, at 94. The
Statute of the International Criminal Court codi¬es this practice, requiring a link
between the perpetrator of a crime and an entity. Article 7(2)(a) of the Statute
stipulates that crimes against humanity must be committed ˜pursuant to or in
furtherance of a state or organizational policy to such an attack™. When committed in
internal armed con¬‚ict, the ˜organization™ or ˜group™ engaged in crimes against
humanity is likely to constitute at the same time a ˜party to the con¬‚ict™ within the
meaning of international humanitarian law.
22 Aleksovski case, above, n. 5, Dissenting Opinion of Judge Rodrigues, para. 31.
23 The Nuremberg Charter, which marked the birth of the modern notion of crimes
against humanity addressed crimes against humanity committed during international
armed con¬‚ict. Further, the Nuremberg Charter required that the persons prosecuted
and punished were connected with the state (policy). Article 6 of the Charter gave the
international tribunal the authority to punish persons ˜acting in the interests of the
European Axis countries, whether as individuals or as members of organizations™,
above, Chapter 1, n. 165.
accountability of group leaders 107

armed opposition groups may be held criminally responsible for, among
others, murder, deportation, imprisonment, torture, rape, when these
are acts of policy and are directed against a civilian population.
Crimes against humanity and war crimes overlap in so far as some
war crimes target civilians. One distinction between the two is that war
crimes may be isolated acts, while crimes against humanity result from
an intentional systematic policy towards a civilian population. Thus,
crimes against humanity are acts of policy, not sporadic acts by wayward
individual soldiers.24
The Statutes of the Yugoslavia and Rwanda Tribunals give these tri-
bunals subject-matter jurisdiction over crimes against humanity. Both
tribunals have made clear that crimes against humanity as de¬ned in
their statutes can, as a matter of customary law, be committed in inter-
nal armed con¬‚icts.25 Further, while originally at the Nuremberg Trials
these crimes were considered to be oppressive acts committed by a gov-
ernment against its own citizens, government involvement is no longer
necessary to transform a simple crime into a crime against humanity.26
Neither of the statutes of the ad hoc criminal tribunals makes reference
to governmental action. In the Nikoli´ case, the Yugoslavia Tribunal stated
c
that crimes against humanity need not be connected with a state.27 It
reiterated this view in the Tadi´ case (merits).28
c
24 Tadi´ case (1997 merits), above, Chapter 2, n. 1, para. 653.
c
25 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 141; Rwanda Tribunal, Akayesu
c
case, above, Chapter 1, n. 6, para. 565.
26 In its Final Report, the Commission of Experts for Rwanda suggested that the RPF was
legally capable of committing crimes against humanity, above, n. 21, Annex para. 98;
compare J. C. O™Brien, ˜The International Tribunal for Violations of International
Humanitarian Law in the Former Yugoslavia™ (1993) 87 AJIL 639, 648“9.
27 Prosecutor v. Dragon Nikoli´, Review of Indictment Pursuant to Rule 61 of the Rules of
c
Procedure and Evidence, No. IT-94-2-R61, para. 26 (20 October 1995).
28 Tadi´ case (1997, merits), above, Chapter 2, n. 1, para. 654; but see Kupreski´ case (2000)
c c
above, Chapter 1, n. 49 para. 555 (suggesting that crimes against humanity require a
link to a governmental policy); the Rwanda Tribunal, in the Kayishema case, supports
the interpretation of the Yugoslavia Tribunal in the Tadi´ case (merits). In this case,
c
dealing with the command responsibility of the accused for failure to prevent or
repress crimes against humanity, the Tribunal stated that its jurisdiction covered
˜both state and non-state agents™, Kayishema case, above, Chapter 1, n. 25; the ILC™s
1954 Draft Code requires that crimes against humanity be committed by ˜the
authorities of a State or by private individuals acting at the instigation or with the
toleration of such authorities™, ILC™s 1954 Draft Code of Offences Against Peace and
Security of Mankind, A/2693 (1954), reprinted in ILCYb 1950, Vol. II, at p. 11 (Article 2
(11)). In the 1996 Draft Code, however, the ILC gives up this view and speaks of acts
˜instigated or directed by a Government or by any organization or group™ (emphasis
added), ILC Draft Code of Crimes, above, n. 8, Article 18.
108 the accountability gap

The Statute of the Sierra Leone Court also provides for jurisdiction
over crimes against humanity.29 As this court will be established for the
express purpose of prosecuting the leadership of the RUF, there can be
little doubt that non-state leaders can commit crimes against humanity.
With the adoption of the Rome Statute in 1998, crimes against hu-
manity were for the ¬rst time set out in a treaty with a general scope.
Article 7 of the Statute gives the International Criminal Court jurisdic-
tion to prosecute crimes against humanity perpetrated during internal
con¬‚ict. Unlike the Statutes of the Yugoslavia and Rwanda Tribunals, the
Rome Statute expressly declares that members of non-state entities may
commit this kind of crime. It de¬nes crimes against humanity as attacks
committed against any civilian population ˜pursuant to or in further-
ance of a state or organizational policy to commit such attack™.30 ˜Organi-
zational policy™ is intended to include armed opposition groups.31


Genocide
Genocide has been codi¬ed in a single, widely accepted international
instrument, the Genocide Convention of 1948. The Convention de¬nes
genocide as consisting in various measures, including killing and caus-
ing serious physical or mental harm, committed with the intent to de-
stroy a national, ethnical, racial, or religious group as such.32 It expressly
declares genocide to be a crime under international law carrying indi-
vidual responsibility, which can be committed in times of peace and
war.33 Genocide was included by the Statute of the International Military
Tribunal as part of the genus of crimes against humanity. Now they have
been separated, although there continues to be some overlap between
them.34
Article IV of the Genocide Convention indicates that the active back-
ing or connivance of a government is not necessary in the commission
of genocide: ˜Persons committing genocide or any other acts enumer-
ated in Article III shall be punished, whether they are constitution-
ally responsible rulers, public of¬cials or private individuals™.35 This text
29 30 Emphasis added.
Art. 2.
31 M. H. Arsanjani, ˜Rome Statute™, above, n. 13 at 31.
32 33 Article I.
Article II.
34 International Court of Justice, Reservations to the Convention on Genocide (Advisory
Opinion of 28 May 1951), 1951 ICJ Rep. 15, at 23; Rwanda Tribunal, Akayesu case,
above, Chapter 1, n. 6, para. 495; see also T. Meron, Human Rights and Humanitarian
Norms as Customary Law, (Clarendon Press, Oxford, 1989), p. 11.
35 Emphasis added.
accountability of group leaders 109

suggests that leaders of armed opposition groups can incur criminal
responsibility under this instrument.36
The UN Secretary-General, stating that the crime of genocide as laid
down in this convention ˜can be committed by non-State agents™, sup-
ports this conclusion.37 Furthermore, the Statutes of the Yugoslavia and
Rwanda Tribunals provide these tribunals with the jurisdiction to prose-
cute persons committing genocide. The de¬nition of genocide in Articles
4 and 2 respectively of these Statutes is a verbatim reproduction of the
relevant provision of the Genocide Convention. The Rome Statute also
includes genocide. Article 6 of the Statute repeats verbatim Article II
of the Genocide Convention.38 So these Statutes likewise leave open the
possibility for prosecution of leaders of armed opposition groups for the
commission of genocide.39
Article IV of the Genocide Convention incorporates the principle of
command responsibility.40 This article recognizes the criminal responsi-
bility of constitutionally responsible rulers and public of¬cials. Morris
and Scharf suggested that the principle of superior responsibility would
not necessarily apply to a commander who fails to act in relation to
the crime of genocide committed by a subordinate, because it may be
dif¬cult to establish the speci¬c intent required for the crime.41 This
36 This conclusion also follows from the drafting history of the Genocide Convention.
Some representatives on the Sixth Committee found that Article IV of the Convention
should make it clear that genocide is ˜committed, encouraged, or tolerated by the
rulers of a State™. This position must be seen in the light of the historical context in
which the Convention was being drafted. The application of the crime of genocide in
the context of the Nuremberg trials, the ¬rst legal recognition of this crime,
concerned essentially the crimes committed by the state, and private individuals
acting in collusion with the state, namely by Nazi Germany. Those who argued
against this standpoint maintained that genocide could be committed without
the active backing of a government “ for example, by terrorist organizations or even
private individuals “ and that in some cases governments might be unable to prevent
the commission of genocide. A formal proposal to include a provision in Article IV to
the effect that government complicity is necessary in cases of genocide was
overwhelmingly rejected, L. LeBlanc, The United States and the Genocide Convention
(Duke University Press, Durham, 1991), pp. 29, 30.
37 UN Secretary-General 1998 Report on Minimum Humanitarian Standards, above,
Chapter 1, n. 13, paras. 62“3.
38 Incitement to commit genocide is now dealt with in Article 25(3)(e) of the Statute.
39 See also ILC Draft Code of Crimes, above, n. 8, Article 17 and Commentary (Crime of
Genocide) (af¬rming that individuals not linked to a state can incur individual
criminal responsibility for commission of the crime of genocide); Final Report of the
Commission of Experts for Rwanda, above, n. 21, Annex, para. 98.
40 Final Report of the Commission of Experts for Rwanda, above, n. 21, Annex, para. 174.
41 V. Morris, M. P. Scharf, Rwanda Tribunal, above, Chapter 1, n. 161, vol. I, pp. 261“2 and
accompanying footnote 958.
110 the accountability gap

proposition is open to challenge following the Kayishema case in which
the Rwanda Tribunal held Kayishema responsible as superior for geno-
cide undertaken by his subordinates.42
To conclude, there is no serious doubt that leaders of armed op-
position groups can incur individual criminal responsibility when
committing this crime. While, so far, there have been no convictions
of members of armed opposition groups for genocide,43 and whereas
probably factually, most armed opposition groups lack the capability to
commit genocide,44 the legal concept remains intact.

International practice as examined above reveals that the traditional
distinction between international and internal con¬‚icts for the applica-
tion of substantive international criminal law has been blurred. This has,
in turn, led to the division between state agents and members of armed
opposition groups being abolished. In order for international norms to
be meaningful in internal con¬‚ict, they must be applied to all persons
involved in the con¬‚ict, including members of armed opposition groups.
Thus, the Yugoslavia Tribunal noted in the Celebici case:
Traditionally, an act of torture must be committed by, or at the instigation of, or
with the consent or acquiesence of, a public of¬cial or person acting in an of¬cial
capacity. In the context of international humanitarian law, this requirement
must be interpreted to include of¬cials of non-State parties to a con¬‚ict, in
order for the prohibition to retain signi¬cance in situations of internal armed
con¬‚icts or international con¬‚icts involving some non-State entities.45

This trend is part of a greater move towards criminalization.
42 Kayishema case, above, Chapter 1, n. 25, para. 555.
43 The only trial before the Yugoslavia Tribunal containing such a charge was that of
Kovacevic, which was aborted when he died in August 1998; in Prosecutor v. Radovan
Karadzi´ and Ratko Mladic, Review of Indictment Pursuant to Rule 61 of the Rules of
c
Procedure and Evidence, Nos. IT-95-5-R61 & No. IT-95-18-R61, paras. 92“5 (11 July 1996),
the Yugoslavia Tribunal considered there to be reasonable grounds for believing that
the accused committed genocide (hereafter, Karadzi´ and Mladic case). The Rwanda
c
Tribunal convicted several persons of the crime of genocide. However, they all acted in
collusion with the State Rwanda “ and not as members of the RPF.
44 In fact, most post-Second World War genocides (which allegedly occurred for instance
in Rwanda, the former Yugoslavia and Cambodia, see S. R. Ratner, J. S. Abrams,
Accountability for Human Rights Atrocities, above, Chapter 1, n. 161, p. 24) have been
carried out within the territory of one state, but by the state and persons connected
with the state, rather than by armed groups not linked to a state, see V. Morris, M. P.
Scharf, Rwanda Tribunal, above, Chapter 1, n. 161, vol. I, pp. 168“9.
45 Celebici case, above, Chapter 1, n. 54, para. 473; see also Rwanda Tribunal, Kayishema
case, above, Chapter 1, n. 25, paras. 126, 554 (dealing with the command
responsibility of the accused for the commission of genocide, and stating that its
jurisdiction covers ˜both State and non-State actors™).
accountability of group leaders 111


Command responsibility of group leaders
In traditional international law there are two different forms of superior
responsibility.46 The ¬rst concerns responsibility for ordering breaches
of international law. Since this responsibility arises out of positive acts
by the superior, it is also referred to as direct responsibility.47 It is in the
nature of complicity or incitement. The second form is command respon-
sibility properly speaking: a superior™s responsibility for a subordinate™s
unlawful conduct that was not directly based on a speci¬c superior or-
der. Command responsibility is therefore essentially based on omission.
It consists of a failure in a duty to exercise due diligence in order to pre-
vent a speci¬c unlawful act or to repress unlawful conduct.48 The focus
here will be on both of these types of superior responsibility. Also the
responsibility of the civilian, as distinguished from the military, leader-
ship of armed opposition groups will be considered.


Ordering crimes
Until recently, no treaty expressly recognized criminal responsibility of
leaders of armed opposition groups for ordering the commission of
crimes. The 1949 Geneva Conventions require state parties to impose
penal sanctions on persons ordering grave breaches of the Conventions
to be committed, but these provisions apply to international armed con-
¬‚icts only.49
The practice of international bodies, together with the adoption of
the Statutes of the International Criminal Court and the Sierra Leone
Court, has changed the legal situation. The Statutes50 and the
jurisprudence of the Yugoslavia and Rwanda Tribunals con¬rm that
leaders of armed opposition groups can incur responsibility for hav-
ing ordered the commission of crimes. Article 4 of the Statute of the


46 Bing Bing Jia, ˜The Doctrine of Command Responsibility in International Law “ With
Emphasis on Liability for Failure to Punish™, (1998) XLV NILR 325, 327 (hereafter,
˜Command Responsibility™).
47 Yugoslavia Tribunal, Celebici case, above, Chapter 1, n. 54, para. 333.
48 Ibid., paras. 333“4; ILC Draft Code of Crimes, above, n. 8, Article 6 and Commentary
(Responsibility of the Superior).
49 Article 49 of the First Geneva Convention; Article 50 of the Second Geneva
Convention; Article 129 of the Third Geneva Convention; Article 146 of the Fourth
Geneva Convention.
50 Which have been adopted by resolutions of the UN Security Council (UN Security
Council Res. 808 (22 February 1993) and UN Security Council Res. 955 (8 November
1994) concerning the Yugoslavia and Rwanda Tribunals respectively).
112 the accountability gap

Rwanda Tribunal gives the Tribunal the power to prosecute persons who
have ordered the commission of serious violations of Common Article 3
and Protocol II. In addition, Article 7(1) of the Statute of the Yugoslavia
Tribunal and Article 6(1) of the Statute of the Rwanda Tribunal pro-
vide that a person who ordered the execution of a crime referred to in
the Statutes shall be individually responsible for the crime. These latter
provisions do not refer to the nature of the con¬‚ict, international or
internal. Because, as has been shown earlier, the greater number of sub-
stantive crimes enshrined in the Statutes of the Yugoslavia and Rwanda
Tribunals apply in both international and internal con¬‚icts,51 it is rea-
sonable to assume that the provision regarding the responsibility for or-
dering crimes is equally relevant to both types of con¬‚ict. Furthermore,
the general term ˜person™ suggests that these provisions apply not only
to state agents but also to members of armed opposition groups.
This reading is supported by several judgments of the Yugoslavia and
Rwanda Tribunals. Although no decision deals speci¬cally with leaders
of armed opposition groups having ordered the commission of crimes,
general statements to this effect can be found in the case law of the
Tribunals. The Tadi´ case (merits) provides relevant evidence. Tadi´ acted
c c
in pursuance of the policy of the authorities of Republika Srpska, an
armed opposition group established inside Bosnia and Herzegovina.52
At this stage of the proceedings, the Trial Chamber considered the con-
¬‚ict between the Bosnian Serbs and the Republic of Bosnia Herzegovina
and Bosnian Croat forces to have been internal in nature at the relevant
times.53 It found that the various ways of participating in the crimes
of the Statute as provided for in its Article 7, including the ordering
of crimes, are prohibited in internal con¬‚ict. It found this rule to be
part of customary international law.54 Similar evidence can be found
in the Furundzjia case. Furundzjia was a commander of the Jokers, a
special unit of the HVO (Croatian Defence Council) military police. The
HVO was established by the self-proclaimed para-state of the Bosnian
Croats, inside the Republic of Bosnia and Herzegovina.55 In this case the
Yugoslavia Tribunal decided that a person who orders torture partici-
pates in the crime and for that reason is accountable.56 The Tribunal
51 See above, Section 2 of this chapter (dealing with the substantive crimes which can be
committed by leaders of armed opposition groups in internal con¬‚ict).
52 Tadi´ case (1997 merits), above, Chapter 2, n. 1, paras. 574“5.
c
53 In the Tadi´ case (1999, appeal on merits), above, Chapter 1, n. 94, para. 166, the
c
Tribunal revised its position, ¬nding that the con¬‚ict in which the crimes were
committed was international in nature.
54 Tadi´ case (1997 merits), above, Chapter 2, n. 1, paras. 666“9.
c
55 56 Ibid., paras. 187, 253“4.
Furundzjia case, above, n. 7, paras. 51, 65.
accountability of group leaders 113

did not pronounce on the nature of the con¬‚ict in which the alleged
offences were committed, nor did it examine the status of the accused.
The implication, therefore, is that the ordering of the commission of
crimes, whether by leaders of state armies or armed opposition groups,
is prohibited in internal con¬‚icts as well as international ones.57
This conclusion is in line with the resolutions of the UN Security
Council. For example, in resolution 794 (1992) on Somalia, the Coun-
cil condemned ˜all violations of international humanitarian law occur-
ring in Somalia, including in particular the deliberate impeding of the
delivery of food and medical supplies essential for the survival of the
civilian population, and af¬rms that those who commit or order the
commission of such acts will be held individually responsible in respect of such
acts™.58
This practice has also been af¬rmed in the Statute of the International
Criminal Court. Article 25(3)(b) of the Statute determines that ˜a person™
is criminally responsible for a crime within the jurisdiction of the Court
if that person ˜orders . . . the commission of such a crime which in fact
occurs or is attempted™. The term ˜person™ would appear to entail both
state agents and members of armed opposition groups. Moreover, be-
cause, as has been shown earlier, certain crimes set out in this Statute
are applicable to internal armed con¬‚icts and can be committed by

57 Support for the argument that a superior of an armed opposition group operating in
internal con¬‚ict can incur responsibility for ordering the commission of crimes by
subordinates can also be found in the Aleksovski judgment of the Yugoslavia Tribunal,
above, n. 5, paras. 58“65.
58 Para. 5 (3 December 1992) (emphasis added); see also UN Security Council Res. 1193
(1998), para. 12 (28 August 1998) (reaf¬rming that: ˜all parties to the con¬‚ict [in
Afghanistan] are bound to comply with their obligations under international
humanitarian law and in particular the Geneva Conventions of 12 August 1949, and
that persons who commit or order the commission of grave breaches of the
Conventions are individually responsible in respect of such breaches™); UN Security
Council Res. 837 (1993), para. 6 (6 June 1993) (Somalia). Support for the argument that
the leadership of armed opposition groups can be held responsible for ordering the
commission of crimes can also be found in the UN Secretary-General™s report on the
interpretation of the Statute of the Yugoslavia Tribunal, where he stated that ˜a
person in a position of superior authority should . . . be held individually responsible
for giving the unlawful order to commit a crime under the present statute™, 1993
Report of the UN Secretary-General, above, Chapter 1, n. 38, para. 56. The
Secretary-General left open the question whether the con¬‚ict in Yugoslavia should be
quali¬ed as internal or international, ibid., e.g., para. 62 (stating that the clause of the
Statute dealing with the temporal jurisdiction of the Yugoslavia Tribunal was ˜clearly
intended to convey the notion that no judgment as to the international or internal
character of the con¬‚ict was being exercised™). Furthermore, he did not exclude the
possibility of the responsibility of superiors of armed opposition groups for ordering
the commission of crimes.
114 the accountability gap

members of armed opposition groups,59 and because Article 25 estab-
lishing individual criminal responsibility is of a general nature, appli-
cable to all substantive crimes in the Statute, it is reasonable to read
Article 25(3)(b) as applicable to leaders of armed opposition groups.
Finally, the Statute of the Sierra Leone Court contains a provision
equivalent to that of the Statute of the Rwanda Tribunal. This Statute is
speci¬cally concerned with the non-state leaders involved in the Sierra
Leonean con¬‚ict.
To summarize, the practice examined above in tandem with the
Statutes of the International Criminal Court and the Sierra Leone
Court indicates that leaders of armed opposition groups can incur in-
dividual criminal responsibility for ordering the commission of crimes
by subordinates. Furthermore, international practice indicates that in
the establishment of responsibility for ordering crimes, the nature
of the con¬‚ict “ internal or international “ , and the status of the
accused “ state agent or member of an armed opposition group “ is
irrelevant.

Command responsibility proper
A separate issue is the responsibility of leaders of armed opposition
groups for offences committed by persons under their authority but
which the leaders did not order, on the ground that the leaders ought
to have used their authority to prevent or repress these offences. Until
recently, this type of responsibility was not regulated in any treaty appli-
cable to leaders of armed opposition groups. The only treaty recognizing
superior responsibility for acts of omission was Protocol I,60 applicable
to international con¬‚icts only.
59 See e.g., Article 8(c) contains violations of Common Article 3 which can clearly be
committed by both state armies and armed opposition groups, see above, Section 2 of
this chapter (dealing with the substantive crimes which can be committed by leaders
of armed opposition groups in internal con¬‚ict).
60 The 1907 Hague Convention (IV), applicable to international con¬‚icts only, already
recognized the principle that military commanders are responsible for the conduct of
members of their forces, Article 1(1) Annex to the Convention, ˜Regulations
Respecting the Laws and Customs of War on Land™, reprinted in Schindler and Toman,
Laws of Armed Con¬‚icts, above, Chapter 1, n. 81, p. 69; in 1993, the UN Secretary-General
regarded the 1907 Convention as customary law, 1993 Report of the UN
Secretary-General, above, Chapter 1, n. 38, paras. 41“4. The Geneva Conventions do not
contain a provision on command responsibility for failure to prevent or repress
crimes; these conventions rely solely on the responsibility of the parties to the
con¬‚ict “ in internal con¬‚ict the state and armed opposition groups “ to prevent and
punish violations of the relevant norms.
accountability of group leaders 115

Protocol I, which codi¬es the principle of command responsibility as
developed since the Second World War,61 provides:

The fact that a breach of the Conventions or of this Protocol was committed
by a subordinate does not absolve his superiors from penal or disciplinary re-
sponsibility, as the case may be, if they knew, or had information which should
have enabled them to conclude in the circumstances at the time, that he was
committing or was going to commit such a breach and if they did not take all
feasible measures within their power to prevent or repress the breach.

Command responsibility has been developed to apply primarily in the
context of international con¬‚icts, in which generally regular, clearly or-
ganized armed forces participate. The relationship between the superior
and the subordinate in state armies normally involves direct subordi-
nation in a clearly and formally organized hierarchy. Hence, the ICRC
commentary on Article 87 of Protocol I, dealing with the duty of com-
manders states:

The ¬rst duty of a military commander, whatever his rank, is to exercise com-
mand. For this purpose the relationship between ranks and responsibilities are,
as a general rule, exactly determined within the armed forces, and the authority
of each of the different levels of the hierarchy is precisely de¬ned. It is under
these conditions that the armed forces can be submitted to a r´ gime of internal
e
discipline . . . This r´ gime is inseparable from the status of armed forces . . . The
e
disciplinary system must ensure, in particular, compliance with the rules of
international law applicable in armed con¬‚ict.62

The condition of a superior“subordinate relationship may, however, be
problematic when applied to leaders of armed opposition groups in in-
ternal con¬‚icts, in particular when these groups are not organized as
or functioning like regular armies. The authority of different levels and
ranks in these groups may then not be precisely de¬ned.
The provisions of the Statutes of the Yugoslavia and Rwanda Tribunals,
unlike Protocol I, nevertheless apply to internal as well as external con-
¬‚icts. Article 7(3) of the Statute of the Yugoslavia Tribunal provides:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute
was committed by a subordinate does not relieve his superior of criminal re-
sponsibility if he knew or had reason to know that the subordinate was about to
commit such acts or had done so and the superior failed to take the necessary

61 See W. Parks, ˜Command Responsibility™, above, n. 2 ; L. C. Green, ˜Command
Responsibility™, above, n. 2.
62 J. de Preux, Commentary Additional Protocols, above, Chapter 1, n. 9, pp. 1017“18.
116 the accountability gap

and reasonable measures to prevent such acts or to punish the perpetrators
thereof.63

Further, the generic term ˜superior™ suggests that they may apply to both
state actors and non-state actors engaged in internal con¬‚ict. This inter-
pretation has been con¬rmed in the Aleksovski judgment of 1999, by the
Yugoslavia Tribunal. This is the ¬rst and so far the only case dealing with
the responsibility of a leader of what was arguably an armed opposition
group operating in internal con¬‚ict. The case concerned the treatment
of Bosnian Muslim detainees held by the Bosnian Croats in a prison in
Bosnia-Herzegovina. The accused was a prison commander. According to
the Yugoslavia Tribunal, the alleged crimes were committed in an in-
ternal con¬‚ict.64 The Defence claimed that the principle of command
responsibility did not apply to this case. In particular, it asserted that
existing precedents on command responsibility did not apply because
those precedents concerned commanders operating in an international
con¬‚ict, whereas this con¬‚ict was internal.65 The Tribunal, although con-
sidering the argument in detail, appeared to reject it. It found that ˜any
person acting de facto as a superior may be held responsible under art.
7(3)™ of the Statute.66 It based its ¬nding on customary international law.
Apparently, the Tribunal considered the nature of the con¬‚ict “ internal
or international “ to be irrelevant to the question of superior responsi-
bility for failure to prevent or repress crimes.67 More signi¬cantly, the
Tribunal paid no attention to the status of the accused, whether he was
a state actor or a non-state actor. While Aleksovski appeared to belong
to an armed opposition group (the Bosnian Croats operating in Bosnia-
Herzegovina), the Tribunal refrained from making this explicit in the
judgment. One may, therefore, conclude that, for superior responsibility

63 The Rwanda Tribunal Statute contains a similar provision: Article 6(3) Statute of
Rwanda Tribunal. The Statute is in accordance with earlier resolutions of UN Security
Council, see, e.g., UN Security Council Res. 935 (1994), pr. (1 July 1994) (establishing
the Commission of Experts on Rwanda, and recalling that ˜all persons who commit or
authorize the commission of serious violations of international humanitarian law are
individually responsible for those violations and should be brought to justice™).
64 Aleksovski case, above, n. 5, para. 46. On appeal, the con¬‚ict was considered to be
international. Prosecutor v. Zlatko Aleksovski, No. IT-95-14/1-A, paras. 120“52 (24 March
2000) (Appeal) (hereafter, Aleksovski case (2000, Appeal)).
65 For example precedents set by cases such as USA v. Pohl. Aleksovski case, para. 74.
66 Ibid., para. 76.
67 See also Bing Bing Jia, ˜Command Responsibility™, above, n. 46, at 345 (implying that
command responsibility applicable in internal con¬‚icts belongs to international
customary law).
accountability of group leaders 117

for omission it is irrelevant whether a person belongs to a state or is a
member of an armed opposition group.68
This extension of the concept of superior responsibility for failure to

<<

. 4
( 9)



>>