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prevent or repress crimes committed by subordinates to leaders of armed
opposition groups is also re¬‚ected in the Statutes of the International
Criminal Court and the Sierra Leone Court. The latter Statute contains
a provision equivalent to the relevant provisions in the Statutes of the
Yugoslavia and Rwanda Tribunals.69 Article 28(1) of the Rome Statute
recognizes the responsibility of ˜a military commander or person effec-
tively acting as a military commander™ for failure to prevent or punish
unlawful conduct by subordinates. If one does not want to call leaders
of armed opposition groups commanders, reserving this term for lead-
ers of state armies, these persons are in any case covered by the phrase
˜person effectively acting as a military commander™. Furthermore, since
the substantive crimes of the Statute also apply to internal con¬‚icts,
and the provisions on individual criminal responsibility are relevant to
all the substantive crimes, it seems reasonable to conclude that a leader
of an armed opposition group may be responsible for acts of omission
under this rule.

Civilian leaders
Traditionally, the doctrine of command responsibility distinguishes be-
tween military and civilian superiors. In the context of international
con¬‚icts involving state armies, it is well established that the principle
of superior responsibility for ordering the commission of crimes or for
failure to prevent or repress crimes applies not only to military leaders,
but also to the civilian leadership.70 The question is whether civilian
68 See further Halleck, Elements of International Law and Laws of War, (1866) p. 199, cited in
J. J. Paust, ˜Superior Orders and Command Responsibility™, in M. C. Bassiouni (ed.),
International Criminal Law (Transnational Publishers, Inc., New York, 1986) vol. III,
pp. 73, 80 (reporting that ˜rebel of¬cers were responsible for the murder of our
captured negro troops, whether or not by their orders™). One may also point to
Protocol II, which recognizes in Article 1(1) the principle that groups engaged in a
con¬‚ict should be placed under the authority of a responsible commander. The
principle of command was thus viewed as a prerequisite for the application of the
humanitarian rules in internal con¬‚icts. This provision is the basis of the principle of
command responsibility of superiors of armed opposition groups in internal con¬‚ict,
see V. Morris, M. P. Scharf, Rwanda Tribunal, above, Chapter 1, n. 161, vol. I, p. 261.
69 Art. 6(3).
70 Examples are primarily provided by the Tokyo war crimes trials: see for an overview,
Celebici case, above, Chapter 1, n. 54, paras. 357“63; see also Karadzi´ and Mladic case,
c
above, n. 43; Prosecutor v. Slobodan Milosovic, Milan Milutinovic, Nikola Sainovic, Dragoljub
118 the accountability gap

command responsibility is also relevant for leaders of armed opposition
groups. There is not always a clear distinction between the two types of
command. For example, although Sinn Fein (the armed opposition group
involved in the con¬‚ict in Northern Ireland) split in 1969, since when
its military arm has been the Irish Republican Army, in practice Sinn
Fein and the IRA have the same command.71 Some armed opposition
groups may, however, have truly distinct military and political wings.
This will be more likely in the case of de facto governments and other
large armed opposition groups having a clear organizational structure.
The Statutes of the Yugoslavia and Rwanda Tribunals do not distin-
guish between military and non-military leaders. Articles 7(1) and 6(1)
of the Statutes respectively refer to ˜a person™ who can be held respon-
sible for ordering the commission of crimes. This term is broad enough
to cover both military and civilian superiors. Similarly, the third para-
graph of Articles 7(1) and 6(1) provides that all ˜superiors™ may be held
criminally responsible for failure to prevent or punish crimes commit-
ted by their subordinates. In this way the Statutes clearly extend their
application beyond military personnel.72 These instruments thus apply
equally to military and civilian leaders of armed opposition groups.

Ojdanic, Vlajko Stojilkovic, Decision on Review of Indictment and Application for
Consequential Orders (24 May 1999); Rwanda Tribunal, Musema case (2000), above,
Chapter 2, n. 49, paras 127“48 (applying the concept of superior responsibility in the
context of an internal con¬‚ict to a civilian leader linked to the state); R. Dixon,
˜Prosecuting the Leaders: the Application of the Doctrine of Superior Responsibility
before the United Nations International Criminal Tribunals for the Former Yugoslavia
and Rwanda™, in A. L. W. Vogelaar et al. ˜The Commander™s Responsibility in Dif¬cult
Circumstances™ NL Arms Netherlands Annual Review of Military Studies 1998 (Gianotten BV,
Tilburg, 1998) pp. 109, 119 (hereafter, ˜Superior Responsibility™).
71 J. Laf¬n, ˜The World in Con¬‚ict 1990™ (1990) 4 War Annual at 141.
72 It is true that Articles 7(2) and 6(2) of the Yugoslavia and Rwanda Tribunals™ Statutes,
which state that the of¬cial position of an accused does not relieve him or her of
responsibility, refer only to Head of State or Government or a responsible Government
of¬cial. However, this should not be read as excluding the responsibility of the
civilian leadership of armed opposition groups. As the Yugoslavia Tribunal noted in
the Celebici case, Article 7(2) clearly re¬‚ects the intention of the drafters to extend this
provision of superior responsibility beyond military commanders, to ˜encompass
political leaders and other civilian superiors in positions of authority™, Celebici case,
above, Chapter 1, n. 54, para. 356; see also Kayishema case, above, Chapter 1, n. 25,
para. 214. This interpretation corresponds to the position taken by the International
Law Commission, ILC Draft Code of Crimes, above, n. 8, Article 6 and Commentary
(Responsibility of the Superior) (˜the reference to “superiors” is suf¬ciently broad to
cover military commanders and other civilian authorities who are in a similar
position of command and exercise a similar degree of control with respect to their
subordinates™); see also 1994 Final Report of the Commission of Experts for the Former
Yugoslavia, above, n. 8, para. 57.
accountability of group leaders 119

The case law of the Yugoslavia and Rwanda Tribunals supports the
above interpretation of the Statutes. In the Aleksovski case, concerning
a superior of an armed opposition group operating in internal con¬‚ict,
the Yugoslavia Tribunal found that the term ˜superior™ in Article 7(3) of
its statute ˜can be interpreted only to mean that superior responsibility
is not limited to military commanders but may apply to the civilian au-
thorities as well™.73 The Tribunal considered the responsibility of civilian
leaders to be a matter of customary law.74 In this case the Prosecutor did
not elucidate whether Aleksovski was regarded as a military or civilian
leader, providing two reasons. First, it would be dif¬cult to establish the
formal status of the authorities in power in the former Yugoslavia at
the time the alleged crimes were committed, because of the collapse of
the existing control and command system. Moreover, the Prosecution
argued that there was no need to ascertain the precise status of the ac-
cused. It only needed to determine that the accused exercised effective
authority over the perpetrators of the unlawful acts.75 The Tribunal ap-
peared to accept this reasoning, concerning itself only with the accused™s
actual power:

The Trial Chamber considers that anyone, including a civilian, may be held re-
sponsible pursuant to Article 7(3) of the Statute if it is proved that the individual
had effective authority over the perpetrators of the crimes. This authority can
be inferred from the accused™s ability to give orders and to punish them in the
event of violations.76

It appears from this case that there is no legal distinction between mil-
itary and civilian superiors of armed opposition groups.
Most recently, the Rome Statute for the International Criminal Court
recognizes, in Article 25(3)(b) that ˜a person™ who orders the commis-
sion of a crime set out in the Statute is responsible. Reasonably, this
term must be understood as including both military and civilian lead-
ers. Article 28(2) of the Statute is more explicit on this matter. This article
recognizes responsibility for all ˜superior and subordinate relationships™
not involving the failure of ˜a military commander or person effectively
acting as a military commander™ to prevent or punish crimes commit-
ted by subordinates. There is no doubt that leaders of armed opposi-
tion groups, who do not serve a military function, are covered by this

73 Aleksovski case, above, n. 5, para. 75.
74 Ibid.; see also Yugoslavia Tribunal, Celebici case, above, Chapter 1, n. 54, paras. 357“63.
75 76 Ibid., para. 103.
Aleksovski case, above, n. 5, para. 90.
120 the accountability gap

provision.77 At the same time, the Rome Statute upholds the distinction
between military and non-military leaders. However, this distinction is
formal rather than material: the standards applicable to military and
civilian leaders set forth in the Statute are very similar.
Finally, as the Statute of the Sierra Leone Court has copied the provi-
sion on superior responsibility from the Statutes of the Yugoslavia and
Rwanda Tribunals, it can reasonably be assumed that the Sierra Leone
Court will similarly have jurisdiction over civilian non-state leaders.
This practice of holding military and civilian leaders of armed oppo-
sition groups equally responsible ¬ts in with a trend in which the for-
mal position of a superior, whether a state or non-state actor, military
or civilian, has become increasingly unimportant. Instead, the empha-
sis is on the persons™ actual power over subordinates. This practice has
recently been embodied in the Statute of the International Criminal
Court. Hence, the Statute is well equipped to meet the challenge of to-
day™s armed con¬‚icts. Also the envisaged establishment of the Special
Court for Sierra Leone, intended in particular for the prosecution of the
leadership of an armed opposition group, evidences the trend towards
criminalization of acts of non-state leaders.

In conclusion, international practice shows that for the doctrine of
superior responsibility, distinctions between international and internal
armed con¬‚icts and between state and non-state actors are irrelevant.
This trend toward criminalization of the acts or omissions of non-state
leaders is of great importance. Until recently, it was generally recognized
that these persons fell outside the reach of international criminal law.
The norms laid down in the Geneva Conventions and Protocol I, origi-
nally only relevant to commanders of state armies in international con-
¬‚icts, are now considered by international bodies to be part of customary
law applicable to superiors of armed opposition groups. It is worth reit-
erating the observation of Judge Rodrigues in his dissenting opinion to
the Aleksovski case: ˜International humanitarian law has, to a large ex-
tent, grown beyond its state-centered beginnings . . . The principle is to
prosecute natural persons individually responsible for serious violations
of international humanitarian law irrespective of their membership in
groups™.78
77 R. Dixon, ˜Superior Responsibility™, above, n. 70, p. 117; see also M. H. Arsanjani,
˜Rome Statute™, above, n. 13, at 37; I. Bantekas, ˜The Contemporary Law of Superior
Responsibility™ (1999) 93 AJIL 573, 575 (hereafter, ˜Contemporary Law of Superior
Responsibility™).
78 Aleksovski case, above, n. 5, Dissenting Opinion of Judge Rodrigues, para. 31.
accountability of group leaders 121


Criteria for accountability of group leaders
A crucial question is whether the actual application of the command
responsibility principle gives rise to any special legal obstacles when it
is applied to opposition rather than government leaders. The answer,
it is submitted, is that there is no fundamental distinction between
internal and international con¬‚icts or between state armies and armed
opposition groups in this regard. The responsibility of superiors depends
on their actual control and authority over the perpetrators of the crime,
rather than on the type of con¬‚ict in which they are operating or their
link with the state. Other criteria are the superior™s knowledge of and
ability to prevent and punish the unlawful acts.



Control and authority
As suggested earlier, the fundamental basis of the principle of superior
responsibility is the hierarchical relationship between the superior and
the subordinate. The justi¬cation for imposing criminal sanctions on
superiors of armed opposition groups for crimes committed by their
subordinates during internal con¬‚ict lies in the fact that these persons
possess the power to control the acts of their subordinates.79
The Statutes and case law of the Yugoslavia and Rwanda Tribunals
have adjusted the element of authority and control to the practical real-
ities of armed opposition groups and their superiors. Article 7(3) of the
Yugoslavia Tribunal Statute and Article 6(3) of the Rwanda Tribunal
Statute refer in general terms to ˜superiors™. While the terms of
these Statutes offer little guidance as to the required relationship bet-
ween superiors and subordinates, it would seem that these Statutes do
not require the accused to occupy a formal commander position. The
term ˜superior™ appears to be broad enough to embrace a position of
authority based on the existence of de facto powers of control. The
Rwanda Tribunal took this position in the Kayishema case, stating that
the Tribunal is ˜under a duty, pursuant to Article 6(3), to consider the
responsibility of all individuals who exercised effective control, whether
that control be de jure or de facto™.80 In the Celebici case, the Yugoslavia

79 See R. Dixon, ˜Superior Responsibility™, above, n. 70, p. 117.
80 Kayishema case, above, Chapter 1, n. 25, para. 222. The Yugoslavia Tribunal has
emphasized that while it is prepared to pierce veils of formalities, there must
nonetheless always be a genuine link of control between the leader and the
perpetrators. In the words of the Yugoslavia Tribunal: ˜There is a threshold at which
persons cease to possess the necessary powers of control over the actual perpetrators
122 the accountability gap

Tribunal applied the standard of actual authority to structures of com-
mand that were not evident from formal authorizations:

The requirement of the existence of a ˜superior-subordinate™ relationship which,
in the words of the Commentary to Protocol I, should be seen ˜in terms of a
hierarchy encompassing the concept of control™, is particularly problematic in
situations such as that of the former Yugoslavia during the period relevant to
the present case “ situations where previously existing formal structures have
broken down and where, during an interim period, the new, possibly impro-
vised, control and command structures, may be ambiguous and ill-de¬ned. It
is the Trial Chamber™s conclusion . . . that persons effectively in command of
such more informal structures, with power to prevent and punish the crimes of
persons who are in fact under their control, may under certain circumstances
be held responsible for their failure to do so. Thus, the Trial Chamber accepts
the Prosecution™s proposition that individuals in positions of authority, whether
civilian or within military structures, may incur criminal responsibility under
the doctrine of superior responsibility on the basis of their de facto as well as de
jure positions as superiors. The mere absence of formal legal authority to control
the actions of subordinates should therefore not be understood to preclude the
imposition of such responsibility.81

While the Kayishema and the Celebici cases concerned state agents op-
erating in internal and international con¬‚ict respectively, the emphasis
on factual rather than formal authority also applies to leaders of armed
opposition groups in internal con¬‚ict. In the Aleksovski case, which con-
cerned a leader of an armed opposition group, the Yugoslavia Tribunal
determined that superior responsibility is not limited to commanders
of¬cially authorized or ordered to command the subordinates in a well-
de¬ned military chain of command. In the words of the Tribunal: ˜the de-
cisive criterion in determining who is a superior according to customary

of offenses and, accordingly, cannot properly be considered their ˜superiors™ within
the meaning of Article 7(3) of the Statute . . . Great care must be taken lest an
injustice be committed in holding individuals responsible for the acts of others in
situations where the link of control is absent or too remote™, Celebici case, above,
Chapter 1, n. 54, para. 377.
81 Celebici case, above, Chapter 1, n. 54, para. 354 (footnotes omitted), see also para. 371.
This approach is in line with Article 87, Protocol I, stipulating that the duties of
military commanders extend not only to ˜members of the armed forces under their
command™ but also to ˜other persons under their control™. The commentary to this
article gives the following example: ˜If the civilian population in its own territory is
hostile to prisoners of war and threatens them with ill-treatment, the military
commander who is responsible for these prisoners has an obligation to intervene and
to take the necessary measures, even though this population is not of¬cially under his
authority™, J. de Preux, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1020,
footnote 9.
accountability of group leaders 123

international law is not only the accused™s formal legal status, but also
his ability . . . to exercise control™.82
Signi¬cantly, the Yugoslavia and Rwanda Tribunals make no principal
distinction in this regard between international and internal con¬‚icts,
nor between state armies and armed opposition groups. In all these
cases the decisive criterion is whether a superior exercises as a matter
of fact power over his or her subordinates.
One explanation is that chaotic military situations may prevail not
only in armed opposition groups but also in state armed forces. As the
Yugoslavia Tribunal noted in the Tadi´ case (appeal on merits), parties
c
to international con¬‚icts are no longer well-established states. Instead,
in many situations, the states have come into being during the armed
con¬‚ict.83 In consequence, in armed opposition groups and state armies
alike, many of the structures and chains of command are not readily
evident from formal authorizations or documentation. In consequence,
in both situations, the ad hoc criminal tribunals must focus on the real
power of superiors.84
As explained earlier, in addition to military leaders, political and other
civilian leaders may also be held criminally responsible for ordering the
commission of crimes or for failure to prevent or repress crimes com-
mitted by their subordinates. In fact, there are some indications that
the distinction between military and civilian leaders is irrelevant for
the question of superior responsibility. Since little international practice
stating the responsibility of civilian leaders is available, the Yugoslavia
Tribunal used the rules applicable to military commanders as a model
to determine the degree of control and authority required of civilian
leaders of armed opposition groups. This means that the decisive crite-
rion for responsibility of leaders of armed opposition groups is de facto
power rather than formal civilian or military status.85 As noted by the
Rwanda Tribunal in the Kayishema case, ˜the crucial question in those

82 Aleksovski case, above, n. 5, para. 76.
83 Tadi´ case (1999, appeal on merits), above, Chapter 1, n. 94, para. 166.
c
84 As Bantekas noted: ˜When prosecuting persons for failure to act in both the ICT Y
[International Court for Yugoslavia] and ICTR [International Court for Rwanda], the
Prosecution attempts to establish actual control of subordinate persons even if there
exists overwhelming evidence of the accused™s of¬cial appointment™, I. Bantekas,
˜Contemporary Law of Superior Responsibility™, above, n. 77, at 584.
85 Although the Tribunal considered the ability to impose sanctions not essential for
civilian leaders, ¬nding that the power to sanction is ˜the indissociable corollary of
the power to issue orders within the military hierarchy™ and therefore ˜does not apply
to the civilian authorities™, Aleksovski case, above, n. 5, para. 78.
124 the accountability gap

cases was not the civilian status of the accused, but the degree of au-
thority he exercised over his subordinates™.86 The Tribunal makes no
distinction in this regard between international and internal con¬‚icts
or between state armies and armed opposition groups.
As the provision on superior responsibility in the Statute of the Sierra
Leone Court is worded similarly to the relevant provisions in the Statutes
of the Yugoslavia and Rwanda Tribunals, it is reasonable to expect that
the Sierra Leone Court will follow the jurisprudence of the Yugoslavia
and Rwanda Tribunals, applying the standard of actual control and au-
thority.
Finally, the Rome Statute has taken the same approach. Article 28(1)
stipulates that a military commander or person effectively acting as such
will be criminally responsible for acts ˜committed by forces under his or
her effective command and control or effective authority and control™.
A similar standard applies to civilian leaders.87
In view of the practice examined above, one can reasonably assume
that the same considerations apply to responsibility of leaders of armed
opposition groups for having ordered the commission of crimes by their
subordinates.


Knowledge
Criminal acts committed by subordinates cannot be charged to leaders
of armed opposition groups merely on the basis of command relation-
ship as such. There must be a personal dereliction on the part of the
superior.88 The standard to be applied in this regard is laid down in the
Statutes of the Yugoslavia and Rwanda Tribunals, which standard is in
turn drawn from Protocol I. Article 86(2) of Protocol I 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 responsi-
bility, 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

86 Kayishema case, above, Chapter 1, n. 25, para. 216. See also Celebici case, above,
Chapter 1, n. 54, para. 378 (˜the doctrine of superior responsibility extends to civilian
superiors only to the extent that they exercise a degree of control over their
subordinates which is similar to that of military commanders™); see also R. Dixon,
˜Superior Responsibility™, above, n. 70, p. 117.
87 Article 28(2) and (2)(b).
88 US v. Wilhelm von Leeb et al. (the High Command case), Trials of War Criminals before the
Nuremberg Military Tribunals under Control Council Law No. 10 1946“9, Vol. XI, at
543“4 (Washington DC, US Government Printing Of¬ce, 1950).
accountability of group leaders 125

going to commit such a breach and if they did not take all feasible measures
within their power to prevent or repress the breach.89

The Statutes of the Yugoslavia and Rwanda Tribunals, although slightly
differing from the corresponding language in Protocol I, must be under-
stood to have the same meaning as Article 86(2) of the Protocol.90 These
statutes incorporate a general ˜knew or had reason to know™ standard.
Article 7(3) of the Yugoslavia Tribunal Statute 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
responsibility if he knew or had reason to know that the subordinate was
about to commit such acts or had done so™ [emphasis added].
In the Celebici case, concerning state armies involved in international
con¬‚ict, the Yugoslavia Tribunal interpreted this standard as follows:
A superior may possess the mens rea required to incur criminal liability where:
(1) he had actual knowledge, established through direct or circumstantial
evidence, that his subordinates were committing or about to commit crimes
referred to under Articles 2 to 5 of the Statute, or (2) where he had in his pos-
session information of a nature, which at least, would put him on notice of
the risk of such offences by indicating the need for additional investigation in
order to ascertain whether such crimes were committed or were about to be
committed by his subordinates.91

The standard of actual knowledge is straightforward. It means either
that the leader knew, or that the totality of the circumstances may
establish that the leader must have known that the subordinate was
committing, was about to commit or had committed unlawful acts. In
the Celebici case, the Yugoslavia Tribunal made clear that when explicit
evidence of the superior™s knowledge of the crimes committed by his
subordinates is lacking, such knowledge cannot be presumed. On the
other hand, the Trial Chamber recognized that the serious, widespread,
massive, or continuing nature of the violations, may indicate whether
a superior possessed the necessary knowledge.92
89 Emphasis added.
90 ILC Draft Code of Crimes, above, n. 8, Article 6 and Commentary (Responsibility of the
Superior); Celebici case, above, Chapter 1, n. 54, para. 390.
91 Celebici case, above, Chapter 1, n. 54, para. 383.
92 Ibid., para. 386. In determining whether a superior must have possessed the necessary
knowledge, the Yugoslavia Tribunal considered a number of criteria relevant, listed by
the Commission of Experts for the Former Yugoslavia in its 1994 Final Report, above,
n. 8: (a) the number of illegal acts; (b) the type of illegal acts; (c) the scope of illegal
acts; (d) the time during which the illegal acts occurred; (e) the number and type of
troops involved; (f ) the logistics involved, if any; (g) the geographical location of the
acts; (h) the widespread occurrence of the acts; (i) the tactical tempo of operations;
126 the accountability gap

The term ˜had reason to know™ raises more complex legal issues. The
superior need then not have actual knowledge of the offences, but he
must have suf¬cient relevant information that would enable him to
conclude that unlawful conduct was about to take place or had taken
place. As a starting point, the Yugoslavia Tribunal established that this
expression imposes criminal responsibility for deliberately ignoring in-
formation within the leader™s actual possession, which indicated that
crimes were being committed or were about to be committed.93
It is more dif¬cult when the leader lacks such information because of
his omission to supervise his subordinates. With regard to these situa-
tions, the Tribunal held that leaders can be held responsible only if:
some speci¬c information was in fact available to him which would provide
notice of offences committed by his subordinates. This information need not be
such that it by itself was suf¬cient to compel the conclusion of the existence
of such crimes. It is suf¬cient that the superior was put on further inquiry by
the information, or, in other words, that it indicated the need for additional
investigation in order to ascertain whether offences were being committed or
about to be committed by his subordinates.94

With this formulation, the Tribunal rejected the proposition that the
mental standard should include the criminal responsibility of a supe-
rior for crimes by his subordinates in situations where he should have
had knowledge concerning their activities, but where he lacks such infor-
mation by virtue of his failure properly to supervise his subordinates.95
It was this standard that the Yugoslavia Tribunal, in the Aleksovski case,
applied to a leader of an armed opposition group involved in internal
con¬‚ict. Aleksovski was a prison commander in the Kaonik prison, which
was used by Bosnian Croats to detain Muslims. The Tribunal considered
the con¬‚ict between the Bosnian Croats and Bosnian Muslims to be
internal in nature;96 this determination allows the conclusion that the
Bosnian Croats were at the time of the alleged offences an armed op-
position group. In this case, the Tribunal restated its view expressed in
the Celebici case that ˜in the absence of direct evidence of the superior™s

( j) the modus operandi of similar illegal acts; (k) the of¬cers and staff involved; (l) the
location of the commander at the time; see also, J. de Preux, Commentary Additional
Protocols, above, Chapter 1, n. 9, pp. 1015“16 (˜Ignorance does not absolve [superiors]
from responsibility if it can be attributed to a fault on their part. The fact that the
breaches have widespread public notoriety, are numerous and occur over a long
period and in many places, should be taken into consideration in reaching a
presumption that the persons responsible could not be ignorant of them™).
93 Celebici case, above, Chapter 1, n. 54, para. 387.
94 95 Ibid., para. 391.
Ibid., para. 393.
96 Aleksovski case, above, n. 5, para. 46.
accountability of group leaders 127

knowledge of the offences committed by subordinates, such knowledge
cannot be presumed™.97 The Tribunal rejected therefore any distinction
in this regard between international and internal con¬‚icts or between
state-linked leaders and non-state leaders.
Furthermore, the Tribunal considered that the geographical and
temporal circumstances are relevant factors in determining whether
the superior had actual knowledge of the crimes committed by his
subordinates.98 This means that the physical distance between the
crimes and the superior and repetition of the crimes, together with
other factors, might preclude the responsibility of the leader. The
Tribunal found that because Aleksovski lived for some time inside the
Kaonik prison, he must have been aware of the repeated ill-treatment of
the detainees.99 Here also, the Tribunal made no principal distinction
between state and non-state leaders.
The Statute of the Sierra Leone Court also employs the ˜knew or
had reason to know™ standard. It may be anticipated that the Sierra
Leone Court will interpret this standard along the lines developed by
the Yugoslavia Tribunal, when holding the RUF leadership responsible
for crimes committed by the subordinates.
Since the commission of the crimes at issue in the Aleksovski case, the
Yugoslavia Tribunal has suggested that customary law on the mens rea
requirement may have evolved so as to include a ˜should have known™
standard.100 It referred in this regard to the Rome Statute. Article 28(1)(a)
of the Statute provides that a superior of an armed opposition group can
incur criminal responsibility for crimes committed by his subordinates
where he ˜knew or, owing to the circumstances at the time, should
have known that the forces were committing or about to commit such
crimes™. This provision imposes on leaders of armed opposition groups
a duty to acquire knowledge of the activities of their members: the lack
of knowledge will no longer be a defence.101 This principle applies, how-
ever, only to military leaders or persons effectively acting as military
leaders, not to civilian leaders, for whom the Rome Statute prescribes a
different mental standard. Civilian leaders will be criminally responsi-
ble if they ˜either knew, or consciously disregarded information which
clearly indicated that the subordinates were committing or about to
commit™ crimes with the jurisdiction of the court.102 Civilian leaders,

97 98 Ibid. 99 Ibid., case, para. 114.
Ibid., para. 80.
100 Celebici case, above, Chapter 1, n. 54, para. 393; see also I. Bantekas, ˜Contemporary
Law of Superior Responsibility™, above, n. 77, at 590“1, 594.
101 I. Bantekas, ˜Contemporary Law of Superior Responsibility™, above, n. 77, at 590.
102 Article 28(2)(a).
128 the accountability gap

under the Rome Statute, are thus not under an active duty to inform
themselves of the activities of their subordinates.103

Ability to prevent or punish
Leaders of armed opposition groups, both military and civilian, incur
criminal responsibility, when they have knowledge of crimes committed
by their subordinates, and when they fail to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators.
This follows from the Statutes of the Yugoslavia and Rwanda Tribunals.
Article 7(3) of the Statute of the Yugoslavia Tribunal and 6(3) of the
Statute of the Rwanda Tribunal provide:
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 and
reasonable measures to prevent such acts or to punish the perpetrators thereof.104
This provision presupposes a corresponding duty to ensure that the con-
duct of subordinates “ whether ordered by the superior or not “ is law-
ful. Article 87 of Protocol I, referring to international con¬‚icts, is to the
same effect.105
The context of an internal armed con¬‚ict and the features of armed
opposition groups may, nonetheless, play a role in determining the con-
tent and scope of the duties of superiors of these groups. The Statutes of
the Yugoslavia and Rwanda Tribunals stipulate that superiors are only
103 Kayishema case, above, Chapter 1, n. 25, para. 227; I. Bantekas, ˜Contemporary Law of
Superior Responsibility™, above, n. 77, at 590; N. Keijzer, ˜Introductory Observations™
to: War Crimes Law and the Statute of Rome: Some Afterthoughts? (Report of the
International Society for Military Law and the Law of War, 1999) pp. 6, 7 (hereafter,
˜Introductory Observations™).
104 Emphasis added.
105 Article 87 of Protocol I provides: ˜1. The High Contracting Parties and the Parties to
the con¬‚ict shall require military commanders, with respect to members of the
armed forces under their command and other persons under their control, to
prevent and, where necessary, to suppress and to report to competent authorities
breaches of the Conventions and of this Protocol. 2. In order to prevent and suppress
breaches, High Contracting Parties and Parties to the con¬‚ict shall require that,
commensurate with their level of responsibility, commanders ensure that members
of the armed forces under their command are aware of their obligations under the
Conventions and this Protocol. 3. The High Contracting Parties and Parties to the
con¬‚ict shall require any commander who is aware that subordinates or other
persons under his control are going to commit or have committed a breach of the
Conventions or of this Protocol, to initiate such steps as are necessary to prevent
such violations of the Conventions or this Protocol, and, where appropriate, to
initiate disciplinary or penal action against violators thereof ™.
accountability of group leaders 129

responsible if they fail to take the ˜necessary and reasonable™ measures
to prevent or repress offences.106 The Yugoslavia Tribunal speci¬es that
˜a superior should be held responsible for failing to take such measures
that are within his material possibility™.107 The responsibility of leaders of
armed opposition groups is thus not absolute. International law does
not impose an obligation on them to perform the impossible. Hence,
superiors of armed opposition groups may only be held criminally re-
sponsible if they exercise actual power over their subordinates, and only
for failing to take such measures that are within their ability.
There is no international treaty imposing analogous duties onto lead-
ers of armed opposition groups. However, in the Aleksovski case, the
Yugoslavia Tribunal suggested that Article 87 of Protocol I may be
equally relevant for armed opposition groups in internal con¬‚icts.108
Furthermore, in the same case the Tribunal relied on its reasoning in
the Celebici case, dealing with necessary and reasonable measures, which
concerned state armies in international con¬‚ict. This suggests that with
regard to the superiors™ duties, there is no important distinction be-
tween international and internal con¬‚ict, nor between state armies and
armed opposition groups.
It can be envisaged that various steps might be required to be un-
dertaken by leaders of armed opposition groups, including prosecution
and punishment,109 preventive action and investigations of alleged vio-
lations, providing clear orders and training, and establishing a proper

106 Article 86(2) of Protocol I speaks of ˜all feasible measures within their power™.
107 Aleksovski case, above, n. 5, para. 81 (emphasis added); Celebici case, above, Chapter 1
n. 54, para. 395; see also Rwanda Tribunal, Kayishema case, above, Chapter 1, n. 25,
paras. 229“31, 511; various commentators have expressed the same view, see W. H.
Parks, ˜Command Responsibility™, above, n. 2, at 84; R. Dixon, ˜Superior
Responsibility™, above, n. 70, p. 117.
108 Aleksovski case, above, n. 5, para. 81 (relying on the commentary to Protocol I); see
also V. Morris, M. P. Scharf, Rwanda Tribunal, above, Chapter 1, n. 161, vol. I, p. 261.
109 In Prosecutor v. Tihomir Blaˇ ki´, No. IT-95-14-PT, Decision on the Defence Motion to
sc
Strike Portions of the Amended Indictment Alleging ˜Failure to Punish Liability™,
para. 9 (4 April 1997), the defence claimed that the failure to punish subordinates
guilty of crimes is not an offence in customary or conventional international
humanitarian law and does not as such involve the criminal responsibility of the
superior. However, the Yugoslavia Tribunal rejected the argument, ¬nding ˜that the
case law and international conventions which enshrine the principle of the
command responsibility of whoever fails to punish subordinates who have
committed crimes are fully adequate; see also Kordi´ case, above, Chapter 1, n. 40,
c
para. 15. In the Aleksovski case, the Tribunal determined, however, that civilian
superior authorities are not required to have sanctioning powers similar to military
superiors, Aleksovski case, above, n. 5, para. 78; see further on responsibility for failure
to punish, Bing Bing Jia, ˜Command Responsibility™, above, n. 46, 345“7.
130 the accountability gap

reporting system.110 Since the action that leaders of armed opposition
groups must take is closely related to the facts of their particular situa-
tion, it is not possible to identify the exact measures such leaders should
undertake to prevent and punish. It should be recalled, however, that
as was demonstrated in Chapter 2, international bodies have rarely for-
mulated the measures actually to be taken by armed opposition groups.
Instead, the focus has been on prohibitions.
The Statutes of the Sierra Leone Court and of the International
Criminal Court reinforce the above conclusions. Article 6 of the for-
mer statute is a verbatim reproduction of the relevant provisions of
the Statutes of the Yugoslavia and Rwanda Tribunals, imposing crimi-
nal responsibility on the leaders of the RUF for not having taken ˜the
necessary and reasonable measures to prevent such acts [referred to in
Articles 2 to 4 in the Statute] or to punish the perpetrators thereof™.
Under the Rome Statute, a military or civilian leader of armed opposi-
tion groups is criminally responsible when he or she fails to take ˜all
necessary and reasonable measures within his or her power to prevent
or repress their commission™.111 The Statute adds that, alternatively, su-
periors may be obliged ˜to submit the matter to the competent author-
ities for investigation and prosecution™.112 One commentator has raised
the question whether ˜it is fair that a commander or other superior,
who knew of crimes being committed by his subordinates but has done
nothing to stop them, should go free for the sole reason that he has
submitted the matter to the competent authorities for investigation and
prosecution™.113 This may not, however, be a proper interpretation of the
provision. The provision is probably better read as pertaining to cases in
which the superior is unable to prevent or repress the crime, in which
case he must report the matter to the appropriate authorities. On this
interpretation, the obligation to report does not relieve him of the obli-
gation to prevent or repress.114
110 For example in the Aleksovski case, the Yugoslavia Tribunal considered that the
accused could have transmitted reports to higher authorities. Although
communications were cut off at the time of the offences in January 1993, the
accused could at anytime have used the telephone, fax or military equipment,
Aleksovski case, above, n. 5, para. 117. Article 87 of Protocol I requires leaders to
prevent, suppress and report violations of the relevant norms to superiors. They must
also make their subordinates aware of their obligations under the Geneva
Conventions and Protocols, consistent with their level of responsibility. If necessary
they must initiate penal or disciplinary actions against offenders.
111 112 Ibid.
Article 28 (1)(b) and (2)(c).
113 N. Keijzer, ˜Introductory Observations™, above, n. 103, p. 3.
114 I. Bantekas, ˜Contemporary Law of Superior Responsibility™, above, n. 77, at 592.
accountability of group leaders 131

In conclusion, international bodies have eliminated the distinction be-
tween international and internal con¬‚icts, and between state actors and
non-state actors as regards the conditions for the responsibility of leaders
of armed opposition groups.
The factual characteristics of armed opposition groups may, nonethe-
less, play a role in the application of the three above-mentioned condi-
tions to their leaders. For example, the structure of armed opposition
groups may be dif¬cult to prove; the relationship between ranks and re-
sponsibilities in these groups may not be as easily determined as within
national forces. The application of the doctrine of superior responsibility
to persons will thus depend heavily on speci¬c facts and may not be easy.
Similarly, whether leaders of armed opposition groups failed to prevent
or punish crimes committed by their subordinates depends on their ma-
terial ability to take appropriate measures. This ability will depend on
the features of the armed opposition groups of which they are a part.
All cases of criminal responsibility of leaders of armed opposition
groups have to be examined separately, according to the circumstances
involved. Nevertheless, the problems that may arise will be practical
rather than involving issues of principle. Although international prac-
tice is still limited, the applicable rules have roughly been shaped by the
Statutes and case law of the Yugoslavia and Rwanda Tribunals, and have
been af¬rmed by the Statutes of the Sierra Leone Court and the Interna-
tional Criminal Court. They undoubtedly lie at the basis of the evolution
of the rules applicable to leaders of armed opposition groups. It is only
necessary, within this general framework, to re¬ne the practicalities and
consequences of the doctrine for leaders of armed opposition groups.


Limited prospects for prosecution
The main conclusion of this chapter, pointing out the accountability
of leaders of armed opposition groups, is promising. However, this
conclusion rests primarily on the Statutes and jurisprudence of the
Yugoslavia and Rwanda Tribunals. These tribunals are ad hoc in nature,
and concerned with only the two particular internal con¬‚icts. Moreover,
so far, there have been few trials charging leaders of armed opposi-
tion groups with international crimes. The focus of the Yugoslavia and
Rwanda Tribunals has been on leaders linked to the state. In fact, until
the present day, the Aleksovski case has been the only case in which the
Yugoslavia Tribunal provided evidence of the actual application of the
principle of command responsibility to leaders of armed opposition
132 the accountability gap

groups. The Rwanda Tribunal has focused on the genocide carried out by
the Rwandan state and individuals connected with the state. One cannot
escape the conclusion that these international criminal tribunals have
been established for the purpose of prosecuting superiors linked to the
state, rather than leaders of armed opposition groups.115 The contribu-
tion of these tribunals to the further development of the law relevant to
non-state leaders is therefore to be awaited. In this regard it is also in-
teresting to note that the Prosecutor of the Yugoslavia Tribunal declared
that she was considering prosecuting the political and military leader-
ship of the Kosovo Liberation Army.116 The envisaged establishment of
the International Criminal Court and the Special Court for Sierra Leone
are certainly important developments in this respect, enhancing the
prospects for actual prosecution of leaders of armed opposition groups.
In any case, prosecution by international tribunals will be a rare event.
It is therefore reasonable to ask whether there are other avenues for
prosecuting leaders of armed opposition groups. Besides criminal legal
action against the group as such, a second option would be prosecution
of the individual wrongdoers by the armed opposition group itself. As
noted earlier, however, international humanitarian law as it currently
stands does not explicitly oblige armed opposition groups to prosecute
violators of this law. Nor have international bodies accepted the author-
ity of these groups to prosecute violators of international humanitarian
law.
A third possibility may be prosecution of the actual wrongdoers by
the territorial state. The duty of a government to prosecute members of
armed opposition groups for violating humanitarian and human rights
law is analysed in Chapter 5. As will be shown, international humanitar-
ian law is slowly moving towards an obligation of the state to prosecute
violations of international humanitarian law committed on its territory
by members of armed opposition groups.
Another possibility is for third states to prosecute leaders of armed
opposition groups for violations of international humanitarian law on
the basis of universal jurisdiction. This would entail, in effect, expanding
the grave breaches enforcement regime to cover internal con¬‚icts.
115 The Yugoslavia Tribunal, for example, makes considerable efforts in each case to
demonstrate that the alleged crimes have been committed in an international armed
con¬‚ict.
116 Agence France Presse, ˜ICT Y on the Alert for Anti-Serb Ethnic Cleansing™ (4 August
1999), available in LEXIS, News Library, Curnws File.
Accountability of armed opposition
4
groups as such




In order to enforce international law applicable to armed opposition
groups effectively, we should be able to involve the group itself as a col-
lectivity. Indeed, the acts that are labelled as international crimes ¬nd
their basis in the collectivity. These crimes are unlikely to be prevented
nor will compliance with the relevant provisions of international law
be signi¬cantly improved through punishment of one single individual.
Therefore, the most challenging level of accountability is the account-
ability of armed opposition groups as such.
To make armed opposition groups themselves accountable under in-
ternational law raises a host of problems. The principle that armed oppo-
sition groups may be held accountable for wrongful acts committed by
them has been recognized.1 But a number of dif¬culties remain to be re-
solved. For one thing, there is the important threshold question of de¬n-
ing armed groups, namely the threshold as to their level of organization
1 Article 14(3) of the International Law Commission Draft Articles on State
Responsibility, A/51/10 (1996) (Draft Articles provisionally adopted by the Commission
on ¬rst reading), text available on www.law.cam.ac.uk/rcil/ILCSR/Statresp.htm (visited,
1 January 2001) (hereafter, ILC Draft Articles on State Responsibility 1996) provides:
˜Similarly, paragraph 1 is without prejudice to the attribution of the conduct of the
organ of the insurrectional movement to that movement in any case in which such
attribution may be made under international law.™ This paragraph has been deleted in
the Draft Articles provisionally adopted on second reading by the Drafting Committee
in 1998, UN Doc. A/CN.4/L.569 (4 August 1998) (hereafter, ILC Draft Articles on State
Responsibility 1998). The reason is, according to the report of the Special Rapporteur,
that this provision is concerned with movements, which are, ˜ex hypothesi™, not states.
Therefore it falls outside the scope of the Draft Articles. The Rapporteur observed that,
while the responsibility of insurrectional movements can be envisaged, for example,
for violations of international humanitarian law, it can be dealt with in the
commentary to the Draft Articles, First Report on State Responsibility by James
Crawford, Special Rapporteur A/CN.4/490 (1998) (hereafter, 1998 First Report Special
Rapporteur on State Responsibility).

133
134 the accountability gap

and military power. In addition, international bodies have not yet de-
¬ned the rules on attribution of the acts and omissions of individuals
to armed opposition groups. In this regard, the question of attribution
to successful armed groups, which have formed either a new govern-
ment or a new state should also be considered. Another open question
is: In what kind of forum could a claim be prosecuted? There is also the
question of who has standing to bring a claim, and, who is entitled to
represent armed opposition groups in a claim or at an arbitration? The
following discussion will address these questions.



Evidence for accountability of armed opposition groups
Holding armed opposition groups as such accountable implies that they
are to be regarded as international legal entities (subjects of interna-
tional law). No clear de¬nition exists, however, of armed opposition
groups subjected to international law. The confusion surrounding the
concept of armed opposition groups is illustrated by the multifarious
terminology which international bodies use in denoting them. Apart
from the phrase ˜armed opposition groups™, it includes ˜insurgents™,
˜rebels™, ˜terrorists™, ˜subversive groups™, ˜guerrillas™, ˜criminals™, ˜non-
governmental groups™, ˜movements™, and ˜clans™. The dif¬cult question
is whether groups should ful¬l some set of minimum objective condi-
tions, say as to their size and power, to qualify as international legal
persons. On this issue, international bodies are pulled in different di-
rections by different considerations. Reasons of humanity demand that
international bodies put a low threshold on quali¬cations as a legal en-
tity. States, however, are typically very resistant to grants of international
status to insurgent groups, preferring to regard them as mere domestic-
law criminals. While the question of de¬nition is generally seen as an
issue of international humanitarian law, it should be appreciated that
general international human rights law is relevant as well.



Common Article 3 and Protocol II
Common Article 3 refers to, but does not de¬ne, the parties to the con-
¬‚ict that are bound by it. It requires ˜each Party to the con¬‚ict™ to adhere
to the prescribed norms. The problem of the threshold for account-
ability under this article arose during the drafting Conference on the
Geneva Conventions in 1949. States admitted that Common Article 3
accountability of armed opposition groups as such 135

could bind large insurgent bodies that could be acknowledged as de
facto governments. There was disagreement, though, over the treatment
of splinter entities.2 For this reason, states proposed several conditions
on which the accountability under Common Article 3 would depend.
These included, inter alia, recognition of the insurgents a state-like orga-
nization of the insurgents and territorial control by the insurgents.3
Although not incorporated in Common Article 3 and therefore not
obligatory, the ICRC has regarded these conditions as a means of
˜distinguishing genuine armed con¬‚icts from a mere act of banditry or
an unorganized and short-lived insurrection™, the latter falling outside
the scope of international humanitarian law.4 However, these conditions
have hardly played a role in the actual practice of international bodies.5
International practice provides no uniform answer to the question of
what makes an armed group into a ˜Party™ to an ˜armed con¬‚ict not of an
international character™. The Yugoslavia and Rwanda Tribunals and the
Inter-American Commission on Human Rights have set down minimum
conditions which require armed opposition groups to be organized and
to engage in military operations. The UN Security Council and the UN
Commission on Human Rights, on the other hand, have applied Com-
mon Article 3 to a wide range of groups apparently lacking any real
effectiveness.
In the Tadi´ appeal case, the Yugoslavia Tribunal de¬ned the minimum
c
conditions for accountability of armed groups under Common Article 3
as follows: ˜an armed con¬‚ict exists whenever there is a resort to armed
force between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State™.6
Two requirements follow from the Tribunal™s statement. First, armed
opposition groups must carry out protracted hostilities. Second, these
groups must be organized. It would seem reasonable to expect that
the group should be able to impose discipline upon its members in the
name of the collectivity. The Rwanda Tribunal and the Inter-American
Commission have formulated requirements largely similar to those set
2 G. Best, War & Law Since 1945 (Clarendon Press, Oxford, reprint 1996) p. 177 (hereafter,
War & Law).
Commentary 4th Geneva Convention, above, Chapter 1, n. 9, pp. 35“6.
3
4 lbid.
5 The Rwanda Tribunal provides an exception. In the Akayesu judgment, the Tribunal
reproduced these criteria for the applicability of Common Article 3. However, it did
not apply them to the parties involved in the con¬‚ict in Rwanda in 1994, Akayesu case,
above, Chapter 1, n. 6, paras. 619“21.
6 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 70 (emphasis added).
c
136 the accountability gap

down by the Yugoslavia Tribunal.7 They have also identi¬ed some other
important points.
First, according to these bodies, Common Article 3 does not require
armed opposition groups to exercise territorial control.8
A second de¬nitional issue dealt with by these bodies concerns the
territorial sphere of validity of Common Article 3. The Article does not
clearly de¬ne its territorial scope, providing that it applies to armed con-
¬‚icts ˜not of an international character occurring in the territory of one
of the High Contracting Parties™. The term ˜one™ may be taken to refer to
con¬‚icts that take place within the territory of a single state. Con¬‚icts
crossing state borders would then be excluded. The term ˜one™, however,
may simply mean ˜a™, signifying imprecise language. In fact, practice
of the Yugoslavia and Rwanda Tribunals demonstrates that Common
Article 3 applies to situations in which armed opposition groups oper-
ate across state lines. In particular, the Statute of the Rwanda Tribunal
provides that the Tribunal™s territorial jurisdiction extends to violations
of Common Article 3 committed by Rwandan citizens ˜in the territory
of neighbouring states™.9 Common Article 3 must therefore be under-
stood as including violence of armed opposition groups spilling across
the borders into neighbouring states, for instance crimes committed by
armed opposition groups in refugee camps located across the border.
The conclusion is that internal con¬‚icts are distinguished from inter-
national con¬‚icts by the parties involved rather than by the territorial
scope of the con¬‚ict.
A third de¬nitional problem involves distinguishing internal distur-
bances and tensions from internal armed con¬‚icts such as civil wars.10
Although Common Article 3, unlike Protocol II, does not expressly

7 Rwanda Tribunal, Akayesu case, above, Chapter 1, n. 6, para. 620 (˜the term “armed
con¬‚ict” in itself suggests the existence of hostilities between armed forces organized
to a greater or lesser extent™); Inter-American Commission on Human Rights, Tablada
case, above, Chapter 1, n. 4, para. 152 (˜Common Article 3 is generally understood to
apply to low intensity and open armed confrontations between relatively organized
armed forces or groups™).
8 Tablada case, above, Chapter 1, n. 4, para. 152.
9 Articles 1 and 7 of the Statute for the Rwanda Tribunal. These articles refer to the
territory of the states which are immediately adjacent to Rwanda, namely Uganda,
United Republic of Tanzania, Burundi and Zaire, V. Morris, M. P. Scharf, Rwanda
Tribunal, above, Chapter 1, n. 164, vol. I, pp. 292“3. Similarly, the Yugoslavia Tribunal
has not accepted the criterion that armed opposition groups must act inside the
borders of one state in order for Common Article 3 to be applicable.
10 Rwanda Tribunal, Akayesu case, above, Chapter 1, n. 6, para. 620; Inter-American
Commission on Human Rights, Tablada case, above, Chapter 1, n. 4, paras. 148“52.
accountability of armed opposition groups as such 137

exclude internal disturbances, the Rwanda Tribunal and the Inter-
American Commission have both held the exclusion of mere distur-
bances to be a feature inherent in the notions ˜armed con¬‚ict™ and ˜party
to the con¬‚ict™. But the line separating an internal armed con¬‚ict from
internal disturbances and tensions is not easily identi¬ed. Consider the
following example of the Commission, characterizing the events at the
Tablada military base:

Based on a careful appreciation of the facts, the Commission does not believe
that the violent acts at the Tablada military base on January 23 and 24, 1989
can be properly characterized as a situation of internal disturbances. What
happened there was not equivalent to large scale violent demonstrations, stu-
dents throwing stones at the police, bandits holding persons hostage for ran-
som, or the assassination of government of¬cials for political reasons “ all
forms of domestic violence not qualifying as armed con¬‚icts. What differen-
tiates the events at the Tablada base from these situations are the concerted
nature of the hostile acts undertaken by the attackers, the direct involvement
of governmental armed forces, and the nature and level of the violence attend-
ing the events in question. More particularly, the attackers involved carefully
planned, coordinated and executed an armed attack, i.e., a military operation,
against a quintessential military objective “ a military base. The of¬cer in charge
of the Tablada base sought, as was his duty, to repulse the attackers, and
President Alfonsin, exercising his constitutional authority as Commander-in-
Chief of the armed forces, ordered that military action be taken to recapture the
base and subdue the attackers. The Commission concludes therefore that, de-
spite its brief duration, the violent clash between the attackers and members of
the Argentine armed forces triggered application of the provisions of Common
Article 3.11

Signi¬cantly, the Commission did not consider the duration of the con-
¬‚ict to be a relevant factor for the applicability of Common Article 3.
This case concerned an armed confrontation between the Argentine
Government and rebels, which lasted only thirty hours. Nonetheless,
the Inter-American Commission decided that Common Article 3 was
applicable. In the view of the Inter-American Commission, ˜the direct
involvement of governmental armed forces™, together with other fac-
tors, compensated for the brief duration of the confrontation between
the Argentine Government and the rebels. The ICRC agreed with the
Inter-American Commission. It observed, in a document entitled Armed
Con¬‚icts Linked to the Disintegration of State Structures that ˜the fact that a
government is obliged to use its armed forces to combat an insurrection

11 Tablada case, above, Chapter 1, n. 4, paras. 154“6.
138 the accountability gap

is taken to mean that the rebels qualify as a party to the con¬‚ict and
that Common Article 3 applies™.12
The reasoning of the Inter-American Commission and the ICRC is open
to question. For one thing, much depends on the degree of involvement
of the government armed forces. Of course, involvement of the entire
body of the army is relevant in that it points to a degree of intensity
of the ¬ghting and a minimum level of organization of the armed op-
position group. But the relevance of the engagement of the state army
diminishes when the government employs only certain branches of its
armed forces in the armed confrontation.
Further, involvement of the national army cannot be the only relevant
factor, as the ICRC seems to suggest. The applicability of the law to a
party to the con¬‚ict should not depend solely on the features of the
other party to the con¬‚ict.13
Finally, the short duration of the confrontation between the Argentine
Government and the armed groups is dif¬cult to reconcile with
the groups™ supposed capability to engage in combat against the
Government, a criterion applied by the Inter-American Commission in
this case.14 The fact that the rebels were defeated within two days sug-
gests that this capability was extremely limited.
On the duration of the con¬‚ict, the Inter-American Commission differs
from the Yugoslavia and Rwanda Tribunals, which required hostilities
covered by Common Article 3 to be ˜protracted™.
The practice of the Yugoslavia and Rwanda Tribunals also indicates
that the requirements for applicability of Common Article 3 are equally
pertinent when Common Article 3 applies as customary law.
In contrast to the above practice applying minimum conditions for the
accountability of armed opposition groups under Common Article 3,
there is also practice suggesting that there are actually no limitations
to the reach of Common Article 3. The UN Commission on Human Rights
and the UN Security Council have applied the provision to groups ap-
parently not exercising effective power. The Security Council has taken
the most liberal approach. It has applied humanitarian law to frag-
mented groups. For example, in resolution 814 (1993), the Council
reiterates its demand that ˜all Somali parties, including movements

12 Armed Con¬‚icts Linked to the Disintegration of State Structures (Preparatory Document For
the First Periodical Meeting on International Humanitarian Law, Geneva, 19“23
January 1998) p. 9 (hereafter, Disintegration of State Structures).
13 See S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, pp. 1319“20.
14 Tablada case, above, Chapter 1, n. 4, para. 152.
accountability of armed opposition groups as such 139

and factions, immediately cease and desist from all breaches of inter-
national humanitarian law™.15 Clearly, here the Security Council posed
no rigorous requirements as to the accountability of armed opposi-
tion groups under international humanitarian law, including Common
Article 3. At the time of the adoption of this resolution, about thirty
clans were involved in the con¬‚ict in Somalia. There were three rela-
tively well-established organizations, plus numerous loosely organized
factions and clans, lacking any real power.16 The situation in Somalia in-
duced the UN Secretary-General to characterize the con¬‚ict in Somalia as
˜chaos™.17
Two interpretations of this and similar resolutions of the Security
Council are possible. First, these resolutions may re¬‚ect the Council™s
view that Common Article 3 poses no requirements as to the organiza-
tion or factual authority of the groups subjected to this article. It may
take the view that, given a minimum level of violence, any band con-
sisting of more than one person may be characterized as a ˜Party to the
con¬‚ict™ in terms of this article. A possible alternative is that, in order
to trigger the accountability under Common Article 3, the Council re-
quires at least one of the groups involved to ful¬l certain minimum
requirements as to their organization and authority, which then quali-
¬es as a party to the con¬‚ict. Once Common Article 3 applies to these
relatively organized groups, all inhabitants of the territorial state, both
individuals and groups, become bound by the relevant rules. The text of
Common Article 3 supports only the ¬rst interpretation. It provides that
parties to the con¬‚ict have to comply with the relevant rules. It makes

15 Para. 13 (26 March 1993); UN Commission on Human Rights, Res. 1998/59, para. 3
(17 April 1998) (urging ˜all parties in Somalia: to respect . . . international
humanitarian law pertaining to internal armed con¬‚ict™); UN Commission on Human
Rights, Res. 1999/1, para. 1 (6 April 1999) (appealing to ˜all factions and forces in Sierra
Leone to . . . abide by applicable international humanitarian law™), the civil war in the
Republic of Sierra Leone, which started in 1991, resembles the con¬‚ict in Liberia in
that multiple armed bands are involved in the ¬ghting, which are uncontrolled and
indisciplined, Mondes Rebelles, above Chapter 1, n. 92, vol. I, pp. 294“304.
16 The relatively well-organized groups were the United Somali Congress (USC), the
Somali National Movement (SNM) and the Somali National Front (SNF). All these
armed opposition groups either created self-declared governments, or they claimed to
exercise governmental authority.
17 UN Security Council, S/23829, para. 57 (Report of the UN Secretary-General, 21 April
1992), and UN Security Council, S/23829/add. 2, para. 35 (Report of the UN
Secretary-General, 21 April 1992), see also UN Security Council, S/23829/add. 1,
para. 61 (Report of the UN Secretary-General, 21 April 1992). The UN Security Council
adopted similar resolutions on Liberia, where a situation prevailed comparable to the
one in Somalia, see, e.g., UN Security Council, Res. 788, para. 5 (19 November 1992).
140 the accountability gap

no reference to other groups or to individuals being accountable under
this article.
Yet, the Security Council practice needs a critical note. It is highly
questionable whether the Somali factions lacking a minimum of orga-
nization and military power were able to comply with the humanitar-
ian norms of Common Article 3 the Security Council imposed on them.
While the prohibition against murder will not raise particular obstacles,
the prohibition against passing sentences and carrying out executions
without a fair trial are a different matter. Only if there is a minimum
degree of organization can armed opposition groups reasonably be ex-
pected to apply the norms set forth in Common Article 3.
The position of the Security Council on Somalia can perhaps be ex-
plained by the fact that, if it had applied a higher standard, some Somali
groups would have been bound by Common Article 3, while others
would not. In other words, a higher threshold would have created mere
outlaws instead of ˜parties to the con¬‚ict™. This would have impeded
the humanitarian objectives of the article. In 1998, the ICRC considered
this consequence to be undesirable and therefore embraced the Security
Council practice:
Given the humanitarian purpose of Common Article 3, its scope of application
must be as wide as possible and should not be limited by unduly formal require-
ments. It is revealing in this respect that various recent UN Security Council
resolutions have called upon ˜all parties to the con¬‚ict™ to respect international
humanitarian law, and this also in the context of such ˜anarchic con¬‚icts™ as
those in Somalia and Liberia.18

In response to this position, it may be doubted whether the humani-
tarian cause is really served by a wide application of the norms to all
involved in the con¬‚ict irrespective of their ability to implement them. It
may be preferable, in view of the credibility of international humanitar-
ian law, to restrict its application to those entities that can reasonably
be expected to comply with it. Furthermore, if one accepts that only
groups with a minimum of organization and control should be held
accountable under international humanitarian law, this does not mean
that the victims of anarchic con¬‚icts such as in Somalia will lack pro-
tection. Even if the armed bands lack effectiveness and therefore fall
outside the scope of Common Article 3, the individuals engaged in the
con¬‚ict are bound in their personal capacities by international crim-
inal law (by virtue of crimes against humanity and war crimes being
18 Disintegration of State Structures, above, n. 12, p. 9.
accountability of armed opposition groups as such 141

prohibited).19 Moreover, the victims of such con¬‚icts remain ˜under the
protection of the principles of humanity and the dictates of the public
conscience™.20
Another relevant factor one must take into account when trying to
explain the Security Council practice, is that, at the time of the adop-
tion of the Security Council resolutions referred to above, the State of
Somalia itself lacked a government. As suggested earlier, states often
consider the conferring of legal status on armed opposition groups as
an encroachment on their sovereignty. The lack of a government meant
that this problem did not exist in Somalia. The Security Council practice
may mean, therefore, that the application of Common Article 3 may be
wider when the territorial state lacks a government.
It is submitted that greater weight should be attached to the views of
the Yugoslavia and Rwanda Tribunals than to the UN Security Council,
since these Tribunals were established speci¬cally to apply international
humanitarian law. The Rome Statute, it may be noted, has adopted the
de¬nitions of internal armed con¬‚icts and armed opposition groups
developed by the ad hoc tribunals. Article 8(2)(f ) of the Rome Statute
de¬nes an internal con¬‚ict as taking place ˜in the territory of a State
when there is protracted armed con¬‚ict between governmental author-
ities and organized armed groups or between such groups™. It is true
that this article applies primarily to laws and customs of war other
than Common Article 3. However, it is likely that this clause will also
be relevant for the interpretation of the situations to which Common
Article 3 applies. This argument is supported by the fact that the division
in the Statute between Common Article 3 (set forth in Article 8(2)(c))21
and ˜other laws and customs of war™ (enshrined in Article 8(2)(e)) is not
19 In order to incur responsibility for crimes against humanity, an individual need not
be a member of a party to the con¬‚ict; similarly, the Yugoslavia Tribunal held persons
responsible for war crimes irrespective of their membership of a party to the con¬‚ict;
the Rwanda Tribunal took a different approach to this matter, however, requiring a
link between the perpetrator and a party to the con¬‚ict for war crimes to be
committed. See above, Chapter 3, Section 2.
20 Preamble to Protocol II, para. 4 (containing a short version of the Martens Clause:
˜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™).
21 Article 8(2)(c) provides: ˜In the case of an armed con¬‚ict not of an international
character, serious violations of Article 3 common to the four Geneva Conventions of
12 August 1949, namely any of the following acts committed against persons taking
no active part in the hostilities, including members of armed forces who have laid
down their arms and those places hors de combat by sickness, wounds, detention or
any other cause™; Article 8(2)(d) provides: ˜Paragraph 2(c) applies to armed con¬‚icts not
142 the accountability gap

strict, in the sense that Common Article 3 standards are also covered by
the latter provision. Article 8(2)(e)(vi) of the Statute of the International
Criminal Court, for example, de¬nes war crimes as ˜rape, sexual slavery,
enforced prostitution, forced pregnancy . . . , enforced sterilization, and
any other form of sexual violence also constituting a serious violation of
article 3 common to the four Geneva Conventions™.22
While the Rome Statute incorporates various substantive norms of
Protocol II, it removes the requirement of territorial control for applica-
bility of the Protocol.23 Moreover, the Rome Statute abolishes the twofold
standard of Common Article 3 and Protocol II, which currently applies
to armed opposition groups in internal con¬‚icts. While Article 8 of the
Statute de¬nes in two provisions a con¬‚ict not of an international char-
acter, these de¬nitions are very much the same, and clearly closely re-
lated. This is a welcome addition to the law as it stands at present.
Currently, Protocol II and Common Article 3 may apply simultaneously
to different parties operating in what is, at least factually, one con¬‚ict.24
This is highly undesirable from a practical point of view. It means that
an armed opposition group may be obliged to apply two different legal
regimes in its relations with other parties to the con¬‚ict.25

of an international character and thus does not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence or
other acts of a similar nature.™
22 Emphasis added.
23 Article 8(2)(f ) containing the applicability clause for the Protocol II standards set forth
in the Statute of the International Criminal Court, in Article 8(2)(e) provides that
˜paragraph 2(e) applies to armed con¬‚icts not of an international character and thus
does not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature. It applies to
armed con¬‚icts that take place in the territory of a State when there is protracted
armed con¬‚ict between governmental authorities and organized armed groups or
between such groups.™
24 Similarly, it is possible that humanitarian rules for international con¬‚icts apply
simultaneously to humanitarian law for internal con¬‚icts but in relation to different
parties to the con¬‚ict. Accordingly, the Yugoslavia Tribunal determined in the Celebici
case that ˜should the con¬‚ict in Bosnia and Herzegovina be international, the relevant
norms of international humanitarian law apply throughout its territory until the
general cessation of hostilities, unless it can be shown that the con¬‚icts in some areas
were separate internal con¬‚icts, unrelated to the larger international armed con¬‚ict,
above, Chapter 1, n. 54, para. 209.
25 Compare, Aleksovski case, above, Chapter 3, n. 5, Judge Rodrigues Dissenting, at 27
para. 27 (arguing that the con¬‚ict in the former Yugoslavia as a whole should be
quali¬ed as an international armed con¬‚ict, this approach being attractive ˜because of
its concern for clarity and consistency . . . It precludes victims of similar acts from
being protected in a given time and place but not in other times and places in the
con¬‚ict as a whole™).
accountability of armed opposition groups as such 143

The removal of the territorial control requirement in the Rome Statute
for the applicability of Protocol II standards may be the result of the very
limited application of this instrument. International bodies have ap-
plied Protocol II much less frequently than Common Article 3. One ex-
planation appears to be the high threshold for accountability under
the Protocol. Article 1 limits the application of the Protocol to non-
international armed con¬‚icts which ˜take place in the territory of a High
Contracting Party between its armed forces and dissident armed forces
or other organized armed groups, which under responsible command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement
this Protocol™.
Expressly excluded from the scope of the Protocol are ˜situations of
internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence and other acts of a similar nature, as not being armed
con¬‚icts™.
The rationale for these conditions was that only organized groups
under a responsible command and in control of part of the territory
were considered to be able to implement the Protocol.26 Furthermore,
the absence of a de¬nition of an internal armed con¬‚ict in Common
Article 3 proved to leave states too much freedom in their determination
of the applicability of the law. The conditions stipulated in this Protocol
were intended to limit this freedom.27
In accordance with the treaty texts, international bodies have inter-
preted the scope of accountability of Protocol II as being narrower than
that of Common Article 3. In fact, they have considered the Protocol™s
threshold to be so high as to prevent the Protocol from applying to most
cases. For example, the UN Secretary-General observed that the major dif-
¬culty with Protocol II is that its application is limited to ˜situations at
or near the level of a full-scale civil war™.28 He found it revealing that
26 S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1353.
27 Ibid., p. 1348.
28 UN Secretary-General 1998 Report on Minimum Humanitarian Standards, above,
Chapter 1, n. 13, para. 79. See also Rwanda Tribunal, Akayesu case, above, Chapter 1,
n. 6, para. 601 (˜a clear distinction as to the thresholds of application has been made
between . . . situations of non-international (internal) armed con¬‚icts, where Common
Article 3 and Protocol II are applicable and non-international armed con¬‚icts where
only Common Article 3 is applicable™); ICRC Disintegration of State Structures, above,
n. 12, p. 10 (stating that the applicability clauses of Protocol II to armed opposition
groups are ˜hardly ever ful¬lled by an armed faction party to an anarchic con¬‚ict™). It
should be noted that groups which fall outside the scope of Protocol II may be bound
by Common Article 3, which applies to all non-international armed con¬‚icts, and
144 the accountability gap

˜there are occasions where the Security Council has determined that
an internal situation amounts to a threat to international peace and
security (so as to initiate action under the Charter), but where it is un-
clear as to whether Protocol II would apply™.29 The Secretary-General
was referring here to the situations in Somalia in 1992“3, and Liberia in
1993.
The high threshold for applicability has also prevented the Prosecutor
of the Yugoslavia Tribunal from invoking Protocol II in the context of
the con¬‚ict in the former Yugoslavia.30 He found the criteria for applica-
bility of the Protocol troublesome. Besides, the Prosecutor regarded the
substantive norms of Common Article 3 to be adequate, enabling him
to prosecute the cases brought before him.31 In his view, Protocol II did
not add much in these cases.
In those cases in which international bodies have applied Protocol II
to armed opposition groups, they have strictly applied the criteria for
accountability. They required armed opposition groups to control terri-
tory, to carry out sustained and concerted military operations and to be
under responsible command. The Rwanda Tribunal applied these criteria
to the RPF:
The Chamber, also taking judicial notice of a number of UN of¬cial documents
dealing with the con¬‚ict in Rwanda in 1994, ¬nds, in addition to the require-
ments of Common Article 3 being met, that the material conditions listed above
relevant to Protocol II have been ful¬lled. It has been shown that there was a
con¬‚ict between, on the one hand, the RPF, under the command of General
Kagame, and, on the other, the governmental forces, the FAR. The RPF increased
its control over the Rwandan territory from that agreed in the Arusha Accords

which has retained its autonomous existence next to Protocol II, S-S. Junod,
Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1350.
29 UN Secretary-General 1998 Report on Minimum Humanitarian Standards, above,
Chapter 1, n. 13, para. 80.
30 Protocol II falls within the material jurisdiction of the Yugoslavia Tribunal. In the
Tadi´ Interlocutory Appeal case, above, Chapter 1, n. 35, the Tribunal decided that many
c
provisions of Protocol II can now be regarded as ˜declaratory of existing rules or as
having crystallised emerging rules of customary law™, above, Chapter 1, Section 1 and
accompanying footnotes. As the Tribunal, in application of the principle of nullum
crimen sine lege, applies only rules of international humanitarian law which are beyond
any doubt part of customary law (1993 Report of the UN Secretary-General, above,
Chapter 1, n. 38, para 34; Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 143),
c
Protocol II would appear to fall within its mandate.
31 Interview with W. Fenrick, Of¬ce of the Prosecutor, Yugoslavia Tribunal (The Hague,
15 January 1998). An additional factor preventing the Yugoslavia Tribunal from
applying Protocol II is likely to be the requirement of involvement of the state armed
forces in the con¬‚ict.
accountability of armed opposition groups as such 145

to over half of the country by mid-May 1994, and carried out continuous and
sustained military operations until the cease ¬re on 18 July 1994 which brought
the war to an end. The RPF troops were disciplined and possessed a structured
leadership which was answerable to authority.32

In other cases, international bodies also have stayed fairly close to the
criteria for accountability laid down in Article 1 of Protocol II. The
Protocol has only been applied to groups when there was little doubt
that they met the threshold laid down in this article. The UN
Commission on Human Rights, its Special Representative on the Situa-
tion of Human Rights in El Salvador, and the UN Mission for El Salvador
have applied Protocol II to FMLN, in El Salvador.33 The UN Commission
on Human Rights has applied the Protocol to the SPLA in Sudan.34
The Inter-American Commission has applied it to the armed opposition
groups in Colombia.35 There can be little doubt that these groups indeed
met the requirements of Article 1 of Protocol II.36
As said, the restrictive approach taken by international bodies towards
the applicability clauses of Protocol II stands in contrast to the prac-
tice on Common Article 3, which has been applied to a wide range
of groups. One may wonder whether international bodies perhaps too
easily assume the inapplicability of Protocol II. As the Inter-American
Commission noted, the main distinction between Common Article 3

32 Akayesu case, above, Chapter 1, n. 6, para. 627.
33 UN Commission on Human Rights, Res.1989/68, pr. (8 March 1989); 1985 Final Report
of the Special Representative on El Salvador, above, Chapter 1, n. 8, at 51, para. 122;
First Report of ONUSAL, above, Chapter 1, n. 153, at 155, para. 39 and accompanying
footnote 6, at 156, footnote 13.
34 Res. 1998/67, para. 6 (21 April 1998).
35 Third Report on Colombia, above, Chapter 1, n. 8, at 77, para. 20.
36 First Report of ONUSAL, above, Chapter 1, n. 153, at 154, para. 38 (observing that
˜FMLN has a relatively stable presence in con¬‚ict zones and has a decisive in¬‚uence
on the life of the population™); 1995 Joint Report of the Special Rapporteur on
Question of Torture, and the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions, above, Chapter 1, n. 8, para. 35 (stating with regard to the
armed opposition groups in Colombia: ˜In certain areas, the guerilla groups are said
to have replaced the State administration and exercise complete control™); G. Best,
War & Law, above, n. 2, p. 347 (noting that FMLN in El Salvador by the mid-1980s
seemed to meet the requirements of Protocol II); R. K. Goldman, ˜International
Humanitarian Law and the Armed Con¬‚icts in El Salvador and Nicaragua™, 2 Am. U. J.
Int™l L. & Pol™y (1987) 539, 542 (arguing that in the case of El Salvador the warring
parties are bound by Protocol II); Amnesty International, Amnesty International Report
1999 (Amnesty International Publications, London, 1999) p. 314 (reporting that large
parts of southern Sudan, Blue Nile state and parts of South Kordofan were under the
control of SPLA, led by John Garang de Mabior).
146 the accountability gap

and Protocol II lies in the requirement of territorial control.37 While the
assumption among international bodies seems to be that armed opposi-
tion groups generally lack territorial control,38 in a number of con¬‚icts
this may appear to be false. Apart from armed opposition groups that are
or were involved in the con¬‚icts in Colombia, El Salvador, and Sudan, ar-
guably also armed opposition groups in the con¬‚icts in Angola, Congo,
Sierra Leone, and Sri Lanka have for shorter or longer periods exercised
territorial control.39 It should be possible to hold these groups account-
able under Protocol II. Admittedly, in speci¬c cases, it may be dif¬cult
to establish that armed opposition groups actually control territory, the
size of the territory and the period the territory was in their hands.


Other rules of humanitarian law
As explained in Part 1, armed opposition groups are bound by humani-
tarian standards other than those of Common Article 3 and Protocol II.
These standards include rules on speci¬c weapons, such as Amended
Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-
Traps and Other Devices, the Cultural Property Convention and the
Second Protocol to this Convention. Furthermore, armed opposition
groups will be bound by special agreements which they might conclude.
Here, I am concerned with the conditions for the accountability of

37 Tablada case, above, Chapter 1, n. 4, para. 152 and footnote 17 (pointing out that
application of Common Article 3 does not require dissident armed groups to exercise
control over parts of national territory; such large scale hostilities being regulated by
Protocol II).
38 See also C. Greenwood, ˜International Humanitarian Law™, above, Chapter 1, n. 66
p. 228“9; G. Best, War & Law, above, n. 2, p. 347 (noting that insurgent forces must
already ˜have progressed quite far in their struggles to satisfy such a stringent
territorial-control requirement™).
39 Amnesty International Report 1999, above, n. 36, p. 314 (reporting that the armed
opposition groups in Sierra Leone controlled parts of the country, effectively holding
captive 10,000 civilians); L. van der Heide, ˜Goma danst lingala op Congolese vulkaan™
NRC Handelsblad 4 (Rotterdam, 30 September 1999) (reporting that the RCD
(Rassemblement Congolais pour la D´mocratie) controls Goma which in turn effectively
e
functions as the capital of the non-recognized republic of East Congo); Amnesty
International Report 1999, above, n. 36, p. 76 (reporting that UNITA, the armed
opposition group engaged in the con¬‚ict in Angola, continued to hold territory);
F. van Straaten, ˜Tamil Tijgers zijn nog lang niet afgeschreven™ NRC Handelsblad 6
(Rotterdam, 20 July 1996) (stating that the Tamil Tigers have controlled peninsula
Jaffna for a number of years). Angola, Congo, and Sri Lanka have not rati¬ed
Protocol II; the armed opposition groups engaged in these con¬‚icts are nonetheless
bound by the provisions of the Protocol to the extent they re¬‚ect customary law.
accountability of armed opposition groups as such 147

armed opposition groups under these norms, and I intend to show that
these conditions are the same as those relevant to Common Article 3.
Article 1(2) of Amended Protocol II to the Conventional Weapons
Convention states that it applies to situations covered by Common
Article 3. It adds that it shall not apply to situations of ˜internal distur-
bances and tensions, such as riots, isolated and sporadic acts of violence
and other acts of a similar nature, as not being armed con¬‚icts™. Article
19(1) of the Cultural Property Convention and Article 22(1) of its Second
Protocol, using the same terminology as Common Article 3, stipulate
that they shall apply to the parties to an armed con¬‚ict not of an inter-
national character.40 Like Common Article 3, none of these three instru-
ments de¬nes the parties to the con¬‚ict to which they apply. There is no
practice of international bodies shedding further light on the conditions
for accountability of armed opposition groups under these conventions.
Nevertheless, in view of the fact that they are all based on or inspired by
Common Article 3, it seems reasonable to assume that the conditions
identi¬ed by international bodies for the accountability of armed oppo-
sition groups for breaches of Common Article 3 should apply equally to
these conventions.
The position is much the same regarding the application of customary
humanitarian law other than Common Article 3 and Protocol II to armed
opposition groups. International bodies have only required the existence
of an internal armed con¬‚ict within the meaning of Common Article 3.
Therefore, here also Common Article 3 constitutes the minimum thresh-
old for accountability.41
The extension of the law applicable to armed opposition groups be-
yond Common Article 3 and Protocol II has not been accompanied by an
increase in the severity of the consequences for failing to comply with
these norms. This is remarkable. The substantive norms of Amended
Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-
Traps and Other Devices, the Cultural Property Convention and other
laws and customs of war, which norms are primarily designed to apply
to states involved in international con¬‚icts, require a higher standard

40 Article 22(2) of the Second Protocol to the Cultural Property Convention adds that it
shall not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar nature.
41 For example, in the Tadi´ Interlocutory Appeal case, once the Yugoslavia Tribunal had
c
established that an internal armed con¬‚ict existed, it found that a variety of
customary humanitarian law applied to the parties to the con¬‚ict other than Common
Article 3 and Protocol II, see Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 89.
c
148 the accountability gap

of conduct than Common Article 3 and Protocol II.42 Arguably, the
conditions for accountability under these norms should also be higher.
Alternatively, it may be argued that, as a minimum, the stricter require-
ments of Protocol II should apply.
The same holds true for special agreements concluded by armed oppo-
sition groups. As explained earlier, Common Article 3 and Article 19(2)
of the Cultural Property Convention entitle armed opposition groups
to conclude special agreements bringing into force other provisions of
the treaties of which these articles are part. These provisions do not re-
quire groups to ful¬l additional criteria in order to be held accountable
for violation of other substantive norms agreed to. International prac-
tice af¬rms the principle that armed opposition groups that are bound
by Common Article 3 may be held accountable under any other hu-
manitarian rules.43 Moreover, it could be maintained that agreements
concluded by armed opposition groups with which they are by no
means able to comply, cannot render them accountable.44 However, the
above-mentioned treaties and international practice do not support this
argument.


Human rights treaties
Earlier I have contended that one cannot easily presume that interna-
tional human rights law has invested armed opposition groups with
obligations. Human rights treaties bind in principle only the state in
its relation with individuals living under its jurisdiction. The purpose
of these norms is to check abuse of state power. The justi¬cation for
the accountability of armed opposition groups under human rights law
may be found in the circumstances at issue and the factual charac-
teristics of these groups. Indeed, it may be argued that, when armed
opposition groups exercise quasi-governmental functions in part of the
state territory, and in that sense resemble a government, human rights

42 P. Herby, ˜Third Session of the Review Conference of States Parties to the 1980 United
Nations Convention on Certain Conventional Weapons (CCW)™ (1996) 312 IRRC 361“8,
text available on www.icrc.org (visited, 1 January 2001) (noting that parties to an
internal armed con¬‚ict will have dif¬culty in implementing the norms of the
Amended Protocol to the CCW since they may lack the resources or expertise).
43 Tadi´ Interlocutory Appeal, above, Chapter 1, n. 35, para. 89.
c
44 Compare K. Doehring, ˜Effectiveness™ (1995) 2 EPIL 46 (hereafter, ˜Effectiveness™) (stating
that the lawful creation of rights presupposes in many cases the effectiveness of the
exercise of these rights; the reason for this precondition is based on the fact that
without its ful¬lment neither the will of the creator of this right nor his capacity to
perform the acquisition of the right can be proven).
accountability of armed opposition groups as such 149

treaty norms can be extended to them. In these cases, the reality of the
human rights equation is present “ namely the individual being de-
pendent on a government or another power with effective power.45 A
relevant criterion to determine whether armed opposition groups can
incur accountability under human rights law may therefore be the exis-
tence of an authority effectively controlling territory and persons. Armed
opposition groups lacking effective power are unlikely to be able to
comply with the human rights norms, since they lack the minimum
infrastructure required for their implementation. The threshold for the
applicability of human rights standards should therefore be higher than
the threshold for applicability of international humanitarian law. If this
high threshold is met, then the substantive duties of armed groups will
go well beyond the bounds of international humanitarian law. Human-
itarian rules merely require armed opposition groups to respect certain
norms in their position as a party to the con¬‚ict, thus as a military
authority. Human rights law, on the other hand, demands from armed
opposition groups that they operate as a responsible political authority
governing territory and population.
An example of international practice requiring effective authority as a
precondition for accountability under human rights law is provided by
the UN General Assembly. When this body adopted the UN Declaration
on the Protection of All Persons from Being Subjected to Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, it stip-
ulated that the Declaration was ˜a guideline for all States and other
entities exercising effective power™.46 Similarly, Mullerson, a member of the
Human Rights Committee, suggested in the context of the con¬‚ict in
Bosnia“Herzegovina, that because the Bosnian Serbs were in control of
territory, they were bound by the International Covenant on Civil and
Political Rights:
One problem . . . was that the Committee was not considering the situation in
areas controlled by Bosnian Serbs, who were not successors to the treaties signed
by the former Yugoslavia. Since they were belligerents, they were obliged under
international law to observe the laws of war, some of which coincided with
the Articles of the Covenant. Thus, they might be asked to explain how they
complied with the Covenant, not as successor State, but as an authority in control
of a territory.47
45 N. S. Rodley, ˜Armed Opposition Groups™, above, Chapter 1, n. 126, p. 313.
46 Declaration adopted by the UN General Assembly, Res. 3452 (XXX) (9 December 1975)
(emphasis added).
47 Human Rights Committee, Decision on State Succession to the Obligations of the
Former Yugoslavia under the International Covenant on Civil and Political Rights,
reprinted in (1992) 15 EHRR, 233, 236 (emphasis added).
150 the accountability gap

In 1989, the Special Rapporteur on Afghanistan suggested that the
Afghan opposition movements were obliged to respect human rights
obligations. At that time, these groups administered part of Afghan
territory, and tried to set up the necessary administrative infrastruc-
ture there. The Rapporteur observed: ˜The territorial sovereignty of the
Afghan Government is not fully effective since some provinces of
Afghanistan are totally or partly in the hands of traditional forces. The
responsibility for the respect of human rights is therefore divided™.48
In the above cases, the accountability of armed opposition groups
under human rights law has been justi¬ed by the de facto authority
of these groups over part of the state territory. There is, however, also
practice suggesting that human rights standards can be invoked against
groups, regardless of their effectiveness. Examples are provided by the
UN Security Council and the UN Commission on Human Rights. In reso-

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