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lution 1193 (1998), the Security Council called upon ˜the Afghan factions™
˜to put an end to the discrimination against girls and women and to
other violations of human rights . . . and to adhere to the internation-
ally accepted norms and standards in this sphere™.49 While arguably, in
1996, the Taliban movement exercised political authority over a substan-
tial part of the Afghan territory, this certainly did not apply to all other
Afghan armed opposition groups. Similarly, while the UN Commission
on Human Rights held ¬rst and foremost the Taliban movement ac-
countable for human rights violations, it imposed the same obligations
on the other Afghan armed opposition groups.50 A lack of concern over
territorial control becomes even clearer in resolution 1997/47, where
the UN Commission urged ˜all parties in Somalia™ ˜to respect human
rights and international humanitarian law pertaining to internal armed
con¬‚ict™.51 As explained earlier, many of the Somali groups lacked any
control over territory or persons.
Finally, mention must be made of the Guiding Principles on Internal
Displacement, which are designed by experts and drawn, inter alia, from
48 UN Commission on Human Rights, E/CN.4/1989/24, para. 68 (Report on the Situation
in Afghanistan by the Special Rapporteur, F. Ermacora, 16 February 1989) (hereafter,
1989 Report of the Special Rapporteur on Afghanistan).
49 Para. 14 (28 August 1998).
50 Res. 1998/70, paras. 2 and 5 (21 April 1998) (taking note of ˜the continuing and
substantiated reports of violations of the human rights of women and girls, including
all forms of discrimination against them, particularly in areas under the control of
the Taliban™; in the same resolution, the UN Commission urged ˜all the Afghan
parties . . . to bring to an end without delay all violations of human rights of women
and girls™).
51 Para. 3 (11 April 1997).
accountability of armed opposition groups as such 151

human rights treaties.52 Principle 2 provides that the Principles shall
be observed by ˜all authorities, groups and persons irrespective of their
legal status™. Thus, armed opposition groups lacking any stable presence
in the state territory or otherwise exercising effective authority could
be held accountable for failure to observe human rights norms set forth
in the Principles.
International practice is thus ambiguous on the question of condi-
tions for accountability of armed opposition groups for violations of
human rights law. There is some authority for the proposition that
human rights instruments could govern armed opposition groups ex-
ercising governmental functions. However, this conclusion is mitigated
by practice holding armed opposition groups apparently lacking any
effectiveness accountable for human rights violations.


Conclusion
There is widespread international practice demonstrating that armed
opposition groups can be held accountable for violations of interna-
tional law. This practice further shows that armed opposition groups
can be monitored according to standards in international treaties and
customary law.
International practice demonstrates that international humanitarian
law for internal armed con¬‚icts and, to a lesser extent, human rights
law, bind, in principle, all parties to the con¬‚ict namely the state and
armed opposition group(s). These bodies therefore recognize the reality
of a plurality of authorities in these situations. It follows that interna-
tional bodies accept that, in particular circumstances, a group ceases to
be just a group of private persons and becomes a subject of international
law who is capable of being held accountable. This conclusion is not af-
fected by the rules laid down in Common Article 3 stipulating that ˜the
application of the preceding provisions shall not affect the legal status
of the Parties to the con¬‚ict™. This phrase emphasizes that armed oppo-
sition groups have no rights and duties other than those contained in
Common Article 3. However, this leaves their obligations and responsi-
bilities under Common Article 3, and other international rules for that
matter, unaffected.53 The legal personality of armed groups under these
rules is objective in that it emanates from the Geneva Conventions, and
other international instruments.
52 Above, Chapter 1, n. 148.
53 T. Meron, Internal Strife, above, Chapter 1, n. 10, p. 36.
152 the accountability gap

There are good arguments to support this practice of international
bodies. The legal personality of armed opposition groups is based on
their position as parties to an internal armed con¬‚ict. It would be unre-
alistic and would have no functional purpose to deny such personality
for the reason that armed opposition groups have no legal personality in
the traditional sense. As Judge Kooijmans rightly pointed out, ˜modern
international law should be a “ius inter potestates” and therefore should
encompass every political organization that acts as an effective factor in
international relations™.54
At the same time, since the accountability of armed opposition groups
is a direct consequence of their status as parties to the con¬‚ict, there
should be a close link between their accountability and their status. This
is also why international bodies are and should be very cautious about
holding armed opposition groups accountable for violations of human
rights norms. These norms presume the existence of a government, or
at least, an entity exercising governmental functions. Armed opposition
groups rarely function as de facto governments.
The limited nature of the legal personality of armed opposition groups
also follows from their provisional nature. They exist only temporarily.
They are either suppressed by the state and disappear, or they seize
power and establish themselves as the new government, or they secede
and join another state, or create a new state. It follows that these groups
cannot possess rights based on the permanent nature of international
actors. This means, for example, that armed opposition groups do not
have sovereign rights over the territory in their power. They only exercise
de facto authority.55


Attributing acts to armed opposition groups
Attribution is closely related to the problem of de¬nition of armed op-
position groups and it is a central aspect of their accountability. Armed
opposition groups are abstractions. Like states, they act only through
human beings. To hold a group accountable for the act of an individual,
that act must be attributable to the group on some objective ground.
The problem is illustrated by an example from the practice of the UN
Mission for El Salvador, ONUSAL. ONUSAL received complaints from
individuals saying that the FMLN threatened them for harvesting coffee
54 P. H. Kooijmans, ˜Non-State Entities as Parties to Con¬‚icts™, above, Chapter 1, n. 71,
p. 339; see also R. Higgins, Problems and Process: International Law and How We Use It
(Clarendon Press, Oxford, 1994), pp. 49“50.
55 A. Cassese, International Law in a Divided World (Clarendon Press, Oxford, 1986), p. 84.
accountability of armed opposition groups as such 153

if they did not pay ˜war tax™. ONUSAL transmitted the complaints to the
FMLN local command, which categorically denied responsibility for any
such threats. Signi¬cantly, the FMLN contended that these threats were
probably being made by ordinary criminals who were using the name
of FMLN as a cover.56
The International Law Commission has recognized that the concept of
attribution is indeed relevant to armed opposition groups. Article 10 of
the Draft Articles on State Responsibility refers to organs of an insurrec-
tional movement, stating: ˜Similarly, paragraph 1 is without prejudice to
the attribution of the conduct of the organ of the insurrectional move-
ment to that movement in any case in which such attribution may be
made under international law™.57
The question which acts and omissions can be attributed to armed op-
position groups has, however, not been answered in a coherent way by
international bodies. While the Inter-American Commission on Human
Rights, the UN Commission on Human Rights and its Rapporteurs, and
the UN Security Council frequently qualify certain acts of armed oppo-
sition groups as contrary to their international obligations, they have
rarely considered on the basis of which principles to attribute acts of
individuals to these groups. Likewise they have not considered which
persons or agencies are capable of giving rise to the responsibility of the
group. The only rule on attribution that can be found in international
practice is that members of armed opposition groups can engage the
responsibility of such groups.58
A key initial question is: Who are members of these groups? As
demonstrated in the previous section, ˜armed opposition group™ is not a
¬xed concept in international law. Large differences exist between these
groups. Also, within an armed opposition group, a uni¬ed system may
be lacking. Should persons have subscribed to the group in order to
be a member of the group?; must they carry identity cards with them?
Are only persons who actually participate in the hostilities members
of armed opposition groups or can civilians also be counted to the
membership? If civilians can qualify as members of armed opposition
groups, what contribution must they make in order to qualify, and, in
consequence, trigger the responsibility of the armed opposition group
as a whole? International bodies have provided no criteria that can be
applied to identify members of armed opposition groups.

56 Third Report of ONUSAL, above, Chapter 2, n. 33, paras. 147“9.
57 Above, n. 1.
58 See e.g. Second Report of ONUSAL, above, Chapter 1, n. 27, para. 16.
154 the accountability gap

In the absence of international practice and treaty rules on the sub-
ject of attribution of conduct to armed opposition groups, the ques-
tion arises whether the International Law Commission™s Draft Articles
on State Responsibility may be applied by analogy to armed opposition
groups. This question is legitimate in view of the fact that a degree of
similarity exists between armed opposition groups and states, both being
collective entities with a certain degree of organization. Further, armed
opposition groups resemble states in that they pursue the exercise of
political power and commonly aim to become the new government or
form a new state. Does this imply that agencies of armed opposition
groups can be equated with organs of the state for the purpose of the
application of the Draft Articles on State Responsibility? If the answer
to this question is af¬rmative, the questions still to be answered are:
What are agencies of an armed opposition group, and do they resemble
state organs? Do all armed opposition groups have such agencies?
Some groups can be said to have ˜organs™ as states do. An example is
provided by the Taliban. A White House Executive Order of 4 July 1999,
imposing sanctions on the Taliban for refusing to extradite Osama bin
Laden, de¬nes the Taliban as ˜the political/military entity headquartered
in Kandahar, Afghanistan that as of the date of this order exercises
de facto control over the territory of Afghanistan . . . , its agencies and
instrumentalities, and the Taliban leaders™.59 While the order carefully
avoids characterizing the Taliban agencies as organs, a term generally
used for the state, the description of the Taliban makes clear that the
movement has certain factual characteristics of a state. This view is
supported by reports of the Special Rapporteur of the UN Commission on
Human Rights for Afghanistan, referring to ˜Deputy Minister for Foreign
Affairs of the Taliban authorities™, the judicial system of the Taliban
and the Supreme Council in Kandahar being the Taliban authorities™
central decision-making body.60 It follows that draft Article 5 on State
Responsibility may be applied by analogy to armed opposition groups
exhibiting state-like features.
Dif¬culties will arise, however, when applying State Responsibility
law to smaller armed opposition groups, lacking a clear organiza-
tional structure. These groups will generally lack territorial control.
59 The White House Executive Order Blocking Property and Prohibiting Transactions
with the Taliban, Executive Order 13129 of 4 July 1999, Federal Register, Vol. 64,
No. 129, Section 4(c).
60 UN Commission on Human Rights, E/CN.4/1997/59, paras. 6, 28 (Final Report on the
Situation of Human Rights in Afghanistan by Choong-Hyun Paik, 20 February 1997)
(hereafter, 1997 Final Report of the Special Rapporteur on Afghanistan).
accountability of armed opposition groups as such 155

International practice suggests that responsibility of these groups is
based on their effective control over persons rather than on control of
territory or on a predetermined concept of internal organization. For ex-
ample, in its Third Report on Colombia, the Inter-American Commission
on Human Rights established numerous violations of international
humanitarian law by the Colombian armed opposition groups. It recom-
mended that these groups should ˜through their command and control
structures, respect, implement and enforce the rules governing hostili-
ties set forth in international humanitarian law™.61 This statement sug-
gests that attribution of acts or omissions to smaller armed opposition
groups is based on their actual control over individuals, rather than on
the existence of a de¬ned state-like structure.
Another important issue is whether acts of individuals belonging to
armed opposition groups, who act outside their competence or contrary
to instructions, can be attributed to the group. There is no international
practice on this point. It is worth considering whether case-law applying
to states, such as Youmans claim (1926), can be applied by analogy to
armed groups. 62
In sum, it is hardly discernible from international practice which con-
duct is capable of being attributed to armed opposition groups. While
the Draft Articles on State Responsibility may be applied by analogy to
de facto governments or other large, well-organized armed opposition
groups and in that respect resemble a state, this may not be possible for
small armed opposition groups lacking a clear organizational structure.
In order to hold the latter category responsible for violations of inter-
national humanitarian law, it may be necessary to compose other rules,
adapted to the special characteristics of these groups. Such rules could
be based on effective control rather than presumptions of the internal
organization of these groups.


Successful armed opposition groups
Erstwhile armed opposition groups that have formed a state or an es-
tablished government can be held responsible for the acts committed in

61 Above, Chapter 1, n. 8, at 158, recommendation 1 (emphasis added).
62 US v. Mexican General Claims Commission, Youmans Claim, US v. Mexico (1926), 4 RIAA
110. The Commission decided that violent acts against Youmans committed by state
of¬cials, i.e. soldiers who were at the time on duty under immediate supervision and
in the presence of a commanding of¬cer could be imputed to the State (Mexico),
regardless of whether the soldiers acted in contravention of instructions, para. 14.
156 the accountability gap

their earlier careers as opposition groups. Article 15 of the International
Law Commission™s Draft Articles on State Responsibility provides:
(1) The act of an insurrectional movement which becomes the new government
of a State shall be considered as an act of that State . . .
(2) The act of an insurrectional movement whose action results in the formation
of a new State in part of the territory of a pre-existing State or in a territory
under its administration shall be considered as an act of the new State 63

Thus, conduct performed as an armed opposition group, which consti-
tutes a breach of international obligations, and which is attributable to
the armed opposition group, becomes an internationally wrongful act
for which the state governed by the armed opposition group is responsi-
ble. Article 15 is based on the principle of organizational continuity of
armed opposition groups that succeed in displacing the previous govern-
ment or forming a new state.64 Hence, the government of Congo under
President Kabila, and the new states that resulted from the con¬‚ict in
the former Yugoslavia, can be held responsible for all violations of inter-
national humanitarian law committed in their opposition period. The
same will hold for the Taliban once it is recognized as the new govern-
ment of Afghanistan. In these cases, the rules on state responsibility are
applicable.
In such a situation, there is no gap in the accountability for acts com-
mitted by armed opposition groups. But the situation is not a common
one, since most opposition groups do not become either governments
or states. Opposition groups which fail to achieve their goals typically
disintegrate and disappear after the con¬‚ict. Another obvious dif¬culty
is one of timing: it is necessary to await the successful outcome before
the state can be held responsible under international law for the acts
of armed groups.
Further, there is the question of how to treat coalition governments
formed following an agreement between the previous authorities and
the leadership of the armed opposition group or with governments
63 ILC Draft Articles on State Responsibility 1996 above, n. 1. The wording of this article,
as adopted on its second reading, was slightly altered: ˜(1) The conduct of an
insurrectional movement, which becomes the new government of a State shall be
considered an act of that State under international law; (2) The conduct of a
movement, insurrectional or other, which succeeds in establishing a new State in part
of the territory of a pre-existing State or in a territory under its administration shall
be considered an act of the new State under international law™, ILC Draft Articles on
State Responsibility 1998 above, n. 1.
64 1998 First Report Special Rapporteur on State Responsibility above, n. 1, Addendum 5
of 26 May 1998, at 38, para. 267.
accountability of armed opposition groups as such 157

which have been formed by more than one armed opposition group? As
a general principle of international law, a state is an indivisible entity.
This means that the state can be held responsible for acts committed by
armed groups that have become members of the government. Once the
perpetrators accede to government, the principle of state responsibility
applies. The responsibility of the state for acts committed in the past by
armed groups is also consistent with the rule that a state is responsible
for acts committed by organs acting outside their authority or contrary
to instructions that are attributed to the state.65
It is doubtful, however, whether this principle should be pressed too
far in cases of governments of national reconciliation. A state should not
be made responsible for the acts of a violent opposition group merely
because, in the interests of an overall peace settlement, elements of the
opposition are drawn into a reconstructed government.66
Finally, the question must be posed whether armed groups must ful¬l
certain characteristics during their opposition period in order later to
be held responsible as a state. The International Law Commission found
that the characteristics of a group in its opposition phase should not
affect its responsibility once it has become the new government.67 This
is reasonable if the rationale for the rule of attribution in Article 15 is
one of institutional continuity. However, it is arguable that, in order
to be ˜able™ to violate norms of international law, armed opposition
groups must be bound by those rules at the time that the violations
occurred. On this view, later responsibility of the state should only be
engaged if the armed groups had been bound by Common Article 3 or
Protocol II at the time of the acts in question. It seems impossible to hold
a government responsible for acts committed as a non-state entity, while
this entity was “ at that time “ not bound by any international norms.68


Finding a suitable forum
Another problem to be dealt with when considering the accountability
of armed opposition groups under international law is to ¬nd a forum in
65 Art. 10 of the Draft Articles on State Responsibility; see commentary to Art. 15 of the
Draft Articles, (1975) ILCYb 91“106.
66 1998 First Report Special Rapporteur on State Responsibility, above, n. 1, Addendum 5
of 26 May 1998, at 38, para. 267, footnote 172.
67 Ibid., at 40, para. 273.
68 But see, D. Matas, ˜Armed Opposition Groups™ (1995) 24 MLJ 621, 630 (stating that if
armed opposition groups succeed, they will be held responsible for the whole range of
international human rights standards).
158 the accountability gap

which to prosecute a claim against them and with jurisdiction to apply
all relevant law. No international body is expressly mandated to moni-
tor compliance by armed opposition groups with the applicable law.69
States have been reluctant to supplement the relevant rules with any
means of scrutinizing compliance. They feared that supervision might
provide a basis for international interference.70 Although not explicitly
so mandated, several international bodies on their own initiative
have extended their mandates to actions of armed opposition groups.
These are the Inter-American Commission, the UN Security Council,
and the UN Commission on Human Rights. However, the absence
of international bodies formally competent to review armed opposi-
tion groups™ compliance with international law, accounts, in part, for
the primitive state of the accountability of these groups under inter-
national law.
The Inter-American Commission on Human Rights may be used as
an example. The Commission has decided that it is competent, in the
context of its function of receiving and reviewing reports by states,
to monitor the behaviour of armed opposition groups on the basis of
international humanitarian law.71 For three reasons this competence is
inherently limited.
First, the Inter-American Commission has made clear that it will not
act upon petitions of individuals alleging to be victims of acts committed
by armed opposition groups.72 It will therefore not exercise its quasi-
judicial functions with regard to acts of armed opposition groups. This

69 The competence ratione materiae of international bodies to apply international
humanitarian law does not affect their competence ratione personae. For example,
while the Inter-American Commission on Human Rights considers itself competent to
apply international humanitarian law in the individual complaints procedure, it
found that evaluation of behaviour of armed opposition groups under international
humanitarian law fell outside its mandate, Second Report on Colombia, above,
Chapter 1, n. 110, at 3; Third Report on Colombia, above, Chapter 1, n. 8, at 72, para. 5.
70 During the negotiations on Protocol II, it was argued that armed opposition groups
might use provisions on supervision to call for assistance by an international body,
even against the objection of the established authorities. This, states were afraid,
would internationalize the con¬‚ict, A. Eide, ˜The New Humanitarian Law in
Non-International Armed Con¬‚ict™, in A. Cassese (ed.), The New Humanitarian Law of
Armed Con¬‚ict (Editoriale Scienti¬ca S.r.l., Napoli, 1979), p. 297. Third-world states were
even inclined to reduce the scope of Common Article 3 with regard to international
supervision. The inclusion in Protocol II of the provision that ˜nothing in this Protocol
shall be invoked as a justi¬cation for intervening directly or indirectly, for any reason
whatever™ (Article 3(2) Protocol II), has clearly not removed these fears.
71 Third Report on Colombia, above, Chapter 1, n. 8, at 72, para. 6.
72 Ibid., para. 5.
accountability of armed opposition groups as such 159

means that the Commission will not be able to solve dif¬cult legal issues
relating to armed opposition groups. The reporting procedure, being
general in nature, is not suited for this purpose. Furthermore, limiting
the Commission™s activities with respect to armed opposition groups to
its reporting function, implies that the Inter-American Court of Human
Rights will not be able to adjudicate on the accountability of armed
opposition groups, because the mandate of the Court is restricted to the
consideration of individual petitions.73
Second, the scope of the Commission™s activities with regard to armed
groups is limited by the fact that the procedural framework within
which it operates, has remained unchanged. This means that the pro-
cedural means necessary for the implementation of its ¬ndings on ac-
countability of armed opposition groups for violations of international
law are absent. For example, Article 62(a) of the Regulations of the Inter-
American Commission states that, after a draft report has been approved
by the Commission, it shall be transmitted to ˜the government of the
member state in question™ for observations.74 The purpose of this norm
is that the state may have additional knowledge of the facts contained
in the report. Also, consultation with the state will enhance its accep-
tance of the report and its willingness to comply with the Commission™s
recommendations. Similar norms for the execution of its competence
relating to armed groups are absent.
Not surprisingly, the Commission has indicated that it encounters
signi¬cant procedural problems in implementing its competence with
regard to armed groups.75 However, it is unlikely that it will adjust
the relevant rules. The following observation of the Commission is
illustrative in this respect:
If the Commission, in violation of its mandate, were to agree to process a denun-
ciation involving some alleged acts of terrorism, in doing so it would implic-
itly place terrorist organizations on an equal footing with governments, as the
Commission would have to transmit the denunciation to the subversive organi-
zation which allegedly is responsible for the act and request that it make such
observations as it deems appropriate. Undoubtedly, such organizations would be

73 Article 61 of the American Convention on Human Rights; the Court may be requested,
however, to give an advisory opinion on legal issues related to armed opposition
groups, Article 64 of the American Convention.
74 Regulations of the Inter-American Commission, approved by the Commission at its
49th Sess., 8 April 1980, last modi¬ed at its 92nd Sess., 3 May 1996, reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.
L.V/II.92, doc. 31 rev. 3, at 131 (3 May 1996).
75 Annual Report 1992“3, above, Chapter 1, n. 136, at 219.
160 the accountability gap

very pleased to be dealt with as if they were governments. But, what government
in the hemisphere could tolerate an implicit recognition of quasi-governmental
status for an organization of this kind?76

While this consideration concerned the individual complaints system,
the same observation would seem to apply were the Commission to
transmit its country reports to armed opposition groups for their
observations.
Third, the Commission lacks an appropriate mandate to apply inter-
national humanitarian law.77 In the so-called Tablada case of 30 October
1997, the Inter-American Commission developed an extensive argumen-
tation to support its decision to extend its mandate to cover human-
itarian law. Brie¬‚y, the Commission argued that, although an explicit
legal basis was absent, several articles of the American Convention
should be interpreted as mandating the Commission to apply inter-
national humanitarian law as such. To be clear, the Commission has
directly applied humanitarian law, so it has not merely used humani-
tarian law as a means of or yardstick for interpretation of the American
Convention.
However, the ¬nding of the Inter-American Commission that it is com-
petent to apply humanitarian law is not unproblematic. I will not deal in
detail with the Commission™s argumentation. It is submitted that closer
analysis shows that it is highly questionable whether the American
Convention offers the Commission a legal basis for applying humanitar-
ian law.78 It is therefore not surprising that one of the Member States of
the Organization of American States has ¬led a complaint with the Inter-
American Court of Human Rights against the Commission, challenging

76 Report on the Situation of Human Rights in the Republic of Colombia,
OEA/Ser.L/V/II.53, doc. 22, at 16 (30 June 1981); compare also Third Report on
Colombia, above, Chapter 1, n. 8, at 72, para. 5. (˜OAS member States opted
deliberately not to give the Commission jurisdiction to investigate or hear individual
complaints concerning illicit acts of private persons or groups for which the State is
not internationally responsible. If it were to act on such complaints, the Commission
would be in ¬‚agrant breach of its mandate, and, by according these persons or groups
the same treatment and status that a State receives as party to a complaint, it would
infringe the sovereign rights and prerogatives of the State concerned™).
77 Only the Security Council has an explicit mandate to include in its work the acts of
armed opposition groups. As the Council is mandated to act whenever there is a
threat to international peace and security, nothing in the Charter con¬nes the
Security Council to action with regard to states, see M. Akehurst, A Modern Introduction
to International Law (HarperCollins, 6th edn, Chatham, 1987), p. 220.
78 See L. Zegveld, ˜The Inter-American Commission on Human Rights and International
Humanitarian Law: a Comment on the Tablada Case™, (1998) 324 IRRC 505“11.
accountability of armed opposition groups as such 161

its decision to apply humanitarian law. The Court has considered this
complaint to be valid. In the Las Palmeras case, the Inter-American Court
considered:
Although the Inter-American Commission has broad faculties as an organ for the
promotion and protection of human rights, it can clearly be inferred from the
American Convention that the procedure initiated in contentious cases before
the Commission, which culminates in an application before the Court, should
refer speci¬cally to rights protected by that Convention (cf. Articles 33, 44, 48.1
and 48). Cases in which another Convention, rati¬ed by the State, confers compe-
tence on the Inter-American Court or Commission to hear violations of the rights
protected by that Convention are excepted from this rule; these include, for ex-
ample, the Inter-American Convention on Forced Disappearance of Persons. 79

On the same grounds, the Court rejected the Commission™s claim that
it would have competence to apply humanitarian law.
The Inter-American Commission™s reasoning could be relevant to the
International Covenant on Civil and Political Rights and the European
Convention on Human Rights, as these treaties are structured the same
way and contain articles similar to those in the American Convention.
However, in view of the problems mentioned, it appears highly unlikely
that the Human Rights Committee and the European Court of Human
Rights will follow the example of the Inter-American Commission.
An alternative is for the Inter-American Commission and other human
rights bodies to use humanitarian law indirectly “ i.e., as a source of au-
thoritative guidance when applying the human rights treaties in time of
armed con¬‚ict. Christopher Greenwood has suggested this approach, by
posing that: ˜the monitoring mechanisms of human rights conventions
could be used in an indirect way to assist in ensuring compliance with
the law applicable in internal con¬‚icts™.80 However, this does not go far
enough. What is needed is improvement of supervision of compliance
by armed opposition groups with humanitarian law. The aim is not to
improve application of human rights law. Using humanitarian law as a
means of interpretation of human rights law is only an indirect way to
reach our aim.
In summary, the Inter-American Commission has found that it has the
implied power to consider acts of armed opposition groups on the basis

79 Judgment of 4 February 2000, para. 34. The Court ruled on ¬ve preliminary objections
raised by Colombia, the second and third preliminary objections contending that the
Commission and Court ˜lacked the competence to apply international humanitarian
law and other international treaties.™
80 Emphasis added.
162 the accountability gap

of international humanitarian law. However, the scope of this power
is limited. The Commission can apply international legal humanitarian
norms to these groups only in an indirect way. Furthermore, to the
extent it establishes the accountability of these groups for violating
these norms, it cannot implement this accountability. Clearly, from
the point of view of individuals, the Inter-American Commission does
not provide them with an effective remedy against violations of their
rights.81
A gap currently exists therefore in the enforcement of international
humanitarian law. There are no judicial or quasi-judicial mechanisms
speci¬cally competent to examine claims against armed opposition
groups. What may be needed is a forum to which individuals can submit
complaints of breaches of international humanitarian law, which can be
examined by experts independent of states and whose ¬ndings govern-
ments cannot dispute. Members of such a forum must be independent
and impartial. The ICRC is not suited to this role. It operates mainly
through con¬dential discussions with governments rather than through
public processes like human rights bodies.
One might, however, consider setting up an ˜international humanitar-
ian law committee™ competent to receive and examine communications
from individuals claiming to be victims of violations of international
humanitarian law. Such a committee, equipped with an individual com-
plaints procedure, might be a suitable forum in which to ¬le a claim
against armed opposition groups. The individual complaints procedure
under human rights treaties could serve as an example.
To be sure, many obstacles, both legal and political, will then have to
be overcome. One problem is that international bodies, in dealing with
armed opposition groups, are governed by two, contradictory, interests.
On the one hand, the number of internal con¬‚icts and the impact
of armed groups on civilians means that international bodies cannot
afford to ignore them. The consequence, leaving civilians unprotected,
is clearly undesirable. At the same time, the application of the law to
armed opposition groups is hampered by states™ unfavourable attitudes
towards according any international status to armed opposition groups.
81 Similar problems are likely to arise when other human rights bodies become more
actively involved in the implementation of international humanitarian law, see, for
example, Parlementary Assembly of the Council of Europe, Recommendation 1427
(1999) and Order No. 556 (1999) of 23 September 1999 (recommending that the
Committee of Ministers study the possibility of helping the victims of violations of
international humanitarian law through the mechanisms of the European Convention
on Human Rights).
accountability of armed opposition groups as such 163

States do not wish to attribute government-like qualities to these groups.
Conferring international legal personality upon armed groups would
involve recognizing the existence of another authority within the state
territory, at the expense of the existing government. One commentator
has formulated the problem as follows:
[Common Article 3] placed these obligations upon ˜each Party to the con¬‚ict™,
terminology guaranteed to cause the Government of any State facing a rebel-
lion to hesitate to accept the applicability of Article 3 to its rebellion. What
government would want to acknowledge that its rebels constituted a ˜Party™ to
an armed con¬‚ict entitled to rights and duties with respect to it under interna-
tional law? The ¬nal provision of Article 3, which states that the application of
the Article ˜shall not affect the legal status of the Parties to the con¬‚ict™ seems
more likely to underline the problem caused by the chosen terminology than
to cure it.82

This observation shows that holding armed opposition groups account-
able for humanitarian law violations is considered to be incompatible
with the fundamental right of the state to preserve its existence and to
remain the only authority. These considerations make the prospects of
further development of the international accountability of armed oppo-
sition groups very small indeed.
82 G. H. Aldrich, ˜The Law Applicable in Non-International Armed Con¬‚icts: Problems and
Prospects™ (speech delivered at the Symposium ˜Law and Con¬‚icts in Our Times “ The
Meaning of International Humanitarian Law in Internal Armed Con¬‚icts™ (The Hague,
13 November 1997)) (on ¬le with author); G. Best, War & Law, above, n. 2, pp. 171“2.
Accountability of the state for acts of
5
armed opposition groups




In its current form, international law is unable to make armed oppo-
sition groups themselves fully accountable for their abuses against the
civilian population. It is, therefore, legitimate to question whether the
traditional roads of international law can ¬ll the accountability gap.
Indeed, the conclusions drawn in the previous chapter validate the quest
for the accountability of the territorial state for failure to prevent or
repress acts of armed opposition groups. Its supreme authority over all
persons and things within its territory and its ensuing status as the
primary subject of international law justify the decision to extend the
quest for accountability to the state.1 This choice is also warranted by
the fact that international bodies consider primarily the conduct of the
state.
A survey of international practice shows that the state™s accountabi-
lity may arise when armed opposition groups are ¬ghting each other,
with the established government making no effort to shield the civilian
population from the effects of the hostilities. Moreover, state account-
ability may exist when the government armed forces ¬ght armed op-
position groups with the sole aim of defeating them militarily, at the
cost of putting civilians at risk, whether from the government or from
the armed opposition groups. Attacks on civilians by opposition groups
may even further the government™s aim of defeating these groups by
bringing them into disrepute with the civilian population, in the hope
that the population will then side with the government. Finally, state
accountability may apply when the state, after the con¬‚ict has ended,
adopts a general amnesty law, granting immunity to members of armed
opposition groups for abuses committed by them.

1 See R. Jennings, A. Watts, Oppenheim, above, Chapter 1, n. 59, pp. 122, 382.

164
state accountability for armed opposition groups 165

It should not be assumed, however, that the state™s accountability for
failure to protect civilians is easily determined in concrete cases. In
establishing such accountability, international bodies are guided by dif-
ferent principles that are sometimes dif¬cult to apply or combine. Most
importantly, they have to balance the principle of protection of civi-
lians against the principle of military necessity and the state™s right to
defend its territorial integrity. Indeed, forceful reaction on the part of
the state against the acts of armed opposition groups can be squared
with international law standards. Furthermore, the state is liable on
a command responsibility basis (namely the duty to prevent); it is not
liable for the actual acts of armed groups. This means that the principle
of control plays a dominant role in international practice. Only when
the established government exercises control over territory, over acts of
armed opposition groups or over civilians in need of protection, can it
be obliged actually to provide such protection. The concept of control is
dif¬cult to de¬ne and needs ¬‚exible interpretation when applied in prac-
tice. This chapter will analyse how these different principles interplay in
the practice of international bodies. The key question in every case will
be: How much scope do international bodies grant the state to repress
armed opposition groups at the expense of the civilian population?
Throughout this chapter distinction must be made between ˜state™ and
˜government™. The term ˜state™ refers to the international subject, con-
sisting of a territory, a people and a government. A state cannot exist
for long unless it has a government. The government, consisting of legis-
lative, administrative (including the armed forces), and judicial bodies,
acts for the state. Although there is a trend in international practice to
address governments instead of states, the state must not be identi¬ed
with its government.2 For example, the state™s rights and obligations are
not affected by lack of territorial control by the government or even by
the temporary absence of the government. The concern here is with the
international accountability of the state. The term ˜government™ refers
to the political unit governing the state, not possessing legal personality
in international law.
2 For example, the Rwanda Tribunal held that ˜a non-international con¬‚ict is distinct
from an international armed con¬‚ict because of the legal status of the entities
opposing each other: the parties to the con¬‚ict are not sovereign States, but the
government of a single State in con¬‚ict with one or more armed factions within its
territory, Musema case (2000) above, Chapter 2, n. 49, para. 247. I take the view that “
legally speaking “ the state is in fact involved in the con¬‚ict, and can be held
accountable for acts committed by the existing government. The government as such
lacks international legal status.
166 the accountability gap

Finally, it should be noted that, while the government is often called
the de jure government, this study uses, apart from ˜government™, the
more neutral term ˜established authorities™ or ˜established government™.
The words ˜de jure™ are misleading, because they suggest that interna-
tional law supports the established authorities, which is partly but not
wholly true.
First, the sources of the state™s obligations requiring the state to take,
in particular situations, positive action will be examined. Then, the scope
and contents of the state™s obligations will be determined. Finally, the
criteria for the state™s accountability will be discussed.


Applicable law
A precondition for accountability of the territorial state for acts com-
mitted by armed opposition groups is the clari¬cation of the obligations
applicable to the state. Below, the state™s duties under human rights
treaties, under Common Article 3 and Protocol II, under other inter-
national humanitarian law treaties, and, ¬nally, under international
criminal law treaties will be discussed.


Human rights treaties
The International Covenant on Civil and Political Rights and the
European and American Conventions on Human Rights require the
state to ˜secure™ or to ˜ensure™ the rights recognized in these treaties.
In its ordinary sense, ˜to ensure™ means ˜to make it certain that some-
thing will happen™.3 A state™s obligation to guarantee the rights and
freedoms in the human rights treaties thus amounts to an obligation
to make certain that these rights and freedoms are respected.4 Next
to this typology, another typology exists, which has been used in par-
ticular by the International Law Commission in the Draft Articles on
State Responsibility, in particular in Articles 20, 21 and 23. This is the
distinction between ˜obligations of result™ and ˜obligations of conduct™.
However, the latter classi¬cation is not helpful as the difference between
3 Longman Dictionary of Contemporary English (Longman National Dictionaries, Essex, 3rd
edn., 1995).
4 The obligation ˜to ensure™ or ˜to secure™ respect, sometimes also called the obligation
˜to protect™, is also referred to as an ˜af¬rmative™ or ˜positive™ obligation, requiring the
state to take some form of action. These obligations are distinguished from the
obligation ˜to respect™ or ˜negative obligations™, obliging the state to refrain from
action.
state accountability for armed opposition groups 167

˜obligations of result™ and ˜obligations of conduct™ is not signi¬cant. In
cases of obligations of conduct there is often an objective towards which
that conduct is aimed. Similarly, obligations of result will invariably re-
quire a speci¬c course of action. The classi¬cation of a particular obli-
gation within one category or the other will rest primarily upon the
amount of emphasis or speci¬city given to either the requisite conduct
or result.5
In several decisions, human rights bodies have held that the state has a
duty to safeguard human rights from infringements not only by the gov-
¨
ernment but also by private individuals. In Platform ˜ Arzte F¨ r Das Leben™,
u
the European Court of Human Rights held that the European Conven-
tion™s right of freedom of assembly obliges a state to take reasonable and
appropriate measures to protect demonstrators from physical violence
by opposing groups.6 In the Velasquez Rodr´guez case, the Inter-American
´ ±
Court of Human Rights established that agents acting under cover of
´
state authority carried out the disappearance of Manfredo Velasquez.
But, ˜even had that fact not been proven™, the Court found that ˜the fail-
ure of the State apparatus to act, which was clearly proven, is a failure on
the part of Honduras to ful¬ll the duties it assumed under Article 1(1)
of the American Convention, which obligated it to ensure Manfredo
Velasquez the free and full exercise of his human rights™.7
´
These examples show that states sometimes have positive obligations
to protect individuals from other individuals.8 However, the cases so far
5 See C. Tomuschat, ˜What is a “Breach” of the European Convention on Human Rights?™
in R. Lawson, M. de Blois (eds.), The Dynamics of the Protection of Human Rights in Europe
(Kluwer Academic Publishers, Dordrecht, 1994) pp. 315, 323“4 (hereafter, ˜What is a
Breach™).
6 ¨
Judgment of 21 June 1988, Ser. A 139, para. 32 (1988) (hereafter, Platform ˜ Arzte F¨ r Das
u
Leben™ Case). The same court decided in HLR v. France ( Judgment of 29 April 1997) 36
Reports (1997 III) at 745, para. 40, that ˜owing to the absolute character of the right
guaranteed, the Court does not rule out the possibility that Article 3 of the Convention
may also apply where the danger emanates from persons or groups of persons who are
not public of¬cials. However, it must be shown that the risk is real and that the
authorities of the receiving State are not able to obviate the risk by providing
appropriate protection™.
7 ´ ´
Velasquez Rodr´guez v. Honduras, Ser. C 4, para. 182 (1988) (hereafter, Velasquez Rodr´guez
± ±
case).
8 The state™s positive obligation to control and regulate the conduct of private
individuals is also widely recognized in the literature, see D. J. Harris et al., Law of The
European Convention on Human Rights (Butterworths, London, 1995), pp. 19“22; A.
Clapham, Human Rights in the Private Sphere (Clarendon Press, Oxford, reprint 1998)
(1996), chapter 7; D. Shelton, ˜State Responsibility for Covert and Indirect Forms of
Violence™ in K. E. Mahoney, P. Mahoney (eds.), Human Rights in the Twenty-First Century
(Martinus Nijhoff, The Hague, 1993), pp. 265“76; P. van Dijk, ˜ “Positive Obligations”
168 the accountability gap

have concerned private individuals acting in time of normality. The
question is whether such a positive obligation of the state also exists
in time of con¬‚ict when the ˜other individuals™ are an armed opposition
group.
International practice shows that, to the extent that human rights
treaties apply to internal armed con¬‚icts,9 they indeed oblige the state to
prevent and repress acts of armed opposition groups. In Ergi v. Turkey10
the European Court concluded that Turkey had a positive obligation to
take precautions against the effects of attacks by the Workers™ Party of
Kurdistan (PKK) in southeast Turkey. That case concerned an ambush
operation carried out by the Turkish security forces in the night of 29
September 1993, in the vicinity of a village, intended to capture mem-
bers of the PKK. The operation led to the death of the applicant™s sister.
The Court found that there was insuf¬cient evidence to establish that the
Turkish security forces killed the applicant™s sister. It considered, how-
ever, that Turkey was obliged to conduct its military operations with the
requisite care to protect the civilian population from the PKK:
Under Article 2 of the Convention, read in conjunction with Article 1, the State
may be required to take certain measures in order to ˜secure™ an effective en-
joyment of the right to life. In the light of the above considerations, the Court
agrees with the Commission that the responsibility of the State is not con¬ned
to circumstances when there is signi¬cant evidence that misdirected ¬re from
agents of the State has killed a civilian. It may also be engaged where they
fail to take all feasible precautions in the choice of means and methods of a
security operation mounted against an opposing group with a view to avoid-
ing and, in any event, to minimizing, incidental loss of civilian life. Thus, even
though it has not been established beyond reasonable doubt that the bullet
which killed Havva Ergi had been ¬red by the security forces, the Court must
consider whether the security force™s operation had been planned and conducted
in such a way as to avoid or minimize, to the greatest extent possible, any risk to the
lives of the villagers, including from the ¬re-power of the PKK members caught in the
ambush.11

Other treaty-based bodies reached similar conclusions. The Human
Rights Committee established under the International Covenant on Civil
and Political Rights, in its concluding observations on the situation in

Implied in the European Convention on Human Rights: Are the States Still Masters of
the Convention?™ in M. Castermans, F. van Hoof (eds.), The Role of the Nation State in the
21s t Century (Kluwer Law International, The Netherlands, 1998), pp. 17“33.
9 In internal armed con¬‚icts the state is allowed to derogate from a number “ though
not all “ of the rights and freedoms contained in the human rights conventions.
10 Judgment of 28 July 1998, 81 Reports (1998“IV) at 1751.
11 Ibid., para. 79 (emphasis added).
state accountability for armed opposition groups 169

Algeria in 1998, formulated the positive obligations of Algeria as follows:

The Committee is also concerned at the lack of timely or preventive measures of
protection to the victims from police or military of¬cials in the vicinity . . . The
Committee urges the State party to adopt effective measures: a) to prevent those
attacks and, if they nevertheless occur, to come promptly to the defense of
the population; b) to ensure that proper investigations are conducted by an
independent body to determine who the offenders are and to bring them to
justice.12

Although the Committee abstained from clarifying who was factually
responsible for the attacks on the victims, it appears from the context
that it referred to attacks by the Islamic groups, including the Islamic
Salvation Army (FIS) and the Armed Islamic Group (GIA).
The Inter-American Commission found with regard to the con¬‚ict in
Colombia that, in particular circumstances, the state may not remain
passive in the face of the injurious conduct of the Armed Revolutionary
Forces of Colombia (FARC), the Army of National Liberation (ELN), and
other armed opposition groups active in Colombia. In its 1996 Annual
Report, the Commission considered:

The Commission fully comprehends that Colombia faces extremely dif¬cult cir-
cumstances at this time and the State of Colombia is not directly responsible
for all the harm caused to its citizens. However, the State of Colombia is re-
sponsible for . . . acts committed by private persons, which are tolerated or ac-
quiesced in by the State. The Commission also notes that the State may also
incur international responsibility for the illicit acts of private individuals or
groups when the State fails to adopt the necessary measures to prevent the
acts and/or where it fails to properly investigate and sanction those respon-
sible for committing the acts and to provide adequate compensation to the
victims.13

According to the Inter-American Commission, positive obligations of the
state also apply when the ¬ghting is between two or more armed oppo-
sition groups, the state armed forces not being involved:

One source of concern to the Commission is the concept that the government
will be responsible only for violations attributable to their of¬cials or agents
and could sit back and do nothing in the face of the threats to these rights that
result from the armed con¬‚ict between enemy groups. The duty of the state is to
guarantee the safety of its inhabitants, and it can fail in its duty both by action

12 CCPR/C/79/Add.95, para. 6 (Concluding Observations on Algeria, 4 August 1998)
(hereafter, Concluding Observations on Algeria 1998).
13 Annual Report 1996, above, Chapter 1, n. 137, at 668“9, para. 80.
170 the accountability gap

and by omission. The state cannot disqualify itself on so fundamental a matter
and should do everything possible to effectively protect these rights.14

Notwithstanding this practice providing evidence of the state™s obliga-
tion to preserve the safety of its inhabitants against armed opposition
groups, there is con¬‚icting practice, which questions such obligations as
a matter of principle. An example is provided by the European Court of
Human Rights™ decision in Kurt v. Turkeyi,15 concerning the detention of
¨
the applicant™s son, Uzeyir Kurt, by soldiers and village guards in 1993.
After the incident, four and a half years passed without the applicant
receiving any information as to his subsequent fate. She maintained
that, even though no speci¬c evidence existed that her son had died
at the hands of the Turkish authorities, his disappearance occurred in
a context which was life-threatening. The state would therefore be in
breach of its positive obligation under Article 2 to protect her son™s life.
Turkey, for its part, submitted that there were strong grounds for be-
lieving that Kurt had in fact joined or been kidnapped by the PKK.16
The Court, following the Commission, disagreed with the applicant™s
argument:
The Court must carefully scrutinize whether there does in fact exist concrete
evidence which would lead it to conclude that her son was, beyond reasonable
doubt, killed by the authorities either while in detention in the village or at
some subsequent stage. It also notes in this respect that in those cases where it
has found that a Contracting State had a positive obligation under Article 2 to
conduct an effective investigation into the circumstances surrounding an alleged
unlawful killing by the agents of that State, there existed concrete evidence of
a fatal shooting which could bring that obligation into play.17

The Court thus limited its examination to the question of whether it
could be established beyond doubt that the state authorities killed the
applicant™s son. The Court did not refrain from considering positive obli-
gations on the part of Turkey, because, for example, it found that the
State lacked control over the PKK, or that the acts or omissions of Turkey
were necessary in the context of the armed con¬‚ict. Rather the Court
ignored the question of whether Article 2 of the European Convention
may under particular circumstances also imply a duty to investigate a
14 Annual Report of the Inter-American Commission 1975, at 22, in Inter-American
Commission on Human Rights, Ten Years of Activities 1971“1981, at 333 (1982) (emphasis
added).
15 Judgment of 25 May 1998, 74 Reports (1998“III) at 1152 (hereafter, Kurt case).
16 Ibid., paras. 101, 106.
17 Ibid., para. 107 (emphasis added); see also paras. 99 and 106.
state accountability for armed opposition groups 171

disappearance carried out by others than the state namely the PKK.18 In the
¸akici v. Turkey of 8 July 1999, the Court con¬rmed this approach.19
case of C
It is noteworthy that, in the Kurt case, the European Court ignored
´
the Inter-American Court of Human Rights™ decision in the Velasquez
Rodr´guez case, in spite of the applicant™s explicit reference to this
±
decision.20 In the latter case, the Inter-American Court found that, even
when it had not been established that Honduras was involved in the
disappearance under consideration, it was nonetheless obliged to en-
´
sure respect for the life of Manfredo Velasquez. The explanation of
´
the difference between these decisions may be that while the Velasquez
Rodr´guez case concerned protection from other private individuals, in Kurt
±
v. Turkey, the European Court had to consider the possibility that an
armed opposition group carried out the disappearance. The difference be-
tween these decisions might be taken to suggest that the state™s obliga-
tion to protect individuals against ˜other individuals™ is not applicable
if the ˜individuals™ belong to armed opposition groups.
Another case raising doubts as to the applicability of the state™s
positive obligations to acts of armed opposition groups during internal
con¬‚ict comes from the Human Rights Committee, in its view in A. and
H. Sanjuan Arevalo v. Colombia.21 This case concerned the disappearance of

18 This interpretation is supported by the Court™s reasoning in the same case on a
violation of Article 5 of the European Convention: ˜The Court considers that having
regard to the applicant™s insistence that her son was detained in the village, the
public prosecutor should have been alert to the need to investigate more thoroughly
her claim . . . The public prosecutor was unwilling to go beyond the gendarmerie™s
¨
assertion that the custody records showed that Uzeyir Kurt had neither been held in
the village nor in detention. He accepted without question the explanation that
¨
Uzeyir Kurt had probably been kidnapped by the PKK during the military operation
and this explanation shaped his future attitude to his enquiries and laid the basis of
his subsequent non-jurisdiction decision,™ Ibid., para. 126. This reasoning indicates
that, had it been beyond reasonable doubt that the PKK had kidnapped the applicant™s
son, the public prosecutor would not have been obliged to investigate the applicant™s
claim, or at least not in a similar manner to when the state had been involved. In
that case, the Court might not have established a violation of Article 5.
19 Para. 85, case available on www.dhcour.coe.fr (visited, 1 January 2001) (stating that ˜it
may be concluded beyond reasonable doubt that Ahmet C ¸akici died following his
apprehension and detention by security forces. This case is therefore to be
distinguished from the Kurt case . . . in which the Court examined the applicant™s
complaints about the disappearance of her son under Article 5. In the Kurt case,
although the applicant™s son had been taken into detention, no other elements of
evidence existed as regarded his treatment or fate subsequent to that™).
20 Kurt case, above, n. 15, para. 101.
21 Communication No. 181/1984, Of¬cial Records of the Human Rights Committee
1989/90, Vol. II, at 392“4.
172 the accountability gap

the author™s two sons in 1982. It was not clear who was responsible
for the disappearance. At the time of the Committee™s examination,
the investigations by the Colombian police were still ongoing. After the
Committee found that it had suf¬cient evidence of the direct involve-
ment of state agents in the disappearance, it concluded that Colombia
had violated the International Covenant on Civil and Political Rights
(the Covenant). The Committee considered:
´
The Committee notes that the parents of the Sanjuan brothers received indi-
cations that their sons had been arrested by agents of the ˜F2™ [a section of the
Colombian police forces]. The Committee further notes that in none of the in-
vestigations ordered by the Government has it been suggested that the disap-
´
pearance of the Sanjuan brothers was caused by persons other than government
of¬cials. In all these circumstances, therefore, the Committee . . . ¬nds that the
right to life enshrined in article 6 of the Covenant and the right to liberty and
security of the person laid down in article 9 of the Covenant have not been
effectively protected by the State of Colombia.22 [Emphasis added.]

This statement may be understood as restricting the state™s positive obli-
gation to protect to disappearances in which government of¬cials are
directly involved. This point was more explicitly elaborated by Nisuke
Ando, a member of the Human Rights Committee. In an individual opi-
nion on the communication, he made a reservation to the Committee™s ¬-
nal view that Colombia had violated the Covenant. In his opinion, as long
as the investigations of the case were not terminated, it was still possi-
ble that private persons were involved in the disappearance. He thereby
suggested that, if the Committee had found that Colombian armed oppo-
sition groups had carried out the disappearance, the Committee would
not have established violation of the Covenant by Colombia.23
Nevertheless, careful consideration of the above two examples leads
to the conclusion that they do not affect the ¬nding that human rights
treaties in principle oblige the state to afford protection against armed
opposition groups. In the ¬rst place, it should be noted that neither the
European Court of Human Rights nor the Human Rights Committee has
ever held that a duty to prevent and repress acts of armed opposition
groups never arises. They only decided that the duty arises only in cases
in which the state was directly involved. It is only by a reasoning a
contrario that one might conclude that these obligations do not apply to
acts carried out by the armed opposition.
Second, there are only two decisions that may raise doubts as to the
positive obligations of the state to control acts of armed opposition

22 23
Ibid., 393, para. 11. Ibid., Appendix, 393“4.
state accountability for armed opposition groups 173

groups, as opposed to numerous decisions of the treaty bodies indicating
the opposite.
In conclusion, international practice demonstrates that the general
obligation resting on the state under human rights treaties to ˜ensure™
or ˜secure™ the relevant rights and freedoms entails the obligation to
protect individuals from armed opposition groups on its territory. This
allows the conclusion that no distinction exists between unorganized
private individuals and armed opposition groups “ in both cases the
state being obliged to prevent or suppress their abuses. An internal con-
¬‚ict in itself, therefore, does not remove the state™s positive obligations
under human rights treaties to regulate and control the conduct of ac-
tors under its jurisdiction. If international bodies reject positive obliga-
tions of states with regard to armed opposition groups, the effect would
be that these treaties would provide no protection to civilians against
violence committed by armed opposition groups. This may be unaccept-
able for international bodies whose aim is to safeguard the rights of
victims in all situations, including internal con¬‚ict.


Common Article 3 and Protocol II
Article 1 common to the 1949 Geneva Conventions stipulates that con-
tracting states must ensure respect for these conventions at all times.
Commentators have suggested that this obligation is equivalent to
the obligation ˜to ensure respect™ contained in human rights treaties,
such as the International Covenant on Civil and Political Rights and
the European Convention on Human Rights.24 This may lead one to
argue that, like the human rights treaties, the Geneva Conventions
and Additional Protocols oblige the state to protect civilians from all
other individuals under its jurisdiction, including from armed opposi-
tion groups. This thesis ¬nds some support in international practice.
24 K. Obradovic, ˜Que faire face aux violations du droit humanitaire? “ quelques
r´ ¬‚exions sur le rˆle possible du CICR™, in Pictet, above, Chapter 1, n. 16, pp. 483, 487;
e o
(˜L™interpr´ tation donn´ e aux mots ˜faire respecter™ devient d™autant plus convaincante
e e
aujourd™ hui qu™il y a trente-cinq ans, vu justement l™´ tat actuel de d´ veloppement des
e e
droits de l™homme, la place qu™ils occupent dans la hi´ rarchie des normes du droit
e
international moderne et ¬nalement le fait que le droit humanitaire s™int` gre dans le
e
complexe des droits de l™homme. L™obligation analys´ e ainsi doit, d™apre´ notre
e s
opinion, ˆtre comprise de nos jours en corr´ lation avec les obligations g´ n´ rales
e e ee
qu™ont les sujets de droit international pour le respect des droits de l™homme™);
compare also N. Levrat, ˜Les cons´ quences de l™engagement pris par les Hautes Parties
e
Contractantes de “faire respecter” les conventions humanitaires™ in F. Kalshoven,
Y. Sandoz, (eds.), Implementation of International Humanitarian Law (Martinus Nijhoff,
Dordrecht, 1989), pp. 263, 276“7.
174 the accountability gap

In Military and Paramilitary Activities In and Against Nicaragua,25 the
International Court of Justice determined that the obligation to ensure
respect of Common Article 1 of the Geneva Conventions also extends to
the norms set forth in Common Article 3 applicable in internal armed
con¬‚icts:
The Court considers that there is an obligation on the United States Government,
in the terms of Article 1 of the Geneva Conventions, to ˜respect™ the Conventions
and even ˜to ensure respect™ for them ˜in all circumstances™, since such an obliga-
tion does not derive only from the Conventions themselves, but from the general
principles of humanitarian law to which the Conventions merely give speci¬c
expression. The United States is under an obligation not to encourage persons or
groups engaged in the con¬‚ict in Nicaragua to act in violation of the provisions
of Article 3 common to the four 1949 Geneva Conventions.26

The drafting history of Article 1 also supports the argument that the obli-
gation under Article 1 common to the Geneva Conventions extends to
activities which occur in the context of internal armed con¬‚ict. The
main concern of the drafters was the implementation of the humanita-
rian principles in a civil war by the entire population, including a future
insurgent party.27 Furthermore, the interpretation of the International
Court of Justice in the Nicaragua case of Article 1 common to the Geneva
Conventions is in accordance with the terms of this article. This article
obliges the state to ensure respect for the Conventions ˜in all circum-
stances™. This means that it is relevant whenever international humani-
tarian law is applicable, that is, pursuant to common Article 2 and 3
of the Geneva Conventions, both in international and internal con¬‚icts.
The obligation ˜to ensure respect™ applies not only to Common Article 3,
to which the International Court of Justice referred in the Nicaragua
case, but also to Protocol II. Being additional to Common Article 3 of
the Geneva Conventions, the Protocol is subject to the general provisions
of the Geneva Conventions.28
The Nicaragua case concerned the obligations of a third state (the
United States), acting in close cooperation with an armed opposition
group (the Contras). The question therefore remains whether Article 1
25 26 Ibid., at 114, para. 220.
Above, Chapter 1, n. 3.
27 See F. Kalshoven, ˜The Undertaking to Respect and Ensure Respect in All
Circumstances: From Tiny Seed to Ripening Fruit™, in (1999) 2 YIHL 22“3, 27 (hereafter,
˜Ensure Respect™); see also T. Meron, ˜Internal Atrocities™, above, Chapter 3, n. 8, at
569“70; D. Plattner, ˜Penal Repression™, above, Chapter 1, n. 1, at 419.
But see Commentary 4th Geneva Convention, above, Chapter 1, n. 9, p. 16; but, the ICRC
28

reviewed its position later, arguing that common Article 1 does apply in internal
con¬‚icts, see ICRC, Disintegration of State Structures, above, Chapter 4, n. 12, p. 16.
state accountability for armed opposition groups 175

common to the Geneva Conventions also obliges the territorial state
(Nicaragua, in this instance) that is ¬ghting against an armed group, to
ensure respect for Common Article 3 by this group. International prac-
tice indeed provides some evidence for such an obligation. International
bodies have accepted one duty in particular “ the obligation to prosecute
and punish harmful acts by armed opposition groups. In 1997, the UN
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
expressed his concern with regard to the con¬‚ict in Sudan about:
Violations of the right to life of civilians committed by government and opposi-
tion forces, in particular in the south of the Sudan, and calls on all combatants
to respect international humanitarian law and human rights standards. He also
urges the Government to investigate the allegations and to take the necessary
measures to prevent the recurrence of violations of the right to life.29

The Rapporteur made a similar statement with regard to the con¬‚ict in
Chechnya (Russian Federation).30 This practice is supported by the Inter-
national Law Commission™s Draft Code of Crimes Against the Peace and
Security of Mankind, which obliges states to prosecute or extradite those
alleged to have committed violations of international humanitarian law
applicable in internal con¬‚icts, in particular of Common Article 3 and
Article 4 of Protocol II.31
No international bodies, however, have accepted such positive obliga-
tions of the state under this law with regard to acts of armed opposition
groups. Moreover, the obligation that emerges from the available prac-
tice is limited to the speci¬c obligation of penal repression. International
bodies are silent on any other obligations of the state to prevent and
repress acts by armed opposition groups acting on its territory under
Common Article 3 and Protocol II.
How is this silence to be interpreted? How can the difference between
international practice on international humanitarian law and human
rights law be explained? The explanation may be that Common Article 3
29 1996 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, above, Chapter 1, n. 139, para. 460.
30 Ibid., para. 418; see also UN Commission on Human Rights, E/CN.4/1995/61, para. 49
(Report of Special Rapporteur, 14 December 1994) (Algeria) (hereafter, 1994 Report of
the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions); 1988
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,
above, Chapter 2, n. 12, paras 122“3; UN Commission on Human Rights,
E/CN.4/1989/25, paras. 95, 97 (Report of the Special Rapporteur, S. Amos Wako,
6 February 1989) (El Salvador); Ibid., paras. 189“90 (Nicaragua); Ibid., paras. 250“3
(Sri Lanka).
31 Above, Chapter 3, n. 8, Article 9.
176 the accountability gap

and Protocol II do not specify the state™s obligation to ensure respect for
the norms. Instead, they impose the duties directly onto the contending
forces themselves. This may lead international bodies to consider it un-
necessary to address the state with regard to acts committed by armed
opposition groups, because these groups can be held accountable in
their own right. This interpretation is supported by the International
Law Commission. The Commission suggested that the responsibility of
the state with regard to acts of armed opposition groups is modi¬ed
by the armed opposition groups™ own responsibility under international
law:
The injurious conduct of organs of an insurrectional movement is to be dis-
tinguished from that of individuals or groups of individuals during a riot or
demonstrations by a rebellious mob. This is because, in the case of a genuine
insurrectional movement in the sense in which that term is understood in in-
ternational law, there is a possibility of holding the movement itself responsible
for the wrongful acts of its organs.32

Also, the lack of practice under international humanitarian law may
be explained by the nature of the relationship between the state and
armed opposition groups underlying these norms. Under international
humanitarian law, the relationship between the state and armed op-
position groups is not a ˜human rights relationship™, i.e., is not a hier-
archical relationship between a government and the governed. Rather,
under this law the state™s government and the armed opposition groups
are equal parties ¬ghting each other. The effect is that these groups
are seen as being, by de¬nition, outside the control of the territorial
state “ and consequently outside the accountability of the state as
well.33
The limited practice on positive obligations of the state under Common
Article 3 and Protocol II, in contrast to the extensive practice under
human rights treaties, indicates that the content and scope of the obliga-
tion ˜to ensure respect™ in both categories of treaties is not identical. This
obligation has no autonomous or universal meaning, but must be read
together with the substantive obligations laid down in the human rights
and humanitarian law treaties. The state must ˜ensure respect™ for the
32 ILC Commentary to Draft Articles on State Responsibility, ILCYb 1975, Vol. II, p. 98,
para. 28.
33 See G. I. A. D. Draper, ˜Human Rights and the Law of Armed Con¬‚icts: General
Principles of Implementation™, R´sum´ des cours: cinqui` me session d™enseignement
e e e
(International Institute of Human Rights at Strasbourg, July 1“26, 1974), reprinted in
Re¬‚ections on Law and Armed Con¬‚icts, above, Chapter 1, n. 2, pp. 141, 142“4.
state accountability for armed opposition groups 177

treaty in which this rule is set out.34 Thus, the substance of the obligation
˜to ensure respect™ in human rights treaties and humanitarian treaties
depends on the material norms and the object of the respective treaties.


Other international humanitarian law treaties
A number of humanitarian law treaties, other than the Geneva Conven-
tions and Protocol II, are relevant to the state™s accountability for fail-
ure to prevent or repress acts by armed opposition groups in internal
con¬‚ict. Among these are Amended Protocol II on Prohibitions or Res-
trictions on the Use of Mines, Booby-Traps and Other Devices of 3 May
1996; the Ottawa Convention on Anti-Personnel Mines of 18 September
1998; the Cultural Property Convention of 1954; and the Second Protocol
on Cultural Property of 26 March 1999 (not yet in force). These treaties
oblige the state to take measures of national implementation and pre-
cautionary measures. The Land Mines and Cultural Property Conventions
impose a duty to adopt penal sanctions to repress them or take precau-
tions or both.
The above-mentioned treaties bind all parties to the con¬‚ict, including
armed opposition groups to observe the norms set forth, except for the
Ottawa Convention on Anti-Personnel Mines, which applies only to the
state.35 The obligation to prosecute violators of those norms is reserved
to the state. The obligation to take precautionary measures to protect
civilians from the indiscriminate use of land mines and to prevent the
extensive destruction of cultural property, however, rests on all parties to

34 Article 1 common to the 1949 Geneva Conventions provides: ˜The High Contracting
Parties undertake to respect and to ensure respect for the present Convention in all
´
circumstances™ (emphasis added); similarly, in the Velasquez Rodr´guez case, the
±
Inter-American Court stated with regard to Article 1 of the American Convention:
˜This article speci¬es the obligation assumed by the States Parties in relation to each of
the rights protected. Each claim alleging that one of those rights has been infringed
necessarily implies that Article 1(1) of the Convention has also been violated™
(emphasis added), above, n. 7, para. 162.
35 Amended Protocol II to the Conventional Weapons Convention applies to all parties to
a con¬‚ict within the meaning of Common Article 3, see Article 1(2) and (3) of the
Protocol. According to Article 19(1) of the Cultural Property Convention of 1954, this
convention applies to internal armed con¬‚icts and binds all parties to such con¬‚icts,
both the state and armed opposition groups. Article 22 of the Second Protocol on
Cultural Property stipulates that the Protocol shall apply to internal armed con¬‚icts.
The Ottawa Convention on Anti-Personnel Mines prescribes that states shall ˜never
under any circumstances™ develop, produce, stockpile, transfer or use anti-personnel
mines. While this treaty thus applies in internal armed con¬‚ict, it applies only to one
party to the con¬‚ict, that is the state.
178 the accountability gap

the con¬‚ict, including armed opposition groups. These treaties therefore
modify the conclusion drawn in the previous section, namely that the
limited international practice on positive obligations of the state under
Common Article 3 and Protocol II may be partly clari¬ed by armed op-
position groups™ own obligations under these instruments. They show
that positive obligations of the state to protect civilians from armed op-
position groups are not wholly inconceivable under humanitarian law
treaties binding also armed opposition groups.
Because these treaties have not (yet) given rise to practice of interna-
tional bodies on the state™s positive obligations with regard to armed
opposition groups, they will not be considered further.


International criminal law treaties
Finally, the state™s positive obligations to prevent and repress acts of
armed opposition groups on its territory will be considered in relation
to two criminal law treaties: the Genocide Convention of 1954, and the
1984 Convention Against Torture. The Genocide Convention obliges the
state to prevent and to punish the crime of genocide at all times,
whether committed in external or internal con¬‚icts or in ˜peacetime™.36
The obligation to punish genocide applies equally when private persons
have committed the genocide, which includes members of armed oppo-
sition groups.37 There is no international practice applying this obliga-
tion. This practice might emerge, however, from current International
Court of Justice (ICJ) cases.38
The de¬nition of torture employed by the Convention against Torture
appears to exclude the application of this treaty to the state when the ac-
tual acts of torture are committed by armed opposition groups. Article 1
of the Convention de¬nes torture as ˜any act by which severe pain or
suffering, whether physical or mental, is intentionally in¬‚icted on a
person . . . when such pain or suffering is in¬‚icted by or at the in-
stigation of or with the consent or acquiescence of a public of¬cial or
other person acting in an of¬cial capacity™.39 In 1998, the Committee against
36 37 Article IV, see discussion above, Chapter 3, Section 1.
Article I.
38 For example, in the Case Concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal
Republic of Yugoslavia) Bosnia and Herzegovina requested the ICJ to declare that the
Federal Republic of Yugoslavia had violated the Genocide Convention by virtue of
having failed to prevent and to punish acts of genocide (see, for example, the
Application ¬led to the Court by Bosnia and Herzegovina of 20 March 1993, para. 128).
39 Emphasis added.
state accountability for armed opposition groups 179

Torture established under the Torture Convention, con¬rmed that the
Convention does not impose positive obligations on the state to prevent
torture committed by entities other than the state: ˜The Committee con-
siders that the issue whether the State party has an obligation to refrain
from expelling a person who might risk pain or suffering in¬‚icted by
a non-governmental entity, without the consent or acquiescence of the
Government, falls outside the scope of Article 3 of the Convention™.40
The Committee restated its view in a general comment.41 While this
concerned a case of expulsion by a third state, there is no reason to as-
sume that there is a difference under the Torture Convention between
the obligations of an expelling state vis-` -vis torture committed by armed
a
opposition groups in another state, and the obligations of a state with
regard to torture committed by armed opposition groups on its own
territory.
The position of the Committee should be criticized, however. It would
seem that the interpretation of the Committee of the notion ˜public
of¬cial or other person acting in an of¬cial capacity™ as referring ex-
clusively to state agents, is too narrow. There is no good reason not to
include ˜of¬cials™ of armed opposition groups that operate as de facto
governments and of other large armed groups exercising territorial au-
thority. In fact, this approach would be in line with current practice of
other human rights bodies, such as the Human Rights Committee and
the UN Commission on Human Rights. Furthermore, the Human Rights
Committee interpreted torture as prohibited under Article 7 of the
International Covenant on Civil and Political Rights (the International
Covenant) as also governing torture by armed opposition groups.42
Also, according to the Yugoslavia Tribunal, armed opposition groups
are capable of committing torture within the meaning of Article 1

40 GRB v. Sweden, Comm. 83/1997, CAT/C/20/D/83/1997 (View adopted on 15 May 1998).
Article 3 of the Torture Convention stipulates: ˜1. No State Party shall expel, return
(“refouler”) or extradite a person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to torture. 2. For the
purpose of determining whether there are such grounds, the competent authorities
shall take into account all relevant considerations including, where applicable, the
existence in the State concerned of a consistent pattern of gross, ¬‚agrant or mass
violations of human rights™.
41 General Comment on the Implementation of Article 3 in the Context of Article 22 of
the Convention Against Torture, A/53/44, Annex IX (1998) (˜Article 3 is con¬ned in its
application to cases where there are substantial grounds for believing that the author
would be in danger of being subjected to torture as de¬ned in article 1 of the
Convention™).
42 Below, Section 2.
180 the accountability gap

of the Convention against Torture.43 Finally, it should be noted that it
is accepted that persons who are persecuted by private actors, including
armed opposition groups, are refugees within the meaning of the 1951
Convention Relating to the Status of Refugees.44


The obligation of the state to take action
It has been demonstrated that, according to international practice,
human rights treaties and to a lesser extent international humanitarian
and criminal law treaties, in certain circumstances, oblige the state to
prevent and repress acts of armed opposition groups operating on its ter-
ritory. This section examines the scope and contents of the state™s posi-
tive obligations in those parts of the territory where it exercises a degree
of control. Practice of international bodies shows that these obligations
consist primarily of basic requirements to implement the right to life
in the domestic legal order. International bodies have distinguished the
following three speci¬c obligations: the obligation to protect civilians
from armed opposition groups through legislation; the obligation to
physically protect civilians from armed opposition groups; and the obli-
gation to prosecute acts of armed opposition groups prohibited under
the applicable treaties.
Two preliminary remarks are in order. First, the practice of interna-
tional bodies is mostly restricted to protection of civilian life from attacks
by armed opposition groups.45 There are good reasons to pay ample at-
tention to the right to life, or in terms of international humanitarian
law, the prohibition of violence to life. It is obvious that during inter-
nal con¬‚ict this right is exposed to serious risks. Moreover, without its
protection all other rights are devoid of meaning. In the words of the
Inter-American Commission on Human Rights: ˜Respect for the right to
life warrants special consideration, for it unquestionably is the basis and
support of all other rights.™46

43 Above, Chapter 3, Section 1.
G.S. Goodwin-Gill, The Refugee in International Law (Clarendon Press, Oxford, 2nd edn.,
44

1996), pp. 69“70.
45 Article 6(1) of the International Covenant provides: ˜Every human being has the
inherent right to life™; Articles 2(1) of the European Convention and 4(1) of the
American Convention contain similar provisions. Common Article 3 and Article 4 of
Protocol II prohibit violence to life of those not directly participating in the hostilities.
46 Annual Report of the Inter-American Commission on Human Rights 1971, at 33, in
Inter-American Commission on Human Rights, Ten Years of Activities 1971“1981, above
n. 14, at 331; see also Human Rights Committee, General Comment 6/16, para. 1
state accountability for armed opposition groups 181

Nevertheless, the focus of international bodies on the right to life
entails a signi¬cant limitation of their contribution to the application
and development of the state™s accountability for failure to restrain acts
of armed opposition groups.47 Human rights, humanitarian, and crimi-
nal law treaties contain obligations other than the right to life, which
would seem to be of direct relevance for the regulation of the conduct
of armed opposition groups. Deprivation of liberty and ill treatment of
detainees in prisons by armed groups are obvious areas to which the
state™s accountability could extend.
The second remark concerns the nature of the state™s obligations. The
state is not responsible for injurious acts of armed opposition groups in
internal armed con¬‚ict. In each case, responsibility can only be based
upon the state™s own failure to act, the act of armed opposition groups
merely constituting the objective condition which gives rise to a breach
of the relevant treaty provisions on the part of the state. This is in accor-
dance with the International Law Commission™s Draft Articles on State
Responsibility stating that the conduct of an insurrectional movement
can never, by itself, justify holding the state responsible. Article 10 of
the Draft Articles provides:

(1) The conduct of an organ of an insurrectional movement which is established
in the territory of a State or in any other territory under its administration shall
not be considered as an act of that State under international law.
(2) Paragraph 1 is without prejudice to the attribution to a State of any other
conduct which is related to that of the organ of the insurrectional movement

(27 July 1982) on Article 6 of the International Covenant, reproduced in A/37/40,
Annex V (stating that the right to life is ˜the supreme right™); UN Commission on
Human Rights, Res. 1994/ 46, pr. (4 March 1994) (˜bearing in mind that the most
essential and basic human right is the right to life™); see also Y. Dinstein, ˜The Right to
Life, Physical Integrity, and Liberty™ in L. Henkin (ed.), The International Bill of Rights
(1981) p. 114 (˜The right to life is incontestably the most important of all human
rights™) (hereafter, ˜The Right to Life™). The fundamental nature of the right to life is
re¬‚ected in human rights treaties, placing this right at the forefront of the rights. It
is one of the non-derogable rights which may not be suspended in the case of an
emergency including internal armed con¬‚icts. In the International Covenant the
special signi¬cance of the right to life is also underlined by the adjective ˜inherent™,
which is only used in the article on the right to life and which attests its primacy.
47 The focus on the right to life by the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions is inherent in his mandate, however. The Rapporteur has de¬ned
his mandate as covering ˜all acts and omissions of state representatives that
constitute a violation of the general recognition of the right to life embodied in
[various international human rights and humanitarian law instruments]™, 1993 Report
by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above,
Chapter 2, n. 102, paras. 9“10.
182 the accountability gap

and which is to be considered as an act of that State by virtue of articles 5
to 10.48

The state is thus only responsible for its own acts or omissions. What,
then, does a state have to do with regard to the acts of armed opposition
groups?
The fact that an armed opposition group acts within the state™s ter-
ritory, where the state exercises certain control, does not mean that
the state must prevent and repress its conduct at all costs.49 Interna-
tional practice demonstrates that the state is only responsible for harm
caused by armed opposition groups when it has failed to exercise due
diligence.50 This means that the state must undertake appropriate mea-
sures to prevent and repress the injurious acts of armed opposition
groups. Appropriate measures are those measures, which the state can
reasonably be required to take in view of its own capabilities and the
situation.51
The limitation of the state™s positive obligations to due diligence is
realistic. Since the state is not an all-powerful entity, it cannot give an
absolute guarantee at the international level that no harmful actions
will be committed in its territory by armed opposition groups. Supreme
legal authority is a necessary but not suf¬cient condition for protection,
nor is the existence of a government exercising a degree of territorial
control. Whenever the state must make an effort in order to achieve a
particular material result, international bodies must take account of the

48 1996 ILC Draft Articles on State Responsibility, above, Chapter 4, n. 1. In the Draft
Articles provisionally adopted on second reading by the Drafting Committee in 1998,
above, Chapter 4, n. 1, paragraph 1 of Draft Article 14 has been deleted. The Special
Rapporteur on State Responsibility explained that this basic principle is well
established and need not be stated speci¬cally in this article, 1998 First Report Special
Rapporteur on State Responsibility, Addendum 5 of 26 May 1998, para. 276. See also
United States Diplomatic and Consular Staff in Teheran case (US v. Iran) ( Judgment of
24 May 1980), 1980 ICJ Rep. 3 (the International Court of Justice considered it
necessary, in order for the acts of the rioters and other militants to be regarded as acts
of State, that it be ˜established that, in fact, on the occasion in question the militants
acted on behalf of the State, having been charged by some competent organ of the
Iranian State to carry out a speci¬c operation™) (hereafter, US Staff in Teheran case).
49 ¨
See Platform ˜ Arzte F¨ r Das Leben™ case, above, n. 6, para. 34 (˜while it is the duty of
u
Contracting States to take reasonable and appropriate measures to enable lawful
demonstrations to proceed peacefully, they cannot guarantee this absolutely™).
50 See generally I. Brownlie, System of the Law of Nations “ State Responsibility (Clarendon
Press, Oxford, reprint 1986) (1983) vol. I, p. 172 (hereafter, State Responsibility);
R. Jennings, A. Watts, Oppenheim, above, Chapter 1, n. 59, p. 549.
51 ´
See Velasquez Rodr´guez case, above n. 7, paras. 174“5; see also C. Tomuschat, ˜What is a
±
Breach™, above, n. 5, p. 330.
state accountability for armed opposition groups 183

fact that a degree of factual capability, which can be employed to that
effect, is required. Moreover, it should be kept in mind that the state
is entitled under international law to defend its territorial integrity
against armed attacks by armed opposition groups. International bodies
must balance this entitlement against the state™s obligation to protect
civilians from armed groups.
While the due diligence principle follows from the obligations laid
down in human rights, humanitarian and criminal law treaties,52 these
treaties do not establish the detailed content of the principle. According
to international bodies, the degree of diligence that a state must observe
depends on the substantive obligation in question and on a number of
general factors, such as the availability of means, the foreseeability of
the harm caused by armed opposition groups, and the particular circum-
stances of the case.53 The state is entitled to suppress an insurrection
against it and to use the force necessary to that end. Accordingly, the
application of the duty to protect civilian life from armed opposition
groups is also mitigated by the military necessity prevailing in the
con¬‚ict.
A state™s obligation to prevent and repress acts committed by armed
opposition groups can be discharged by several means: through legis-
lation, through physical protection, and, ¬nally, through prosecution.
Each of these will be discussed brie¬‚y.


Legislation
International practice demonstrates that the state is obliged to have in
place a legal framework for the prevention and repression of attacks
by armed opposition groups on civilian life. This obligation to legislate
is set forth in human rights treaties. Article 6(1) of the International
Covenant on Civil and Political Rights provides: ˜Every human being
52 See R. Pisillo-Mazzeschi, ˜Forms of International Responsibility for Environmental

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