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Harm™ in F. Francioni, T. Scovazzi, (eds.), International Responsibility for Environmental
Harm, (Graham & Trotman, London 1991), pp. 15“16; G. A. Christenson, ˜Attributing
Acts of Omission to the State™ (1991) 12 Mich. J. Int™l L. 312, 329.
53 Compare US Staff in Teheran case, above, n. 48, para. 68 (where the International Court
of Justice held Iran to be in breach of its international obligations to take steps to
protect United States diplomatic and consular premises in Iran from the attack and,
generally, to restore the status quo. Among the reasons underlying the Court™s decision
were: (a) the Iranian authorities were fully aware, as a result of the appeals for help
made by the US Embassy, of the urgent need for action on their part; (b) the Iranian
authorities had the means at their disposal to perform their obligations; (c) the
Iranian authorities completely failed to comply with these obligations).
184 the accountability gap

has the inherent right to life. This right shall be protected by law™.54
The European Convention and the American Convention contain similar
provisions.55
The obligation to adopt legislation to prevent and repress violations of
Common Article 3 and Protocol II by armed opposition groups is not ex-
plicitly contained in these instruments. Certain provisions in Protocol II,
however, presuppose the existence of domestic legislation by expressly
referring to it. For instance, Article 6(2)(c) of Protocol II states: ˜no one
shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under the law, at
the time when it was committed; nor shall a heavier penalty be imposed
than that which was applicable at the time when the criminal offence
was committed™.56 Furthermore, the obligation to implement the hu-
manitarian standards through domestic legislation can be inferred from
the state™s obligation to prosecute violations thereof by armed opposition
groups. International bodies have accepted that the state™s obligation to
prosecute extends not only to grave breaches but also to violations of
Common Article 3 and Protocol II. This obligation can only be imple-
mented through some kind of criminal law statute.57
Other humanitarian law treaties, such as the Ottawa Convention on
Land Mines, Amended Protocol II on Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and Other Devices, and the Second Protocol
on Cultural Property explicitly oblige the state to adopt appropriate
54 In addition to this provision, the general obligation to ensure respect for the rights
stipulated in the Covenant (Article 2(2) of the International Covenant) requires
states to give effect to the rights recognized in the conventions by legislative and
other measures. The formulation ˜legislative or other measures™ demonstrates the
priority of legislative measures, M. Nowak, UN Covenant on Civil and Political Rights “
Commentary (N. P. Engel, Kehl, 1993), p. 55.
55 Article 2(1) of the European Convention; Article 4(1) of the American Convention. In
´
the Velasquez Rodr´guez case, the Inter-American Court of Human Rights af¬rmed that
±
the existence of a legal system is one of the means for a state to comply with its
obligation to ensure the right to life, above, n. 7, para. 167; see generally on the duty
to protect by law, K. Vasak, ˜Human Rights: As a Legal Reality™, in K. Vasak, (ed.), The
International Dimensions of Human Rights (Greenwood Press, Westport, 1982), pp. 3, 7.
56 Emphasis added. Other examples are Articles 6(2) (d) and 10(3) and (4) of Protocol II.
57 As Meron argued: ˜As regards the national state of the perpetrators of nongrave
breaches, its obligations go further. Given the purposes and objects of the Geneva
Conventions and the normative content of their provisions, any state that does not have
the necessary laws in place, or is otherwise unwilling to prosecute and punish violators
of clauses other than the grave breaches provisions that are signi¬cant and have a
clear penal character, calls into serious question its good faith compliance with its
treaty obligations™ (emphasis added), T. Meron, ˜Internal Atrocities™, above, Chapter 3,
n. 8, at 570.
state accountability for armed opposition groups 185

legislation.58 The Genocide Convention also obliges the state to enact
the legislation necessary to give effect to the Convention, in particular
to provide appropriate penalties for persons guilty of genocide.59
Human rights treaties also entail an obligation of the state to have
appropriate legislation as contained in human rights treaties. In X v.
Ireland, the European Commission on Human Rights af¬rmed that the
state is obliged to render illegal the taking of life by armed opposition
groups under its domestic laws. The case concerned an applicant on
whose life the IRA made an attempt in the Irish Republic in 1969. The
applicant complained that the police authorities refused to protect his
life. The Commission observed: ˜Art. 2 provides that everyone™s right to
life shall be protected by law. However, the applicant has not even sug-
gested that there are no laws in Ireland protecting the right to life™.60
The Human Rights Committee pointed out in its general comment on
Article 7 of the International Covenant that the state party is obliged to
protect persons from torture or cruel, inhuman or degrading treatment
or punishment also when committed by persons ˜acting in a private
capacity™. The Committee stated that it is the state™s duty in this regard
to take the necessary legislative measures.61
The obligation to adopt laws so as to prevent and repress acts of armed
opposition groups injuring civilians already exists before an internal
con¬‚ict has broken out and irrespective of whether any injurious acts
have actually been committed. Its ful¬lment is therefore in principle
not dependent on external uncertain factors and can be implemented
by every state.
It seems that arbitrary killings by armed opposition groups require
criminal law. Human rights treaties do not specify the kind of law,
criminal or civil. Under these instruments, the choice of measures
suited to ensure the relevant rights, is free.62 The existence of crimi-
nal liability must be inferred from the state™s obligation to prosecute
58 Article 9 of the Ottawa Convention on Anti-Personnel Mines; Article 14 of the
Amended Protocol II to the Conventional Weapons Convention; Articles 15(2), 16(1)
of the Second Protocol on Cultural Property; a similar provision is absent in the
1954 Cultural Property Convention.
59 Article IV.
60 Appl. 6040/73 (Decision of 20 July 1973) 16 YB ECHR 388 (1973); see also Human Rights
Committee, CCPR/C/SR.1067, 42nd Sess. para. 55 (El Shafei, 1991) (Sudan);
Inter-American Commission on Human Rights, Second Report on the Situation of
Human Rights in Colombia, above, Chapter 1, n. 110, at 5.
61 General Comment 20/44, para. 2 (3 April 1992) reproduced in A/47/40, Annex VI.
62 See X and Y v. Netherlands ( Judgment of 26 March 1985) Eur. Ct. HR Ser. A 91,
para. 24 (1985).
186 the accountability gap

abuses by armed opposition groups, which will be examined below.63
This is because international human rights treaties are not in them-
selves capable of being the basis of criminal judgments “ they need to
be supplemented by some kind of criminal statute.64 There is no practice
developing this point.
The question arises as to the territorial scope of this duty to legislate.
International practice shows that state laws, which, pursuant to an inter-
national obligation, have been adopted for the entire territory, remain
in force in the entire state territory, including in those parts where the
state temporarily exercises no control. This is illustrated by the Human
Rights Division of the United Nations Observer Mission in El Salvador
(ONUSAL). ONUSAL was, during the internal con¬‚ict in El Salvador,
charged with the veri¬cation of compliance with the San Jos´ Agreement
e
on Human Rights concluded between the Salvadorian State and FMLN.65
Of interest are ONUSAL™s considerations on the right to freedom of
movement. During the con¬‚ict, this right was particularly impeded
by the problem posed by undocumented persons. In response to this,
Article 8 of the San Jos´ Agreement provided: ˜All persons shall be
e
guaranteed freedom of movement in the areas involved in the con¬‚ict,
and the necessary steps shall be taken to provide the inhabitants of
such areas with the identity documents required by law.™66 Although
both the Salvadorian Government and FMLN signed the Agreement,
and both parties were therefore bound to implement this provision,
ONUSAL interpreted ˜required by law™ as referring only to the state™s law.
In the Mission™s view, providing documents was a task of the Salvadorian

63 See J. E. S. Fawcett, The Application of the European Convention on Human Rights
(Clarendon Press, Oxford, 2nd edn., 1987) p. 37 (interpreting Article 2(1) of the
European Convention: ˜it could . . . reasonably be implied that the State must
make the deliberate taking of life by individuals a punishable offence™).
64 C. K. O™Boyle, ˜The Concept of Arbitrary Deprivation of Life™, in B. G. Ramcharan (ed.),
The Right to Life in International Law (Martinus Nijhoff, Dordrecht, 1985) p. 234;
the Genocide Convention (Article V) obliges the state to adopt criminal legislation to
implement the relevant rules.
65 Above, Chapter 1, n. 149; on the Human Rights Division see Articles 10“19.
66 Ibid., (emphasis added); in addition, Article 7 of the San Jos´ Agreement provided:
e
˜Displaced persons and returnees shall be provided with the identity documents
required by law and shall be guaranteed freedom of movement™. Freedom of
movement in El Salvador was furthermore guaranteed by Article 12 of the
International Covenant. The UN Mission noted that, under Article 4 of the
International Covenant, freedom of movement may be suspended in time of a public
emergency; however, El Salvador had not made use of this right; according to the UN
Mission, the right to freedom of movement was therefore fully in effect in El Salvador,
Third Report of ONUSAL, above, Chapter 2, n. 33, para. 99.
state accountability for armed opposition groups 187

Government. Moreover, ONUSAL held the opinion that this domestic
law applied to the entire territory of El Salvador including the ˜con¬‚ict
zones™, which were areas controlled by FMLN.67 ONUSAL noted that it
was precisely in these zones that the greatest restrictions were imposed
on the right of freedom of movement, because FMLN used to cut off
tracks and main roads.68 Apparently, it considered the absence of
state control there to be irrelevant for the applicability of the law of
El Salvador.
Problems are likely to arise when armed opposition groups have
adopted their own laws for areas that they control. As has been shown in
Chapter 2, armed opposition groups, as temporary holders of authority,
do actually enact laws. In the con¬‚ict in El Salvador, FMLN enacted its
own legislation applicable to the territory under its control.69 ONUSAL
refrained, however, from discussing the question of the relationship and
compatibility between the laws of El Salvador and FMLN.
Nor does humanitarian law offer a solution to this problem. Com-
mon Article 3 and Protocol II, like human rights norms, presuppose the
continued applicability of national legislation. For example, Protocol II
prescribes penal prosecutions to be in accordance with ˜the law™. This
term appears to have been copied from the International Covenant on
Rights Civil and Political and must therefore be understood as refer-
ring to state law.70 Amended Protocol II to the Conventional Weapons
Convention is more explicit on this matter. While binding on all parties
to an internal con¬‚ict, it obliges only States Parties to take legislative
measures to ensure compliance with the rules. It would follow that this
state legislation binds all parties to the con¬‚ict, including armed op-
position groups.71 The drafters of these instruments failed to examine
problems that may arise from the concurrent existence of laws of armed
opposition groups. Nonetheless, the notion of state law as being prob-
lematic was acknowledged “ but not resolved “ in the commentary on
Protocol II: ˜The possible co-existence of two sorts of national legislation,

67 Second Report of ONUSAL, above, Chapter 1, n. 27, paras 163“4; Third Report of
ONUSAL, above, Chapter 2, n. 33, paras. 92, 103.
68 Third Report of ONUSAL, above, Chapter 2, n. 33, para. 96.
69 America™s Watch Committee, Violations of Fair Trial Guarantees by the FMLN™s Ad Hoc
Courts, (May 1990), p. 512.
70 S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, pp. 1399“1400; Ibid.,
p. 1344; but see Third Report of ONUSAL, above, Chapter 2, n. 33, at 102, para. 113
(interpreting ˜law™ in Article 6(2)(c) Protocol II as referring also to the laws of the
FMLN).
71 Article 14(1).
188 the accountability gap

namely, that of the State and that of the insurgents, makes the concept
of national law rather complicated in this context.™72
As for the content of the obligation to legislate, it appears that the
state has a broad discretion in ful¬lling this duty. Violation of this obli-
gation has only been established when the legislation was manifestly
inadequate. International practice demonstrates that this may be the
case when a state adopts amnesty laws granting immunity to members
of armed opposition groups for alleged injurious acts. (This issue will be
discussed in more detail later.)


Precautions against attacks by armed groups
The humanitarian law treaties, including Amended Protocol II to the
Conventional Weapons Convention, the Ottawa Convention on Anti-
Personnel Mines, and the Second Protocol on Cultural Property impose
on the state a duty to take precautionary measures against the effects
of attacks of armed opposition groups in internal con¬‚ict. Article 5(4) of
Amended Protocol II prohibits the use of anti-personnel mines other
than remotely-delivered mines, unless the effective exclusion of civilians
from the area where the mines are placed is ensured and such weapons
are cleared before the area is abandoned. This article subsequently pro-
vides: ˜If the forces of a party to a con¬‚ict gain control of an area in
which weapons to which this Article applies have been laid, such forces
shall, to the maximum extent feasible, maintain and, if, necessary, es-
tablish the protections required by this Article until such weapons have
been cleared.™73
Thus, if the state gains control of an area previously controlled and
mined by an armed opposition group, it must provide protection from
such mines. Article 5(1) of the Ottawa Convention requires each State
Party to destroy mines that have already been laid ˜in mined areas under
the jurisdiction or control™ of a State Party. This means that the obliga-
tion extends to parts of the state territory that were previously under
72 S-S. Junod, Commentary Additional Protocols, above, Chapter 1, n. 9, p. 1399. Similar
observations on the relationship and compatibility of state laws and laws of armed
opposition groups apply to the Guiding Principles on Internal Displacement, above,
Chapter 1, n. 145. The Principles are addressed to ˜all authorities, groups and
persons™ (Principle 2) and provide that ˜every human being has the inherent right to
life which shall be protected by law™ (Principle 10) [emphasis added].
73 See also Article 3 (prescribing precautionary measures to protect civilians from the
effects of mines, booby-traps and other devices).
state accountability for armed opposition groups 189

control of armed opposition groups.74 Finally, Article 8 of the Second
Protocol on Cultural Property prescribes that precautionary measures be
taken against attacks by other parties to the con¬‚ict, including armed
opposition groups, which may destroy cultural property. These measures
include the removal of cultural property from the vicinity of military ob-
jectives and preventing the location of military objectives near cultural
property.
Neither Common Article 3 nor Protocol II expressly prescribe inter-
vention with or precautions against acts of armed opposition groups.
The Genocide Convention also does not expressly oblige the state to
physically protect civilians from attacks by armed opposition groups in
internal con¬‚ict. Nor do human rights treaties impose such a duty.
Nevertheless, international bodies have accepted that a duty to take
action against armed opposition groups may, under particular circum-
stances, arise from the general obligation to ensure respect for the rel-
evant rights. For example, the Inter-American Commission considered
that the state might be obliged to take forcible action against armed
opposition groups attacking civilians:

The violence, springing from terrorist groups on both the right and the left,
leads the Commission to once again emphasize its well-known doctrine on this
matter. The Commission has repeatedly stressed the obligation the governments
have of maintaining public order and the personal safety of the country™s inha-
bitants. For that purpose, the governments must prevent and suppress acts of
violence, even forcefully, whether committed by public of¬cials or private individ-
uals whether their motives are political or otherwise.75

Similarly, the Human Rights Committee observed that Algerian security
forces and police, who were in the vicinity of victims attacked by the
Islamic groups, were obliged to prevent such attacks, and if they none-
theless took place to come immediately to the defence of the victims.76
The Rapporteur on Extrajudicial, Summary or Arbitrary Executions sug-
gested that the state might also be obliged to intervene in an effort
to stop the violence between armed groups, the government not being
directly involved:

74 S. Maslen, P. Herby, ˜An International Ban on Anti-Personnel Mines “ History and
Negotiation of the “Ottawa Treaty”™ (1998) 325 IRRC 693“713, text available on
www.icrc.org (visited, 1 January 2001) (hereafter, ˜Ottawa Treaty™).
75 Report on the Situation of Human Rights in the Republic of Guatemala,
OEA/Ser.L/V/II.61, Doc.47, rev.1, para. 10 (5 October 1983) (emphasis added).
76 Concluding Observations on Algeria 1998, above, n. 12, para. 6.
190 the accountability gap

The Special Rapporteur would once again like to draw the attention of the inter-
national community to the problem of communal violence, understood as acts
of violence committed by groups of citizens of a country against other groups.
In Burundi, Nigeria, Rwanda and Zaire, where violent confrontations were re-
ported between different ethnic groups, government forces allegedly . . . did not
intervene to stop the violence . . . The Special Rapporteur . . . strongly appeals to
all governments to refrain from supporting groups, on ethnic or other grounds,
either actively or by simply tolerating acts of violence committed by them.77

In Ergi v. Turkey, the European Court of Human Rights held that Turkey
must plan and conduct military operations so as to prevent or decrease
risk to civilian life from such operations, which included protection
from ¬ring by the PKK:
There was no information to indicate that any steps or precautions had been
taken to protect the villagers from being caught up in the con¬‚ict. Accord-
ingly, in the absence of evidence from gendarmes involved in the planning and
conduct of the operation, the Commission was not satis¬ed that the ambush
operation carried out close to Kesentas village had been implemented with the
requisite care for the lives of the civilian population. The Court, having regard
to the Commission™s ¬ndings . . . and to its own assessment, considers that it was
probable that the bullet which killed Havva Ergi had been ¬red from the south
or south-east, that the security forces had been present in the south and that
there had been a real risk to the lives of the civilian population through being
exposed to cross ¬re between the security forces and the PKK. In the light of the
failure of the authorities of the respondent State to adduce direct evidence on
the planning and conduct of the ambush operation, the Court, in agreement
with the Commission, ¬nds that it can reasonably be inferred that insuf¬cient
precautions had been taken to protect the lives of the civilian population.78

This practice shows that under particular circumstances human rights
treaties oblige the state to take action against attacks by armed oppo-
sition groups. There is no doubt, however, that this obligation is condi-
tional on the due diligence rule. The state must have a degree of factual
capability to prevent and repress violent attacks by armed opposition
groups. Further, the general proposition made earlier that internal con-
¬‚ict, due to its scale and the consequences for state authority, has its im-
pact on the due diligence requirement, is fully applicable here. The state
is permitted to put down armed opposition groups ¬ghting against it
and to use the force necessary to that end. Hence, the application of the
77 1993 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, above, Chapter 2, n. 102, para. 709.
78 Above, n. 10, paras. 80 and 81; The Court explicitly extended Turkey™s obligations to
the risks to civilian lives from the ¬repower of the PKK, ibid., para. 79.
state accountability for armed opposition groups 191

duty to take action against armed opposition groups must be balanced
against military necessity.
The application of the due diligence rule means that the state will not
actually have to act against attacks by armed opposition groups in each
and every case; nor will the state have to be successful in its attempts to
stop or decrease the injurious effects of attacks of armed opposition
groups. Accordingly, in Mrs W. v. United Kingdom, the European Commis-
sion considered that, while Article 2 of the European Convention may
give rise to positive obligations ˜that, however, does not mean that a posi-
tive obligation to exclude any possible violence could be deduced from
this Article™.79 The relevant part of the application concerned a complaint
about the lack of protection offered to the applicant™s brother, who was
murdered in Northern Ireland by the IRA, and her family™s future pro-
tection. With regard to the question of what effort the United Kingdom
had to make to act in compliance with its positive obligations under
Article 2 of the European Convention, the Commission considered:

It cannot ¬nd that the United Kingdom was required under the Convention to
protect the applicant™s brother by measures going beyond those actually taken
by the authorities in order to shield life and limb of the inhabitants of Northern
Ireland against attacks from terrorists. Nor can it ¬nd that the applicant can
under Art. 2 require such further measures as regards her own protection. In this
connection the Commission notes . . . that, while the peace-time army strength
in Northern Ireland was 4,000 men, it currently stands at about 10,500 and
that, between August 1969 and December 1981, several hundred members of
the armed and security forces lost their lives there combating terrorism.80

Thus, the increase of armed forces and the number of deaths among
these forces added to the Commission™s decision that the United
Kingdom had not violated its positive duties to protect the applicant™s
right to life.81
While this case shows that the degree of diligence that the state must
observe depends largely on the particular circumstances of each speci¬c
situation, two general factors relevant to the due diligence requirement
emerge from the practice of international bodies. Those are the availabil-
ity of means and the foreseeability of harm.

79 80 Ibid., paras. 15“16.
Appl. 9348/81, 32 DR 190, para. 12 (1983).
81 According to J. A. Frowein, The Legal Aspects of International Terrorism (Martinus Nijhoff,
Dordrecht, 1988), p. 87, this decision ˜seems to assume a certain right to be protected
against terrorism can indeed be seen as forming part of the Convention guarantees.
This is not astonishing since Article 2(1) states expressly: “everyone™s right to life
shall be protected by law.”™
192 the accountability gap

The administrative means or resources that are at the state™s disposal
determine the due diligence obligation of the state to take action against
armed opposition groups. The possession of adequate resources is a mat-
ter of fact not regulated by human rights treaties. Accordingly, in their
Joint Report on Colombia of 1995, the Special Rapporteur on Extrajudi-
cial, Summary or Arbitrary Executions and the Special Rapporteur on
Torture took note of the de¬ciencies of the Colombian State appara-
tus; however, they refrained from formulating any obligation in this
respect.82
The second factor relevant to the required degree of diligence is the
foreseeability of harm as a result of attacks by armed opposition groups.
The Inter-American Commission referred to this factor in its Second
Report on the Situation of Human Rights in Colombia:

Apart from the responsibility that the State bears for actions committed directly
by its agents, there is also the State™s international responsibility for the actions
of irregular armed groups, although there is no single criterion to establish the
type and degree of that State responsibility. Here again it is objective responsi-
bility vis-` -vis the terrorist phenomenon. This responsibility is in respect of all
a
its inhabitants, whether national or foreign, under the laws and jurisprudence
governing aggravating circumstances such as improvidence, negligence, crimi-
nal complicity, impunity, etc., and by the mitigating circumstances of “necessary
diligence”, unforeseeability, the surprise factor, a lack of proportion that could not
have been anticipated.83

This statement is somewhat ambiguous. For example, it is unclear what
˜objective responsibility™ of the state regarding terrorism means. What is
important for present purposes, however, is that the Commission has in-
dicated that the duty of the state to respond to acts of armed opposition
groups may be mitigated by the unforeseeability of these acts or by what
the Commission termed ˜the surprise factor™. Similarly, in Ergi v. Turkey,
the European Court, considering whether Turkey had taken adequate
precautionary measures to avoid or decrease any risk to the lives of the
villagers, including from the ¬re-power of the PKK, took into account
the extent to which cross-¬ring was predictable:

82 1995 Joint Report of the Special Rapporteur on Question of Torture, and the Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above, Chapter 1, n. 8,
para. 51. The situation of internal con¬‚ict may differ on this point from that of a time
of normality. In the latter situation the state may be obliged to have a functioning
administrative state apparatus, see R. Pisillo-Mazzeschi, ˜The Due Diligence Rule and
the Nature of International Responsibility of States™ (1992) 35 GYIL 9, 26“7.
83 Second Report on Colombia, above, Chapter 1, n. 110, at 217 (emphasis added).
state accountability for armed opposition groups 193

The gendarme of¬cers™ testimonies to the Commission had suggested that the
ambush was organized in the north-west of the village without the distance
between the village and the ambush being known. It was to be anticipated that
PKK terrorists could have approached the village either following the path from
the north or proceeding down the river bed to the north-east and in the latter
event, they would have been able to penetrate to the edge of the village without
being seen by the security forces to the north-west. The Commission found on
the evidence that security forces had been present in the south . . . In these cir-
cumstances, the villagers had been placed at considerable risk of being caught in
cross-¬re between security forces and any PKK terrorists who had approached
from the north or north-east. Even if it might be assumed that the security forces
would have responded with due care for the civilian population in returning ¬re
against terrorists caught in the approaches to the village, it could not be assumed
that the terrorists would have responded with such restraint.84

In Yasa v. Turkey, the European Commission of Human Rights suggested
that if the applicant had made a speci¬c request to the state authorities
for protection or brought to their attention his fear of attack, Turkey
would have been obliged to go beyond the general measures of deploy-
ment of security forces. In that case the Turkish Government would have
been aware of the threats against the life of the applicant and his uncle,
and therefore under a speci¬c duty to protect them. In Kilic v. Turkey,85
the European Court developed a more speci¬c standard to determine
the enforcement measures the state must take to prevent certain risks
from materializing. The Court found that:
for a positive obligation to arise, it must be established that the authorities
knew or ought to have known at the time of the existence of a real and immediate
risk to the life of an identi¬ed individual or individuals from the criminal acts
of a third party and that they failed to take measures within the scope of their
powers which, judged reasonably, might have been expected to avoid that risk.86

Although this standard could equally be applied to risks created by
armed groups, in this case the third party was believed to be contra-
guerrilla groups or terrorist groups acting with the acquiescence and
84 Above, n. 10, para. 80 (emphasis added); see also Yasa v. Turkey, Application 22495/93,
Report of the Commission, para. 98 (8 April 1997), 88 Reports (1998“VI). In the latter
case the applicant alleged that he was seriously injured and that his uncle was killed
in attacks by state agents as part of a campaign against persons involved in the
distribution of certain newspapers. The Turkish government refuted the applicant™s
claim, stating that an armed con¬‚ict was taking place between armed organizations
or internal con¬‚icts within organizations in Southern-Eastern Anatolia, thereby
indirectly blaming the PKK for the attacks.
85 Judgment of 28 March 2000.
86 Para. 63 (emphasis added). See also Akkoc v. Turkey, Judgment of 10 October 2000,
para. 78.
194 the accountability gap

possible assistance of members of the Turkish security forces. For this
reason, I will not consider this standard further.
The frequency of the attacks by armed opposition groups is closely
related to foreseeability, and is therefore also relevant in determining
whether in a particular case the state was obliged to act. Although, in
principle, a single attack could result in liability for failure to protect
civilians,87 this is different when the state could possibly not have fore-
seen the act concerned. If, however, the state systematically and perva-
sively fails to make reasonable efforts to prevent or respond to a pattern
of abuses by armed opposition groups, it will demonstrate a lack of due
diligence to protect civilians.88
This practice points out that human rights law is reasonably capable
of solving questions arising speci¬cally out of the context of internal
con¬‚icts. For example, this law, as applied by international bodies, has
given, through the concept of due diligence, effect to the principle of
military necessity, which is a humanitarian law principle. Another exam-
ple of the suitability of human rights law to the special circumstances
of an internal armed con¬‚ict is the European Court™s decision in Ergi v.
Turkey, which shows that, although human rights treaties do not expli-
citly provide rules on the conduct of military operations, they may have
an impact on such conduct. 89
International bodies have rarely speci¬ed what kind of action is ac-
tually expected from the national police or armed forces. Instead, they

87 1994 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, above, n. 30, para. 399 (stating with regard to the state™s obligation to
prevent human rights violations, in particular those affecting the physical integrity
of the victim, ˜a single act is suf¬cient for a State party to be obliged to undertake
these measures™).
88 Amnesty International, ˜Draft Note on the Standards of Complicity, Acquiescence
and Lack of Due Diligence™ (unpublished, on ¬le with author).
89 In this case, the European Court interpreted the obligation to ensure respect for
the right to life as requiring the state to take precautions in the planning and
conducting of military operations to reduce the effects of the attacks by the armed
opposition group. A comparable rule has been laid down in international
humanitarian law, e.g. Article 58 of Additional Protocol I (providing: ˜The Parties to
the con¬‚ict shall, to the maximum extent feasible: (a) . . . endeavor to remove the
civilian population, individual civilians and civilian objects under their control from
the vicinity of military objectives; (b) avoid locating military objectives within or near
densely populated areas; (c) take the other necessary precautions to protect the
civilian population, individual civilians and civilian objects under their control
against the dangers resulting from military operations™). See F. Hampson, referred to
in L. Zegveld, H. van Sambeek, ˜Law and Con¬‚icts in Our Times “ The Meaning of
International Humanitarian Law in Internal Armed Con¬‚icts™ (1998) 1 HV 70“1.
state accountability for armed opposition groups 195

leave the state a wide margin of appreciation in the choice of measures
and means adopted to ful¬l its obligation.90 In Mrs W. v. United Kingdom,
the European Commission pointed out that ˜the Commission does not
¬nd that it can be its task, in its examination of the present applicant™s
complaint under Article 2, to consider in detail . . . the appropriateness and
ef¬ciency of the measures taken by the United Kingdom to combat terro-
rism in Northern Ireland™.91 In the same way, in its Second Report on
Colombia of 1993, the Inter-American Commission, pursuant to death
threats being made by Colombian armed opposition groups against the
president of the National Committee of Victims of the Guerrilla War, re-
quested Colombia to take measures to protect the life and safety of the
president; however, it left open which measures the state had to take.92
An exception is provided by the Human Rights Committee, which
pointed out the speci¬c actions the Lebanese armed forces were required
to take in response to armed opposition groups active in the Lebanese
civil war:

The task before the Committee was to assess what the Lebanese Government
had done effectively to establish a national police force and army, to disarm
private groups whose rivalry had led to bloodshed and to ensure human rights
for all those residing under its authority . . . Information was also requested as
to whether the police force was able effectively to prevent arrests of people by
private groups; whether there were ˜private™ detention camps, how many people
were held there and whether there had been any progress in that respect.93

The Committee thus speci¬cally indicated the tasks that were to be
carried out by the Lebanese police and armed forces, namely disarma-
ment of armed opposition groups and prevention of arrests of persons
by these groups. Nevertheless, this exception cannot affect the conclu-
sion that generally the state is left a large margin of appreciation in
its choice of actions it undertakes to physically protect civilians from
armed opposition groups.
Of course, the margin of appreciation is limited by the requirement
that, in discharging its duty to provide physical protection from armed
opposition groups, the state™s choice of means and methods not be

90 ¨
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 have a wide discretion in the choice of
the means to be used™); see also C. Tomuschat, ˜What is a Breach™, above, n. 5, p. 323.
91 92 Above, Chapter 1, n. 110, at 223.
Above, n. 79, para. 14 (emphasis added).
93 Yearbook of the Human Rights Committee 1983“84, Vol. II, CCPR/4/Add.1, at 468, para. 339,
and at 470, para. 348 (remarks by Tomuschat).
196 the accountability gap

contrary to international law.94 A dif¬cult case in this regard concerns
the state™s right to arm civilians to enable them to protect themselves
against armed opposition groups. Such a case occurred in Sri Lanka. In
response to the massacres committed by the LTTE against the Singalese
Muslim community in the north and east of the country, the government
of Sri Lanka authorized civilians to carry weapons. Sri Lanka argued that
this measure was justi¬ed by the government™s inability to guarantee
the civilians™ safety. During the examination of the third periodic report
of Sri Lanka, Bhagwati, a member of the Human Rights Committee,
disapproved of the measures taken by Sri Lanka, expressing his fear
that it may promote more violence.95 Similar armed civilian defence
groups exist in Colombia, known as CONVIVIR. The Inter-American
Commission has expressed its concern about these groups. First, because
they have acted contrary to human rights and international humani-
tarian law. Second, because, while formally CONVIVIR was created for
the purpose of self-defence, it actually cooperates with the Colombian
military forces; the Commission noted that members of CONVIVIR
must therefore be considered to be state agents. Third, because the
groups blur the distinction between those involved in combat and
civilians, and thereby impair the protection of the latter.96 There is,
however, no practice stating a general prohibition of armed civilian
groups.
In sum, under particular circumstances, the state is obliged to take
action against attacks by armed opposition groups, including precau-
tionary measures. The obligation to take action is, however, one of due
diligence, the content being determined by the speci¬c circumstances of
the case. Furthermore, international bodies have rarely indicated which
measures the state is required to take to be in compliance with its duty
to physically protect civilians from armed opposition groups; the state
is left a large margin of appreciation in this respect.


Prosecution
Some commentators have asserted that states commonly prosecute mem-
bers of armed opposition groups who have perpetrated human rights,
humanitarian law, or criminal law abuses, unless the governments are
94 ´
See Velasquez Rodr´guez case, above, n. 7, para. 154.
±
95 Human Rights Committee, CCPR/C/SR. 1436, 54th Sess. (28 June 1995); ibid., para. 36
(Lallah).
96 Third Report on Colombia, above, Chapter 1, n. 8, at 150“5, paras. 316“39.
state accountability for armed opposition groups 197

implicated.97 This statement is too general to be valid. Different factors
appear to hamper prosecution. For example, the state may choose to
prosecute members of armed groups for treason against the state, rather
than for violations of humanitarian or human rights laws. In addi-
tion, there have been examples in which the state, after the con¬‚ict,
granted members of armed opposition groups immunity from prose-
cution through an amnesty law. Also factual circumstances may con-
tribute to impunity. Often states torn by internal armed con¬‚ict have
questionable judicial structures. For instance, in the Rwandan con-
¬‚ict the majority of the judges and lawyers were killed. As a result,
judicial chaos prevailed.98 Other factual circumstances impeding prose-
cution and punishment of members of armed opposition groups are
threats against the judicial branch and witnesses, a high number of
crimes, and the lack of cooperation by victims and witnesses.
The principal purpose of criminal law treaties is to prevent and re-
press the relevant crime by ensuring its punishment. The Genocide
Convention contains an explicit obligation for the territorial state to
punish genocide committed by members of armed opposition groups.99
Similar obligations can be found in a number of speci¬c humanitar-
ian law treaties. The Mines Protocol requires States Parties to prevent
and suppress violations, including through penal sanctions, ˜by per-
sons or on territory under its jurisdiction or control™.100 This obliga-
tion covers violations by armed opposition groups operating in the
state territory. The Ottawa Mines Convention prescribes that states
shall take all appropriate legal, administrative and other measures, in-
cluding penal sanctions, at the national level to prevent and suppress
any prohibited activity.101 The Cultural Property Convention of 1954
obliges the state to prosecute and impose penal or disciplinary sanc-
tions upon persons who commit or order to be committed a breach of
this Convention.102 This obligation also applies to breaches committed
by members of armed opposition groups. Finally, the Second Protocol
on Cultural Property obliges States Parties to criminalize serious viola-
tions of the Protocol under their domestic law and to establish juris-
diction over such violations when committed in their territory.103 This

97 J. C. O™Brien, ˜The International Tribunal for Violations of International Humanitarian
Law in the Former Yugoslavia™, above, Chapter 3, n. 26, at 648“9.
98 C. Ciss´ , ˜The End of a Culture of Impunity in Rwanda?™ (1998) 1 YIHL 161, 175.
e
99 100 Article 14(1) and (2).
Articles I, VI.
101 102 Article 28.
Article 9. See S. Maslen, P. Herby, ˜Ottawa Treaty™, above, n. 74.
103 Article 15 juncto Article 16(1)(a).
198 the accountability gap

obligation also applies to violations by members of armed opposition
groups.
In contrast to these speci¬c humanitarian treaties just identi¬ed,
neither Common Article 3 nor Protocol II obliges the state to investi-
gate, prosecute and punish acts by armed opposition groups committed
on their territory in internal armed con¬‚ict. Also human rights
treaties “ the International Covenant and the European and American
Conventions “ do not explicitly require the state to investigate, prose-
cute, and punish acts which are prohibited for the state.104 Notwith-
standing these instruments™ silence on prosecution and punishment,
international bodies have interpreted humanitarian law and human
rights treaties as imposing on the state an obligation to bring to trial
members of armed opposition groups responsible for violence to life.
International bodies have based this duty to prosecute under human
rights treaties on the general obligation to ensure respect for the right
to life contained in these treaties.105 In Yasa v. Turkey, the European Court
of Human Rights considered the alleged inadequacy of the criminal in-
vestigations by Turkey of the armed assault on the applicant, which was,
according to the Government, carried out by armed organizations such
as the PKK:

The Court recalls that the obligation to protect the right to life under Article 2 of
the Convention, read in conjunction with the State™s general duty under Article 1
of the Convention to ˜secure to everyone within [its] jurisdiction the rights and

104 The International Covenant and American Convention require States Parties to adopt
legislation or other measures necessary to give effect to the rights and freedoms
recognized in the treaties (Article 2(1) and Article 2, respectively); in addition, these
treaties as well as the European Convention require states to ensure that individuals
whose rights are violated have an effective remedy before a competent body
(International Covenant, Article 2(3); American Convention, Article 25; European
Convention, Article 13).
105 See Human Rights Committee, General Comment 6/16, para. 3 (1982) above, n. 46
(observing that States Parties should take measures to punish deprivation of life by
criminal acts); see also Human Rights Committee, General Comment 20/44, para. 8
(1992) above, n. 61; Declaration on the Protection of all Persons from Enforced
Disappearance, UN General Assembly Res. 47/133, Article 14 (18 December 1992);
´
Inter-American Court of Human Rights, Velasquez Rodr´guez case, above, n. 7, para. 166
±
(holding, in respect of Honduras, that Article 1(1) of the American Convention,
requiring states to ensure the rights set forth in the Convention, obliges states to
˜investigate and punish any violation of the rights recognized by the Convention™);
see generally D. F. Orentlicher, ˜Settling Accounts: The Duty to Prosecute Human
Rights Violations of a Prior Regime™ (1991) 100 Yale L J 2537, 2568“82 (discussing the
duty to prosecute and punish under the International Covenant, the European
Convention and the American Convention) (hereafter, ˜The Duty to Prosecute™).
state accountability for armed opposition groups 199

freedoms de¬ned in [the] Convention™, requires by implication that there should be
some form of effective of¬cial investigation when individuals have been killed as a result
of the use of force . . . In the instant case, the Government maintained that there
was no evidence that State agents had been implicated in the commission of the
alleged acts . . . In that connection, the Court emphasizes that, contrary to what
is asserted by the Government, the obligation is not con¬ned to cases where it
has been established that the killing was caused by an agent of the State.106

Similarly, the Human Rights Committee observed that Algeria was
obliged to ensure that the members of the FIS and GIA and other
Islamic groups who commit human rights abuses do not enjoy impunity.
The Committee urged Algeria to adopt effective measures ˜to ensure
that proper investigations are conducted by an independent body to
determine who the offenders are and to bring them to justice™.107 The
Inter-American Commission also accepted the obligation of the state to
punish violations of the right to life by private groups.108
Although neither Common Article 3 nor Protocol II explicitly obliges
the state to prosecute and punish violators, there is some evidence that
international bodies are gradually accepting such an obligation to be
part of international humanitarian law applicable in internal con¬‚icts.
With regard to the Chechnyan con¬‚ict in the Russian Federation, the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
expressed his concern about the impunity enjoyed for violations of inter-
national humanitarian law, and appealed to the Russian Government to
106 Judgment of 2 September 1998, 88 Reports (1998“VI) at 2411, paras. 98“100
(emphasis added); see also European Court of Human Rights, Ergi v. Turkey, above,
n. 10, para. 82; European Commission of Human Rights, Mrs W. v. United Kingdom,
above, n. 79 (˜The obligation to protect the right to life is not limited for the High
Contracting Parties to the duty to prosecute those who put life in danger but
implies positive preventive measures appropriate to the general situation™).
107 Concluding Observations on Algeria 1998, above, n. 12, para. 6; see also Human Rights
Committee, CCPR/C/79/Add.56, paras. 4“5 (Concluding Observations on Sri Lanka, 3
October 1995); Yearbook of the Human Rights Committee 1983“84, Vol II, 468, para. 339
(Lebanon); see also Y. Dinstein, ˜The Right to Life™, above, n. 46, p. 119 (˜it may be
argued that states [parties to the Covenant] must at least exercise due diligence to
prevent intentional deprivation of the life of one individual by another, as well as to
apprehend murderers and to prosecute them in order to deter future takings of life™).
108 Annual Report of the Inter-American Commission on Human Rights 1980“1, in Ten
Years of Activities 1971“1981, above, n. 14, 331; see also UN Commission on Human
Rights, Res. 1993/71 para. 12 (10 March 1993) (reiterating ˜the obligation of all
Governments to see to it that all alleged violations of the right to life are properly
investigated, including all suspected cases of extrajudicial, arbitrary and summary
executions, with a view to bringing to justice those responsible for violations of the
right to life, bearing in mind the norms and principles contained in the pertinent
international instruments™).
200 the accountability gap

ensure that the perpetrators were prosecuted.109 In addition, the Final
Declaration and Programme of Action of the 1993 World Conference on
Human Rights reaf¬rmed that states must prosecute grave violations of
international humanitarian law applicable in internal con¬‚icts, such as
torture.110 The reference in Article 1 of the Rome Statute of 1998 to the
complementarity of prosecutions by the International Criminal Court
with national prosecutions also indicates, by implication, that there is
a role to be played by national courts.111 This provision is reinforced
by the Preamble of this Statute af¬rming that ˜the most serious crimes
of concern to the international community as a whole must not go un-
punished and that their effective prosecution must be ensured by taking
measures at the national level™.112 The 1996 International Law Commis-
sion™s Draft Code of Crimes against the Peace and Security of Mankind
requires states to try or extradite those alleged to have committed vio-
lations of Common Article 3 and Article 4 of Protocol II.113 The Statutes
and the case-law of the Yugoslavia and Rwanda Tribunals do not obligate
states to prosecute individuals for the crimes recognized therein.114

109 1996 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, above, Chapter 1, n. 139, para. 418.
110 UN Doc. A/Conf.157/23, reprinted in 32 ILM 166, paras. 56, 60 (1993).
111 See 1998 Report of the Secretary-General on Fundamental Standards of Humanity,
above, Chapter 1, n. 135, para. 6.
112 See M. H. Arsanjani, ˜Rome Statute™, above, Chapter 3, n. 13, at 24“5 (discussing the
complementarity between national courts and the International Criminal Court).
An argument for the state™s obligation to prosecute humanitarian law violations
committed by armed opposition groups may also be found in the 1949 Geneva
Conventions which stipulate that States Parties shall suppress acts contrary to
the Conventions other than grave breaches (e.g., Article 146, para. 3, Fourth Geneva
Convention), which must be understood as referring to the punishment of such
breaches through national legislation. Arguably, this obligation also applies to
violations of Common Article 3, see Commentary 4th Convention, above, Chapter 1, n. 9,
p. 594 (stating that states must ˜at least insert in their legislation a general clause
providing for the punishment of other [than grave] breaches™); see also Turku
Declaration above, Chapter 1, n. 141, Art. 19 (applicable in internal armed con¬‚icts
and referring to an obligation of the state to prosecute and punish violations of
international humanitarian law. This obligation also applies to violations committed
by members of armed opposition groups); see also J. D. Dugard, ˜Dealing with Crimes
of a Past Regime “ Is Amnesty Still an Option?™ ( The Third Manfred Lachs Memorial
Lecture, 13 April 1999) p. 4 (on ¬le with author) (hereafter, ˜Amnesty™); but see R. van
Elst, ˜De Zaak Darco Knezevic: Rechtsmacht over Joegoslavische en Andere
Buitenlandse Oorlogsmisdadigers™ (1998) 35 NJB 1587, 1589 (stating that the state is
free in its choice of measures to suppress other than grave breaches).
113 Above, Chapter 3, n. 8, Article 9.
114 See T. Meron, ˜Internal Atrocities™, above, Chapter 3, n. 8, at 555 (pointing out that
the activities of these tribunals ˜have the bene¬cial effect of spurring prosecutions
state accountability for armed opposition groups 201

Having demonstrated that states are generally obliged to prosecute
acts of armed opposition groups prohibited for the state under human
rights and humanitarian law treaties, the question remains: What ex-
actly does a state have to do to be in compliance with this duty? It must
¬rst be noted that in order to be able to carry out criminal prosecutions,
the state needs an apparatus for the investigatory and prosecution pro-
cess. Practice shows that the possession of an enforcement apparatus
is not, as such, a legal obligation under human rights or international
humanitarian law; rather, it is a prerequisite for a state to be able to
ful¬l its obligations.
In cases where a functioning state justice system is absent, interna-
tional bodies have stimulated states to set up separate bodies as an
alternative for the regular state enforcement mechanisms. Amos Wako,
a member of the Human Rights Committee, supported a proposal by
El Salvador to set up an independent body for investigating political
killings on both sides of the con¬‚ict.115 Similarly, the Special Rappor-
teur on Extrajudicial, Summary or Arbitrary Executions proposed:

In the absence of a functioning civilian justice system, or in cases which warrant
particular treatment because of their special nature or gravity, Governments
may envisage establishing special commissions of inquiry. They must ful¬l the
same requirements of independence, impartiality and competence as judges in
ordinary courts. The results of their investigations should be made public, and
their recommendations should be binding for the authorities.116

Practice does not provide evidence for the argument that the establish-
ment of such alternative mechanisms amounts to a legal obligation on
the part of the state.
Provided that the state has an enforcement apparatus, it must exer-
cise due diligence to act in compliance with its obligation to prosecute.

before national courts for serious violations of humanitarian law™); ibid., 570
(arguing in favour of the obligation of the state under international humanitarian
law applicable in internal armed con¬‚ict to investigate, prosecute and punish
violations of these norms: ˜As regards the national state of the perpetrators of
nongrave breaches, its obligations go further. Given the purposes and objects of the
Geneva Conventions and the normative content of their provisions, any state that
does not have the necessary laws in place, or is otherwise unwilling to prosecute
and punish violators of clauses other than the grave breaches provisions that are
signi¬cant and have a clear penal character, calls into serious question its good faith
compliance with its treaty obligations™).
115 Human Rights Committee, CCPR/C/SR. 716, 29th Sess., para. 33 (8 April 1987).
116 1993 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, above, Chapter 2, n. 102, para. 695.
202 the accountability gap

International practice pertaining to the failure to try the culprits and
to execute the sentence rarely contains an express reference to the due
diligence rule. Nevertheless, there is some practice showing that the due
diligence rule may also be relevant here. The Special Representative for
El Salvador observed that during the armed con¬‚ict in El Salvador, trials
of alleged injurious acts of the FMLN were hampered by fear. He observed
that ˜no one had been tried and sentenced for political crimes because
no judge dared to try anyone, whether from the right wing, the left
wing [= FMLN] or the center, since he knew that if he did so he would
be murdered™.117 The Special Representative refrained from suggesting
that the failure to try and punish the crimes automatically entailed a vio-
lation of an international obligation by El Salvador. Factors, such as the
high number of crimes and lack of cooperation by the victims and wit-
nesses may also determine the actual trials and convictions carried out
by the state; they may be accepted as mitigating the state™s obligation
to punish members of armed opposition groups.
At ¬rst sight, practice does not seem to make a distinction between
the various acts involved in the process of bringing a charge against a
member of an armed opposition group for a crime. International bodies
often speak in a general way of the duty of the state ˜to apprehend
and punish™ those responsible for harm to civilians. However, a more
careful analysis shows a difference between the various aspects of this
obligation. It appears that, particularly with regard to the obligation to
investigate, the due diligence rule comes into play. The point is that
the realization of the obligation to investigate is uncertain and presup-
poses, besides a government exercising a degree of territorial control,
the favourable play of certain risk factors.118 The realization of trial and
punishment of offenders, on the contrary, does not generally depend on
uncertain factors.
117 UN Commission on Human Rights, E/CN.4/1502, para. 110 (Final Report on the
Situation of Human Rights in El Salvador of J. A. Pastor Ridruejo, 18 January 1982).
118 1995 Joint Report of the Special Rapporteur on Question of Torture, and the Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above, Chapter 1,
n. 8, para. 82 (˜Although impunity affects the entire judicial branch, the greatest
problems occur during the investigatory phase, which is the responsibility of
the Fiscal´a General de la Naci´ n. Because of the high number of crimes committed
o
±
in the country, its task is particularly dif¬cult. In many parts of the national
territory, the victims themselves or witnesses prefer to remain silent for fear of
reprisals or react to the violations by moving to another region, thus making the
investigator™s task considerably more dif¬cult™); 1985 Final Report of the Special
Representative on El Salvador, above Chapter 1, n. 8, para. 177; R. Jennings, A. Watts,
Oppenheim, above, Chapter 1, n. 59, p. 551.
state accountability for armed opposition groups 203

Accordingly, in Yasa v. Turkey the European Commission noted that the
due diligence rule does not require a state to be successful in the ful¬l-
ment of the obligation to investigate and prosecute.119 Rather the due
diligence rule requires that the state start an investigation and ensure
that the investigation undertaken be effective. Factors that play a role in
deciding whether an investigation is effective are, inter alia, the length
of time taken for the investigations viewed against the background of
an internal armed con¬‚ict. The Court concluded that the investigation
carried out by Turkey in this case had not been effective, because it had
lasted ¬ve years without any progress having been made:
The Government provided no concrete information on the state of progress of
the investigations . . . which, more than ¬ve years after the events, do not appear
to have produced any tangible result. Admittedly, the Government said that the
investigations were still pending, but they did not provide anything to show that
they were actually progressing . . . In that regard, the last investigative step of
which the Court is aware dates back to 21 June 1993, when the expert ballistic re-
port in the investigation into the murder of Hasim Yasa was prepared . . . whereas
the Diyarbakir Public Prosecutor had on 14 April 1993 requested the police to
inform him every three months of progress in the investigation . . . The only ex-
planation given by the Government is that the investigations were taking place
in the context of the ¬ght against terrorism and that in such circumstances the
police and judicial authorities were constrained to ˜proceed with caution and to
wait until the results of the various investigations had been cross-checked, thus
enabling the perpetrators of earlier crimes and acts of violence to be identi-
¬ed™ . . . The Court is prepared to take into account the fact that the prevailing
climate at the time in that region of Turkey, marked by violent action by the
PKK and measures taken in reaction thereto by the authorities, may have im-
peded the search for conclusive evidence in the domestic criminal proceedings.
Nonetheless, circumstances of that nature cannot relieve the authorities of their
obligations under Article 2 to carry out an investigation, as otherwise that would
exacerbate still further the climate of impunity and insecurity in the region and
thus create a vicious circle.120

Apart from the delay in the investigations, another factor was doubt as to
whether a reasonable presumption existed that the actual perpetrators
of the offences were members of the PKK. Turkey took the view that,
since it believed the attacks in question to be carried out by the PKK
or similar terrorist groups, no further investigation on that point was
necessary. By requiring the police to maintain their enquiries and report
about any progress to the prosecution, Turkey maintained that it had
119 Application 22495/93, Report of the Commission, above, n. 84, para. 101.
120 Above, n. 106, paras. 103“4.
204 the accountability gap

satis¬ed its obligations under the European Convention.121 The Court
rejected this approach. However, it appeared to agree with Turkey that
the possibility that the assaults had been committed by the PKK reduced
the degree of diligence required from Turkey regarding the effectiveness
of the investigations. The Court considered:
The Court is struck by the fact that the investigatory authorities appear to have
excluded from the outset the possibility that State agents might have been im-
plicated in the attacks. Thus, the Public Prosecutor at the Diyarbakir National
Security Court considered the incidents in question to have been merely ˜a settl-
ing of scores between armed organizations™. . . , whereas the Government consid-
ered that all responsibility for the attacks lay with ˜terrorists™, even though the
investigations are not over and no concrete evidence capable of con¬rming that
to be a valid hypothesis has been brought to the attention of the Court . . . In the
instant case, it was therefore incumbent on the authorities to have regard, in
their investigations, to the fact that State agents may have been implicated in
the attacks . . . In short, because the investigations carried out in the instant
case did not allow of the possibility that given the circumstances of the case the
security forces might have been implicated in the attacks . . . the investigations
cannot be considered to have been effective as required by Article 2.122

It thus appears that the possibility that the Turkish security forces might
have in fact killed his uncle and injured the applicant had not yet been
ruled out by the Court, which increased the degree of diligence required
from the state in the ful¬lment of the obligation to investigate.123 Using
this same reasoning, the Court, in Kurt v. Turkey, refused to accept a
positive obligation on the part of Turkey to investigate the disappearance
of Kurt™s son carried out by entities other than the state namely the
PKK.124
In sum, international practice shows that the state is obliged to pros-
ecute members of armed opposition groups who have injured civilians.
This obligation is regulated by the due diligence rule.

Amnesty
The implication of the state™s duty to prosecute would be that amnesty
for torture and other atrocities by members of armed opposition groups
is generally prohibited, as a breach of the duty to prosecute and punish.
121 Ibid., para. 105.
122 Ibid., paras. 105“7. See also Kaya v. Turkey, Judgment of 19 February 1998, para. 86.
123 See also Report of the Commission, above, n. 84, para. 107 (stating that Turkey
failed to make any further and more detailed investigation into the attacks on the
applicant and his uncle, which amounted to a failure to protect the right to life);
see also European Court of Human Rights, Ergi v. Turkey, above, n. 10, paras. 83, 85.
124 See above, n. 15, paragraph 9.
state accountability for armed opposition groups 205

It can be used to foreclose prosecutions, and also to cancel sanctions
that have already been imposed.125
States may choose to grant amnesty to members of armed opposition
groups for various reasons. Many amnesties have formed part of transi-
tions to other governments, in which members of the outgoing regime,
the armed and security forces, as well as armed opposition groups, are
protected from prosecution for abuses committed during internal con-
¬‚ict. Amnesties have also been offered to encourage the surrender of
armed opposition groups or their reincorporation in civil society. In the
last case, the state may adopt the amnesty law before the internal armed
con¬‚ict has ended.126
International bodies provide evidence for a rule that amnesty for
human rights and humanitarian law violations by members of armed
opposition groups is in principle forbidden. For example, in Prosecutor
v. Furundˇ ija, the Yugoslavia Tribunal held that amnesties for torture,
z
including torture by armed opposition groups in violation of Common
Article 3, will not receive international legal recognition.127 Similarly,
the Inter-American Commission strongly objected to the impunity that
resulted from the Amnesty Law of 20 March 1993 adopted by the
Salvadorian Government, which granted a general and absolute amnesty
to all persons ˜who participated in any way in the commission, prior
to January 1, 1992, of political crimes or common crimes linked to
political crimes or common crimes in which the number of persons
involved is no less than twenty™.128 The crimes committed by FMLN
fell under the amnesty regulation.129 The Inter-American Commission

125 The term ˜amnesty™ usually refers to an of¬cial law barring criminal prosecutions
and is often distinguished from pardons. Pardons generally refer to executive actions
mitigating or setting aside punishment for a crime. However, the legal distinction
between amnesty and pardon is imprecise; pardons can be used to block prosecutions
and amnesties occasionally apply to persons in prison, D.F. Orentlicher, ˜The Duty to
Prosecute™, above, n. 105, at 2543, n. 14; L. Huyse, ˜To Punish or to Pardon: A Devil™s
Choice™, n. 2 (paper presented at international conference on ˜Reining in Impunity for
International Crimes and Serious Violations of Fundamental Human Rights™, Siracusa,
16“21 September 1997) p. 2 (on ¬le with author). For present purposes, no principal
distinction will be made between the state™s duty to investigate, prosecute or punish.
126 US Delegation Draft (Rev), State Practice Regarding Amnesties and Pardons (ICC PrepCom,
August 1997) p. 1 (on ¬le with author).
127 Furundzjia case, above, Chapter 3, n. 7, paras. 151“7.
128 Article 1 of Decree 486, ˜General Amnesty Law for the Consolidation of the Peace™,
reprinted in Inter-American Commission on Human Rights, Report on the Situation
of Human Rights in El Salvador, OEA/Ser.L/V/II.85, Doc.28, rev., at 69“70 (1994).
129 Ibid., 70“1 (stating that this provision applied to ˜individuals who, according to the
Report of the Truth Commission, participated in acts of violence committed after
January 1, 1980™).
206 the accountability gap

disapproved of this law, pointing out that El Salvador had ˜a legal
duty . . . to use the means at its disposal to carry out a serious investi-
gation of violations committed within its jurisdiction, to identify those
responsible, to impose the appropriate punishment™.130 Support for the
conclusion that amnesty for human rights and humanitarian law viola-
tions by armed opposition groups are in principle forbidden can also
be found in a general comment of the Human Rights Committee,
adopted in 1992. The Committee states therein that amnesties cove-
ring torture committed by people acting in a private capacity are
˜generally incompatible with the duty of States to investigate such
acts™.131
While this practice suggests that, in principle, immunity is prohibited
under international law,132 there are indications that this prohibition is
not absolute. Article 6(5) of Protocol II actually encourages states to give
amnesties. It provides: ˜At the end of hostilities, the authorities in power
shall endeavor to grant the broadest possible amnesty to persons who
have participated in the armed con¬‚ict, or those deprived of their liberty
for reasons related to the armed con¬‚ict, whether they are interned or
detained.™ The idea behind this article is that amnesty laws provide an
effective basis for the release of prisoners and return of refugees.133
The International Committee of the Red Cross has contended that
Article 6(5) cannot be interpreted as supporting impunity for viola-
tions of international humanitarian law.134 This interpretation is sup-
ported by the agreement concluded in 1998 between the United States
and Yugoslavia on Kosovo, which determined that no person would

130 Ibid., 71; see also Inter-American Commission on Human Rights, Third Report on
Colombia, above Chapter 1, n. 8, at 158 para. 347.
131 General Comment 20/44, paras. 2, 15 (1992), above n. 61; see also Declaration on
Enforced Disappearances, above, n. 105, Article 18; UN Commission on Human
Rights, Res. 1994/39, para. 6 (4 March 1994); 1993 Report of the Special Rapporteur
on Extrajudicial, Summary or Arbitrary Executions, above, Chapter 2, n. 102,
paras. 285, 691.
132 Brownlie has asserted that in particular circumstances the granting of amnesty to
armed opposition groups constitutes an acceptance of responsibility for their acts on
the basis of a rati¬cation of these acts, I. Brownlie, State Responsibility, above, n. 50,
pp. 176“7.
133 UN Commission on Human Rights, E/CN.4/Sub.2/1985/16, paras. 16, 18 (Special
Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection
of Minorities, L. Joinet, Study on Amnesty Laws and their Role in the Safeguard
and Promotion of Human Rights, 21 June 1985) (hereafter, Study on Amnesty Laws).
See on amnesty, in particular Art. 6 (5), also Chapter 1, Section 2.
134 See Inter-American Commission on Human Rights, Third Report on Colombia,
above, Chapter 1, n. 8 at 157, para. 345 (1999).
state accountability for armed opposition groups 207

be criminally prosecuted for acts related to the con¬‚ict in Kosovo, except
international crimes.135
The United Nations appear to adopt a similar approach. While in the
past, some of the amnesties for persons who committed torture and
other atrocities have been supported by the United Nations as a means
of restoring peace, the organization is currently moving towards a pro-
hibition against amnesties for international crimes. For example, the
United Nations signed the peace agreement between the warring sides
in Sierra Leone™s eight-year civil war, in July 1999, but it entered a reserva-
tion to the effect that, for the United Nations, the amnesty granted to the
rebels could not cover crimes under international law.136 Perpetrators of
serious violations of Common Article 3 and of some articles of Protocol
II are thus not to bene¬t from amnesties.137
It should be noted that, while there is a trend away from amnesty, a
new institution has developed which questions prosecution as the only
way of dealing with human rights and humanitarian law abuses by
armed opposition groups: truth commissions. It goes beyond the purpose
of this study to examine these institutions.138


The pertinence of territorial control
So far, the obligations that may give rise, under particular circum-
stances, to the state™s accountability for failure to prevent and repress
conduct of armed opposition groups acting in its territory, have been
identi¬ed. Now, the circumstances under which this accountability ex-
ists, shall be examined. In particular, I shall argue that the absence of a
government or lack of effective control of the government over territory
precludes such accountability.
Three factual situations must be distinguished. First, at the low end
of the spectrum, there is the situation in which, despite the occur-
rence of a civil war on the state™s territory, the established authorities
135 Rule 10 of the Agreement, NRC Handelsblad 6 (Rotterdam, 14 October 1998).
136 N. Onishi, ˜Civil War in Sierra Leone™, above, Chapter 1, n. 104; K. Annan, ˜Window
of African Promise Amid Great Suffering™, International Herald Tribune (31 July“
1 August 1999) p. 8 (hereafter, ˜African Promise™). The UN High Commissioner for
Human Rights, Mary Robinson, urged the establishment of a Commission of Inquiry
in Sierra Leone to investigate and assess human rights violations and abuses,
M. Robinson, Meeting the Challenge of Human Rights, text available on www.unhchr.ch
(visited 27 September 1999).
137 See L. Joinet, Study on Amnesty Laws, above, n. 133, para. 62.
138 See on truth commissions and their relationship with amnesty and the duty to
prosecute J. D. Dugard, Amnesty, above, n. 112, p. 4.
208 the accountability gap

continue to exercise a degree of effective control over the entire territory
and population. This situation presently exists for example in Algeria
and Northern Ireland. It existed in Turkey in the beginning of the 1990s.
Secondly, in some internal con¬‚icts the established authorities control
only part of the state territory and population. The armed opposition
may control the territory where the government is absent. This situ-
ation prevails in Colombia, it occurred in the con¬‚ict in El Salvador,
and Lebanon. Finally, there are con¬‚icts where the government has
ceased to exist, or lacks control over any of its territory. This situa-
tion, which may be termed a failed state,139 exists in Somalia and in
Afghanistan. A comparable situation exists when the government lives in
exile.
While the previous sections were concerned with the situation where
the government has certain control over its entire or part of its territory,
this section will focus on the case where the government lacks control
over part of or its entire territory or where it has collapsed or lives in
exile. A government™s ineffectiveness in part or the entire state™s territory
temporarily, it is submitted, relieves the state from its obligations in
the non-controlled areas. The same is true when the government has
collapsed or lives in exile.
Before turning to the relevant practice, it should be emphasized that
the notion of ˜territorial control™ must be used with care. In many
cases, the notion ˜territorial control™ is dif¬cult to apply because cir-
cumstances in internal con¬‚icts change rapidly.140 It often happens that
territorial control changes hands continuously. Also, territorial control
is often not easily de¬nable “ it being a matter of degree. While the
government™s effectiveness in a particular area may be reduced by the
activities of armed opposition groups, it may retain a certain degree of
in¬‚uence. Whenever the government exercises a suf¬cient degree of
effectiveness, it is obliged to prevent and repress acts of armed oppo-
sition groups to the maximum extent feasible. In all the above situ-
ations, the question of accountability of the state will not lie in the
stark alternatives of possibility or impossibility, but will rather be a
matter of degree. This section is concerned with the extreme case in
which the government lacks any control whatsoever over part or all of its
territory.
139 ¨
See generally D. Thurer et al., Der Wegfall Effektiver Staatsgewalt: ˜The Failed State™ (C. F.
¨
Muller Verlag, Heidelberg, 1995) (addressing public international law issues arising
from the breakdown of effective government) (hereafter, Failed State).
140 C. Greenwood, ˜International Humanitarian Law™, above, Chapter 1, n. 66, pp. 229“30.
state accountability for armed opposition groups 209

International obligations generally apply to the entire territory of a
state.141 This principle is based on the presumption that the govern-
ment of the state exercises effective control over its entire territory. As
formulated by the UN Commission on Human Rights Working Group on
Enforced or Involuntary Disappearances: ˜There is no avoiding the fact
that Governments have a responsibility for what happens within their
borders™.142
While territoriality is the predominant principle underlying interna-
tional obligations, in particular circumstances this principle is replaced
by control over territory. Thus, in its Advisory Opinion in Legal Consequences
for States of the Continued Presence of South Africa in Namibia,143 the Interna-
tional Court of Justice considered that international responsibility for
a violation of international obligations in respect of occupied territo-
ries was not based upon sovereignty or legitimate title, but on ˜physical
control™. The Court considered:
The fact that South Africa no longer has any title to administer the Territory
does not release it from its obligations and responsibilities under international
law towards other States in respect of the exercise of its powers in relation to
this Territory. Physical control of a territory, and not sovereignty or legitimacy of title is
the basis of State liability for acts affecting other States.144

This case concerned the state™s control outside its territory, but also inside
its territory factual control over territory and persons may be relevant to
the state™s international accountability. Indeed, as I will argue hereafter,
in internal armed con¬‚icts the effectiveness of the state™s control over its
141 Article 29 of the Vienna Convention on the Law of Treaties (1969), reprinted in
Brownlie BDIL 388 (providing: ˜Unless a different intention appears from the treaty
or is otherwise established, a treaty is binding upon each party in respect of its
entire territory™).
142 UN Commission on Human Rights, E/CN.4/1435, para. 195 (Working Group on
Enforced or Involuntary Disappearances, 26 January 1981); compare Corfu Channel
case (UK v. Albania) ( Judgment of 9 April 1949) (Merits), 1949 ICJ Rep. 4 (˜It is true,
as international practice shows, that a State on whose territory or in whose waters
an act contrary to international law has occurred may be called upon to give
an explanation™).
143 Advisory Opinion of 21 June 1971, 1971 ICJ Rep. 16.
144 Ibid., para. 118 (emphasis added); similarly, in Loizidou v. Turkey, the European Court
found that Turkey™s acts in Northern Cyprus were ˜capable of falling within Turkish
“jurisdiction” within the meaning of Article 1 of the Convention™, and were, in
principle, covered by the European Convention on Human Rights. The Court based its
decision on the fact that Turkey exercised effective control in the northern part of
Cyprus both through its armed forces and through a subordinate local
administration, Judgment of 23 March 1995 (Preliminary Objections), Ser. A 310,
para. 62 (1995).
210 the accountability gap

territory is of decisive importance for the evaluation of its accountability
under human rights, humanitarian and criminal law treaties relating
to acts of armed opposition groups.145
Under general international law there are three possible effects of
the absence of a government or lack of territorial control of the gov-
ernment on the state™s accountability under treaties: (1) temporary
impossibility of the operation of treaties; (2) suspension of treaties;
and (3) force majeure precluding wrongfulness of the state™s violation
of treaties. These possible effects will be examined in each of three
areas: international human rights, humanitarian law and criminal law
treaties.


Human rights treaties
Like most treaties, human rights treaties do not expressly allow for
taking into account the absence or lack of territorial control of the
government when establishing the state™s positive obligations. They im-
plicitly assume the existence of a normal situation in which the gov-
ernment exerts a degree of control in its entire territory and over its
population. Nevertheless, lack of territorial control or the absence of
a government affect the application of human rights treaties and the
accountability of the state under these treaties.


Temporary impossibility of the operation of human rights treaties
International practice shows that, when a government is absent or lacks
effective control in (part of ) its territory, human rights treaties become
temporarily inoperative, removing the state™s positive obligations under
these treaties for the time being.146
Accordingly, Opsahl, a member of the Human Rights Committee,
made the following observation in 1983 on the operation of the Civil and
145 See K. Doehring, ˜Effectiveness™, above, Chapter 4, n. 44, at 43; compare also
L. Wildhaber, ˜Sovereignty and International Law™, in R. St. J. Macdonald, D. M.
Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy,
Doctrine and Theory (Martinus Nijhoff, Dordrecht, 1986) pp. 425, 429 (discussing the
dichotomy between legal and political sovereignty).
146 ¨
See D. Thurer et al., Failed State, above, n. 139, p. 46 (asserting that human rights
protection in failed states can hardly be guaranteed because of lack of an
administrative infrastructure); ICRC, Disintegration of State Structures, above, Chapter 4,
n. 12, p. 8 (observing with regard to ˜states that are in the process of disintegration™
that ˜human rights instruments play only a minor role in such situations since their
implementation depends largely on the existence of effective state structures™).
state accountability for armed opposition groups 211

Political Covenant to Lebanon, where at that time, owing to the civil war,
the established authorities exercised only limited territorial control:

Normally the Committee examined the legal regime applied by a government
in full control of the situation. In some cases it considered the human rights
situation in a State where the government for one reason or another was not
disposed to apply the provisions of the Covenant. But there were also cases in
which the government was materially unable to apply the legislative system
under examination. Lebanon was an example of that situation, since the gov-
ernment exercised full authority only in the Beirut metropolitan area. It had to
be accepted that in such circumstances the Covenant ceased to be a useful instrument and
the Committee was not an effective organ.147

Similarly, in 1989, the UN Commission™s Special Rapporteur on
Afghanistan considered that Afghanistan™s human rights obligations
were limited to the part of the territory under control of its established
authorities: ˜The territorial sovereignty of the Afghan Government is not
fully effective since some provinces of Afghanistan are totally or partly
in the hands of traditional forces. The responsibility for the respect of human
rights is therefore divided . . . Where the Government has control over the
territory, . . . the human rights instruments have to be respected.™148
The temporary impossibility of the operation of human rights treaties
occurs not only when a government lacks control over part of its terri-
tory, but also when the government is absent or in exile. For example, in
1994, the UN Commission™s Special Rapporteur on Afghanistan observed:

Although Afghanistan is a party to various international human rights instru-
ments, . . . as well as to the Geneva Conventions of 12 August 1949, there is still
no administration which could be able to guarantee human rights as enshrined
in the above-mentioned instruments. The adherence of a Government to international
human rights instruments has no practical value in such a situation.149

The absence of a government or territorial control does not automati-
cally terminate human rights obligations or treaties. In its judgment
in the Case Concerning the Gabc´ kovo-Nagymaros Project, the International
±
Court of Justice recognized that, although the operation of a treaty may

147 CCPR/C/SR.444, 19th Sess., para. 12 (Opsahl, 18 July 1983) (emphasis added); ibid.,
para. 27.
148 1989 Report of the Special Rapporteur on Afghanistan, above, Chapter 4, n. 48,
paras. 68“9 (emphasis added).
149 UN Commission on Human Rights, E/CN.4/1994/53, para. 44 (Final Report on the
Situation of Human Rights in Afghanistan by F. Ermacora, 14 February 1994)
(emphasis added); see also 1997 Final Report of the Special Rapporteur on
Afghanistan, above, Chapter 4, n. 60, para. 21.
212 the accountability gap

be temporarily impossible, this does not necessarily imply that the treaty
ceases to exist: ˜The treaty may be ineffective as long as the condition of
necessity continues to exist; it may in fact be dormant, but “ unless
the parties by mutual agreement terminate the treaty “ it continues to
exist. As soon as the state of necessity ceases to exist, the duty to comply
with treaty obligations revives.™150
Thus, in the case of the absence of a government or territorial control,
the human rights treaties continue to exist until the state parties to the
relevant treaty decide otherwise. But the obligations to prevent and re-
press acts committed by armed opposition groups become temporarily
inoperative. As soon as the government has restored its authority over
territory or persons, the state must resume its obligations.
It would seem that the effect of the temporary impossibility of the
operation of human rights treaties only occurs when the state™s further
compliance is not possible, owing to forcible or involuntary loss of con-
trol of territory as a result of enemy military action. When the state
has contributed to the occurrence of loss of territorial control or other-
wise to the ineffectiveness of the government, it would seem that its
obligations under human rights treaties remain fully valid.151
This implies that agreements a state may have concluded with armed
opposition groups on the division of human rights responsibilities, do
not relieve the former from its obligations under human rights treaties.
Accordingly, the Inter-American Commission on Human Rights observed
that the San Jos´ Agreement on Human Rights, concluded between
e
El Salvador and the armed opposition group, Frente Farabundo Marti para
la Liberacion Nacional (FMLN) in 1990, assigning equal human rights obli-
gations to both parties,152 did not affect the obligations of El Salvador
under the American Convention on Human Rights.153
150 Hungary v. Slovakia, 37 ILM 162, 194 (1998) (emphasis added).
151 Compare Article 5 of Amended Protocol II to the Conventional Weapons Convention
(˜A party to a con¬‚ict is relieved from further compliance with the provisions of
sub-paragraphs 2(a) and 2(b) of this Article only if such compliance is not feasible due
to forcible loss of control of the area as a result of enemy military action, including
situations where direct enemy military action makes it impossible to comply™);
Article 31(2) of the ILC Draft Articles on State Responsibility, above, Chapter 4, n. 1
(stating that the state is prevented from invoking force majeure or fortuitous event
when it has contributed to the occurrence of such a situation); Article 62(2)(b) of the
Vienna Convention on the Law of Treaties.
152 Above, Chapter 1, n. 149. The Agreement stipulated norms which were derived from
human rights and humanitarian law treaties to which El Salvador was a party as well
as human rights and humanitarian law declarations and principles adopted by the
United Nations and the Organization of American States, 6th preambular paragraph.
153 Inter-American Commission OEA/ser.L/V/II.85, Doc. 28, rev. at 7 (Report on the
Situation of Human Rights in El Salvador, 11 February 1994).
state accountability for armed opposition groups 213

An even more pertinent example is that of Colombia. In order to
make peace negotiations possible, in November 1998, Colombia de-
cided to clear 40,000 square kilometres of Colombian territory of po-
lice and security forces, including the entire judiciary. It transferred its
authority in these areas to the FARC, a Colombian armed opposition
group.154 In conformity with the observation of the Inter-American
Commission referred to above, it can be said that Colombia remains
fully responsible for the protection of the human rights of the civilian
population in the transferred areas. The reason is that the Colombian
State is not unable to protect, but has chosen to turn over its re-
sponsibilities to this armed opposition group. Andr´ s Pastrana, the
e
President of Colombia, has asserted that if the FARC does not respect
human rights in the transferred areas, the Government will reverse the
transfer and retake its factual authority there. Furthermore, although
the army is gone, he insisted that the Government has more pres-
ence there than ever before.155 If the Government is able to carry
out its assertions, Colombia may be in compliance with human rights
treaties, the transfer of territory to the FARC raising no serious prob-
lems. However, if the state is unable to implement its claims, the con-
clusion is justi¬ed that the unconditional transfer of territory to armed
opposition groups, in the way Colombia did, is not permitted under
international law.
Finally, it must be noted that the effect of temporary impossibility of
the operation of human rights treaties may not occur when, despite the
collapse of the central government, local authorities continue to func-
tion. International obligations of a state rest on all its organs, including
lower authorities such as provinces and municipalities.156 In normal cir-
cumstances, violations of international obligations by local authorities
are attributed to the state, represented by the government “ they are not

154 M. van Royen, ˜Guerrilla Tart Geduld Regering Colombia™, NRC Handelsblad 6
(Rotterdam, 10 November, 1998).
155 K. DeYoung, ˜Colombia™s Quagmire Deepens™, International Herald Tribune (7 July 1999) p. 2;
S. Alonso, ˜In Noord-Ierland gaat het nog veel trager™, NRC Handelsblad 6 (Rotterdam,
26 October 1999) (interview with Andr´ s Pastrana, the President of Colombia).
e
156 Article 5 of the 1996 ILC Draft Articles on State Responsibility, above, Chapter 4, n. 1
provides: ˜For the purposes of the present articles, conduct of any State organ having
that status under internal law of that State shall be considered as an act of the State
under international law, provided that organ was acting in that capacity in the case
in question™. Article 6 of the Draft Articles provides: ˜The conduct of an organ of the
State shall be considered as an act of that State under international law, whether
that organ belongs to the constituent, legislative, executive, judicial or other power,
whether its functions are of an international or an internal character, and whether
it holds a superior or a subordinate position in the organization of the State™.
214 the accountability gap

themselves held accountable. However, when the central government is
weak or absent, it may be opportune to address directly local authori-
ties, holding them accountable for violations of international law. This
was observed by the Special Rapporteur on Afghanistan. He suggested
that, in the case of the absence of a government and to avoid a situ-
ation where no one bears responsibility for human rights protection,
regional administrations must assume responsibility for human rights
violations:

The lack of a central Government poses extreme dif¬culty and complexity in
redressing human rights violations as required by the rules of international
law, especially so far as the authorities in Kabul are concerned. It is therefore
necessary to stress the importance of accountability at the level of regional
administrations, who must assume responsibility for violations of human rights
committed in their particular regions.157

This idea deserves support. The attribution of accountability to sovereign
states, represented by a central government, may in some cases be a
convenient way to concentrate and protect internal power. However,
in internal con¬‚icts, it may not always be appropriate to address the
state as a whole. In such situations, the legal ¬ction of a state becomes
apparent. The disintegration of state structures does not always affect
the whole state, but may occur at various levels of intensity and concern
different parts of national territory. In such situations, lifting the state™s
veil may indeed be an appropriate answer in order to safeguard the
effectiveness of human rights treaties. It may then become necessary
to address, instead of the abstract ˜state™, agents or some part of its
apparatus through whom or which the state acts.158
Support for the argument that, when appropriate, state agents or
local state entities rather than the state as a whole should be addressed,
can be found in two recent cases before the International Court of
Justice. In the Case Concerning the Vienna Convention on Consular Relations159
and in its Advisory Opinion on the Difference Relating to Immunity From
Legal Process of a Special Rapporteur of the Commission on Human Rights,160
the Court directly addressed a federated entity of the United States and

157 UN Commission on Human Rights, E/CN.4/1996/64, para. 97 (Final Report on
Afghanistan by the Special Rapporteur, Choong-Hyun Paik, 27 February 1996).
158 See e.g., Human Rights Committee, CCPR/C/SR.443, para. 55 (Tomuschat, 14 July 1983)
(Lebanon).
159 Germany v. United States of America (Request for the Indication of Provisional Measures,
3 March 1999), 37 ILM 810 (1998).
160 Advisory Opinion of 29 April 1999, 1999 ICJ Rep. 62.
state accountability for armed opposition groups 215

a Malaysian national court, respectively.161 The Court considered com-
pliance with the relevant international obligations dependent on the
acts of these entities rather than on the central government.
Of course, when regional administrations within the state are held
accountable, the conduct of such state bodies must be regarded as an
act of that state.162


Suspension of treaties
International practice examined above shows that the temporary impos-
sibility of the operation of human rights treaties does not automatically
result in the suspension or termination of the treaties. Rather, it gives
a state party the right to invoke the impossibility as a ground for sus-
pending the treaty. More particularly, the state may invoke fundamental
change of circumstances as a ground for suspension of a human rights
treaty, as provided for in Article 62 Vienna Convention on the Law of
Treaties.163 This article provides that a fundamental change of the cir-
cumstances prevailing at the time the treaty was concluded, is a ground
for termination or suspension.
Unlike international armed con¬‚icts, internal armed con¬‚icts are
not the subject of a separate provision in the Vienna Convention.164
This may suggest that these con¬‚icts are covered by the Conventions™
other articles, including Article 62. Support for this argument may
be deduced from a recent judgment of the Court of Justice of the
European Communities, ¬nding that the effects of the Yugoslav armed
con¬‚ict, which was partly internal, could be brought under Article 62
of the Vienna Convention.165 International bodies have not considered
Article 62 of the Vienna Convention in relation to the state™s obligations
under human rights treaties to prevent and repress acts of armed op-
position groups. However, because of its potential relevance, this article
warrants brief examination.166

161 Paras 28 and 67, respectively.
162 Article 6 of the ILC Draft Articles on State Responsibility, above, Chapter 4, n. 1.
163 The principle with which this article is concerned is commonly referred to as the
doctrine of rebus sic stantibus.
164 The effects of international con¬‚icts on treaties have been regulated in Article 73 of
the Vienna Convention.
165 A. Racke GmbH & Co. v. Hauptzollamt Mainz, Case C-162/96 ( Judgment of 16 June 1998)
[1998“6] ECR, I“3655.
166 Compare P. Reuter, Law of Treaties, above, Chapter 1, n. 131, p. 189 (˜there is hardly
any theoretical reason why certain treaties should a priori escape a possible challenge
216 the accountability gap

It might be contended that Article 62 is not applicable to human
rights treaties because these treaties themselves provide rules on this
issue.167 Presumably, in states of emergency, the derogation clauses in
human rights treaties apply as a lex specialis to the general rules of the
Vienna Convention. The question is whether this is also the case when
the government has collapsed or is ineffective in (part of) its territory.
It may be argued that the human rights derogation clauses were not
written for these situations. This argument may reinforce the relevance
of the general provisions on suspension of the Vienna Convention, in-
cluding Article 62, to these situations. However, so far, this question has
not been resolved in international practice.
If Article 62 of the Vienna Convention on the Law of Treaties is indeed
relevant to human rights treaties, two requirements must be ful¬lled
in order for a state to successfully invoke ˜a fundamental change of cir-
cumstances™ to suspend a human rights treaty obligation.168 First, the
existence of the circumstances that prevailed at the time of the con-
clusion of the treaty must have constituted ˜an essential basis of the
consent of the parties to be bound by the treaty™. Second, the effect of

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