of obligations still to be performed under the treaty‚Ä™.169 The state may
contend that these requirements are indeed met when it has lost control
over (part of ) its territory or where the government has collapsed, due to
internal armed conÔ¬‚ict. With regard to the Ô¬Ārst requirement, the state
may assert that human rights treaties presume the state to be in full
control of its territory. When the government has lost its effectiveness
or has disappeared from the state territory, it may legitimately claim
that the circumstances have changed and that the change is fundamen-
tal in the sense that it affects the very facts on which consent to the
treaty was based. With regard to the second condition, the state may
due to a change of circumstances‚Ä™). At the same time, Higgins noted that, in 1963, in
practice international tribunals had never released a state from its treaty duties on
grounds only of rebus sic stantibus. Higgins argues that while the principle is
accepted, it is extremely difÔ¬Ācult to prove that the criteria are fulÔ¬Ālled in a concrete
case, R. Higgins, The Development of International Law Through the Political Organs of the
United Nations (Oxford University Press, London, 1963), p. 344.
167 Article 4 of the International Covenant, Article 15 of the European Convention,
Article 27 of the American Convention.
168 If a state claims suspension of a human rights treaty on the basis of the Vienna
Convention, it has to follow deÔ¬Ānite procedures, which are laid down in
Articles 65‚Ä“8 of the Vienna Convention.
169 Article 62 1(a) and (b), respectively.
state accountability for armed opposition groups 217
reasonably argue that the temporary disappearance of a government
or loss of territorial control transforms the positive obligation to pro-
tect individuals from other individuals under human rights treaties
radically. Indeed, the state then lacks the factual authority to protect
It should be reiterated that in the absence of international practice,
the arguments laid out above remain purely hypothetical.
May a state invoke force majeure in order to be exonerated from its
accountability when it fails to prevent or repress acts by armed opposi-
tion groups contrary to human rights treaties? The irresistibility of the
external force distinguishes this from a fundamental change of circum-
stances. Force majeure is deÔ¬Āned by Article 31 of the Draft Articles on
The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the act was due to an irresistible force
or to an unforeseen external event beyond its control which made it materially
impossible for the State to act in conformity with that obligation or to know
that its conduct was not in conformity with that obligation.170
Practice of international bodies provides no support for the argument
that force majeure may limit the state‚Ä™s accountability under human rights
treaties. The point is that the due diligence rule, which governs the
state‚Ä™s positive obligations under human rights treaties, makes this ar-
A state only violates its due diligence obligation when it fails to pre-
vent or repress acts of armed opposition groups while it is able to do so in
view of its material capability and vital military interests. In other words,
the due diligence rule precludes a violation of human rights treaties if
the act or omission concerned ‚Ä˜was due to an irresistible force or to an
unforeseen external event beyond its control which made it materially
impossible for the State to act in conformity with that obligation or
to know that its conduct was not in conformity with that obligation‚Ä™,
removing the need for an appeal to force majeure.171
170 ILC Draft Articles on State Responsibility, above, Chapter 4, n. 1; this article also
applies in connection with an obligation ‚Ä˜to act‚Ä™ or to engage in conduct of
commission, ILCYb 1979, vol. II, 122‚Ä“33, para. 25.
171 See I. Brownlie, State Responsibility, above, n. 50, pp. 171‚Ä“2.
218 the accountability gap
Humanitarian law treaties
Since humanitarian law treaties for internal conÔ¬‚icts generally apply to
all parties to the conÔ¬‚ict, the state and armed opposition groups, the
temporary absence of a government or loss of government control over
an area do not make the humanitarian law treaties inoperable.172
These situations do, however, affect the state‚Ä™s liability for failure to
prevent or repress acts of armed opposition groups injuring civilians ‚Ä“ by
‚Ä˜transferring‚Ä™ the liability to the armed groups. Article 1 of Protocol II
provides that it binds armed opposition groups ‚Ä˜which exercise . . .
control over a part of its [the state‚Ä™s] territory‚Ä™, implying that the gov-
ernment is not responsible for observing the Protocol in opposition con-
trolled areas. Also, as mentioned earlier, Article 5 of Amended Protocol II
to the Conventional Weapons Convention obliges the state to ensure the
exclusion of civilians from certain areas mined by armed opposition
groups. But the duty only exists regarding areas that the government
2. (a) It is prohibited to use weapons to which this Article applies which are not
in compliance with the provisions on self-destruction and self-deactivation in
the Technical Annex . . .
3. A party to a conÔ¬‚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 mil-
itary action, including situations where direct enemy military action makes
it impossible to comply. If that party regains control of the area, it shall re-
sume compliance with the provisions of sub-paragraphs 2 (a) and 2 (b) of this
The state is therefore relieved from compliance when it has forcibly
lost control of the area as a result of military action by armed opposi-
tion groups. Thus, international humanitarian law treaties provide that
the state‚Ä™s obligations thereunder, including the duty to prevent and re-
press acts of armed opposition groups harming civilians, are limited to
the situation where the government still exists and exercises some con-
trol over territory. There is no international practice elaborating on this
172 An exception is the Ottawa Convention on Anti-Personnel Mines, which applies only
to the state, above, Chapter 1, n. 64. Further, Protocol II does not apply to situations
where the established authorities have collapsed, since the Protocol requires
government involvement in the conÔ¬‚ict (Article 1(1) Protocol II).
173 Article 5(2) and (3).
state accountability for armed opposition groups 219
International criminal law treaty
The Genocide Convention, like human rights treaties, only applies to the
state. The operation of this treaty therefore depends on the existence of
a government exercising a minimum of territorial control. If an armed
conÔ¬‚ict rises to such a level that the government is no longer function-
ing or lacks effective control in (part of) the state‚Ä™s territory, it would
seem that the Genocide Convention becomes inactive in that state or
the relevant part of its territory. Thus, here also the general principle of
effectiveness appears to apply. International practice provides no evi-
dence for this rule.
The quest for accountability
When armed opposition groups involved in internal conÔ¬‚ict commit
acts injuring civilians, different actors may be held accountable under
international law for these acts or for failure to prevent or repress them.
This conclusion follows from the practice of international bodies. These
actors are: leaders and members of armed opposition groups, armed op-
position groups themselves, and the territorial state. The accountability
of these three actors is distinct in kind. The question remains how to
The accountability of armed opposition groups as such would be the
most appropriate answer to the abuses committed by these groups. Grave
difÔ¬Āculties, however, centre on this kind of accountability. Accountability
of individual leaders and the state, in contrast, are less problematic.
Indeed, the accountability of the state is Ô¬Ārmly rooted in international
law. More recently, the trend of accountability of individuals has entered
the body of international law, and has been constantly supported in prac-
tice. Similar developments have, however, not taken place with regard
to armed opposition groups ‚Ä“ their accountability being a grey area in
Group versus individual accountability
In this decade, international law has developed towards criminaliza-
tion of acts committed by individuals in internal armed conÔ¬‚ict, includ-
ing leaders of armed opposition groups. This development is of great
importance. It means that armed opposition groups can be regulated
not only through the state and armed opposition groups as an orga-
nization, but also through their individual leaders. However, as will
be argued hereafter, to the extent that this development replaces the
the quest for accountability 221
accountability of armed opposition groups as a collectivity it is to be
Accountability of armed opposition groups and their individual lead-
ers exist independently of each other and are not interchangeable. These
two forms of accountability differ with regard to substantive law, the
propositions underlying them, and the measures required. Regarding
substantive law, some obligations apply both to armed groups as such
and to their leaders. Examples include Common Article 3 and large parts
of Protocol II. An overall survey reveals, however, that the substantive
obligations are not coextensive. Consider, for example, the Genocide
Convention. The prohibition of genocide applies to individual leaders of
armed opposition groups; it does not appear to apply to armed opposi-
tion groups. Article IX of the Convention refers to the responsibility of
a state for genocide; it does not refer to any other entity. On the other
hand, some humanitarian law rules are applicable to armed opposition
groups but without entailing individual criminal responsibility of the
leaders. An example is paragraph (d) of Common Article 3, which pre-
scribes the minimum conditions for a fair trial. This may be because
this obligation involves a range of acts or a policy in which many actors
participate; it is not suitable for individual criminal responsibility. In
this connection, one may question the appropriateness of the inclu-
sion in the Rome Statute of paragraph (d) of Common Article 3.1 It will
be difÔ¬Ācult to show individual guilt for violation of the rule on a fair
There is some force in the argument that, in the future, international
criminal law will be expanded to cover many other acts. Still, prose-
cutions by the International Criminal Court will be limited to serious
violations of international humanitarian law, so that individual account-
ability before the International Criminal Court will not cover all crimes
in internal conÔ¬‚icts.2
In addition, the accountability of armed opposition groups and their
individual leaders differs regarding the attribution of the act to these
actors. Consider, for example, the commission of torture. Leaders of
armed opposition groups are accountable when they order subordinates
to commit torture. Furthermore, leaders are accountable when they
know or have reason to know that subordinates have committed or are
1 Article 8(2)(c)(iv) of the Statute of the International Criminal Court.
2 See also the Statute of the Special Court for Sierra Leone, art. 1 (‚Ä˜The Special Court
shall have the power to prosecute persons most responsible for serious violations of
international humanitarian law‚Ä™).
222 the accountability gap
about to commit torture and when they fail to take the necessary and
reasonable measures. Groups, on the other hand, can never themselves
commit torture, or otherwise contribute physically to an act of torture.
Moreover, while the issue of attribution of conduct to armed opposition
groups raises serious obstacles, a relationship of subordination is in any
case not required. Groups must prevent and repress torture by all their
individual members and agencies.
Finally, the measures required to be taken by armed opposition groups
and their individual leaders are different. In the case of leaders, such
measures may consist of punishment, preventive action, provision of
clear orders and training or establishment of a proper reporting system.
The measures required from armed opposition groups may go further.
In their function as de facto public authorities, they may be obliged to
take legislative measures and to prosecute offenders.
While the accountability of armed opposition groups and their in-
dividual leaders is therefore not wholly overlapping, there is a ten-
dency in international practice towards criminalization of the behaviour
of individual leaders of armed opposition groups and away from the
international accountability of the armed groups. The international
concern with individual accountability is clearly shown by the estab-
lishment of the Yugoslavia and Rwanda Tribunals and the drafting of
the Rome Statute. There is no similar concern to establish the interna-
tional accountability of armed opposition groups. The Rome Statute, for
example, contains no provision on the accountability of armed opposi-
tion groups.3 Nor do the Statutes of either the Yugoslavia or Rwanda
One could argue that accountability of leaders of armed opposition
groups may imply, in some cases, the accountability of the greater entity
itself, when the acts are performed in the furtherance of the group‚Ä™s
goals. It should be appreciated, however, that there is some indication
that international law is moving in the direction of dissociating individual
acts from the group context by concentrating exclusively on the individ-
ual criminal liability. The Yugoslavia Tribunal, for example, has broken
off the link between the individual perpetrator and the entity of which
he or she is a member by holding that the acts of individual leaders
stand on their own and are not necessarily attributable to armed oppo-
sition groups in a manner which would implicate group accountability.
3 It does state that no provision in the Statute shall affect the responsibility of states
under international law, Article 25(4) of the Statute of the International Criminal
the quest for accountability 223
Judge Rodrigues has recognized this trend: ‚Ä˜the principle is to prose-
cute natural persons individually responsible for serious violations of
international humanitarian law irrespective of their membership in
These examples do not prove the existence of a legal principle that
leader or member accountability excludes the accountability of the
armed opposition group. They do show, however, that while inter-
national bodies have given due consideration to accountability of
individual leaders of armed opposition groups, they have so far largely
ignored the accountability of the groups in favour of the accountability
of individual members.
Different reasons account for this tendency. One is that the interna-
tional community wants to give a strong response to serious crimes.
Individuals who commit these crimes are the most obvious targets for
legal action. As Lauterpacht wrote: ‚Ä˜there is cogency in the view that
unless responsibility is imputed and attached to persons of Ô¬‚esh and
blood, it rests with no one‚Ä™.5 The group as a collective ‚Ä˜entity‚Ä™ is less vis-
ible and it becomes less tangible to apply international rules effectively
Also, states prefer not to recognize the legal existence or interna-
tional personality of armed opposition groups by attributing acts and
omissions to them. They prefer to pass over the group and address the
individuals that make up the group. The result is that we are back to the
dichotomy of the state and the individual living in the state ‚Ä“ subjects
that are by now both rather well accepted in international law.
Another reason for the tendency away from international account-
ability of armed opposition groups is that international bodies lack
‚Ä˜jurisdiction‚Ä™ over the groups.
Some form of legal accountability of armed opposition groups would
be an important advance in international law. Three arguments support
this proposition. First, leaders are only the executive agents of the orga-
nization acting in the international community and which comprises,
in some cases, legislative organs, judicial organs, and sometimes even
a people. It is only by treating the armed opposition groups as legal
4 Aleksovski case, above, Chapter 3, n. 5, Dissenting Opinion of Judge Rodrigues; see also
S. Rosenne, ‚Ä˜State Responsibility and International Crimes: Further ReÔ¬‚ections on
Article 19 of the Draft Articles on State Responsibility‚Ä™, 30 NYUJ Int‚Ä™l L. & Pol. 145, 157
(1997‚Ä“8) (hereafter, ‚Ä˜State Responsibility and International Crimes‚Ä™).
5 H. Lauterpacht, International Law and Human Rights (Archon Books, USA., reprint 1968)
(1950), p. 40.
224 the accountability gap
entities, which are under various international obligations, that the
supremacy of international law can be assured. A refusal to recognize
the personality of the armed opposition groups is fatal to this.
A second argument is that, in many cases, acts that have been labelled
as international crimes are, in reality, acts of a collectivity rather than
of isolated wayward individuals. Such crimes are not effectively dealt
with by punishing individuals. Crimes against humanity in particular
can only be committed in the framework of a broad policy of repression.
Finally, while international law as applied by international bodies
centres on individuals, the international political order emerges through a
huge variety of actors from multinational companies to indigenous and
tribal groups ‚Ä“ including armed opposition groups. Armed opposition
groups sometimes negotiate with territorial governments and partici-
pate in peace conferences organized by the United Nations. The inter-
national legal and political orders thus do not operate along parallel
lines. When there is no law to implement political decisions, or when
political agreements deviate from judgments, resolutions or reports on
legal issues, the effectiveness of both international law and international
politics in dealing with the problem of armed opposition groups is likely
to be low.
In conclusion, to a greater extent than is presently the case, the ac-
countability of the individual leaders of armed opposition groups and
of these groups themselves should be integrated and their relation
Group versus state accountability
International practice reveals that the accountability of the territorial
state and of armed opposition groups are different in content, as they
concern different acts and rest on different propositions. First, while
the state is obliged to prevent or repress certain acts of armed opposi-
tion groups, armed opposition groups are merely prohibited themselves
from committing these acts. Further, international bodies have held that
the responsibility of the state for acts committed by armed opposition
groups is limited to the most serious abuses, threatening the lives of
civilians. With regard to other acts of armed opposition groups, such
as ill treatment in detention, accountability may only rest with these
groups themselves or the members individually. Finally, international
bodies consider the prosecution and punishment of abuses by armed
opposition groups to be a typical state task.
the quest for accountability 225
It follows that state and group accountability exist, at least to some
degree, next to each other and are complementary. Evidence from in-
ternational practice establishes that neither form of accountability pro-
vides in itself an adequate answer to the problem of armed opposition
At the same time, there is no doubt that there is a close relation-
ship between these types of accountability ‚Ä“ indeed, that they, to some
extent, overlap. Both forms of accountability are collective in nature.
Both are triggered by acts committed by armed opposition groups. The
question arises, therefore, as to the division of accountability between
the territorial state and armed opposition groups.
The division of accountability between states and armed groups ap-
pears to be determined, inter alia, by the effective power of these entities.
The state must take the measures within its material ability in the
speciÔ¬Āc circumstances of the case to prevent or repress acts committed
by armed opposition groups. Similarly, accountability of armed opposi-
tion groups for violations of international norms may vary according
to the degree of effective military and political power that they possess,
although the UN Commission on Human Rights and the UN Security
Council are inclined to hold different kinds of groups, irrespective of
their effectiveness, accountable for humanitarian law violations, for the
sake of humanity.
Closer analysis of international practice reveals that, in addition to
effectiveness and humanity, other factors play a role in international
bodies‚Ä™ choice of either form of accountability. International law, to
some extent, is biased in favour of established governments and against
armed opposition groups. Article 3(1) of Protocol II, for example, pro-
vides: ‚Ä˜Nothing in this Protocol shall be invoked for the purpose of affect-
ing the sovereignty of a State or the responsibility of the government,
by all legitimate means, to maintain or re-establish law and order in
the State or to defend the national unity and territorial integrity of the
State‚Ä™. The provision implies that the territorial state represented by the
existing government remains the lawful authority until it is overthrown,
and nationals of a state remain subjected to the established government
until that moment. The centrality and superiority of the state serves
the aim of stability and security in international law. If international
bodies should seek to break through the veil of the state and give equal
treatment to armed opposition groups, this would amount to the recog-
nition of their belligerent status. It would undermine the perception of
the state as a single entity. The clarity in international relations would
226 the accountability gap
be affected were injured parties to have to look inside the state to Ô¬Ānd
what entity actually committed the harmful acts concerned.6
This heavy focus on the territorial state is no longer appropriate
to modern conditions. Rosenne‚Ä™s criticism of the International Law
Commission‚Ä™s draft Articles for their one-sided focus on the state under-
lines this point:
The more I look at the Draft Articles on State Responsibility, the more I Ô¬Ānd them
inadequate, if not Ô¬‚awed. On the whole, they do not take sufÔ¬Ācient account of
the consequences of the breakdown of the traditional State system of the nine-
teenth century, nor of its replacement by a new system which is slowly taking
shape before our very eyes. In this new conÔ¬Āguration, . . . International responsi-
bility can be attributed to entities, which are not deemed states . . . It is a system
in which the interests of the international community as a whole are to be bal-
anced against the traditional sovereignty of the States. That, I submit, should
be the focus of political and academic interest during the coming years, before
the Ô¬Ānal consummation of the codiÔ¬Āed law of international responsibility.7
The international bodies should favour a restrictive interpretation of
territorial sovereignty, with stronger emphasis than in times of internal
peace on the existence or absence of effective control by the recognized
government over a particular area. Notions such as sovereignty, territo-
rial integrity, and stability must be interpreted in accordance with the
particularities of internal conÔ¬‚icts. State supremacy is premised on the
assumption that the state exercises full authority in its internal legal
order, being capable of maintaining law and order. If it fails do so, as in
the case of internal armed conÔ¬‚icts, it loses its claim to remain the only
legal subject representing the internal legal order on the international
One effect of the heavy emphasis on the state system is the practice
assigning the task of prosecution and punishment of abuses by armed
groups almost exclusively to the state, rather than to the groups them-
selves. Another example is the limitation of the substantive obligations
of armed opposition groups to the duty to respect the most elemen-
tary norms of humanity. International bodies have failed to pronounce
on measures these groups must take to fulÔ¬Āl their international obliga-
tions. Thereby they have done little to make the law applicable to armed
opposition groups effective.
6 A. Nollkaemper, ‚Ä˜De dialectiek tussen individuele en collectieve aansprakelijkheid in
het Volkenrecht,‚Ä™ Inaugural Lecture, 17 September 1999 ( Vossiuspers AUP, Amsterdam,
2000), p. 8.
7 S. Rosenne, ‚Ä˜State Responsibility and International Crimes‚Ä™, above, n. 4, at 165‚Ä“6.
the quest for accountability 227
A Ô¬Ānal factor limiting their international accountability is the absence
of principles on attribution of violations to armed groups. In the absence
of any special rules the idea of applying the general rules used for states
should be considered.
In the light of the foregoing observations, the divergence between the
practice under human rights treaties and international humanitarian
law needs critical review. Under human rights law, the state has a duty
not to commit violations and a duty to suppress others from committing
them. But no such duties rest on the group. In humanitarian law, there
is only a duty not to commit breaches, but this duty extends to both the
state and the groups.
The human rights and humanitarian law approaches should be com-
bined. In such a combination international bodies should give priority to
the latter. The crucial weakness of the human rights treaties is their ex-
clusive focus on the state as the sole entity bound by the law. Moreover,
human rights treaties are not very effective for dealing with internal
armed-conÔ¬‚ict situations. They tend to treat these as mere emergen-
cies allowing the state to derogate from its human rights obligations
in order to defend its internal public order and institutional stability.
Humanitarian law, in contrast to human rights law, has been developed
to apply speciÔ¬Ācally in armed conÔ¬‚icts. As the International Court of
Justice observed, international humanitarian law applies as a lex specialis
with regard to human rights law.8
Making the necessary extension to humanitarian law will not be easy.
The number and variety of armed opposition groups, both in terms of
their size and way of operating, will give rise to difÔ¬Āculties. There is
some evidence that group accountability will be more readily recog-
nized in cases in which the state‚Ä™s power is weak. As observed by the UN
Secretary-General: ‚Ä˜It seems beyond doubt that when an armed group
kills civilians, arbitrarily expels people from their homes, or otherwise
engages in acts of terror or indiscriminate violence, it raises an issue of
potential international concern. This will be especially true in countries
where the Government has lost the ability to apprehend and punish
those who commit such acts.‚Ä™ 9
In summary, the state must act against the most serious abuses com-
mitted by armed opposition groups to the extent such abuses fall under
its control. However, concepts underlying state accountability, such as
8 Advisory Opinion on Nuclear Weapons, above, Chapter 1, n. 34, para. 25.
9 1998 Report of the Secretary-General on Minimum Humanitarian Standards, above,
Chapter 1, n. 13, para. 64.
228 the accountability gap
state sovereignty, stability, and security should not be dogmatically
adhered to at the expense of civilian populations. Not only because,
in some cases, armed opposition groups fall entirely outside the state‚Ä™s
control, leaving civilians at their mercy, but also because the centrality
of the state creates a false dichotomy between the parties to the con-
Ô¬‚ict. It is proposed that international bodies assigning accountability
in internal conÔ¬‚ict respect the principle of political non-discrimination
vis-` -vis civil war parties. While these arguments do not deny that there
is a sovereign sphere inside the state which must be protected, they do
suggest that this sphere must not be exploited to the point of endan-
gering lives of persons affected by the conÔ¬‚ict.
International bodies play a particularly important role in the trans-
formation of the international system relevant to internal conÔ¬‚icts.
Their work has become the main focus of international intergovern-
ment. Their practice may contribute to the understanding of internal
conÔ¬‚icts not as a matter primarily concerning the territorial state, but
as a problem of wider concern.
The provisions of international humanitarian law, international crimi-
nal law, and international human rights law are each aimed at different
actors. For example, international humanitarian law binds parties to an
internal conÔ¬‚ict, such as the state and armed opposition groups as a
collectivity. International criminal law penalizes particular acts of in-
dividuals. In addition, it often obliges the state to prosecute persons
for committing these criminalized acts. The provisions of human rights
law apply primarily to the state. Each of these three actors ‚Ä“ namely
armed opposition groups as such, the individual members and leaders
of these groups, and the state ‚Ä“ may incur international accountabil-
ity for acts committed by armed opposition groups in internal armed
conÔ¬‚icts. Practice of international bodies reveals the following trends as
regards the accountability of these actors.
International practice shows that armed opposition groups them-
selves can be held accountable under international humanitarian law. In
order to be held accountable, such groups must at least be organized
and engage in military operations. Once armed opposition groups ac-
cede to government, the principle of state responsibility applies. At
the same time, the international accountability of armed opposition
groups is primitive and the prospects for further development are lim-
ited. One reason is that there are no supervisory mechanisms set up for
the express purpose of monitoring the behaviour of armed opposition
International humanitarian law applicable to armed opposition
groups increasingly encompasses humanitarian law originally only ap-
plicable to states in international conÔ¬‚icts. One explanation for this
practice is that the conventional rules for internal conÔ¬‚icts are too few
and too simple to be applied effectively to complex realities of internal
conÔ¬‚icts. Furthermore, there is a growing belief among international
bodies that human beings are entitled to similar protection in interna-
tional and internal conÔ¬‚icts. Complete elimination of the distinction
between the law for internal and international conÔ¬‚icts is unlikely to
happen, however, since this would imply that members of armed oppo-
sition groups would be immune from punishment by the national state
for participation in the hostilities.
There is little consensus on the question whether armed opposition
groups can or should be bound by international human rights law. It
is noteworthy that in cases in which international bodies have made
an in-depth examination of the question whether human rights norms
apply or should apply to armed opposition groups, they have come to
the conclusion that they should not. There is some authority for the
proposition that human rights instruments do govern armed opposition
groups if they exercise governmental functions over portions of the state
territory or population.
In addition to armed opposition groups as such, the leaders of these
groups can be held responsible under international criminal law for acts
committed by their subordinates. Substantive international criminal law
has gradually been extended to encompass persons not linked with
a state in internal conÔ¬‚icts. The principle of command responsibility
applies to both military and civilian leaders. In fact, international prac-
tice shows that for the doctrine of command responsibility, distinctions
between international and internal armed conÔ¬‚icts and between state
actors and non-state actors are irrelevant. This practice Ô¬Āts in with a
general tendency in which the formal position of a superior, state or
non-state actor, military or civilian, has lost some of its relevance. Instead
the emphasis is on the person‚Ä™s actual power over subordinates.
International practice demonstrates that there are clear limits to the
state‚Ä™s positive obligation to prevent and repress acts of armed opposi-
tion groups with a view to protection of the civilian population living
within its territory. Clearly this will have consequences for those under
the state‚Ä™s jurisdiction. Civilians falling outside the state‚Ä™s territorial
control, or living in a ‚Ä˜failed state‚Ä™ lacking a government, will not enjoy
protection by the state under international law. In every other case, the
protection the state is able to offer will depend on its factual capabilities.
Abi-Saab, G., ‚Ä˜Non-International Armed ConÔ¬‚icts‚Ä™ in International Dimensions of
Humanitarian Law (UNESCO, Martinus Nijhoff, Dordrecht, 1988), pp. 217‚Ä“39.
Abi-Saab, R., Droit humanitaire et conÔ¬‚its internes (Institut Henry Dunant, Geneva,
‚Ä˜Humanitarian Law and Internal ConÔ¬‚icts: the Evolution of Legal Concern‚Ä™,
in A. J. M. Delissen and G. J. Tanja (eds.), Humanitarian Law of Armed
ConÔ¬‚ict ‚Ä“ Challenges Ahead (Martinus Nijhoff, The Hague, 1991), pp. 209‚Ä“23.
Acuňú a, T. F., The United Nations Mission in El Salvador ‚Ä“ A Humanitarian Law
Perspective (Kluwer Law International, The Hague, 1995).
Akehurst, M., ‚Ä˜State Responsibility for the Wrongful Acts of Rebels ‚Ä“ An Aspect
of the Southern Rhodesian Problem‚Ä™ (1968‚Ä“9) 43 BYIL 49‚Ä“70.
A Modern Introduction to International Law (HarperCollins, 6th edn., Chatham,
Aldrich, G. H., ‚Ä˜The Law Applicable in Non-International Armed ConÔ¬‚icts:
Problems and Prospects‚Ä™ (speech delivered at symposium ‚Ä˜Law and
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UN Security Council, 48, 150
attribution see attribution of acts White House Executive Order (1999), 154
evidence of accountability, 134‚Ä“52
governments see state accountability Armed Islamic Group (GIA), 169
Human Rights Committee, 168‚Ä“9, 189,
groups and individuals compared,
internal armed conÔ¬‚ict, 4, 208
groups and states compared, 224‚Ä“8
Islamic Salvation Army (FIS), 169
groups as such, 133‚Ä“63
leadership see leadership accountability territorial control, 208
American Convention on Human Rights
levels of accountability, 3, 97
problem deÔ¬Āned, 3
Commission see Inter-American
successful groups, 155‚Ä“7
El Salvador, 50, 212
national liberation movement, 17‚Ä“18
Protocol I see Protocol I (1977) human rights concept, 40‚Ä“1
Protocol II see Protocol II (1977) international humanitarian law, 160
right to life, 47, 184
attribution of acts, 154, 156
de facto control, 154 state accountability, 166
state parties, 39, 41
detention/internment, 29, 65, 66, 67
executions, 64, 67
Geneva Conventions (1949), 22, 29
El Salvador, 205‚Ä“6
government collapse, 2, 150, 208
governmental transition, 205
human rights, 48, 150, 211, 214
Human Rights Committee, 206
humanitarian relief, 88
internal armed conÔ¬‚ict, 37, 164, 188, 197
internal armed conÔ¬‚ict, 4
International Committee of the Red
International Committee of the Red
Cross (ICRC), 206
Cross (ICRC), 88
international criminal law, 37
local authorities, 214
prisoners, 29, 90
Protocol II (1977), 37, 206
Protocol II (1977), 22
Sierra Leone, 37, 207
Taliban, 64, 150, 154, 156
state accountability, 164, 188, 197, 204‚Ä“7
territorial control, 211
torture, 204, 205, 206
UN Commission on Human Rights, 64,
UN Commission on Human Rights, 37
65, 66, 88, 90, 150, 154, 211, 214
UN Secretary-General, 37
Inter-American Commission, 153, 155
United Nations, 207
International Law Commission, 153,
Amnesty International (AI)
154, 155, 156, 157
internal armed conÔ¬‚ict, 23
UN Commission on Human Rights, 153,
Ando, Nisuke, 172
UN Observer Mission in El Salvador
humanitarian relief, 88
Protocol II (1977), 146
UN Security Council, 153, 225
UN Security Council, 77, 88
autonomy, objectives, 1
armed forces, 10, 60‚Ä“1, 137‚Ä“8
executions, 60, 61
Tablada case, 10, 60‚Ä“1, 137, 160 Common Article 3, 36
customary humanitarian law, 2
Geneva Conventions (1949), 2
Argentina, 10, 60‚Ä“1, 137‚Ä“8
prisoners see prisoners of war
individual criminals, 105
Bond, J. E., 36
internal disturbances, 137‚Ä“8
booby-traps, Protocol II on mines and
requisite care, 168
booby-traps (1996), 26, 27, 85‚Ä“6, 146,
armed opposition groups
accountability see accountability 147, 184, 188
Bosnia-Herzegovina, 112‚Ä“13, 116‚Ä“17, 149
attribution of acts, 134, 152‚Ä“5, 222, 227
command and control see Leadership
compliance, capability, 35
Ô¬Āghting each other, 1, 4, 164
internal armed conÔ¬‚ict, 4
Geneva Conventions (1949), adherence,
international humanitarian law,
guerrillas, 35, 62, 134
independent entities, 15
child recruitment, 21, 63, 103
individuals compared, 16
insurgents see insurgents civilian protection
civilian immunity, 75, 76
legal restraints, 9‚Ä“58
legal status see legal personality civilian objects, 79‚Ä“82
civilans deÔ¬Āned, 75
legislation, 70‚Ä“4, 187, 188, 222
Common Article 3, 82‚Ä“4, 189
membership, 105, 153
densely populated areas, 79
multilateral treaties, 26‚Ä“8
direct/indirect participation in
obligations see obligations hostilities, 75, 76, 84
distinction principle, 76‚Ä“7
organizational structure, 1, 35, 133‚Ä“4,
dual-use facilities, 81
essential protection, 52
splinter entities, 135
forced movement, 21
state accountability, 164‚Ä“219
from other individuals, 167‚Ä“8, 171, 172,
successful groups, 155‚Ä“7
terminology, 3‚Ä“4, 134
general protection, 76‚Ä“84
humane treatment, 61, 82‚Ä“3
attribution of acts
indiscriminate attacks, 77, 78
Afghanistan, 154, 156
insurrections, 176, 181, 183
armed opposition groups, 134, 152‚Ä“5,
Inter-American Commission, 75‚Ä“6, 79,
right to life, 47, 90
civilian protection (cont.)
state accountability, 169‚Ä“70, 213
international armed conÔ¬‚ict, 33
Third Report (1999), 11‚Ä“12, 21, 41, 52,
international bodies, 77
54, 61, 75, 84, 85, 155
International Criminal Tribunal for the
internal armed conÔ¬‚ict, 4, 61, 62
Former Yugoslavia, 76, 77, 80
International Covenant on Civil and
International Criminal Tribunal for
Political Rights (1966), 171‚Ä“2
landmines see landmines kidnapping, 47, 62
obligations, 3, 75‚Ä“92
precautions see precautionary measures landmines, 85
prevention see preventative measures National Committee of Victims of the
Guerrilla War, 195
Protocol I (1977), 75, 77, 78‚Ä“9, 80, 82,
territorial control, 208, 213
Protocol II (1977), 75‚Ä“80, 83‚Ä“7, 89, 91‚Ä“2,
UN Commission on Human Rights, 46
command and control see leadership
reprisals, 59, 75, 89‚Ä“92
Common Article 3
starvation, 21, 59, 75, 86‚Ä“9
binding effect, 20, 42
state accountability, 165
UN General Assembly Resolutions, 76‚Ä“7,
express declaration, 14
UN Observer Mission in El Salvador
international bodies, 12, 13, 35
(ONUSAL), 78, 82
questioned by states, 53
UN Security Council, 77
threshold, 35, 53, 147
fundamental rights, 3
belligerent status, 36
government collapse, 2
civilian protection, 82‚Ä“4, 189
state accountability, 164
conÔ¬‚ict internationalized, 18
collective punishment, 91
customary humanitarian law, 20, 24, 25,
Army of National Liberation (ELN), 81,
detention/internment, 65‚Ä“7, 84
El Salvador, 25, 50
essential protection, 52
evidence of accountability, 134‚Ä“48, 151
executions, 84, 192
Forces of Colombia (FARC), 84, 169, 213
fair trial, 221
guerrilla movements, 62
fundamental guarantees, 62
hostages, 84, 90
grave breaches, 103
human rights, 21, 41, 46, 47, 52, 54, 192,
humane treatment, 59‚Ä“62, 65‚Ä“9,
Human Rights Committee, 171‚Ä“2
ICJ decisions, 10, 19, 174
attribution of acts, 155
civilian objects, 80‚Ä“1
Inter-American Commission, 61, 135,
civilian protection, 80‚Ä“1, 84
137, 138, 145‚Ä“6
customary law, 21
internal armed conÔ¬‚ict, 18, 33‚Ä“4, 135,
death threats, 195
detention/internment, 65, 84
International Committee of the Red
foreseeability of harm, 192
Cross (ICRC), 137‚Ä“8, 140
international humanitarian law, 41,
International Criminal Court, 101,
54, 61, 155
Protocol II (1977), 21, 61, 75, 80, 145
individuals see individual criminals
International Criminal Tribunal for the
killings see killings
Former Yugoslavia, 102, 135, 136, 144
International Criminal Tribunal for
Protocol II (1977), 102, 103, 184
Rwanda, 19, 135, 136
rape, 107, 142
leadership accountability, 99‚Ä“100, 221
torture see torture
legal restraints, 2, 9‚Ä“26
war see war crimes
see also international criminal law
Nicaragua, 10, 19, 24, 174
crimes against humanity
obligations, 15, 16, 92
acts of policy, 107, 108, 224
precautionary measures, 189
criminal responsibility, 44, 106‚Ä“8
prosecution, 21, 67‚Ä“9, 198
International Criminal Court, 108
International Criminal Tribunal for the
reprisals, 89, 92
Former Yugoslavia, 107, 108
special agreements/declarations, 17, 18,
International Criminal Tribunal for
25, 28‚Ä“30, 50, 148
Rwanda, 107, 108
state accountability, 173‚Ä“7
International Military Tribunal
territorial control, 135, 136, 146
(Nuremberg), 107, 108
leadership accountability, 107
UN Commission on Human Rights, 11,
organizational membership, 105
Sierra Leone, 108
UN Security Council, 11, 135, 138‚Ä“41
UN Secretary-General, 44
violations, 103, 105, 112, 142, 157, 184,
war crimes compared, 105, 107
see also genocide
violence to life and person, 62, 82, 199,
crimes against humanity, 44, 106‚Ä“8
war crimes, 103
individual criminals, 44, 97, 98‚Ä“100,
102, 105, 108‚Ä“10, 112, 223
attribution of acts, 156
International Criminal Court, 98, 101,
Protocol II (1977), 146
113‚Ä“14, 130, 221
Convention on the Prevention and the
International Criminal Tribunal for
Punishment of the Crime of Genocide
Rwanda, 98, 105, 112
(1948), 44, 108‚Ä“9, 178, 185, 189, 197,
ordering crimes, 111‚Ä“14, 123, 221
war crimes, 97, 98‚Ä“100, 102, 105
Convention Relating to the Status of
see also leadership accountability
Refugees (1951), 180
Conventional Weapons Convention (1980),
civilian objects, 81‚Ä“2
Protocol II on mines and booby-traps
Inter-American Commission, 21
(1996), 26, 27, 85‚Ä“6, 146, 147, 184,
International Criminal Tribunal for the
187, 188, 218
Former Yugoslavia, 27‚Ä“8, 81‚Ä“2
legal restraints, 21, 27‚Ä“8, 33
Court of Justice of the European
precautionary measures, 188‚Ä“9
against humanity see crimes against Cultural Property Convention (1954)
destruction/damage, 81, 93
amnesties see amnesties evidence of accountability, 146, 147, 148
international humanitarian law, 27‚Ä“8,
common criminality, 37
146, 147, 148, 197‚Ä“8
criminal organizations, 55, 56, 58
Second Protocol, 27, 28, 146, 188, 189,
Draft Code of Crimes Against the Peace
and Security of Mankind, 175, 200
genocide see genocide special agreements, 148
human rights, 66
customary humanitarian law
humane treatment, 60, 65‚Ä“7, 83
applicability criteria, 2
Inter-American Commission, 65
applicability of norms, 18‚Ä“25
International Committee of the Red
belligerent status, 2
Cross (ICRC), 67
Common Article 3, 20, 24, 25, 31, 32
state accountability, 181, 224
UN Commission on Human Rights, 65,
evidence of accountability, 147
Inter-American Commission, 30, 32
UN Security Council, 67
internal armed conÔ¬‚ict, 30‚Ä“3, 53
see also Prisoners
international bodies, 22, 24
dictatorships, rebellion, 58
International Criminal Tribunal for the
Former Yugoslavia, 20‚Ä“1, 22‚Ä“5, 26,
Human Rights Committee, 171‚Ä“2
military manuals, 23
Turkey, 170, 171
UN Commission on Human Rights, 209
Protocol II (1977), 20‚Ä“2, 25
displaced persons, Guiding Principles on
territorial control, 2
Internal Displacement (1998), 49, 52,
UN Commission on Human Rights, 30,
Draft Articles on State Responsibility
see also international humanitarian law attribution of acts, 153, 154
customary international law
de facto authorities, 155
International Criminal Tribunal for
force majeure, 217
insurrections, 176, 181
UN General Assembly Resolutions, 23,
obligations of result/conduct, 166
31, 32, 76
successful groups, 156, 157
UN Security Council, 23, 31‚Ä“2
Draft Code of Crimes Against the Peace
de facto authorities and Security of Mankind, 175, 200
availability of means, 191, 192
Common Article 3, 135
command responsibility, 111
Draft Articles on State Responsibility,
foreseeability of harm, 191, 192, 194
international armed conÔ¬‚ict, 82
prosecution, 202, 203
international human rights law, 150,
state accountability, 182, 191‚Ä“2, 202, 203
international humanitarian law, 16
leadership accountability, 122, 123‚Ä“4
American Convention on Human Rights
legal status, 15
(1969), 50, 212
organizational structure, 1, 118, 155
stable presence, 54
Common Article 3, 25, 50
territorial control, 1, 15, 16, 54, 135,
enforcement apparatus, 201
150, 152, 154
FMLN see Frente Farabundo Mart¬ī para
torture, 179 ń±
la Liberacion Nacional
freedom of movement, 186‚Ä“7
Afghanistan, 29, 65, 66, 67
human rights, 11, 21, 32‚Ä“3, 49‚Ä“51, 63‚Ä“4
Colombia, 65, 84
Human Rights Committee, 201
Common Article 3, 65‚Ä“7, 84
humanitarian relief, 88‚Ä“9
fair trial, 66
indiscriminate attacks, 78
Geneva Convention IV (1949), 65‚Ä“6, 67