Human Rights Obligations of Non-State Armed Groups: Realistic or Overly Ambitious? Book Discussion

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Dr Murray’s book, Human Rights Obligations on Non-State Armed Groups talks about non-state armed groups as a reality that needs to be addressed: they exist, they exercise control, and therefore we must talk about their responsibilities. While this might seem self-evident, his sober analysis is particular commendable in the context of the current counter-terrorism atmosphere and discourse. It is a very well-researched, thorough and thoughtful book. It is particularly impressive in its wide research about the practice of many different groups.

The book raises many interesting questions on legal theory, but also on mechanisms to engage in dialogue with non-state armed groups. I would like to focus on two aspects: the legal “de facto control” argument and the dilemma which, to my mind, human rights obligations of non-state armed groups raise.

After having established that non-state armed groups have legal personality, the book argues that the “prescriptive jurisdiction theory” allows states – which are normatively higher positioned than their subjects, including non-state armed groups – to impose binding obligations on non-state armed groups as a matter of international law.

This is indeed what states have done in Common Article 3 to the four Geneva Conventions by imposing IHL obligations on each party to non-international armed conflicts, meaning also non-state armed groups. Through practice and opinio juris they have also, by now, by and large accepted that non-state armed groups have IHL obligations under customary international humanitarian law.

Unlike Common Article 3 and Additional Protocol II, however, human rights treaties are not generally worded in a manner that would suggest that they are binding on non-state armed groups. Other traditional sources of international law to create international rights and obligations would be customary law or general principles. However, the book discards both – customary law for lack of evidence; and general principles for being too general and vague. While this is correct, in my opinion, the analysis could have benefitted from looking a bit more closely at state practice and positions.

Since neither existing treaties, nor custom, nor general principles can therefore establish a firm legal basis, the author has recourse to the “de facto control theory”: if a non-state armed group exercises de facto control, then, in the absence of the state’s control, a legal vacuum must be filled, because the persons subjected to the control of the non-state armed groups would otherwise be deprived of their human rights. Importantly, for the author, de facto control is established not only when a non-state armed group exercises exclusive territorial control but also when it exercises control over a population to the exclusion of the state. The determining factor is the displacement of state authority, and the fact that the non-state armed group constitutes a “vertical authority”. The de facto control theory is therefore applied not only to groups that exercise territorial control but also groups such as the gangs in Brazil, El Salvador or Honduras. It also goes beyond the more traditional doctrine on de facto regimes in that under the “de facto control theory”, the group needs not claim to represent the state. The effective control theory is then applied to human rights treaties: non-state armed groups are bound by those treaties which are applicable to the territory in which the concerned population finds itself.

The recurrent argument to apply the de facto control theory is based on the necessity not to leave the population concerned without protection: the book repeatedly refers to the need to avoid a “legal vacuum”, “legal lacuna”, talks about the “necessity-based application of international law”, and also about the “foundation of human rights in human dignity”. In other words, it is a protection argument.

Strictly speaking if, as the book argues, none of the primary sources of international law – treaty, custom, general principles – impose human rights obligations on non-state armed groups, there is a question whether the “de facto control theory” can overcome the wording of the treaties and apply them to non-state armed groups. The consequence of finding a gap in the law would rather be an argument about what the law should be, not what the law is.

Admittedly, international law is used and invoked in more complicated ways than foreseen by Article 38 of the Statute of the International Court of Justice or the Vienna Convention on the Law of Treaties. The fact is that states, United Nations agencies and special procedures of the United Nations, do, in fact, refer to human rights with respect to non-state armed groups all the time.

The terminology most often used – although not by all states and not entirely consistently –  for instance in Security Council or Human Rights Council resolutions is “human rights violations” for states and “human rights abuses” for non-state actors (the same goes for human rights organisations such as Amnesty International or Human Rights Watch). This practice both invalidates and confirms the book’s argument. On the one hand, it illustrates that there is no clear consensus among states to put non-state armed groups on a par with states in terms of their obligations under human rights law. On the other hand, it also shows that states feel a need to address the fact that non-state armed groups must be held responsible when their acts affect the human rights of people under their control. It will be interesting to see how this debate, and states’ legal and political positioning, evolves. Considering the divisiveness of the non-state armed group subject, perhaps the normative fuzziness will remain for some time to come, accommodating both the need to talk about non-state armed groups and human rights and the differing legal views.

Beyond the legal question, there is also the important question whether it is desirable that the legal vacuum – or the gap in protection – should be filled by obligations of non-state armed groups. Perhaps this depends on the question whether the state is genuinely unable to respect, protect and fulfill the human rights of the concerned populations. This is true, of course, in a number of situations. Sometimes, however, the lack of protection might not result from an inability of the state to secure human rights protection but rather from its abdication of responsibility. The question then is whether it is really a better choice to leave the human rights in the hands of non-state armed groups, and in particular the general imposition of public order. There is perhaps no uniform answer to this, but it is a dilemma that I find difficult to solve. Despite the far from perfect human rights record of many states, I would argue that states should be held to their human rights obligations to the best of their abilities, and would only shift the obligation towards the non-state armed group if really necessary. In this respect, I am unconvinced by some of the book’s examples citing populations that have responded positively to non-state armed groups’ imposition of public order.

The book acknowledges this dilemma in some parts, for instance when discussing the prosecution of crimes and the risk that non-state armed groups’ courts will not have the capacity to impart justice. Interestingly, if I understand the argument correctly, in the area of prosecution the book seems to depart from the wide interpretation of the “de facto control” theory in each case of displacement of the state’s authority regardless of territorial control. It seems to argue that in the absence of a legal basis for non-state armed groups to prosecute crimes other than violations of IHL under international law, non-state armed groups need to have established “exclusive stable control over both a population and a territory” for there to be a “legal vacuum that gives rise to the necessity-based application of international law”; in such cases, non-state armed groups must not only be allowed but are even required to maintain law and order and to also prosecute crimes. But I would argue that neither IHL nor human rights law would, as such, prohibit the prosecution of crimes by non-state armed groups, even if they do not provide a legal basis for it. The question is rather whether non-state armed groups that are prosecuting any crimes must abide by human rights obligations. As I understand the book’s argument, they do not have to abide by those obligations when they don’t control territory, because they do not have a legal basis, under international law, to prosecute at all. Would this not result in precisely the protection gap that the book generally seeks to avoid? Why would someone being prosecuted for collaboration by the NPA (which controls territory) in the Philippines be in less need of protection than someone tried for collaboration by the IRA (which did not control territory) in Northern Ireland? Perhaps the point is that a group that controls territory is at least in theory able to fulfil the requirements of fair trial whereas a group that does not control territory is unable to do so.

But would that not be the case for many other human rights, especially if following a strong and ambitious human rights framework such as the “respect, protect and fulfill” one? It seems to me that the prosecution example illustrates the dilemma with applying an ambitious human rights framework to non-state armed groups. How much can we realistically expect? As the author writes, “if an armed group cannot fulfil these requirements [of fair trial guarantees] it cannot conduct prosecutions”. But what is the consequence of that? That everyone must be released? In practice, we must face the dilemma that the more we need to practically adapt their application to the particular context of non-state armed groups, the more concessions we must make on the content of those obligations. This is also true, to a certain extent, for IHL. But in general IHL is more of a minimum standard that human rights law.

We must probably remain very realistic about what to expect of non-state armed groups. While the model developed by the book on the “respect, protect and fulfill framework” is theoretically quite solid, parallels the obligations of states, and acknowledges that obligations must be commensurate to capacity, how often will it be possible to engage with non-state armed groups on deep and complex obligations, especially positive obligations? Experience has shown many hurdles when dialoguing with non-state armed groups on human rights (or IHL) obligations. Rejection of IHL on the ground that the group has no part in negotiating it (Colombia and Vietnam) is, as Murray rightly points out, perhaps this least of the obstacles. Rather, groups are more likely to accept their human rights obligations in principle, but to deny that they are breaching them – just like states. There can also be an outright rejection or disregard of IHL and human rights law as secular law and of lesser or no importance compared to religious law. This is the case for a number of jihadi groups, for instance. And recurrently, at least in armed conflict, there is the reciprocity argument: the group expresses commitment to all the highest standards but argues that the opposing side does not respect it. Lastly, there is a genuine obstacle of lack of capacity. Isn’t the practice most often – especially when it comes to fulfilling economic and social needs – that non-state armed groups rely on substitution by others (humanitarians) and that all that is being asked for by the international community is “humanitarian access”?

This “reality check” should not, however, minimize the importance of the theoretical inquiry into obligations of non-state armed groups. There is still a need for the best and soundest arguments which should, hopefully, create more agreement on this controversial and unresolved issue – even if ultimately NSAG might not be found to be bound by human rights to the extent argued by Dr. Murray. The clearer the legal framework, the greater the incentive to think about how to make it work in practice. It is Dr Murray’s merit to have brought some of those arguments together in a very readable, well-structured manner.

The views and opinions expressed in this post are those of the author’s own and do not necessarily reflect those of the ICRC.

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November 3, 2016