Author’s Response: Human Rights Obligations of Non-State Armed Groups

First of all, I would like to extend my sincere thanks to Jonathan Horowitz, Cordula Droege, and Marco Sassoli for taking the time to read my book and to engage with its arguments. All three discussants raised a number of interesting questions and although I cannot address them all here due to space limitations, they raised a number of issues that I will continue to think through and develop further. For the purposes of this post I have chosen to focus on four overarching topics: the challenge to State sovereignty posed by the regulation of armed group activity; the question of how human rights law obligations can be applied to non-State armed groups; the consideration of armed groups not party to a non-international armed conflict; and the question of compliance.

Before proceeding, however, I would like to flag a few issues. Although I argue that human rights law obligations can, and should, be applied to armed groups in certain situations, the State remains the original duty bearer. The fact that the State’s obligations are the starting point act as a safeguard to ensure that the State cannot rely upon the application of human rights obligations to armed groups to circumvent its own responsibilities (see the ‘respect, protect, fulfil’ framework discussed in the introductory post). I should also note that I regard the application of human rights obligations to armed groups as necessary but not ideal. In normal situations the State remains the appropriate guarantor of human rights. It is only in exceptional circumstances that efforts should be made to ensure that human rights are protected to the extent possible by extending obligations to armed groups. Finally, Sassoli makes an interesting point regarding the gradated context-dependent application of customary international human rights law. This appears sensible, and is in keeping with the approach to treaty law presented in the book; it requires further consideration.

The regulation of armed groups as a challenge to State sovereignty

As noted by Horowitz, States frequently express the concern that the regulation of armed group activity may challenge their sovereignty, and imply, inter alia, the illegitimacy of the State, the erosion of State authority, or the legitimacy of the armed group (and its use of force). These concerns are longstanding. They were a feature of the discussions that led to the codification of common Article 3 and they remain a key issue today, even within the IHL context, and despite the fact that the application of IHL to armed groups is universally accepted. States’ concerns are not baseless: the emergence of an armed group unquestionably denotes a limitation of State authority.

However, State authority is not limited by the application of legal obligations to armed groups: it is limited by the existence of the armed group and by the State’s inability to impose its authority. It is precisely this displacement of State authority that necessitates the international regulation of armed groups, but that international regulation will only persist for as long as State authority is displaced. In this sense, international regulation is a consequence, not cause, of any limitation to sovereignty. It is worth highlighting that when addressing the international regulation of the TRNC de facto authority in northern Cyprus, the European Court of Human Rights stated that the international regulation of the TRNC does not legitimate the TRNC or affect Cyprus’ continuing sovereignty (para. 84).

Concerns vis-à-vis State sovereignty are likely to continue. However, the reality of armed group control must also be acknowledged. The attribution of human rights obligations to armed groups is necessary, but measures should be taken to ensure that these obligations directly correspond to, and are limited by, the displacement of State authority, thereby corresponding exclusively to the reality at hand. This is the basis for the proposed framework regulating how human rights obligations can be applied to armed groups in practice, which attempts to ensure that State sovereignty is respected to the extent possible. See the ‘respect, protect, fulfil’ framework discussed in the introductory post, and for more detail, chapters 7 and 8.

Interestingly, States’ reluctance to address issues related to the regulation of armed groups when they themselves are faced with an armed group highlights the need for international regulation. This was the approach adopted in the IHL context, noting the move away from a State-based approach to the classification of a situation (through a declaration of war or recognition of belligerency) to the objective standard codified in Articles 2 and 3 common to the 1949 Geneva Conventions.

How human rights law obligations can be applied to non-State armed groups

Both Droege and Sassoli raised questions regarding the legal basis for the application of human rights obligations to armed groups, as non-State actors. The wording of the principal international human rights law treaties is clear: their obligations apply to States. However, in exceptional circumstances involving the displacement of State authority, the question arises as to whether international law provides a basis for extending these obligations to armed groups. My approach to this question is motivated by the principle of effectiveness (ensuring that international law remains relevant to the situations it is intended to address) and the necessity of ensuring continued human rights protection to the extent possible in exceptional circumstances.

Although this argument is presented in greater detail in the book, simply put it holds that when an armed group displaces State authority it substitutes its authority for that of the State. As such, the armed group establishes itself as a ‘vertical authority’ and so the normal authority relationship envisaged by international human rights law remains intact (horizontal human rights obligations are not at issue). The legal rationale underpinning this conclusion is based on the de facto control theory and the implied mandate (longstanding principles which hold that certain acts of a de facto authority should be recognised in the interests of the affected population), and an evolutionary approach to treaty interpretation as adopted by the International Court of Justice. For example, ‘…interpretation cannot remain unaffected by the subsequent development of law […] an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.’

Today international human rights law plays a central role in the international legal order, and the protection of human rights is an international priority. Although, as Sassoli notes, armed groups had indeed controlled territory prior to the adoption of the principal human rights law treaties, States were then widely regarded as the primary addressees of international law, and the possibility of non-State actors being directly bound by international law was only tentatively accepted. Today, however, it is increasingly recognised that non-State entities can be directly bound by international law, international human rights law is confirmed as a central feature of the international legal system, and the reality of armed group activity (and the increased prevalence of non-international armed conflict) necessitates that attention be focused on this issue.

Groups not party to a non-international armed conflict

It is today accepted that armed groups party to a non-international armed conflict are subject to direct obligations under international law by virtue of the application of IHL and that they possess international legal personality on this basis. As such, and as noted by Sassoli, it may be argued that only armed groups party to a non-international armed conflict should be subject to international obligations. While agreeing that a significant number of armed groups subject to human rights obligations on the basis of my approach will be party to a non-international armed conflict, I don’t believe that the application of human rights obligations should be automatically restricted on this basis. The application of human rights obligations is premised on the displacement of State authority. While this displacement will definitely occur during a non-international armed conflict, it may also arise outside these situations.

Two examples may explain this reasoning. First, influential armed groups may exist outside non-international armed conflict. For example, the Office of the Prosecutor at the International Criminal Court determined in 2013 that the Urabeños were not party to a non-international armed conflict. The group satisfied the organisation criterion, but their hostilities with the State did not meet the required intensity threshold. The group’s hostilities with the Rastrojos – another armed group – did satisfy the intensity criterion, but that group did not satisfy the organisation criterion. Nonetheless, the extent of the group’s influence is demonstrated by a ‘strike’ called in 2012 in response to the killing of the group’s leader, during which the group effectively shut down business and public transport in six of Colombia’s 32 provinces. Equally, prior to 2013 Boko Haram were arguably not party to a non-international armed conflict, despite exerting significant control over parts of northern Nigeria. Second, the precise boundaries of non-international armed conflict are uncertain. It may be that a situation could cycle in and out of armed conflict, or that a non-international armed conflict ends (due to a significant reduction in hostilities) but that the armed group continues to exercise significant control. If the displacement of State authority (and the resultant influence over affected populations) is the decisive factor, neither of these examples – which do not, or may not, amount to non-international armed conflict – should be excluded from the potential application of human rights law obligations.

However, two relevant factors must be highlighted. First, outside non-international armed conflict the threshold denoting the displacement of State authority is high (see chapter 5(III)(A)). Second, the application of the full spectrum of human rights obligations is not at issue: obligations are applied in a gradated context-dependent manner. These factors ensure that the State’s responsibility for human rights obligations remains the rule, and that human rights obligations are only applied to a limited number of armed groups whose activity necessitates such attribution.

The question of compliance (is more law the answer?)

As noted by both Droege and Horowitz compliance is a key issue. Two issues are involved: first, whether an armed group chooses to engage with its international obligations and takes steps to comply; and second, whether those obligations are practical and capable of being complied with. I believe that human rights law can facilitate a positive answer to both of these issues, not because the development of law automatically leads to an improvement in the situation, but because the development of armed groups human rights obligations offers an opportunity to engage armed groups and to respond to their reality.

The issue of armed group governance provides an example. A large number of armed groups engage in some form of governance activity, even at the early stages of their capacity/development. This interest in governance may be explained on the basis of two key factors, relating to (a) armed groups’ interest in a compliant population, and (b) armed groups’ claim to represent a particular population (representational legitimacy). An armed group may act on the basis of either one, or a combination, of these factors. For instance, a for-profit armed group involved in a ‘narco-insurgency’ may benefit from a compliant population but may not wish to pursue representational legitimacy, while both factors may be relevant for a group such as the FARC.

Human rights law is concerned precisely with governance, and with ensuring that the best interests of the population are ensured while accommodating the needs of the ruling authority (including security considerations). Accordingly, if the practice of armed groups and their motivations are incorporated into the development of the content of armed groups’ human rights obligations then the resultant obligations can be used not only to regulate armed group activity but also to guide it: human rights law can be used to demonstrate to armed groups how they can govern in the best interests of the affected population (within the sovereignty-related constraints discussed above and in the book), and why it is in their interest to do so. Significantly, this approach has the possibility to contribute to the development of ‘best practice’ in armed group governance. Approaching the development of the law in this way has the potential to address Droege’s very real concerns regarding armed groups’ ability to comply with human rights obligations in practice. My book proposed a framework to regulate the overall application of human rights obligations to armed groups. Determining the specific content of the resultant obligations is the necessary the next step, and is the focus of current research.