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924 JICJ 6 (2008), 899^926 Of course it is precisely because the application of international norms seems to herald some sort of legitimacy that governments may be resistant to the extension of international criminal law to groups as such. I have so far resisted setting out the traditional law relating to belligerents, insurgents and national liberation movements. The use of these categories and the formal steps needed to trigger international obligations in this context seem to have fallen into disuse. 76 It seems unlikely that there will be formal recognition of insurgencies in the near future. Governments are more interested in painting their opponents as criminal elements or terrorists rather than insurgents or rebels (indeed that word ‘rebel’ even has a sort of rallying romantic ring to it). In the contemporary world, governments are loath to consider their opponents as having obligations as such; governments believe this will elevate their opponents to some sort of legal subjectivity, triggering, not only obligations, but also extra rights for those seeking to undermine or overthrow them. The influential commentator William Safire recently wrote about the problem with regard to Iraq. General Peter Pace, chairman of the Joint Chiefs of Staff, at Rumsfeld’s side, said that U.S., Iraqi and coalition forces were ‘taking cities from the - I have to use the word ’insurgent’ because I can’t think of a better word right now ...’ Rumsfeld quickly put in,‘Enemies of the legitimate Iraqi government - how’s that?’ Insurgent, from the Latin insurgere, ‘to rise up,’ means ‘a rebel, one who revolts against an established government.’ The insurgent in rebellion does not have the status of a belligerent, rooted in Latin for ‘waging war,’and thus does not have the protections in law of a member of a state at war. Why, then, was Rumsfeld eager to get away from the term insurgent? One reason, I think, is that the word has gained more of a political connotation than a legal one in the United States; it is often applied to a group seeking to oust the leadership of a political party or a union, and insurgents in that context can refer to admirable ‘underdogs’ in a struggle against the established order or entrenched leadership. Another reason: it unifies disparate elements into an ‘insurgency’. 77 Words matter. If the capacity to bear international law obligations depends, in part, on being recognized as insurgents, we will loose the opportunity to influence the entities that are the vehicles for the commission of international crimes. Even if armed opposition groups may not be fined in court, or dissolved like corporations, it may make sense to consider them as the bearers of international obligations under international criminal law. Several scholars have provided theoretical models for generating international obligations on rebel groups. 78 These include arguments about customary international law, treaty law concerning the consensual obligations of third parties, practical necessity, 76 See the discussion in Human Rights Obligations of Non-State Actors, supra note 6, at 271^286. 77 ‘Language: Insurgent irresponsiveness’, International Herald Tribune, 16 January 2006. 78 S. Sivakumaran, ‘Binding Armed Opposition Groups’, 55 International and Comparative Law Quarterly (2006) 369^394; M. Sasso' li, Transnational Armed Groups and International Humanitarian Law (Harvard University: Program on Humanitarian Policy and Conflict Research, 2006), esp at 14; K. Nowrot, ‘International Legal Personality of Influential Non-State Actors: Towards A Rebuttable Presumption of Normative Responsibilities’, 80 Philippines Law Journal (2006) 563^586, at 580^586; L. Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002); A. Cassese, ‘The Status of
Extending International Criminal Law 925 reciprocity, effectiveness, the needs of the international community, succession to state obligations through effective exercise of sovereignty, purported representation of legislative jurisdiction by national authorities, and a plain text reading of treaty provisions such as common Article 3 to the Geneva Conventions of 1949. 79 But writing in his authoritative Handbook of International Humanitarian Law, Dieter Fleck has simply suggested that to ask how armed opposition groups can be bound by international law is ‘overly complicating a fundamental principle: international treaties are not concluded on behalf of governments, but on behalf of states lawfully representing all their citizens. Customary international law is based on practice and opinio iuris of states and binding upon peoples. General principles of law have likewise binding effects upon individuals’. 80 The same Handbook includes the assertion by Christopher Greenwood that: The obligations created by international humanitarian law apply not just to states but to individuals and to non-state actors such as a rebel faction or secessionist movement in a civil war. The application to non-state actors of human rights treaties is more problematic and even if they may be regarded as applicable in principle, the enforcement machinery created by human rights treaties can normally be invoked only in proceedings against a state. 81 The obligations on states and non-state actors are by no means identical, but we can see that such commentary rather suggests that first, we no longer need to search for a theoretical foundation for fixing international obligations on armed opposition groups; and second, the obligations are not limited to international humanitarian law but can be expressed in terms of international criminal law. 82 If it is admitted that human rights law may apply in principle, it is difficult to see why one would exclude international Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, 30 International and Comparative Law Quaterly (1981) 416^439. 79 On Common Art. 3, see UK Ministry of Defence,TheManualoftheLawofArmedConflict(Oxford: Oxford University Press, 2004), 385, esp. note 19: ‘This purports to bind all parties, both states and insurgents, whether or not the latter have made any declaration of intent to apply the principles.’ 80 D. Fleck (ed.), ‘The Law of Non-International Armed Conflicts’, in The Handbook of Humanitarian Law in Armed Conflict (2nd edn., Oxford: Oxford University Press, 2007), 603^633, at 608. See also D. Fleck,‘Humanitarian Protection Against Non-State Actors’, in J.A. Frowein, K. Scharioth, I. Winkelmann and R. Wolfrum (eds), Verhandeln fu«r den Frieden - Negotiating for Peace: Liber Amicorum Tono Eitel (Berlin: Springer, 2003), 69^94. 81 ‘Scope of Application of Humanitarian Law’, in Fleck (ed.), supra note 80, 45^78 at 76. See also Institute de Droit International, ‘L’application du droit international humanitaire et des droits fondamentaux de l’homme dans les conflits arme¤s auxquels prennent part des entite¤s none¤tatiques: re¤solution de Berlin du 25 aou“ t 1999’ (commentary by Robert Kolb) (Paris: Pedone, 2003). 82 ‘As for punishing violations, international criminal law is as applicable to those fighting for armed groups as to those fighting for states. Armed groups are responsible for violations committed by their members. Their responsibility to the international community has already been demonstrated by sanctions imposed on them by the Security Council.’ M. Sasso' li, ‘Engaging Armed Nonstate Actors with International Humanitarian Law’, 6 Human Security Bulletin (2008) 15^18.
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