InBrief7_web

Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council
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certain territory; the ability of the group to gain access to weapons, other military
equipment, recruits and military training; its ability to plan, coordinate and carry
out military operations, including troop movements and logistics; its ability to
define a unified military strategy and use military tactics; and its ability to speak
with one voice and negotiate and conclude agreements such as ceasefires or
peace accords. 45
Scholars continue to discuss the precise legal means by which ANSAs are bound
by IHL. 46 However, state practice, international case law, and scholarship all agree
that Common Article 3 of the 1949 Geneva Conventions, Additional Protocol II
of 1977 to the 1949 Geneva Conventions (AP II), and customary IHL apply to all
categories of ANSA that are parties in non-international armed conflicts. 47
Additional Protocol II also applies to conflicts of a non-international character. In
addition to the existence of an armed conflict in the territory of a High Contracting
Party between an ANSA and the government, 48 three cumulative material
conditions under para. 1 of Article 1 must be fulfilled before the treaty is applicable
to the ANSA in question:
1. The ANSA must be under responsible command.
2. It must exercise such control over a part of the national territory as to
enable it to carry out sustained and concerted military operations.
3. Territorial control must be such as to enable the ANSA to be able to
implement the Protocol.
45 ICTY, Prosecutor v Haradinaj, Case No IT-04-84-84-T, Judgment (Trial Chamber), 3 April 2008, §60.
46 For example, in 2004 the Appeals Chamber of the Sierra Leone Special Court held that ‘it is well
settled that all parties to an armed conflict, whether states or non-state actors, are bound by international
humanitarian law, even though only states may become parties to international treaties’. See Prosecutor
v Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack
of Jurisdiction (Child Recruitment), Decision of 31 May 2004, §22, available at: www.unhcr.org/refworld/
docid/49abc0a22.html. For the different theories on the applicability of IHL to ANSA, see S. Sivakumaran,
‘Binding Armed Opposition Groups’, 55 International and Comparative Law Quarterly (2006), 381; and A.
Cassese, ‘The Status of Rebels Under the 1977 Geneva Protocol on Non-International Armed Conflicts’,
30 International & Comparative Law Quarterly 2, (1981), 429.
47 In Nicaragua v United States of America, the International Court of Justice confirmed that Common
Article 3 was applicable to the Contras (an ANSA). ‘The conflict between the contras’ forces and those of
the Government of Nicaragua is an armed conflict which is “not of an international character”. The acts of
the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts
of that character.’ See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America), Judgment of 27 June 1986, ICJ Reports 1986, §219.
48 In contrast to Additional Protocol II, Common Article 3 also regulates armed conflicts between ANSAs.