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28 Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council was under the ‘continuing obligation to ensure respect for the rights recognized in the Covenant in relation to the population of Transnistria within the limits of its effective power’. 72 Scholars generally support the idea that ANSAs that exercise territorial control or de facto governmental authority have human rights obligations. Indeed, the need to regulate the relationship between those who govern and those who are governed, which many consider underpins human rights law, justifies the application of that law. 73 Box 7. The position on ANSAs of the Committee on the Elimination of all Forms of Discrimination against Women In its General Recommendation No 30 of 18 October 2013 on women in conflict prevention, conflict and post-conflict situations, the Committee on the Elimination of all Forms of Discrimination against Women (CEDAW) stated: ‘Under international human rights law, although non-State actors cannot become parties to the Convention, the Committee notes that under certain circumstances, in particular where an armed group with an identifiable political structure exercises significant control over territory and population, non-State actors are obliged to respect international human rights’. The Committee went on to urge ‘non-State actors such as armed groups: (a) to respect women’s rights in conflict and post-conflict situations, in line with the Convention; (b) to commit themselves to abide by codes of conduct on human rights and the prohibition of all forms of gender-based violence’. Source. CEDAW, General Recommendation No 30 on women in conflict prevention, conflict and post-conflict situations, CEDAW/C/GC/30, 18 October 2013, §16 and §18. 72 See CCPR/C/MDA/CO/2 (2009), §5. 73 See for instance N. Rodley, ‘Can Armed Opposition Groups Violate Human Rights’, in K. E. Mahoney and P. Mahoney (ed), Human Rights in the Twenty-First Century: A Global Challenge, Martinus Nijhoff, 1993, p 297-318; and L. Zegveld, The Accountability of Armed Opposition Groups in International Law, Cambridge University Press, 2002.
Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council 29 One weakness of this approach is that it is unclear for how long and to what extent an ANSA must exercise control over a territory and population before it becomes subject to human rights law. 74 Some guidance may be found in a 2014 report of the Special Rapporteur on freedom of religion or belief, who stated: ‘While international human rights law traditionally focused only on the obligations of States, an evolving approach recognizes the importance and impact of certain non-State actors, arguing that some human rights obligations also apply to them, including non-State armed groups with (or arguably even without) effective control over a territory. […] “Effective control” means that the non-State armed group has consolidated its control and authority over a territory to such an extent that it can exclude the State from governing the territory on a more than temporary basis. Furthermore, armed groups without effective control over territory have been held to have committed human rights violations. In May 2014, a report by the United Nations Mission in the Republic of South Sudan stressed that the most basic human rights obligations, in particular those emanating from peremptory international law (jus cogens), bind both the State and armed opposition groups in times of peace and during armed conflict.’ 75 A further challenge is to determine which human rights norms are applicable to ANSA. Should de facto non-state authorities or ANSAs that control territory be bound by all or only some human rights norms? It has been argued that this question should be determined by ANSAs’ capacity to implement the norms in question. 76 Some UN reports have attempted to list the human rights norms that might be binding on ANSAs. Following a mission to Sri Lanka, the Special Rapporteur on extrajudicial, summary or arbitrary executions argued: ‘The LTTE should refrain from violating human rights, including those of non-LTTE-affiliated Tamil civilians. This includes in particular respect for the rights to freedom of expression, peaceful assembly, freedom of association with others, family life, and democratic participation, including the right to vote. The LTTE should specifically affirm that it will abide by the North-East Secretariat on Human Rights charter.’ 77 74 T. Rodenhäuser, ‘Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law: What Degree of Organization is Required?’ PhD Thesis, Graduate Institute of International and Development Studies, 2016 (forthcoming 2017). 75 Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, A/HCR/28/66, 29 December 2014, §54 and §56. 76 See D. Murray, Human Rights Obligations of Non-State Armed Groups, Hart, 2016. 77 Special Rapporteur on extrajudicial, summary or arbitrary executions, in the context of his mission to Sri Lanka, E/CN.4/2006/53/Add.5, 27 March 2006, §85.
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