InBrief7_web

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Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council
need support from the international community to do so. This raises concerns
similar to those associated with the issue of legitimacy. The fact that some ANSAs
are listed as terrorist groups makes it difficult for many organizations to cooperate
with them or build their capacity. 82
HRC resolutions referring to ANSAs have not been systematic in speaking of
‘abuses’ or ‘violations’ of human rights law. It seems that, as the main UN body
trusted with promoting human rights, the Council has wished to signal politically
that it cannot ignore the role of ANSAs and their impact on human rights, but
simultaneously it has been unwilling to take a firm stance on the applicable
legal framework. That said, the Human Rights Council should cease to speak
misleadingly of human rights ‘abuses’ rather than human rights ‘violations’,
thereby avoiding giving any impression that all categories of ANSA, including de
facto authorities, might be free of human rights obligations.
In 2014 and 2015, the HRC held two special sessions specifically on ANSAs, one
on the so-called Islamic State in Iraq and the Levant and the other on Boko Haram.
While it is interesting that ANSAs were the subject of these two resolutions, it
is significant that the HRC denounced the human rights and humanitarian law
violations of only one party to these armed conflicts. If such resolutions appear
biased, their influence on the conduct and policies of ANSAs is likely to diminish,
making ANSAs less ready to acknowledge that they have human rights obligations.
HRC resolutions have also sometimes employed the term ‘terrorist groups’
when referring to ANSAs. While it is true that some ANSAs are listed in national
and international lists of terrorist organizations, states will tend to label any
armed group that opposes it as ‘terrorist’. The branding of ANSAs as ‘terrorist’,
regardless of their nature and motivation, has created difficulties and dilemmas
both legally and for policy. First, since the legal qualification of an ‘armed conflict’
is based on fact, it is important to note that an ANSA can be party to a conflict
and bound by the same relevant rules of international law as other parties to that
conflict, whether or not it is labelled as a ‘terrorist group’. 83 Second, as noted
by the ICRC, ‘a recent challenge for IHL has been the tendency of States to
label as terrorist all acts of warfare against them committed by armed groups,
especially in non-international armed conflicts. This has created confusion in
differentiating between lawful acts of war, including such acts committed by
82 See Geneva Call, The Positive Obligations of Armed Non-State Actors: Legal and Policy Issues, Report
from the 2015 Garance Talks, 2016.
83 See S Vité, ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual
situations’, 92 International Review of the Red Cross, 873, March 2009, 69-94.