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Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council
Step 1. Determine an ANSA’s characteristics and the applicable legal
framework.
As explained in this research, there is clear practice suggesting that ANSAs
are bound by a broader set of human rights obligations when they exercise de
facto governmental functions or exercise control over a population. Whenever
ANSAs are addressed in HRC resolutions, we therefore recommend that their
characteristics are carefully analysed and determined. In particular, drafters should
assess whether the ANSA in question can be considered a de facto authority or
whether a population lives under its control.
Determining the ANSA’s level of organization will also clarify the applicability of
IHL. Determining the applicability of IHL to a given situation is a difficult exercise.
Information and guidance on this issue can be found in the Rule of Law in Armed
Conflict Project (www.rulac.org) or The War Report of the Geneva Academy of
International Humanitarian Law and Human Rights.
Where a situation cannot be qualified as a non-international armed conflict, only
human rights law is applicable and it becomes particularly important to determine
types of violation in order to avoid a gap in protection.
Step 2. Determine the types of violation.
Some practice tends to show that all forms of ANSA are bound to respect human
rights which are peremptory norms of international law (or jus cogens) and
whose violation can lead to the establishment of individual criminal responsibility,
whether or not the ANSA responsible controls territory and whether or not IHL is
applicable. For other types of violations, where the legal framework is less clear,
it is suggested that only ANSAs that act as de facto authorities may be bound by
human rights law. Two questions may be considered:
• Do the acts violate peremptory norms of HRL? Can they to lead to the
establishment of individual criminal responsibility?
• Do the acts violate other types of human rights norms?
These recommendations are summarized in the two charts below.