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The International Legal Status of Armed Groups: Can One Be Determined Outside the Scope of Armed Conflict?

  • Tom Gal (a1)
Abstract

In 2016 Daragh Murray published his book Human Rights Obligations of Non-State Armed Groups (Hart 2016). By way of distinction from many other contributions on this widely discussed topic, Murray tries to provide the reader with a complete overview of the legal framework that enables armed groups to acquire international legal status, and preferably outside the framework of armed conflict. He walks the reader through the path of international legal personality, leading towards the acknowledgement of armed groups as addressees of the law. Murray's attempt is courageous, interesting and innovative, but it has its shortcomings. These include his reliance on international criminal law as a source for defining armed groups, and his insistence on stepping outside international humanitarian law. Nonetheless, his contribution is essential for those who wish to include even more armed groups on the international plane.

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1 Murray, Daragh, Human Rights Obligations of Non-State Armed Groups (Hart 2016).

2 Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism (Oxford University Press 2011) 512.

3 See, eg, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [24]–[25].

4 Fortin, Katharine, The Accountability of Armed Groups under Human Rights Law (Oxford University Press 2017) 153.

5 See, eg, Pablo Policzer, ‘Neither Terrorist nor Freedom Fighters’, presented at the International Studies Association Conference, Honolulu (Hawaii), 3–5 March 2005, 1. See also Geneva Centre for the Democratic Control of Armed Forces (DCAF) and Geneva Call, ‘Armed Non-State Actors: Current Trends & Future Challenges’, DCAF Horizon 2015 Working Paper No. 5, 2012, 7.

6 Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (Oxford University Press 2012) 8.

7 Zegveld, Liesbeth, Accountability of Armed Opposition Groups in International Law (Cambridge University Press 2002) 1.

8 ibid.

9 Clapham, Andrew, Human Rights Obligations of Non-State Actors (Oxford University Press 2006) Ch 7.

10 Zegveld (n 7) 1; Clapham, ibid.

11 Fortin (n 4) 152.

12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro), Judgment [2007] ICJ Rep 43, [392] (Genocide case).

13 ibid 42–43.

14 Based on the definition of the International Criminal Tribunal for the former Yugoslavia (ICTY) in ICTY, Prosecutor v Tadić, Judgment, IT-94-1-A, Appeals Chamber, 15 July 1999, [196], as well as the definition of the International Court of Justice (ICJ) in the Genocide case (n 12) [386]–[394].

15 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), art 1(4).

16 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I), art 2; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II), art 2; Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), art 2; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), art 2 (Common Article 2).

17 See, eg, Fortin (n 4) 90–151, 158.

18 ibid.

19 GC I (n 16) art 3; GC II (n 16) art 3; GC III (n 16) art 3; GC IV (n 16) art 3 (Common Article 3).

20 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ Rep 174, 179 (Reparations case).

21 Hersch Lauterpacht, ‘The Subjects of International Law’ in Andrea Bianchi (ed), Non-State Actors and International Law (Ashgate 2009) 14; Reparations case, ibid 178; Western Sahara, Advisory Opinion [1975] ICJ Rep 12, [148].

22 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II), especially in its threshold, art 1(1).

23 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 5(1).

24 Fortin (n 4) 212.

25 ibid.

26 Reparations case (n 20) 178–90.

27 ibid.

28 See, eg, the recommendations referring to humanitarian assistance in sieged areas as well as detention conditions in the latest report of the UN Human Rights Council (HRC) on the human rights situation in Syria: Human Rights Council, Report of the International Commission of Inquiry on the Syrian Arab Republic (6 March 2018), UN Doc A/HRC/37/72, Pt X. On the one hand, the armed groups are expected to meet the same requirements as the state(s); on the other, the state(s) consider them as terrorist and the Commission itself questions its reasons for detention (ibid Pt VII).

29 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90, art 7.

30 Genocide case (n 12) [403].

31 Gal, Tom, ‘Unexplored Outcomes of Tadić: Applicability of the Law of Occupation to War by Proxy’ (2014) 12 Journal of International Criminal Justice 59, 6364.

32 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, art 46C.

33 Cryer, Robert and others, An Introduction to International Law and Procedure (3rd edn, Cambridge University Press 2015) 355–58, 590–92.

34 As Policzer (n 5) explains, such general and universally accepted definition has not yet been adopted.

35 Zegveld (n 7) 220–22.

36 See, eg (and as referred to by Murray (n 1) 69), the International Criminal Tribunal of Rwanda (ICTR) case, ICTR, Prosecutor v Kayishema, Judgment, ICTR-95-1-T, Trial Chamber II, 21 May 1999, [126]; ICTY, Prosecutor v Kupresškić, Judgment, IT-95-16-T, Trial Chamber, 14 January 2000, [551]; ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07, Pre-Trial Chamber, 30 September 2008, [396].

37 Schabas, William, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 152–53.

38 Cassese, Antonio and Gaeta, Paola, Cassese's International Criminal Law (3rd edn, Oxford University Press 2013) 9192; Cryer and others (n 33) 234–36.

39 ILC, Report of the International Law Commission 69th Session (1 May–2 June and 3 July–4 August 2017), UN Doc A/72/10.

40 Zegveld (n 7) 15.

41 Pictet, Jean S (ed), Commentary: III Geneva Convention relative to the Treatment of Prisoners of War (International Committee of the Red Cross 1958) 37.

42 ibid.

43 ibid.

44 For an elaboration of these examples see Jochen A Frowein, ‘De Facto Regime’ in Max Planck Encyclopedia of Public International Law, C, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1395?rskey=t0ybEe&result=1&prd=EPIL; and Hiroshi Taki, ‘Effectiveness’ in Max Planck Encyclopedia of Public International Law, B(1), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e698?rskey=3jok6f&result=1&prd=EPIL. For other examples see Murray (n 1) 124.

45 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) 2 Yearbook of the International Law Commission 31, UN Doc A/56/10, Commentary to Draft Articles 9–10.

46 Human Rights Council, List of Issues in relation to the Fifth Periodic Report of Iraq – Replies of Iraq to the List of Issues (27 August 2015), UN Doc CCPR/C/IRQ/Q/5/Add.1, para 33.

47 Fortin (n 4) 157–58.

48 Ronen, Yaël, ‘Human Rights Obligations of Territorial Non-State Actors’ (2013) 46 Cornell International Law Journal 21, 31.

49 Human Rights Council (n 46) para 33.

50 See, in particular, UN Commission on Human Rights, Report of the Special Rapporteur, Philip Alston, on Extrajudicial, Summary or Arbitrary Executions (22 December 2004), UN Doc E/CN.4/2005/7, para 76; UNGA, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (12 February 2014), UN Doc A/HRC/25/65.

51 ILC (n 45) Commentary to Draft Article 10, paras 1–7.

52 ibid.

53 Rudolf, Beate, ‘Non-State Actors in Areas of Limited Statehood as Addressees of Public International Law on Governance’ (2010) 4 Human Rights and International Legal Discourse 127.

54 See, eg, Sivakumaran (n 6) 185–88; Dinstein, Yoram, Non-International Armed Conflicts in International Law (Cambridge University Press 2014) 40. The idea that control over territory is an element for regulating armed groups in the international system is not new, as explained by Fortin (n 4) 157–58.

The author thanks the Israel Law Review academic editor, Professor Yaël Ronen. Special thanks to Professor Paola Gaeta for her encouragement, supervision and support. The opinions presented in the article are those of the author and any errors are the author's responsibility.

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
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