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The applicability of international humanitarian law to organized armed groups

Published online by Cambridge University Press:  07 March 2012

Jann K. Kleffner
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Abstract

While it is generally accepted today that international humanitarian law (IHL) is binding on organized armed groups, it is less clear why that is so and how the binding force of IHL on organized armed groups is to be construed. A number of explanations for that binding force have been offered. The present contribution critically examines five such explanations, namely that organized armed groups are bound via the state on whose territory they operate; that organized armed groups are bound because their members are bound by IHL as individuals; that norms of IHL are binding on organized armed groups by virtue of the fact that they exercise de facto governmental functions; that customary IHL is applicable to organized armed groups because of the (limited) international legal personality that they possess; and that organized armed groups are bound by IHL because they have consented thereto.

Type
Armed Groups and International Law
Information
International Review of the Red Cross , Volume 93 , Issue 882: Understanding armed groups and the applicable law , June 2011 , pp. 443 - 461
Copyright
Copyright © International Committee of the Red Cross 2012

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References

1 The International Criminal Tribunal for the former Yugoslavia (ICTY) has identified several indicative factors for an armed group to be considered ‘organized’, including the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits, and military training; its ability to plan, co-ordinate, 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 ceasefire or peace accords. For an elaboration of the required degree of organization, see e.g. ICTY, The Prosecutor v. Boškoski and Tarčulovski, Case No. ICTY-IT–04–82-T, Judgment (Trial Chamber), 10 June 2008, paras. 194–205.

2 Common Article 3 to the Four 1949 Geneva Conventions. See also Additional Protocol II, Art. 1(1), which assumes that binding force inasmuch as it ‘develops and supplements Article 3 common to the Geneva Conventions … without modifying its existing conditions of application’, albeit with the caveat that Additional Protocol II only applies to a specific type of organized armed groups, namely those that meet the high threshold of exercising control over territory sufficient to enable them to carry out sustained and concerted military operations and to implement the Protocol.

3 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Volume I: Rules, ICRC and Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar, Rule 139, applicable in both international armed conflicts and NIACs.

4 While a legal regime for the collective responsibility of organized armed groups remains amorphous, there are clear indications in the practice of both states and inter-governmental organizations, as well as of non-governmental organizations, that organized armed groups can be held accountable qua collective entities. See generally, Jann K. Kleffner, ‘The collective accountability of organised armed groups for system crimes’, in André Nollkaemper and Harmen van der Wilt (eds), System Criminality in International Law, Cambridge University Press, Cambridge, 2009, pp. 238–269.

5 For a discussion of that construction see below, pp. 454–456.

6 Moir, Lindsay, The Law of Internal Armed Conflict, Oxford University Press, Oxford, 2002, pp. 53–54CrossRefGoogle Scholar, with references to Pictet, Baxter, Schindler, Elder, Greenspan, and Draper as authors taking that view.

7 For a recent defence of the doctrine of legislative jurisdiction, see Sivakumaran, Sandesh, ‘Binding armed opposition groups’, in International and Comparative Law Quarterly, Vol. 55, 2006, pp. 381–393CrossRefGoogle Scholar.

8 Ibid., p. 382.

9 For a pertinent example, see the assertion of the National Liberation Front in Vietnam in the 1960s that ‘it was not bound by the international treaties to which others beside itself subscribed’, in ICRC, ‘External activities: Viet Nam’, in International Review of the Red Cross, Fifth Year, No. 57, 1965, p. 636.

10 Cassese, Antonio, ‘The status of rebels under the 1977 Geneva Protocol on Non-international Armed Conflicts’, in International and Comparative Law Quarterly, Vol. 30, 1981, p. 429CrossRefGoogle Scholar.

11 Ibid.

12 Meron, Theodor, Human Rights in Internal Strife: Their International Protection, Sir Hersch Lauterpacht Memorial Lectures, Grotius Publications, Cambridge, 1987, p. 39Google Scholar.

13 On the relationship between international and national law, see, among others, Nijman, Janne and Nollkaemper, André, New Perspectives on the Divide Between National and International Law, Oxford University Press, Oxford, 2007, 380 ppCrossRefGoogle Scholar.

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15 S. Sivakumaran, above note 7, pp. 384–385.

16 Ibid., p. 381, emphasis added. S. Sivakumaran further recounts the opinion expressed by the Greek delegate at the Diplomatic Conference of 1974–1977 that also ties the binding nature of IHL on organized armed groups to the fact that their members ‘were obviously nationals of some State, and were thereby bound by the obligations undertaken by the latter’, ibid.

17 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention on Certain Conventional Weapons as amended on 3 May 1996).

18 Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999.

19 See ICTY, The Prosecutor v. Tadič, Decision (Appeals Chamber), 15 July 1999, para. 166.

20 Sylvie Junod, in Claude Pilloud, Jean Pictet, Yves Sandoz, and Christophe Swinarski, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Martinus Nijhoff Publishers, Dordrecht, 1987, p. 1345, para. 4444, emphasis added. See also the statement of the delegate of the USSR at the Diplomatic Conference of 1974–1977, in Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1974–1977), CDDH/III/SR.32, Vol. XIV, p. 314, para. 22 (‘Any international instrument signed by a Government was binding on all those within its territory’).

21 Christopher Greenwood, ‘Historical development and legal basis’, in D. Fleck (ed.), The Handbook of International Humanitarian Law, 2nd edition, Oxford University Press, Oxford, 2008, p. 39, para. 134. For an example epitomizing the long history of war crimes prosecutions, see the Henfield's case, 11 F. Cas. 1099 (C. C. D. Pa. 1793) (No. 6,360), reproduced in Jordan J. Paust, et al. (eds), International Criminal Law: Cases and Materials, 2nd edition, Carolina Academic Press, Durham, NC, 2000, pp. 232–238.

22 For combatants, see e.g. the Nuremberg Judgment against members of the German Wehrmacht and Kriegsmarine Wilhelm Keitel, Karl Dönitz, Erich Raeder, and Alfred Jodl, all convicted for war crimes in World War II, International Military Tribunal (Nuremberg), The Trial of German Major War Criminals, Judgment, 1 October 1946; Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, 22 August 1946 to 1 October 1946, pp. 492–493, 508–510, 511–512, 516–517. For members of organized armed groups in an NIAC, see e.g. Special Court for Sierra Leone, The Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Judgment (Trial Chamber), 20 June 2007, and Case No. SCSL-2004-16-A, Judgment (Appeals Chamber), 22 February 2008. For civilians, see e.g. British Military Court for the Trial of War Criminals, Trial of Erich Heyer and Six Others (The Essen Lynching Case), Essen, 18–19 and 21–22 December 1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Vol. I, London, HMSO, 1947, Case No. 8, pp. 88–92.

23 See Common Article 3 to the Geneva Conventions and J.-M. Henckaerts and L. Doswald-Beck, above note 3, Rule 139. The same assumption seems to underlie Article 10 of the International Law Commission's Articles on State Responsibility, which attributes conduct of an insurrectional movement (rather than its composite individuals) to a state: see Crawford, James, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, Cambridge, 2002, p. 117Google Scholar, para. 4 (which makes a clear distinction between conduct of the movement as such and conduct of individual members of the movement acting in their own capacity).

24 See Pictet, Jean, (ed.), Commentary to the First Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, Geneva, 1952, p. 49Google Scholar, referring to the two criteria of possessing an organized military force and an authority responsible for its acts among several others, which can serve to indicate the existence of a NIAC in the sense of Common Article 3. For an elaboration of the required degree of organization, see e.g. ICTY, The Prosecutor v. Boškoski and Tarčulovski, above note 1, paras. 194–205.

25 For a discussion, see J. Kleffner, above note 4, pp. 257–264.

26 See generally, Nollkaemper, André, ‘Concurrence between individual responsibility and state responsibility in international law’, in International and Comparative Law Quarterly, Vol. 52, 2003, pp. 615–640CrossRefGoogle Scholar.

27 Common Article 3(1)(d).

28 Additional Protocol II, Art. 4(3)(a).

29 C. Pilloud, et al., above note 20, pp. 1377–1378, especially para. 4546.

30 Additional Protocol II, Art. 5.

31 C. Pilloud, et al., above note 20, p. 1384, paras. 4573–4574.

32 Pictet, Jean (ed.), Commentary to the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 37Google Scholar. See also L. Moir, above note 6, p. 55.

33 Pinto, Roger, ‘Les règles du droit international concernant la guerre civile’, in Recueil des cours, Vol. 114, 1965-I, p. 528Google Scholar.

34 Volker Epping, ‘Völkerrechtssubjekte’, in K. Ipsen (ed.), Völkerrecht, 5th edition, C.H. Beck, Munich, 2004, p. 63, para. 10; Volker Epping, ‘Der Staat im Völkerrecht’, in ibid., p. 273, para. 40.

35 Articles 10(1) and (2) of the Articles on Responsibility of States for Internationally Wrongful Acts (2001), UNGA Resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4. For a discussion of the theoretical basis for state responsibility in the case of an organized armed group being successful in establishing a new state, see Dumberry, Patrick, ‘New state responsibility for internationally wrongful acts by an insurrectional movement’, in European Journal of International Law, Vol. 17, 2006, pp. 605–621CrossRefGoogle Scholar.

36 Zegveld, Liesbeth, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, p. 15CrossRefGoogle Scholar.

37 J. Crawford, above note 23, p. 117, para. 4.

38 International Court of Justice, Corfu Channel Case, Merits, Judgment, 9 April 1949, ICJ Reports 1949, p. 22, para. 215.

39 See Additional Protocol II, Art. 1(1).

40 In this vein, see also L. Zegveld, above note 36, p. 15.

41 Münkler, Herfried, Die neuen Kriege, Rowohlt Verlag, Reinbeck, 2002, pp. 159–173Google Scholar.

42 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, para. 172, available at: http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (last visited 15 June 2011).

43 J.-M. Henckaerts and L. Doswald-Beck, above note 3, p. xxxvi.

44 An example is the obligation to record the placement of landmines as envisaged in Amended Protocol II to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW), Geneva, 10 October 1980, Arts. 1(2) and 9, if compared to customary IHL as identified by the ICRC (see J.-M. Henckaerts and L. Doswald-Beck, above note 3, Rule 82 and Summary of the Rule, pp. 284–285).

45 Cf. J.-M. Henckaerts and L. Doswald-Beck, above note 3, Rule 140.

46 See on this point, L. Moir, above note 6, pp. 86, 107–108.

47 J. Pictet, above note 24, pp. 44, 60.

48 See e.g. CCW, above note 44, Art. 1(6), as amended according to the Amendment adopted on 21 December 2001.

49 International Court of Justice (ICJ), Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, pp. 174, 178.

50 ‘It is certain, because it is impossible’ [translation from Latin].

51 See generally http://www.genevacall.org/ (last visited 15 June 2011) and the list of signatories of Deeds of Commitment available at: http://www.genevacall.org/resources/list-of-signatories/list-of-signatories.htm (last visited 15 June 2011).

52 See Additional Protocol I, Art. 1(4).

53 See Additional Protocol I, Art. 96(3).

54 Report of the International Commission of Inquiry on Darfur, above note 42, paras. 173–174.

55 See A. Cassese, above note 10, pp. 423–430.

56 Vienna Convention on the Law of Treaties, entered into force 27 January 1980, 1155 UNTS 331, 8 ILM 679, Art. 34.

57 Ibid., Art. 35.

58 Ibid., Art. 36.

59 A. Cassese, above note 10, p. 428.

60 In this vein, see also S. Sivakumaran, above note 7, p. 377.

61 See, for example, the express stipulation in the Geneva Conventions that protected persons may not renounce their rights: GC I, Art. 7; GC II, Art. 7; GC III, Art.7; GC IV, Art. 8.

62 In that respect, the ICTY has developed, as one factor for determining whether the degree of organization of an armed group meets the required threshold for it to be an organized armed group in the sense of IHL, its ability to speak with one voice (see e.g. The Prosecutor v. Boškoski and Tarčulovski, above note 1, para. 203). However, the Tribunal emphasized that this factor, together with others, is indicative and is taken into account, rather than being determinative and in itself ‘essential to establish whether the “organization” criterion is fulfilled’ (ibid., para. 198).

63 See above notes 45 and 46 and accompanying text.

64 See Common Article 2 to the Geneva Conventions, according to which the conventions apply to all cases of declared war or of any other armed conflict which may arise ‘between two or more of the High Contracting Parties’. See also Additional Protocol I, Art. 1(3).

65 J.-M, Henckaerts and L. Doswald-Beck (eds), above note 3, Vol. II: Practice, Parts 1 and 2.

66 See e.g. ICRC, Increasing Respect for International Humanitarian Law in Non-international Armed Conflicts, ICRC, Geneva, 2008, pp. 17–18, 20Google Scholar.

67 See above note 51.

68 See further, Sassòli, Marco, ‘Taking armed groups seriously: ways to improve their compliance with international humanitarian law’, in International Humanitarian Legal Studies 1, 2010, pp. 5–51, 29–32CrossRefGoogle Scholar.

69 For the parallel argument that legitimacy of a norm furthers its compliance by states, see, in particular, Franck, Thomas M., ‘Legitimacy in the international legal system’, in American Journal of International Law, Vol. 82, No. 4, 1988, pp. 709–710CrossRefGoogle Scholar; Franck, Thomas M., The Power of Legitimacy Among Nations, Oxford University Press, New York 1990Google Scholar; Franck, Thomas M., Fairness in International Law and Institutions, Clarendon Press, Oxford, 1995, pp. 25–46Google Scholar.

70 See ICRC, above note 66, p. 27.

71 In this vein, see M. Sassòli, above note 68, pp. 20–21.