Posted by hpcr on April 02, 2012  |   Comment  |   Subscribe

 
One of the controversies surrounding armed groups is whether – and to what extent – they bear obligations under international human rights law. The traditional and still dominant conceptualization of human rights addresses only harms done by governments to individuals and leaves largely unaddressed abuses committed by non-state actors and private parties. The relevant treaties are signed and ratified by states and are binding upon them. Thus states incur a range of obligations to respect, protect and fulfill the rights of those in their territory and subject to their jurisdiction. These obligations are monitored by the respective treaty bodies as well as under other universal or regional mechanisms. By not fitting into this scheme, armed groups are not considered as bound by international human rights law. Thus any non-governmental violence is not regarded as amounting to human rights violations but as only having an indirectly harmful effect on the capacity of states to provide basic services and ensure full enjoyment of human rights to affected individuals.
 
This approach is, however, premised on the shaky assumption that states possess and control a functioning institutional apparatus and that governments are in effective control of the state’s territory. It turns a blind eye to dozens of failing or failed states that are unable to provide even the most basic services to their citizens and other individuals (e.g., refugees) and/or do not control portions of their territory. In such situations the state-centric approach to human rights is largely ineffective and leaves a regulatory and accountability gap, which cannot be filled by applicable rules of state responsibility or international humanitarian law and international criminal law, even if we were to assume the latter’s applicability in all situations. Infringements on the rights to expression, religion, assembly, movement, family, food, work, health, education and others as well as issues of (gender-based or other) discrimination are barely and only indirectly – if at all – addressed by applicable international humanitarian law. This gap should however be filled if the international community is serious about the cause of human security.
 
Yet, regulation of activities of armed groups in international treaty law is mostly limited to international humanitarian law (i.e., common article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II). As regards international human rights treaty law, armed groups have only found their way into Article 4, paragraph 1 of the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Nevertheless, there is nothing in international law that prevents further regulation of harmful activities of armed groups in situations beyond the reach of international humanitarian law. Many armed groups do not lack the capacity to provide protection to civilians and ensure a variety of their human rights that go beyond the reach of applicable rules of international humanitarian law or, conversely, commit violations/abuses of rights that do not necessarily result in accountability under international criminal law. The international legal system may well accommodate additional obligations (and rights) of non-state actors if treaties are concluded or customary law emerges to that effect. Indeed, apart from treaties, there are plenty of legally significant developments in many conflict situations involving armed groups that are largely unaccounted for and can influence or change the legal landscape if properly documented. 
 
Such developments include the rich practice of the Security Council, which has identified the applicable legal framework concerning armed groups as including human rights obligations and has sometimes enforced such obligations by imposing sanctions on their leaders. This practice is in line with similar developments in the United Nations and elsewhere, such as: UN reports as well as expectations and engagement of UN organs with armed groups on the ground; reports by Truth and Reconciliation Commissions; peace and other agreements concluded between armed groups and concerned governments, often witnessed by other states and/or the UN; declarations and codes of conduct unilaterally undertaken by armed groups under the scrutiny of the international community. Much of this practice has developed in interaction with armed groups, which adds to the legitimacy of the obligations incurred.
 
When they first appeared, such developments admittedly met with controversy among scholars and some ambivalence in the UN. However, when the problem has arisen on the ground the various concerned actors – including affected governments and the United Nations – in different country situations did not shy away from extending human rights obligations to armed groups in addition to obligations applicable under international humanitarian law. Much of this practice has skipped the attention of international lawyers. However, if such developments are properly documented and if their legal relevance is properly assessed, we may witness a welcome change in the applicable legal framework, which will extend human rights obligations and accountability to powerful armed groups to the extent appropriate to the context, depending on their actual capacity to bear those obligations.