Katharine Fortin, The Accountability of Armed Groups under Human Rights Law

Katharine Fortin, The Accountability of Armed Groups under Human Rights Law In today’s international law context, the majority of armed conflicts include at least one non-state armed group (NSAG).1 For a long time, however, these actors and their acts were considered to be regulated only by the internal laws of the relevant state(s), thereby escaping from any form of international regime. This scenario has since changed and nowadays reality continuously challenges the state-centric nature of international law, giving rise to many discussions and complex debates. Although it is recognized that NSAGs have international humanitarian law (IHL) obligations during armed conflicts, one of the primary concerns has been whether they are also bound by international human rights law (IHRL). In The Accountability of Armed Groups under Human Rights Law, Katharine Fortin meticulously addresses the much contested matter of when armed groups can be held to account under this legal framework. The book is the most recent part of a remarkable scholarly trend, immersed not only in legal but also in political sciences consideration of the behaviour of NSAGs.2 Due to its original approach, the book’s arrival should be welcome and, to her credit, Katharine Fortin has done a commendable job. In a thorough analysis, the author addresses key questions on the IHL–IHRL interplay. These include: (i) whether and when NSAGs may be bound by IHRL; (ii) whether NSAGs need to consent to international norms before they are bound by them; and (iii) how NSAGs' territorial control can be linked to their human rights obligations. Rather than proposing a lengthy discussion on the application of IHRL in armed conflicts, it first explores if there is an added value in binding armed groups with IHRL obligations, considering that they are already bound by IHL. Second, Fortin assesses the historical evolution of armed groups’ legal personality. By drawing some conclusions from this analysis, she then considers what they can tell us about when and how armed groups can acquire international legal personality under human rights law.3 The book is organized into four different parts, all of which include a good amount of academic literature, case law and real-life examples. As it offers an extensive theoretical framework, a detailed review of each chapter is impossible given the inherent limitations of a book review. Therefore, the present reviewer has selectively engaged with specific topics. A general introduction is followed by Chapter 2, which explores whether there is any ‘added value’ in holding NSAGs to account under human rights law. By referring to political science literature, Fortin demonstrates with clarity that the everyday life of individuals living in the territories controlled by NSAGs is an important dimension to non-international armed conflicts (NIACs) that is too often ‘excluded from empirical research’ (p 54). The notion that daily life continues, both in the midst of armed conflict and in the territory under NSAG’s control, is referred to as the ‘life goes on driver’. As the author explains, just as governance structures are required in order for life to continue, ‘very often, the fact that life goes on in rebel-held areas compels the armed group to respond by providing some kind of governance structures or services provisions’ (p 54). This is far from a merely academic exercise, and real-world examples validate its importance. For instance, it can be seen in the establishment of courts and judicial bodies by certain groups. In Sri Lanka, the Liberation Tigers of Tamil Eelam had established a judicial system involving six district courts, two high courts and an appeal tribunal.4 In Afghanistan, the Taliban’s Code of Conduct specifically deals with district and provincial judges, and affirms that [e]ach person responsible in the province should set up a Sharia court at the provincial level, comprising one judge and two prominent theologians who will solve complicated issues at the provincial level which seem to be difficult to solve for theologians and those responsible at the district and village levels.5 Furthermore, certain NSAGs have provided health care6 and education in the territories under their control,7 and have detained individuals without necessarily having any nexus to an armed conflict. Some individuals, indeed, may be deprived of their liberty because they have committed domestic violations and common crimes. These cases, as accurately pointed out by Fortin, would fall within the parameters of IHRL and not of IHL. After proving that IHRL has an added value for those individuals living in NSAG territories, the author focuses her attention on the legal personality of these non-state entities. Part II of the book examines what can be learned about this topic from the perspective of different fields of international law. The author correctly explains that the rationale behind this relies on the observation that ‘international legal personality is one of the key foundation blocks from which our understanding of rights and obligations flows’ (p 71). In order to do so, she first analyzes the five main conceptions of international legal personality drawn by Roland Portmann8—‘States-only’, ‘recognition’, ‘individualistic’, ‘formal’ and ‘actor’ conceptions—to later address in a most novel and compelling way the frameworks of belligerency and insurgency (p 90). Based on the invocation of third states of NSAG obligations in cases of insurgency when they controlled territories—focusing in particular on the example of Franco’s Spain—Fortin claims that these non-state actors ‘may acquire international legal personality through [their] capacity to fulfil international legal obligations’ (p 113). These examples show how an NSAG may take ‘over the parent State’s legal obligations, in situations where it has control of a territory in default of the States’ (p 113). Although the legal personality of NSAGs is thoroughly explored, Fortin does not refer to the final phrase of Common Article 3 to the Geneva Conventions of 1949, which affirms that its application ‘shall not affect the legal status of the Parties to the conflict’ (emphasis added). This has been understood as an explicit refusal by states to recognize that an armed group has ‘any new international status, whatever it may be and whatever title it may give itself or claim’,9 and as providing them with an international subjectivity limited to IHL.10 The analysis of this provision would have been a significant contribution to the understanding of the nature of obligations that NSAGs, which are parties to armed conflict, are subject to. Chapter 6 deals with the international legal personality of NSAGs under IHRL. Fortin affirms in this sense that different groups may have different levels of substantive legal personality. This is based on the observation that in every legal regime the responsibilities of NSAGs are seen ‘to be fundamentally linked to their capacities, their relations with third parties, and the circumstances in which they operate’ (p 154). This view follows the ‘sliding scale of obligations’, which submits that the better organized an NSAG is, and the more stable control over a territory it has, the more international obligations would become applicable.11 According to the author, this ‘reduces the aspirational aspect of human rights law and makes it instead a framework which matches, responds to and seeks to regulate what armed groups are already doing’ (p 170). She makes an important argument by claiming that NSAGs may be held bound by the legal obligations of the state in circumstances where they control territory: the source of an NSAG’s IHRL obligations in instances where it controls territory ‘is likely to be the State’s own human rights obligations under either treaty law or customary international law’ (p 157). This is based on the principle of effectiveness, which in NIACs requires ‘not only the established government to adhere to treaty obligations, but also any other authority which claims to exercise, or actually exercises, powers which usually belong to the State’ (p 200). Although the arguments set forth by Fortin promote a better understanding of the applicable law, certain issues remain unexplored. Linking NSAGs’ international obligations to those of the territorial states raises at least a practical problem. In this sense, derogations by states are legally available tools in times of public emergencies which threaten the life of the nation, such as NIACs. If a government decides to derogate from, for instance, a provision enshrined in the International Covenant on Civil and Political Rights (ICCPR), as allowed in its Article 4, would this affect NSAGs’ IHRL obligations linked to that State? As a final issue, Chapter 6 analyzes the threshold for application of IHRL to armed groups. Fortin affirms in this vein that there is no reason why an armed conflict is needed for an NSAG to be bound by IHRL. Therefore, when considering whether an armed group is unified enough for it to be bound by human rights law, one must ask not only ‘is this armed group organized enough to be a subject of international law?’ but ‘is this armed group organized enough to be able to be a subject of international human rights law?’ In other words, ‘is this armed group organized enough to be able to implement the human rights framework? (p 159) Fortin correctly replies that it is important to consider features of the group that are specifically relevant for the application of human rights law, such as whether it ‘operates a basic law enforcement system or is providing healthcare or education in the area in which it controls’, or whether it has a system for registering births and deaths. According to Fortin, these ‘are strong indicators that an armed group has “common institutions or organs” which allow it to adhere to certain norms within the human rights framework’ (p 159). Part III includes the most substantial analysis of the book. There, the author thoroughly explores how and when NSAGs are bound by IHL and IHRL, focusing mostly on the latter (p 175). With respect to IHL, she identifies five main theories of how these actors are bound: (i) by being third parties to the Geneva Conventions and Additional Protocols, (ii) by domestic legislation, (iii) through their members being bound directly by international law, (iv) by having effective control over a part of the territory and (v) through customary international law. Building on the conclusions of the previous chapter, the author argues that it is important ‘to identify the moment at which the armed group becomes a subject of international law, separate to that of its members, because this is the moment at which these treaty obligations will become binding upon the group as a separate entity of international law’ (p 207). Taking the IHL theories into account, Fortin specifically explores whether NSAGs are bound by IHRL treaties. In particular, Chapter 8 evaluates, on the one hand, those international agreements that do not directly address the behavior of NSAGs, such as the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention against Torture (CAT); on the other, it explores those treaties that explicitly create binding obligations upon these non-state entities: the Optional Protocol to the Convention on the Rights of the Child and the African Convention for the Protection and Assistance of Internally Displaced Persons in Africa (‘the Kampala Convention’). When dealing with the former, although she correctly recognizes that these treaties and the procedural mechanisms established therein provide for an argument on their binding nature only upon states, Fortin claims that non-state actors may also bear obligations under ‘wider human rights law’. These would find their international law basis not in the treaty framework but in customary law (pp 238–9). Evidence for such support, she argues, is seen either implicitly or explicitly in the text of the Conventions themselves and in the treaty bodies’ practice on positive IHRL obligations. The first of these indications is the Preambles of the ICCPR and the ICESCR, which refer not only to the obligation of states, but also state that ‘the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant’. A similar indication is included in Article 5(1) common to both the ICCPR and the ICESCR, which affirms that ‘[n]othing in the present Covenant may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant’. Recognizing that individuals owe human rights law obligations to each other, Fortin claims, constitutes an ‘implicit recognition of the fact that individuals and other non-state actors are bound by human rights law to a certain degree’ (p 239). The second indication the author refers to is certain specific IHRL sources. In its General Comment 31, for instance, the Human Rights Committee stated that the ICCPR protects ‘not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons and entities’.12 Similarly, the Committee on Economic, Social and Cultural Rights has also recognized that states have a duty to prevent non-state actors from affecting individuals’ rights.13 These statements, according to Fortin, recognize that some provisions enshrined in the Covenants may have ‘horizontal effect and be binding upon individuals and non-state actors, such as armed groups and companies’ (p 214). In any case, Fortin concludes that the treaty bodies’ statements generally leave a lot to conjecture.14 These bodies do not seem to consider the source of IHRL obligations for non-state actors in human rights treaty law, which is why Fortin claims that the source of these can be found in customary international or national law (p 239). Despite being an interesting proposal, there are at least two general criticisms that can be made. First, it remains unclear which obligations should be respected by NSAGs.15 Also, although one could not expect a full study on states’ praxis and opinio juris with respect to NSAGs’ IHRL obligations, the customary law reference is not entirely clear and might be even seen by some commentators as ‘advocacy disguised as law’.16 This is an important point that deserves attention for further studies on the topic. When dealing with the CAT, it is pointed out that the CAT has resisted addressing the acts of NSAGs, in the same way as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. That being said, the author still questions whether there is not greater scope for this body to ‘encourage a broader interpretation of torture when it comes to the prohibition of non-refoulement in Article 3 [of the CAT] and domestic prosecutions for torture’ (p 225).17 In such cases, the state-centric definition of torture would not be applied to find state responsibility and, therefore, there would be more potential to include NSAGs. Finally, Chapter 8 assesses the two treaties which directly address NSAGs: the Optional Protocol of the Convention on the Rights of the Child and the African Convention for the Protection and Assistance of Internally Displaced Persons in Africa, and concludes both with respect to IHL and IHRL that armed groups can be bound by international treaty law without their consent. In doing so, however, it shows that the question still remains controversial due to the drafting history of both treaties. In any case, Fortin concludes that a good argument can be made that NSAGs and their members are bound by these two human rights treaties based on their wording. Chapter 9 considers whether and how an NSAG’s territorial control may provide for a legal explanation on how it is bound by IHRL. By relying on the principle of effectiveness, Fortin considers that ‘[i]n instances where an armed group controls a portion of the territory of a country it becomes hard, if not impossible, for the de jure government to ‘respect’ human rights in that area of the State’s territory’ (p 243). As she explains, these scenarios have even been recognised by the international community, which would normally address armed groups directly, giving priority to effectiveness over strict legality (p 245). The first step Fortin takes to analyze this legal explanation is to explore the law on state responsibility, as set out in the International Law Commission’s Articles on State Responsibility for Internationally Wrongful Acts (p 246). She claims that Article 9 could apply to some acts of certain unsuccessful NSAGs, and not to the NSAGs per se. After referring to certain key legal precedents, Fortin states that ‘when one subject of international law unlawfully exercises impersonal powers of government within the territory of another State in default of that State’s de jure government, its acts may be considered an act of the territorial State’ (p 260). The idea behind this statement is related to the ‘governance’ powers explained in Chapter 2, and drawn from political science studies. It represents an acknowledgement that in exceptional circumstances, such as in NIACs, NSAGs may perform governmental acts, including those related to the protection of IHRL. The fact that NSAGs can perform acts of state, however, does not automatically lead to the conclusion that these non-state entities are bound by the states’ obligations, as clearly explained by the author. Against this, Fortin argues that states’ organs ‘are directly bound by international law largely because they are means through which it must be enforced’ (p 273). Fortin says: When this argument is accepted, the reasoning of the chapter so far comes together to provide a theoretical explanation for how armed groups are bound by international human rights law. It consists of three constitutive points: (i) armed groups exercising governmental functions in default of the de jure government are performing acts of State; (ii) with respect to those acts international law is prepared to treat the armed groups as unofficial and unsanctioned agents of the State whose actions can incur State responsibility; and (iii) the principle of effectiveness, and some recent judicial authority, supports the fact that in respect to those functions, the armed groups are bound by the international obligations of the State, i.e. human rights law (p 274). Finally, Fortin also claims that although these views have a top-down nature, there are also valid comments that could be made from a bottom-up perspective, mainly in relation to the rights holders. This is explained on the basis that IHRL devolves with territory ‘and continues to belong to them notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designated to divest them’ of IHRL.18 The final chapter of Part III considers the different ways in which customary international law addresses when and how NSAGs could be bound by IHRL (p 323). Since some have argued that taking into account their practice can be important to ensure that this body of law remains realistic and effective and could develop a sense of ownership of NSAGs for the humanitarian rules they create,19 Chapter 11 begins by exploring their role in the formation of customary international law. Fortin, however, presents some well-founded counter-arguments that deserve further attention.20 First, that it would be difficult to identify practice which is representative of armed groups as a class, since they are both legally and factually heterogeneous when compared with states. Also, in terms of their nature, NSAGs are inherently transitory, therefore, accepting that they can contribute to the formation of customary international law does not necessarily fix the problem of ownership. There remains a risk that even if the armed groups of today contribute to the formation of international law, the armed groups of tomorrow will still not feel any ownership of these norms and will use that as an excuse not to comply with them (pp 326–7). In any case, despite not participating in the formation of the rules, based on the analysis done in Chapter 8, Chapter 11 concludes that they may also be bound by human rights law on the basis of state practice and opinio juris. Fortin clarifies that this could only be the case if it demonstrates an intention on the part of states for armed groups to be bound (p 331). When dealing with IHRL, the lower threshold would be precisely based on the group being bound by jus cogens customary norms, while the higher threshold ‘seems to be based on the idea that the armed group controls territory’ (p 355). Overall, the book presents novel arguments on how NSAGs are bound by IHRL, and it does so insightfully. Despite the minor issues noted above, The Accountability of Armed Groups under Human Rights Law represents a stimulating addition to the literature on armed groups and human rights law, and it will be of a significant value to both academics and decision-makers, including lawyers, governments, international and non-governmental organizations and perhaps even NSAGs. For the purpose of better protecting individuals living in the territories NSAGs control, human rights law will always hold added value, which can no longer be ignored. Footnotes 1 Recent surveys have concluded that the great majority of ongoing armed conflicts around the world are non-international in character. According to the 2017 War Report, of the 48 conflicts in 2016, at least a total of 36 were considered to be non-international: see Bellal, The War Report (Geneva Academy of International Humanitarian Law Human Rights, 2017) at 15. 2 For example, Murray, Human Rights Obligations of Non-State Armed Groups (2016); Arjona, Kasfir and Mampilly (eds), Rebel Governance in Civil War (2015); Jo, Compliant Rebels: Rebel Groups and International Law in World Politics (2015). 3 Importantly, due to the potential vastness of the subject, the author narrows the analysis to NSAGs engaged in NIACs against governments, which reflects the increasing amount of these types of conflicts in the last few decades. 4 ‘Thamil Eelam Judiciary Said a Basis for Rebuilding Northeast’, TamilNet, 30 October 2003, available at: www.tamilnet.com [last accessed 8 December 2017]. 5 Article 38 The Layha [Code of Conduct] for Mujahids (The Islamic Emirate of Afghanistan, 2010) at 112, available at: www.icrc.org [last accessed 8 December 2017]. 6 For some examples, see Murray, supra n 2 at 258. 7 For a practical approach to the provision of education by NSAGs, see Geneva Call, In Their Words: Armed non-state actors share their policies and practice with regards to education in armed conflict, 2017, available at: genevacall.org [last accessed 8 December 2017]; and PEIC/Geneva Call, Workshop on Education and Armed Non-State Actors: Towards a Comprehensive Agenda (2015), available at: www.genevacall.org [last accessed 8 December 2017]. 8 Portmann, Legal Personality in International Law (2010). 9 Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention relative to the Treatment of Prisoners of War (1960) at 44. 10 Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols (1987) at 1372, n 18. 11 Heffes, ‘Generating Respect for International Humanitarian Law: The Establishment of Courts by Organized Non-State Armed Groups in the Light of the Principle of Equality of Belligerents’ (2015) 18 Yearbook of International Humanitarian Law 181 at 194–5. 12 Human Rights Committee, General Comment 31: The nature of the general legal obligations imposed on States Parties to the Covenant, 26 May 2004, at para 8. 13 Committee on Economic, Social and Cultural Rights, General Comment 15: The right to water, 20 January 2003, at para 23. 14 For instance, the General Comment 31, supra n 12, also affirms that the Covenant is binding only on States Parties ‘and do not, as such, have direct horizontal effect as a matter of international law’. 15 As Bellal has affirmed when dealing with NSAGs, ‘[t]he important question today is not to be so much “if”, but rather “which” obligations are engaged’: see Bellal, ‘Establishing the Direct Responsibility of Non-State Armed Groups for Violations of International Norms: Issues of Attribution’ in Gal-Or, Ryngaert and Noortmann (eds), Responsibilities of the Non-State Actor in Armed Conflict and the Market Place (2015) 304 at 308. 16 Tesón, ‘Fake Custom’ in Lepard (ed.), Reexamining Customary International Law (2017) 87 at 87. 17 In order to illustrate this point, Fortin interestingly refers to the case of R v Zardad [2007] EWCA Crim 279, from the UK Criminal Court, in which the UK extended universal jurisdiction under the CAT and found Mr Zardad guilty of torture under UK national law, which enacts Article 1 of the CAT (p 226). 18 Human Rights Committee, General Comment 26: Continuity of obligations, 8 December 1997, at para 4. 19 For example, Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’ (2010) 1 Journal of International Humanitarian Legal Studies 5 at 21–2. 20 For other interesting points addressing the inclusion of NSAG in human rights law’s making processes, see Oberleitner, Human Rights in Armed Conflict. Law, Practice, Policy (2015) at 217. © The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Human Rights Law Review Oxford University Press

Katharine Fortin, The Accountability of Armed Groups under Human Rights Law

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Abstract

In today’s international law context, the majority of armed conflicts include at least one non-state armed group (NSAG).1 For a long time, however, these actors and their acts were considered to be regulated only by the internal laws of the relevant state(s), thereby escaping from any form of international regime. This scenario has since changed and nowadays reality continuously challenges the state-centric nature of international law, giving rise to many discussions and complex debates. Although it is recognized that NSAGs have international humanitarian law (IHL) obligations during armed conflicts, one of the primary concerns has been whether they are also bound by international human rights law (IHRL). In The Accountability of Armed Groups under Human Rights Law, Katharine Fortin meticulously addresses the much contested matter of when armed groups can be held to account under this legal framework. The book is the most recent part of a remarkable scholarly trend, immersed not only in legal but also in political sciences consideration of the behaviour of NSAGs.2 Due to its original approach, the book’s arrival should be welcome and, to her credit, Katharine Fortin has done a commendable job. In a thorough analysis, the author addresses key questions on the IHL–IHRL interplay. These include: (i) whether and when NSAGs may be bound by IHRL; (ii) whether NSAGs need to consent to international norms before they are bound by them; and (iii) how NSAGs' territorial control can be linked to their human rights obligations. Rather than proposing a lengthy discussion on the application of IHRL in armed conflicts, it first explores if there is an added value in binding armed groups with IHRL obligations, considering that they are already bound by IHL. Second, Fortin assesses the historical evolution of armed groups’ legal personality. By drawing some conclusions from this analysis, she then considers what they can tell us about when and how armed groups can acquire international legal personality under human rights law.3 The book is organized into four different parts, all of which include a good amount of academic literature, case law and real-life examples. As it offers an extensive theoretical framework, a detailed review of each chapter is impossible given the inherent limitations of a book review. Therefore, the present reviewer has selectively engaged with specific topics. A general introduction is followed by Chapter 2, which explores whether there is any ‘added value’ in holding NSAGs to account under human rights law. By referring to political science literature, Fortin demonstrates with clarity that the everyday life of individuals living in the territories controlled by NSAGs is an important dimension to non-international armed conflicts (NIACs) that is too often ‘excluded from empirical research’ (p 54). The notion that daily life continues, both in the midst of armed conflict and in the territory under NSAG’s control, is referred to as the ‘life goes on driver’. As the author explains, just as governance structures are required in order for life to continue, ‘very often, the fact that life goes on in rebel-held areas compels the armed group to respond by providing some kind of governance structures or services provisions’ (p 54). This is far from a merely academic exercise, and real-world examples validate its importance. For instance, it can be seen in the establishment of courts and judicial bodies by certain groups. In Sri Lanka, the Liberation Tigers of Tamil Eelam had established a judicial system involving six district courts, two high courts and an appeal tribunal.4 In Afghanistan, the Taliban’s Code of Conduct specifically deals with district and provincial judges, and affirms that [e]ach person responsible in the province should set up a Sharia court at the provincial level, comprising one judge and two prominent theologians who will solve complicated issues at the provincial level which seem to be difficult to solve for theologians and those responsible at the district and village levels.5 Furthermore, certain NSAGs have provided health care6 and education in the territories under their control,7 and have detained individuals without necessarily having any nexus to an armed conflict. Some individuals, indeed, may be deprived of their liberty because they have committed domestic violations and common crimes. These cases, as accurately pointed out by Fortin, would fall within the parameters of IHRL and not of IHL. After proving that IHRL has an added value for those individuals living in NSAG territories, the author focuses her attention on the legal personality of these non-state entities. Part II of the book examines what can be learned about this topic from the perspective of different fields of international law. The author correctly explains that the rationale behind this relies on the observation that ‘international legal personality is one of the key foundation blocks from which our understanding of rights and obligations flows’ (p 71). In order to do so, she first analyzes the five main conceptions of international legal personality drawn by Roland Portmann8—‘States-only’, ‘recognition’, ‘individualistic’, ‘formal’ and ‘actor’ conceptions—to later address in a most novel and compelling way the frameworks of belligerency and insurgency (p 90). Based on the invocation of third states of NSAG obligations in cases of insurgency when they controlled territories—focusing in particular on the example of Franco’s Spain—Fortin claims that these non-state actors ‘may acquire international legal personality through [their] capacity to fulfil international legal obligations’ (p 113). These examples show how an NSAG may take ‘over the parent State’s legal obligations, in situations where it has control of a territory in default of the States’ (p 113). Although the legal personality of NSAGs is thoroughly explored, Fortin does not refer to the final phrase of Common Article 3 to the Geneva Conventions of 1949, which affirms that its application ‘shall not affect the legal status of the Parties to the conflict’ (emphasis added). This has been understood as an explicit refusal by states to recognize that an armed group has ‘any new international status, whatever it may be and whatever title it may give itself or claim’,9 and as providing them with an international subjectivity limited to IHL.10 The analysis of this provision would have been a significant contribution to the understanding of the nature of obligations that NSAGs, which are parties to armed conflict, are subject to. Chapter 6 deals with the international legal personality of NSAGs under IHRL. Fortin affirms in this sense that different groups may have different levels of substantive legal personality. This is based on the observation that in every legal regime the responsibilities of NSAGs are seen ‘to be fundamentally linked to their capacities, their relations with third parties, and the circumstances in which they operate’ (p 154). This view follows the ‘sliding scale of obligations’, which submits that the better organized an NSAG is, and the more stable control over a territory it has, the more international obligations would become applicable.11 According to the author, this ‘reduces the aspirational aspect of human rights law and makes it instead a framework which matches, responds to and seeks to regulate what armed groups are already doing’ (p 170). She makes an important argument by claiming that NSAGs may be held bound by the legal obligations of the state in circumstances where they control territory: the source of an NSAG’s IHRL obligations in instances where it controls territory ‘is likely to be the State’s own human rights obligations under either treaty law or customary international law’ (p 157). This is based on the principle of effectiveness, which in NIACs requires ‘not only the established government to adhere to treaty obligations, but also any other authority which claims to exercise, or actually exercises, powers which usually belong to the State’ (p 200). Although the arguments set forth by Fortin promote a better understanding of the applicable law, certain issues remain unexplored. Linking NSAGs’ international obligations to those of the territorial states raises at least a practical problem. In this sense, derogations by states are legally available tools in times of public emergencies which threaten the life of the nation, such as NIACs. If a government decides to derogate from, for instance, a provision enshrined in the International Covenant on Civil and Political Rights (ICCPR), as allowed in its Article 4, would this affect NSAGs’ IHRL obligations linked to that State? As a final issue, Chapter 6 analyzes the threshold for application of IHRL to armed groups. Fortin affirms in this vein that there is no reason why an armed conflict is needed for an NSAG to be bound by IHRL. Therefore, when considering whether an armed group is unified enough for it to be bound by human rights law, one must ask not only ‘is this armed group organized enough to be a subject of international law?’ but ‘is this armed group organized enough to be able to be a subject of international human rights law?’ In other words, ‘is this armed group organized enough to be able to implement the human rights framework? (p 159) Fortin correctly replies that it is important to consider features of the group that are specifically relevant for the application of human rights law, such as whether it ‘operates a basic law enforcement system or is providing healthcare or education in the area in which it controls’, or whether it has a system for registering births and deaths. According to Fortin, these ‘are strong indicators that an armed group has “common institutions or organs” which allow it to adhere to certain norms within the human rights framework’ (p 159). Part III includes the most substantial analysis of the book. There, the author thoroughly explores how and when NSAGs are bound by IHL and IHRL, focusing mostly on the latter (p 175). With respect to IHL, she identifies five main theories of how these actors are bound: (i) by being third parties to the Geneva Conventions and Additional Protocols, (ii) by domestic legislation, (iii) through their members being bound directly by international law, (iv) by having effective control over a part of the territory and (v) through customary international law. Building on the conclusions of the previous chapter, the author argues that it is important ‘to identify the moment at which the armed group becomes a subject of international law, separate to that of its members, because this is the moment at which these treaty obligations will become binding upon the group as a separate entity of international law’ (p 207). Taking the IHL theories into account, Fortin specifically explores whether NSAGs are bound by IHRL treaties. In particular, Chapter 8 evaluates, on the one hand, those international agreements that do not directly address the behavior of NSAGs, such as the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention against Torture (CAT); on the other, it explores those treaties that explicitly create binding obligations upon these non-state entities: the Optional Protocol to the Convention on the Rights of the Child and the African Convention for the Protection and Assistance of Internally Displaced Persons in Africa (‘the Kampala Convention’). When dealing with the former, although she correctly recognizes that these treaties and the procedural mechanisms established therein provide for an argument on their binding nature only upon states, Fortin claims that non-state actors may also bear obligations under ‘wider human rights law’. These would find their international law basis not in the treaty framework but in customary law (pp 238–9). Evidence for such support, she argues, is seen either implicitly or explicitly in the text of the Conventions themselves and in the treaty bodies’ practice on positive IHRL obligations. The first of these indications is the Preambles of the ICCPR and the ICESCR, which refer not only to the obligation of states, but also state that ‘the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant’. A similar indication is included in Article 5(1) common to both the ICCPR and the ICESCR, which affirms that ‘[n]othing in the present Covenant may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant’. Recognizing that individuals owe human rights law obligations to each other, Fortin claims, constitutes an ‘implicit recognition of the fact that individuals and other non-state actors are bound by human rights law to a certain degree’ (p 239). The second indication the author refers to is certain specific IHRL sources. In its General Comment 31, for instance, the Human Rights Committee stated that the ICCPR protects ‘not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons and entities’.12 Similarly, the Committee on Economic, Social and Cultural Rights has also recognized that states have a duty to prevent non-state actors from affecting individuals’ rights.13 These statements, according to Fortin, recognize that some provisions enshrined in the Covenants may have ‘horizontal effect and be binding upon individuals and non-state actors, such as armed groups and companies’ (p 214). In any case, Fortin concludes that the treaty bodies’ statements generally leave a lot to conjecture.14 These bodies do not seem to consider the source of IHRL obligations for non-state actors in human rights treaty law, which is why Fortin claims that the source of these can be found in customary international or national law (p 239). Despite being an interesting proposal, there are at least two general criticisms that can be made. First, it remains unclear which obligations should be respected by NSAGs.15 Also, although one could not expect a full study on states’ praxis and opinio juris with respect to NSAGs’ IHRL obligations, the customary law reference is not entirely clear and might be even seen by some commentators as ‘advocacy disguised as law’.16 This is an important point that deserves attention for further studies on the topic. When dealing with the CAT, it is pointed out that the CAT has resisted addressing the acts of NSAGs, in the same way as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. That being said, the author still questions whether there is not greater scope for this body to ‘encourage a broader interpretation of torture when it comes to the prohibition of non-refoulement in Article 3 [of the CAT] and domestic prosecutions for torture’ (p 225).17 In such cases, the state-centric definition of torture would not be applied to find state responsibility and, therefore, there would be more potential to include NSAGs. Finally, Chapter 8 assesses the two treaties which directly address NSAGs: the Optional Protocol of the Convention on the Rights of the Child and the African Convention for the Protection and Assistance of Internally Displaced Persons in Africa, and concludes both with respect to IHL and IHRL that armed groups can be bound by international treaty law without their consent. In doing so, however, it shows that the question still remains controversial due to the drafting history of both treaties. In any case, Fortin concludes that a good argument can be made that NSAGs and their members are bound by these two human rights treaties based on their wording. Chapter 9 considers whether and how an NSAG’s territorial control may provide for a legal explanation on how it is bound by IHRL. By relying on the principle of effectiveness, Fortin considers that ‘[i]n instances where an armed group controls a portion of the territory of a country it becomes hard, if not impossible, for the de jure government to ‘respect’ human rights in that area of the State’s territory’ (p 243). As she explains, these scenarios have even been recognised by the international community, which would normally address armed groups directly, giving priority to effectiveness over strict legality (p 245). The first step Fortin takes to analyze this legal explanation is to explore the law on state responsibility, as set out in the International Law Commission’s Articles on State Responsibility for Internationally Wrongful Acts (p 246). She claims that Article 9 could apply to some acts of certain unsuccessful NSAGs, and not to the NSAGs per se. After referring to certain key legal precedents, Fortin states that ‘when one subject of international law unlawfully exercises impersonal powers of government within the territory of another State in default of that State’s de jure government, its acts may be considered an act of the territorial State’ (p 260). The idea behind this statement is related to the ‘governance’ powers explained in Chapter 2, and drawn from political science studies. It represents an acknowledgement that in exceptional circumstances, such as in NIACs, NSAGs may perform governmental acts, including those related to the protection of IHRL. The fact that NSAGs can perform acts of state, however, does not automatically lead to the conclusion that these non-state entities are bound by the states’ obligations, as clearly explained by the author. Against this, Fortin argues that states’ organs ‘are directly bound by international law largely because they are means through which it must be enforced’ (p 273). Fortin says: When this argument is accepted, the reasoning of the chapter so far comes together to provide a theoretical explanation for how armed groups are bound by international human rights law. It consists of three constitutive points: (i) armed groups exercising governmental functions in default of the de jure government are performing acts of State; (ii) with respect to those acts international law is prepared to treat the armed groups as unofficial and unsanctioned agents of the State whose actions can incur State responsibility; and (iii) the principle of effectiveness, and some recent judicial authority, supports the fact that in respect to those functions, the armed groups are bound by the international obligations of the State, i.e. human rights law (p 274). Finally, Fortin also claims that although these views have a top-down nature, there are also valid comments that could be made from a bottom-up perspective, mainly in relation to the rights holders. This is explained on the basis that IHRL devolves with territory ‘and continues to belong to them notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designated to divest them’ of IHRL.18 The final chapter of Part III considers the different ways in which customary international law addresses when and how NSAGs could be bound by IHRL (p 323). Since some have argued that taking into account their practice can be important to ensure that this body of law remains realistic and effective and could develop a sense of ownership of NSAGs for the humanitarian rules they create,19 Chapter 11 begins by exploring their role in the formation of customary international law. Fortin, however, presents some well-founded counter-arguments that deserve further attention.20 First, that it would be difficult to identify practice which is representative of armed groups as a class, since they are both legally and factually heterogeneous when compared with states. Also, in terms of their nature, NSAGs are inherently transitory, therefore, accepting that they can contribute to the formation of customary international law does not necessarily fix the problem of ownership. There remains a risk that even if the armed groups of today contribute to the formation of international law, the armed groups of tomorrow will still not feel any ownership of these norms and will use that as an excuse not to comply with them (pp 326–7). In any case, despite not participating in the formation of the rules, based on the analysis done in Chapter 8, Chapter 11 concludes that they may also be bound by human rights law on the basis of state practice and opinio juris. Fortin clarifies that this could only be the case if it demonstrates an intention on the part of states for armed groups to be bound (p 331). When dealing with IHRL, the lower threshold would be precisely based on the group being bound by jus cogens customary norms, while the higher threshold ‘seems to be based on the idea that the armed group controls territory’ (p 355). Overall, the book presents novel arguments on how NSAGs are bound by IHRL, and it does so insightfully. Despite the minor issues noted above, The Accountability of Armed Groups under Human Rights Law represents a stimulating addition to the literature on armed groups and human rights law, and it will be of a significant value to both academics and decision-makers, including lawyers, governments, international and non-governmental organizations and perhaps even NSAGs. For the purpose of better protecting individuals living in the territories NSAGs control, human rights law will always hold added value, which can no longer be ignored. Footnotes 1 Recent surveys have concluded that the great majority of ongoing armed conflicts around the world are non-international in character. According to the 2017 War Report, of the 48 conflicts in 2016, at least a total of 36 were considered to be non-international: see Bellal, The War Report (Geneva Academy of International Humanitarian Law Human Rights, 2017) at 15. 2 For example, Murray, Human Rights Obligations of Non-State Armed Groups (2016); Arjona, Kasfir and Mampilly (eds), Rebel Governance in Civil War (2015); Jo, Compliant Rebels: Rebel Groups and International Law in World Politics (2015). 3 Importantly, due to the potential vastness of the subject, the author narrows the analysis to NSAGs engaged in NIACs against governments, which reflects the increasing amount of these types of conflicts in the last few decades. 4 ‘Thamil Eelam Judiciary Said a Basis for Rebuilding Northeast’, TamilNet, 30 October 2003, available at: www.tamilnet.com [last accessed 8 December 2017]. 5 Article 38 The Layha [Code of Conduct] for Mujahids (The Islamic Emirate of Afghanistan, 2010) at 112, available at: www.icrc.org [last accessed 8 December 2017]. 6 For some examples, see Murray, supra n 2 at 258. 7 For a practical approach to the provision of education by NSAGs, see Geneva Call, In Their Words: Armed non-state actors share their policies and practice with regards to education in armed conflict, 2017, available at: genevacall.org [last accessed 8 December 2017]; and PEIC/Geneva Call, Workshop on Education and Armed Non-State Actors: Towards a Comprehensive Agenda (2015), available at: www.genevacall.org [last accessed 8 December 2017]. 8 Portmann, Legal Personality in International Law (2010). 9 Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention relative to the Treatment of Prisoners of War (1960) at 44. 10 Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols (1987) at 1372, n 18. 11 Heffes, ‘Generating Respect for International Humanitarian Law: The Establishment of Courts by Organized Non-State Armed Groups in the Light of the Principle of Equality of Belligerents’ (2015) 18 Yearbook of International Humanitarian Law 181 at 194–5. 12 Human Rights Committee, General Comment 31: The nature of the general legal obligations imposed on States Parties to the Covenant, 26 May 2004, at para 8. 13 Committee on Economic, Social and Cultural Rights, General Comment 15: The right to water, 20 January 2003, at para 23. 14 For instance, the General Comment 31, supra n 12, also affirms that the Covenant is binding only on States Parties ‘and do not, as such, have direct horizontal effect as a matter of international law’. 15 As Bellal has affirmed when dealing with NSAGs, ‘[t]he important question today is not to be so much “if”, but rather “which” obligations are engaged’: see Bellal, ‘Establishing the Direct Responsibility of Non-State Armed Groups for Violations of International Norms: Issues of Attribution’ in Gal-Or, Ryngaert and Noortmann (eds), Responsibilities of the Non-State Actor in Armed Conflict and the Market Place (2015) 304 at 308. 16 Tesón, ‘Fake Custom’ in Lepard (ed.), Reexamining Customary International Law (2017) 87 at 87. 17 In order to illustrate this point, Fortin interestingly refers to the case of R v Zardad [2007] EWCA Crim 279, from the UK Criminal Court, in which the UK extended universal jurisdiction under the CAT and found Mr Zardad guilty of torture under UK national law, which enacts Article 1 of the CAT (p 226). 18 Human Rights Committee, General Comment 26: Continuity of obligations, 8 December 1997, at para 4. 19 For example, Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’ (2010) 1 Journal of International Humanitarian Legal Studies 5 at 21–2. 20 For other interesting points addressing the inclusion of NSAG in human rights law’s making processes, see Oberleitner, Human Rights in Armed Conflict. Law, Practice, Policy (2015) at 217. © The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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Published: Mar 1, 2018

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