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Armed Opposition Groups and Shared Responsibility

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Abstract

Modern armed conflicts are characterised by numerous interactions between armed opposition groups and other actors (states, international organisations, other non-state actors etc.). Some of these interactions result in harmful outcomes that cannot be easily attributed to a single actor. Issues of shared responsibility thus arise. Such issues have so far been largely ignored in international law. This article argues that the legal regime of shared responsibility applicable to armed opposition groups could be construed in two ways. On the one hand, it would be possible to extend to armed opposition groups rules of (shared) responsibility for internationally wrongful acts which apply to states. On the other hand, the legal regime could be based on liability (strict responsibility), or on standard-setting. The article shows that all these options have certain limitations stemming from the specific features of armed opposition groups (limited legitimacy, internal diversity, and temporary existence) and suggests combining their elements.

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Notes

  1. In line with the introductory article to this symposium, organised non-state actors are defined as ‘those non-state actors who exercise some form of public authority and whose action may lead to harmful actions at the international level’. D’Aspremont et al. (2015), section 2.

  2. Armed conflict is ‘a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State’. Prosecutor v. Duško Tadić, ICTY Case No. IT-94-1-AR72 (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.

  3. The classical book on armed opposition groups by Liesbeth Zegveld does not have a general definition of the term. Yet, it notes that ‘the word “group” points to a collectivity being more than the sum of its members. While the word “opposition” refers primarily to the conflict against the established government, it is proposed to use the same term even when the government does not participate in the hostilities’. Zegveld (2002), pp. 3–4.

  4. The term ‘armed opposition groups’ is used in this article in the descriptive meaning, encompassing all entities that meet the conditions described above, regardless of the type of armed conflict they fight in and of whether they enjoy international legal personality or not.

  5. D’Aspremont et al. (2015), section 2.

  6. See Nollkaemper and Jacobs (2013).

  7. See Nollkaemper (2014), pp. 9–12.

  8. D’Aspremont et al. (2015), section 7.

  9. D’Aspremont et al. (2015), section 7.

  10. D’Aspremont et al. (2015), section 5.

  11. Articles on Responsibility of States for Internationally Wrongful Acts, ILC Yearbook 2001/II(2) (ARSIWA). Commentary to the Articles on Responsibility of States for Internationally Wrongful Acts, ILC Yearbook 2001/II(2) (ARSIWA Commentary).

  12. See e.g. Ragazzi (2013).

  13. Articles on the Responsibility of International Organizations, ILC Report on the work of its sixty-third session, UNGAOR 66th Sess., Supp. No. 10, UN Doc. A/66/10 (2011) (ARIO). Commentary to the Articles on the Responsibility of International Organizations, ILC Report on the work of its sixty-third session, UNGAOR 66th Sess., Supp. No. 10, UN Doc. A/66/10 (2011) (ARIO Commentary).

  14. The ILC defines secondary rules as rules ‘[d]etermining in what circumstances conduct is to be attributed to the State … [d]etermining in what circumstances a State may be responsible for the conduct of another State which is incompatible with an international obligation of the latter … [s]pecifying the content of State responsibility … [d]etermining any procedural or substantive preconditions for one State to invoke the responsibility of another State’. ARSIWA Commentary, p. 31.

  15. Shared responsibility also gives rise to interesting institutional questions, relating to the forum in which, and the conditions under which it can be invoked. As these questions are context-specific, and are closely linked to the jurisdictional and other rules applicable in various (quasi-)judicial bodies, this article leaves them aside.

  16. Arts. 4–11 of the ARSIWA and Arts. 6–9 of the ARIO.

  17. For more details, see Messineo (2014).

  18. ARSIWA Commentary, p. 124.

  19. ARIO Commentary, p. 81.

  20. Fry (2014), p. 103.

  21. See Vermeer-Künzli (2014). While the term shared responsibility is not invoked in either the ARSIWA or ARIO, the commentary to the latter refers to ‘joint responsibility’. This term is understood as referring to any ‘case where an international organization is responsible for a given wrongful act together with one or more other entities, either international organizations or States’. ARIO Commentary, p. 142.

  22. Arts. 28–39 of the ARSIWA and Arts. 28–40 of the ARIO. See also D’Argent (2014).

  23. This is confirmed by the Commentary to Art. 31 of the ARSIWA, see ARSIWA Commentary, pp. 91–94.

  24. See Noyes and Smith (1988).

  25. See Nollkaemper and Jacobs (2013), p. 381.

  26. As Allain Pellet claims, ‘it remains the case that the responsibility of international organizations is largely governed by the same general principles which apply to the responsibility of States, and that, seen from afar, it has the same general characteristics and is susceptible of the same type of analysis’. Pellet (2013a), p. 7.

  27. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, in force 21 October 1950, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, in force 21 October 1950, 75 UNTS 85; Geneva Convention relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, in force 21 October 1950, 75 UNTS 135; Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, in force 21 October 1950, 75 UNTS 287 (1949 Geneva Conventions). ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, in force 7 December 1978, 1125 UNTS 609 (Additional Protocol II). Additional Protocol II only applies to armed conflicts ‘which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’, Art. 1(1).

  28. Most of the 161 customary rules of IHL identified by the ICRC in its 2005 Study on Customary International Humanitarian Law apply both in international and in non-international armed conflicts. See Henckaerts and Doswald-Beck (2005).

  29. See Clapham (2006a, b).

  30. Zegveld (2002), p. 97. For a broader understanding of the term, see D’Aspremont et al. (2015), section 4.

  31. ARSIWA Commentary, p. 52, para. 16.

  32. Dionisio Anzilotti, cit. in Pellet (2013a), p. 4.

  33. Henckaerts and Doswald-Beck (2005), p. 530 (Rule 149).

  34. Pellet (2013b), p. 44.

  35. For more details, see Bílková (2015).

  36. See Nollkaemper (2011).

  37. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Rep. 1986, p. 14 (Nicaragua).

  38. Nicaragua, para. 116.

  39. Nicaragua, para. 116.

  40. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Rep. 2007, p. 43 (Bosnian Genocide).

  41. Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, in force 12 January 1951, 78 UNTS 277 (Genocide Convention).

  42. Bosnian Genocide, para. 423.

  43. Bosnian Genocide, para. 420.

  44. Bosnian Genocide, para. 420.

  45. Bosnian Genocide, para. 420.

  46. Pellet (2013b), p. 43.

  47. Zegveld (2002), p. 153.

  48. Under the effective control test, ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’, Art. 8 of the ARSIWA.

  49. Melzer (2009), p. 33.

  50. In addition to attributing to the state a conduct of non-state actors that was done under the direction or control of that state (Art. 8), the ARSIWA also makes it possible to attribute to states a conduct of non-state actors to which the states did not contribute (Arts. 5, 9–11 ARSIWA). In the latter type of situation, the attribution takes place to ensure that acts producing harmful outcomes will not remain without legal consequences.

  51. ARSIWA Commentary, p. 47, para. 3.

  52. In the comment to Draft Art. 14 (now Art. 10 ARSIWA), the special rapporteur stated that the article dealing with the responsibility of non-state actors ‘falls outside the scope of the draft articles and should be omitted. The responsibility of such movements, for example, for breaches of international humanitarian law, can certainly be envisaged, but this can be dealt with in the commentary’. Crawford (1998), p. 53, para. 272.

  53. See Nollkaemper and Jacobs (2013), pp. 393–394.

  54. For instance, the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, solely indicates ‘the necessity and significance of assuming separate duties and responsibilities for upholding, protecting and promoting the principles of human rights and the principles of international humanitarian law’ (Preamble).

  55. In 1973, the ILC concluded that it could ‘undertake the study of the so-called responsibility for risk after its study on responsibility for wrongful acts has been completed, or it can do so simultaneously but separately’, ILC Report, UN Doc. A/9010/Rev.1 (1973), para. 39. In 1978, the new topic of International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law was included on the ILC agenda.

  56. Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, ILC Yearbook 2001/II(2).

  57. Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, ILC Report on the work of its fifty-eighth session, UN Doc. A/61/10 (2006), pp. 106–110.

  58. Principles 4 and 5 Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities.

  59. Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960, in force 1 April 1968, 956 UNTS 251 (Paris Convention).

  60. International Convention on Civil Liability for Bunker Oil Pollution Damage, London, 23 March 2001, in force 21 November 2008, 973 UNTS 3; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 3 May 1996, NYIF.

  61. International Law Association, Non-State Actors Committee, Conference Report Washington 2014, p. 17.

  62. Some limited practice in this respect exists under the 1982 UN Convention on the Law of the Sea, Montego Bay, 10 December 1982, in force 16 November 1994, 1833 UNTS 3. In Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Request to Render an Advisory Opinion of 28 March 2013, ITLOS Case No. 21, the Seabed Dispute Chamber of the International Tribunal for the Law of the Sea held that the liability of a state and that of a private actor were independent of each other. Yet, the decision relates to responsibility for internationally wrongful acts rather than international/civil liability.

  63. See Zegveld (2003).

  64. Ronen (2009).

  65. See Law Reform Commission of British Columbia, ‘Report on Shared Liability’, LRC 88, August 1986; or Moore and Matlock (2014).

  66. D’Aspremont et al. (2015), section 5.3.

  67. A similar relationship exists between the concepts of humanitarian intervention and of responsibility to protect. While the former focuses on how to deal with man-made violations of human rights, the latter seeks to prevent such violations in the first place.

  68. See e.g. UN Doc. A/59/565 (2 December 2004).

  69. Guiding Principles on Business and Human Rights and Commentary, Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, HR/PUB/11/04 (United Nations, 2011), p. 13. See also Karavias (2015).

  70. Mack (2008). See also Ryngaert and Van de Meulebroucke (2012).

  71. Mack (2008), p. 19.

  72. Mack (2008), p. 19.

  73. Mack (2008), p. 20.

  74. Armed non-state actors are defined as ‘organized armed entities involved in internal armed conflicts that are primarily motivated by political goals, operate outside State control and therefore lack the legal capacity to become party to relevant international treaties’. Geneva Call. http://www.genevacall.org/who-we-are/faqs/. Accessed 15 February 2015.

  75. Geneva Call, Deed of Commitment. http://www.genevacall.org/how-we-work/deed-of-commitment/. Accessed 15 February 2015.

  76. Geneva Call, Deed of Commitment.

  77. Geneva Call, Mission. http://www.genevacall.org/who-we-are/. Accessed 15 February 2015.

  78. Mack (2008), p. 22.

  79. Mack (2008), p. 23.

  80. ETANA, ‘Armed groups agree on Codes of Conduct to respect International Humanitarian Law and rights’, 3 July 2014. http://www.responsibilitytoprotect.org/PAX%20Syria%20statement%20on%20FSA%20code%20of%20conduct(3).pdf. Accessed 15 February 2015.

  81. ETANA 2014.

  82. ETANA 2014.

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  1. Faculty of Law of the Charles University and Institute of International Relations, Prague, Czech Republic

    Veronika Bílková

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Bílková, V. Armed Opposition Groups and Shared Responsibility. Neth Int Law Rev 62, 69–89 (2015). https://doi.org/10.1007/s40802-015-0014-1

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