Table of Contents

Research Handbook on Human Rights and Humanitarian Law

Research Handbook on Human Rights and Humanitarian Law

Research Handbooks in Human Rights series

Edited by Robert Kolb and Gloria Gaggioli

This fascinating Handbook explores the interplay between international human rights law and international humanitarian law, offering expert analysis on the increasingly complex issues surrounding their application in conflict areas across the world.

Chapter 8: Human rights obligations of non-state armed groups: a possible contribution from customary international law?

Jean-Marie Henckaerts and Cornelius Wiesener

Subjects: law - academic, human rights, public international law, politics and public policy, human rights, terrorism and security

Extract

This chapter examines whether and to what extent non-state armed groups can be considered bound by human rights law. First, it will discuss, as a preliminary consideration, the applicability of international humanitarian law to armed groups. It will contrast this with the applicability of international human rights, both treaty law and customary law, to such groups. In so doing, it will present arguments in favour of and against extending human rights obligations to armed groups. It tries to match these arguments with examples from the practice of UN bodies and experts, including the UN Security Council. On this basis, it will examine whether armed groups can now be considered bound by human rights law as a matter of customary international law. This chapter only addresses this question as a matter of principle and does not examine the practical interaction between humanitarian and human rights law obligations of armed groups, should they be considered to exist. International humanitarian law is premised, generally speaking, on the principle of equality of the parties to the conflict. This implies that the rules of international humanitarian law are binding on both parties to the conflict, whether state parties or non-state parties. This principle applies under both treaty and customary humanitarian law. Under humanitarian treaty law, Article 3, common to the four Geneva Conventions of 1949, explicitly states that it is binding on ‘each Party’ to a conflict not of an international character, including non-state armed groups. The approach adopted in common Article 3 is to apply a minimum of basic rules

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