INTRODUCTION

This chapter aims to answer the main research question of this study, namely how can and should international law develop a responsibility framework for armed groups for violations of international humanitarian law (IHL)? In order to do so, four subquestions were formulated:

• 1. To what extent is a regime of responsibility for armed groups necessary under international law?

• 2. Which methodology can and should be used to develop a responsibility framework for armed groups under international law?

• 3. In terms of attribution, under which conditions can and should acts of formal or de facto members of an armed group be attributed to the group itself?

• 4. In terms of legal consequences, can the armed group be under an obligation to provide reparation to victims?

The answers to these sub-questions were provided in Chapters 2 to 5. This concluding chapter summarises the main findings from the four preceding chapters and answers the main research question. The study has advocated for a less state-centric approach to the question of regulation of armed groups taking into consideration certain nontraditional sources of international law. Moreover, this chapter reflects upon the main theoretical issues discussed in the previous chapters and considers the implications that the findings may have on any potential further research into the question of the regulation of armed groups under international law, such as the progressive development of international law.

In conducting the research, this book has tackled the question of the international responsibility of armed groups in a unitary study addressing the following issues: the legal reasons to develop such a responsibility framework; the methods and limitations in doing so; and the main elements to develop a responsibility framework, that is, the imputation or attribution element and the legal consequences. By addressing these elements in a unitary study, the research aims to avoid the problems of fragmentation and eventual conflicting outcomes. Moreover, although the question of international responsibility of armed groups was partially analysed by the scholarship, there was no comprehensive proposal on how to operationalize such responsibility. This study has also deepened the academic discussion regarding the organisational structure of armed groups and their temporal existence, both of which have been considered some of the main challenges in the regulation of armed groups under international law.

INTRODUCTION

As explained in Chapter 2, reparations are the natural consequences of holding a person or entity responsible, both in domestic legal systems and as a general principle of public international law. In the context of armed conflicts, the obligation to provide reparations has a double legal nature. On the one hand, the provision of reparation is one of the main components of ascribing international responsibility to states and international organisations as stated in the ASR and the ARIO respectively. On the other hand, reparations constitute one of the central elements in the field of transitional justice. In particular, they represent a key element to redress the suffering caused to victims of armed conflict. Moreover, reparations can comprise a wide range of measures that go beyond mere financial compensation.

Taking into account the predominantly non-international nature of armed conflicts and the fact that armed groups represent half of the participants involved in these armed conflicts, it would appear logical to address the obligation to provide reparations not only by the state but also by armed groups, as their counterparts. In this sense, some authors have noted that the state-centric system is insufficient in addressing the complex reality of atrocities where different actors are involved. From the point of view of the victim, the suffering caused by IHL violations and the necessity to address their needs remains the same whether the perpetrator is a state or a non-state actor. Furthermore, there could be certain aspects of the reparations that are insufficiently covered by the compensation provided by the state and may require the participation of other non-state entities. According to Dudai, ‘overlooking the question of reparations from armed groups is a major omission, which could leave victims of abuses by armed groups unable to achieve the redress that they seek’.

Nevertheless, the issue of reparations from armed groups presents a series of difficulties. Firstly, some armed groups may not have the material or financial means to provide reparations, nor the political will to do so. In this respect, the International Centre for Transitional Justice has affirmed that ‘it is usually not feasible to hold armed groups, whether pro or anti-government, directly accountable for reparations’.

INTRODUCTION

The previous chapter established that in order to formulate a responsibility framework for armed groups, the common principles of responsibility between states and international organisations should be considered and adjusted to the characteristics of organised armed groups, while also taking into consideration their own practice and the reports of non-judicial monitoring mechanisms. Accordingly, this chapter will analyse how these principles could be adapted and which special developments need to be contemplated. In this regard, one of the key elements that needs to be explored is the question of attribution that connects the perpetrator of violations of international law with the entity to whom they belong or whom they represent. As such, this chapter will focus on the third sub-question of the study, namely, ‘under which conditions can and should acts of formal or de facto members of an armed group be attributed to the group itself?’. To answer this question, this part follows an interpretative approach and proposes minimum standards of attribution that could be potentially applied to armed groups.

The chapter starts by exploring the concept of attribution as an essential element in ascribing international responsibility to collective entities and gives account of the academic debate on the question of attribution of conduct to armed groups. Second, it examines the substantive rules of attribution developed for states and international organisations. It provides a comparison between the two and analyses which basic rules of attribution are shared by both states and international organisations. The aim of this analysis is to determine the core principles of attribution that could be potentially applied to collective entities such as organised armed groups.

The following section will consider the application of these core principles to the conduct of armed groups and the adjustments that would need to be introduced. As explained in Chapter 3, the main special feature of armed groups is the issue of their structural disparity. This has been considered as one of the main obstacles to developing general and abstract rules for armed groups. Thus, the chapter will reflect on the different aspects of the structural organisation of armed groups, such as the concurrence of a military and a political wing, the differences between centralised and decentralised groups, and the temporal changes of structures.

INTRODUCTION

The previous chapter concluded that in order to fill the responsibility gap and to answer to the rights of victims of non-international armed conflicts a framework that addresses the responsibility of armed groups under international law is required. Following from these discussions, it is now necessary to inquire how principles of responsibility, and in particular of attribution, could be developed in relation to armed groups. In this sense, the sub-question addressed in this chapter is ‘which methodology can and should be used to develop a responsibility framework for armed groups under international law?’. In principle, there appear to be two possible alternatives: extending international criminal responsibility to collective entities, including armed groups; or using the previous framework of the Articles on State Responsibility (ASR) created by the International Law Commission (ILC) as a starting point. In this context, the International Law Association (ILA) has posed the question of whether ‘the direct responsibility of AOGs [Armed Opposition Groups] would be construed in analogy with the responsibility of states or rather with indxividual criminal responsibility’. Similarly, Bílková notes that one of the main issues of uncertainty is choosing a model between state responsibility and individual criminal responsibility or building a new type of responsibility.

Following this reasoning, some authors have suggested extending ICL to organised entities. In particular, Clapham proposes to extend ICL to armed opposition groups based on the fact that armed groups are able to violate not only IHL obligations but also those expressed in terms of international criminal law associated with crimes against humanity and genocide. This suggestion relates to the fact that criminal responsibility of collective entities is recognised in some domestic legal systems. However, as noted in the previous chapter, there are several difficulties in extending ICL in such a way, particularly in relation to the wide range of violations committed by armed groups. In fact, a combination of international criminal responsibility of individual members and international responsibility of the collectivity was preferred for the reasons already explained. On the contrary, other authors, such as Kleffner, Verhoeven and Heffes, have suggested applying the ASR to non-state armed groups by analogy due to the similarities between states and armed groups. Nevertheless, these doctrinal attempts encounter some limitations.

INTRODUCTION

The role of armed groups has emerged as an essential topic of discussion in the areas of international humanitarian law (IHL) and international human rights law (IHRL). This increase in attention has been motivated by the increase in the number of noninternational armed conflicts (NIACs) during the past decades and the necessity to address the multiple legal challenges that armed groups pose. According to The War Report, in 2017 there was a total of 55 armed conflicts, out of which 38 were considered NIACs; in 2018, 51 of the 69 armed conflicts were considered to be NIACs. Consequently, the majority of armed conflicts are now non-international, involving the participation of a series of armed groups. In this regard, the UN Secretary-General has emphasised the effects of this proliferation and the multiple violations committed by armed groups by indicating that:

Likewise, the International Council on Human Rights Policy identified the most common violations committed by armed groups, including arbitrary deprivation of the right to life; disregard for the protection owed to civilians caught up in conflict; torture and ill-treatment; abuses against children; abuses against women; and arbitrary deprivation of liberty and due process. Most violations have been committed by armed groups in Afghanistan, Central African Republic, Colombia, Democratic Republic of Congo, Mali, Nigeria, Sudan and Syria, among others. The harm which armed groups can cause requires that the international legal regulation becomes more effective in addressing their actions and also attaches reparative consequences thereto. In particular, the UN Secretary-General has reiterated ‘the need to ensure accountability for violations, for both parties to conflict and individual perpetrators’ as well as provide justice to victims. He has furthermore pointed to the development of ‘further measures to promote the responsibility of armed groups and non-State actors’ as one of the priorities in the protection of civilians in conflict.

INTRODUCTION

This study starts from the premise that there is a lack of development of the rules regulating the responsibility of armed groups as such in international law. While armed groups are gaining power and control over territories globally, many of their actions remain unaddressed by international law in a systematic manner. Indeed, although there are certain rules regulating the conduct of armed groups during armed conflict, the existing legal framework seems to be fragmented. There are primary obligations deriving from IHL for NIAC; there are provisions for successful insurrectional movements that become a new state or government in a territory; and there are rules on the criminal responsibility of members of armed groups. Nevertheless, there is no comprehensive set of rules that regulates the consequences of violations of international law committed by armed groups. At the same time, there has been extensive scholarly attention to the issue of primary obligations of armed groups, but the question of their international responsibility remains largely underexplored.

For the purpose of this chapter, it is key to understand the existing framework of responsibility in international law, its evolution and the actors that this regime covers. The chapter will first describe the concept of responsibility and its evolution in international law from a historical point of view. This is essential to understand why this topic was considered relevant for codification under international law and why it was necessary to develop this concept separately in international law. This historical overview will be complemented with an analysis of this notion from a philosophical and political science point of view. Philosophical and political science studies provide a rich understanding of the issue of responsibility both from an individual and collective perspective. In particular, the notion of ‘collective responsibility’ has been analysed by these fields that have developed several theories to justify its application. They could, therefore, bring additional insights into the current research and offer a more conceptually grounded legal analysis of the notion of responsibility in international law.

Secondly, the chapter will provide a systematic review of the current legal framework applicable to armed groups as well as the mechanisms that directly or indirectly address violations of international law committed by such groups.

Accord politique pour la paix et la reconciliation en Republique Centrafricane (6 February 2019).

Agreement on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lord's Resistance Army/Movement, Juba, Sudan (29 June 2007).

Agreement on Peace between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front (22 June 2001).

Cessation of Hostilities Framework Agreement between the Government of the Republic of Indonesia and the Free Aceh Movement (9 December 2002).

Comprehensive Agreement on Human Rights, Guatemala (29 March 1994).

Darfur Peace Agreement (5 May 2006, Abuja, Nigeria).

Final agreement to end the armed conflict and build a stable and lasting peace between the Government of Colombia and the Revolutionary Armed Forces of Colombia – People's Army (FARC-EP) (21 November 2016).

Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, Abidjan (30 November 1996).

Somali Agreement on Implementing the Ceasefire and on Modalities of Disarmament (15 January 1993).