From Syria to Mali, Afghanistan or Yemen, the majority of today’s armed conflicts are non-international in character and involve one or several armed non-state actors (ANSAs). These often control territory and persons for a prolonged time and are involved in human rights violations. In these contexts, human rights monitoring mechanisms usually have restricted or no access at all.
International humanitarian law (IHL) and international human rights law (IHRL) share certain common objectives, but they differ in their scopes of application. IHRL applies at all times, while IHL applies only in cases of armed conflict. ANSAs which are parties to a conflict are subject to the obligations imposed by IHL. However, less legal clarity exists regarding the extent to which they are also legally bound to respect human rights in situations that are not covered by IHL or where IHL does not provide adequate guidance.
Up to now, it is still unclear and difficult to establish whether ANSAs’ IHRL obligations are anchored in some form of law or practice emerging from the resolutions adopted by the United Nations (UN) General Assembly, the UN Security Council or the UN Human Rights Council. The issue of accountability and reparation for human rights violations committed by ANSAs is also a critical point of the debate. Apart from individual criminal responsibility, there is currently no judicial or quasi-judicial international mechanism to hold ANSAs per se accountable under IHRL.
The lack of a clear legal framework defining which human rights obligations are applicable to ANSAs as well as the absence of mechanisms ensuring monitoring, accountability and reparation thus affects the effective implementation and respect of the human rights of persons living under the control of ANSAs.
This research aims at building a common understanding and vision as to how states and the relevant parts of the UN system can provide a concrete and practical framework to address ANSAs’ human rights responsibilities, taking into account states’ own obligations for ANSAs human rights violations.
The project will also explore the interest of states in setting up and developing guiding principles or any other instruments outlining ANSAs’ human rights responsibilities.
In doing so, key issues will need to be clarified in the course of the project:
- What are the key characteristics/types of ANSAs concerned by this issue?
- What are the obligations of states that have lost control of part of their territory?
- What are the criteria defining ‘de facto authorities’ and is there a common understanding among states and international organizations of the concept?
- What are the capacity-related challenges that ANSAs may encounter in implementing human rights obligations, in particular so-called ‘positive obligations’?
- What are the legal and political remedies available at the national and international level for ANSAs’ IHRL violations?