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This page intentionally left blank Accountability of Armed Opposition Groups in International Law Who is accountable under international law for the acts committed by armed opposition groups? In today’s world the great majority of political conflicts involve non-state actors attempting to exert a political influence (such as overthrowing a government or bringing about secession). Notwithstanding their impact on the course of events, however, we tend to know little about these groups, and even less about how to treat their actions legally. In this award-winning scholarship, Liesbeth Zegveld examines the need to identify legally the parties involved when internal conflicts arise, and the reality of their demands for rights. Her study draws upon international humanitarian law, human rights law and international criminal law to consider a fundamental question: who is accountable for the acts committed by non-state actors, or for the failure to prevent or repress these acts? This study will be of interest to academics, postgraduate students and professionals involved with armed conflict and international relations. l i e s b e t h z e g v e l d practises as an international and criminal lawyer. In 1998, she received a Fulbright Scholarship to do research at New York University and the Inter-American Commission on Human Rights in Washington, DC. For her dissertation on armed opposition groups she received the degree ‘cum laude’ and the Netherlands’ Human Rights Award, 2000. She is the co-author, with Frits Kalshoven, of the third edition of Constraints on the Waging of War: an Introduction to International Humanitarian Law (ICRC 2001). cambridge studies in international and comparative law This series (established in 1946 by Professors Gutteridge, Hersch Lauterpacht and McNair) is a forum of studies of high quality in the fields of public and private international law and comparative law. Although these are distinct legal subdisciplines, developments since 1946 confirm their interrelationship. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is increasingly affected by international conventions, and the issues faced by classical conflicts rules are increasingly dealt with by substantive harmonization of law under international auspices. Mixed international arbitration, especially those involving state economic activity, raise mixed questions of public and private international law. In many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention. Professor Sir Robert Jennings edited the series from 1981. Following his retirement as General Editor, an editorial board has been created and Cambridge University Press has recommitted itself to the series, affirming its broad scope. The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages. Cambridge Studies in International and Comparative Law (CSICL) general editors Professor James Crawford SC FBA Whewell Professor of International Law, Faculty of Law and Director, Lauterpacht Research Centre for International Law University of Cambridge Member of the International Law Commission Professor John S. Bell FBA Professor of Law Faculty of Law University of Cambridge editorial board Professor Hilary Charlesworth, University of Adelaide Professor Lori Damrosch, Columbia University Law School Professor John Dugard, Universiteit Leiden Professor Mary-Ann Glendon, Harvard Law School Professor Christopher Greenwood, London School of Economics Professor David Johnston, University of Edinburgh Professor Hein Kötz, Max-Planck-Institut, Hamburg Professor Donald McRae, University of Ottawa Professor Onuma Yasuaki, University of Tokyo Professor Reinhard Zimmermann, Universität Regensburg advisory committee Professor Sir D. W Bowett QC Judge Rosalyn Higgins QC Professor Sir Robert Jennings QC Professor J. A. Jolowicz QC Professor Sir Eli Lauterpacht QC Professor Kurt Lipstein QC Judge Stephen Schwebel A list of the books in this series can be found at the end of this book Accountability of Armed Opposition Groups in International Law Liesbeth Zegveld    Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , United Kingdom Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521811309 © Liesbeth Zegveld 2002 This book is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2002 - isbn-13 978-0-511-06445-6 eBook (NetLibrary) - isbn-10 0-511-06445-4 eBook (NetLibrary) - isbn-13 978-0-521-81130-9 hardback - isbn-10 0-521-81130-9 hardback Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Contents Table of treaties and declarations Table of cases Table of other documents List of abbreviations Introduction PART 1 page ix xiii xviii xxvii 1 THE NORMATIVE GAP 1 Legal restraints on armed opposition groups as such Common Article 3 and Protocol II Other rules of humanitarian law Human rights law International criminal law 9 9 26 38 55 2 Substantive obligations of armed opposition groups as such Humane treatment of prisoners Protection of civilians Underdevelopment of the law 59 59 75 92 PART 2 THE ACCOUNTABILITY GAP 3 Accountability of group leaders Crimes Command responsibility of group leaders Criteria for accountability of group leaders Limited prospects for prosecution 97 99 111 121 131 4 Accountability of armed opposition groups as such Evidence for accountability of armed opposition groups 133 134 vii viii contents Attributing acts to armed opposition groups Successful armed opposition groups Finding a suitable forum 5 Accountability of the state for acts of armed opposition groups Applicable law The obligation of the state to take action The pertinence of territorial control 6 152 155 157 164 166 180 207 The quest for accountability Group versus individual accountability Group versus state accountability 220 220 224 Conclusion 229 Bibliography Index 231 242