Applicable rules of international law
The laws applicable to armed conflicts are extremely well rehearsed (Solis 2010; Clapham and Gaeta 2014) and will be only briefly laid out below. The following section will focus on non-international armed conflicts taking place between a state and (one or more) non-state armed group. For the purposes of the paper, the term ‘non-state armed group’ shall refer to a definition of a non-state actor as suggested by Geneva Call. It shall therefore include “any armed group, distinct from and not operating under the control of, the state or states in which it carries out military operations, and which has political, religious, and/or military objectives” (Bellal et al. 2011, 48).Footnote 1
Applicability of international humanitarian law
The corpus of international humanitarian law applicable during NIAC is somewhat limited compared to that relating to international armed conflicts. In the early days of international law, the lack of development was perhaps due to a general understanding that because of its domestic nature, internal warfare fell within the scope of states’ national jurisdiction and need not be regulated internationally (Moir 2002, 2). Although some customary international law pertaining to NIAC existed (relating particularly to the recognition of belligerency), state practice on the matter rapidly declined (Moir 1998, 352). However, as the prevalence of internal conflicts grew, and the transnational effects of NIAC became more evident (e.g. the influx of refugees and/or a ‘spill-over’ of hostilities to neighbouring states: Moir 2002, 2) and the realisation that parties most affected by conflicts (i.e. civilians) were in need of protection regardless of the nature of the conflict, the mid-twentieth century brought a greater acceptance of the application of humanitarian norms to NIAC. Nonetheless, despite efforts of the International Committee of the Red Cross to encourage the application in practice (having adopted a resolution on the matter in 1938: Moir 1998, 354), progress was stopped short by the breakout of World War II. It was therefore not until 1949, after a rejection of the International Committee of the Red Cross (ICRC)’s attempts to have the totality of international humanitarian law extended to cover NIAC, that the somewhat restrictive Common Article 3 to the universally binding Geneva Conventions (Best 1994, 82–83; ICRC 1949a; ICRC 1949b; ICRC 1948c; ICRC 1949d) was adopted.Footnote 2 The NIAC-specific Additional Protocol II to the Geneva Conventions of 12 August 1949 (ICRC 1977) was later hastily adopted in 1977, after further disagreements between states as to the extent to which their internal affairs should be opened to external scrutiny (see Best, 346–347).
The standards contained in these instruments apply to both state and non-state parties to a NIAC. This assertion has raised several conceptual concerns, perhaps the most notable relating to the legitimacy of applying treaty standards to NSAGs, who have not ratified the relevant treaties. At the international level, in the absence of an elected world government, the legitimacy of obligations stems from the sovereign equality of states and the fact that they bind only themselves through the creation and adoption of international norms. The source of legitimacy for the imposition of direct obligations on non-state actors at the international level without their participation therefore raises some questions. Justifications proffered range from the ‘doctrine of state jurisdiction’Footnote 3 to the analogy of individual criminal responsibility.Footnote 4 Perhaps the most persuasive justification is the argument that some procedural requirements of legitimacy need not be followed in relation to norms preventing heinous conduct. It has been argued, for example, that if the expected result of the obligations’ implementation is of paramount importance, it may negate the necessity of the norms being adopted with the consent of affected parties (Ryngaert 2010, 71–73). Ryngaert asserts that in the absence of participation by a non-state actor, if a “legal norm or its implementation has in itself an important substantive value”, participation is not necessary (Ryngaert 2010, 71). Arguably, in the case of international humanitarian law that was extended to NIAC primarily for the purpose of protecting civilians, this argument rings true. Indeed, “it has now become uncontroversial…that [NSAGs] are bound by international humanitarian law” (Bellal et al. 2011, 56).
However, a high threshold must be met for Additional Protocol II to be applicable.Footnote 5 This means that in many situations, only Common Article 3 providing minimal protections would apply, as the provision automatically applies upon the classification of a situation as a non-international armed conflict. By now, however, this body of law has matured, with a more expansive corpus of customary international humanitarian law applying to NIAC (Sivakumaran 2012, 102). Notwithstanding criticism of this customary law, its application to NSAGs has been more broadly accepted than the application of treaty-based rules (Bellal et al. 2011, 56).
In addition, the assertion that some rules of international armed conflicts are also applicable in NIACs is becoming more commonplace (Columbia Law School Human Rights Institute, cited in Cleveland 2014). These evolutions in the law of NIACs have taken place predominantly to counter concerns that despite the widespread nature of NIACs, the laws applicable during an international armed conflict were much more extensive in scope. Until the 1990s, developing the rules of NIAC beyond those provided for by Geneva law was “never seriously entertained” (Sivakumaran 2012, 55). With the majority of armed conflicts currently occurring worldwide being non-international in nature (Armed Conflict 2014),Footnote 6 the developments are now a welcome opportunity to mitigate the human suffering caused by armed conflicts and thwart concerns regarding the deregulation of NIACs.Footnote 7
Now that the law applicable during NIAC is in a more (though by no means fully) developed state, the primary issue to be addressed is how to ensure that NSAGs comply with the relevant norms and close the gap between law and practice during NIAC. Aligning the practice of NSAGs with the legal standards is an extremely challenging task, however. On the one hand, NSAGs may not be aware of the existence or meaning of humanitarian norms and may lack the institutional structure to ensure compliance of their own fighters (Ryngaert and Van de Meulebroucke 2012, 456–457). Alternatively, a NSAG may be unwilling to engage with the notion that it has legal obligations under humanitarian law (e.g. ICRC 2008). Even those NSAGs willing to abide by the laws may encounter an array of obstacles in implementing them.Footnote 8 It is for this reason that organisations such as the International Committee of the Red Cross have engaged with NSAGs that have expressed a desire for help. Nonetheless, as Ryngaert and Van de Meulebroucke note, unlike for states, there is no formal advisory service available to NSAGs struggling to comply (Ryngaert and Van de Meulebroucke 2012, 457).
Notwithstanding the difficulties faced in ensuring NSAGs’ compliance with humanitarian law, there is growing support for the application of international human rights law to situations of armed conflict, which will be explained in the following section.
Applicability of international human rights law
The rhetoric pertaining to the application of international human rights law to armed conflicts was initially somewhat divergent. A major focus of this debate has revolved around the doctrine of lex specialis derogat legi generali (lex specialis), which many believed to render the application of human rights during armed conflicts inappropriate (e.g. Schabas 2007, 594). As the literature engaging with this debate is extremely extensive, this section will present a summary of the doctrine and its consequences within the context of this paper. The doctrine mandates that more precise and specialised law is to take precedence over more general laws. Reluctance to apply human rights law during armed conflicts was also due to the differing natures and ‘roots’ of humanitarian and human rights law (Solis 2010, 24). On the one hand, humanitarian law (not seeking to abolish conflict) does not prohibit the immediate killing of the enemy. It seeks rather to diminish the devastating human cost of conflicts and to ensure a fairer fight (ICRC 2004).Footnote 9 Human rights law, on the other hand, seeks to protect individuals from potentially abusive actions by states and does not allow the arbitrary taking of life under any circumstances.Footnote 10
Furthermore, as is explained below, human rights law imposes obligations on the state for the benefit of individuals. The relationship between the obligation-holder and the beneficiaries (or rights-holder) is thus inherently vertical in nature. In contrast, as explained above, many humanitarian obligations are owed by all parties to the conflict, which act essentially as mutual beneficiaries (assuming that all parties comply with their obligations).
In more recent years, the international community has increasingly accepted the view of the International Court of Justice (ICJ) in its Advisory Opinion on the Legality of the Construction of a Wall in the Occupied Territory that during armed conflicts international humanitarian norms and international human rights norms may apply simultaneously, in a complementary manner (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion
2004, para 106). It may be said, therefore, that the doctrine of lex specialis serves more to determine the precise rules to apply to a particular situation, rather than precluding application of one body of law. This view is supported by Marko Milanović, who has highlighted that understanding the doctrine as being generally applicable to the human rights and humanitarian regimes as a whole, is mistaken (Milanović 2011, 98–101). Following Kreiger, Milanović’s suggestion is to assess which rule constitutes the lex specialis by looking at the relationship between specific norms, rather than regimes as a whole (Milanović 2011, citing Kreiger 2006). The present paper will also depart from this starting point, understanding the lex specialis during situations of humanitarian crisis as being human rights law.
Economic, social and cultural rights
Having established that international human rights law as such may be applicable during non-international armed conflicts, the following section will address the application of economic, social and cultural rights. The rights usually forming the subject of debates concerning the lex specialis during armed conflicts are civil and political rights, such as the right to life and the prohibition of torture. This is perhaps due to the existence of concrete norms in humanitarian law which also provide rules on the use of torture and the taking of life,Footnote 11 although they differ from human rights law. However, the rights affected (and applicable) during armed conflicts are not limited to those whose subject matter is also dealt with by norms under humanitarian law. When concerned with humanitarian crises that result in heavily reduced access to materials and services essential to a life of dignity, often referred to as ‘subsistence rights’ (such as healthcare, food, and water and sanitation), economic, social and cultural rights are of the utmost relevance.
It may well be argued that in relation to the provision of food and water during armed conflicts, human rights law constitutes the lex specialis. As implied above, deciphering which norm/s form the lex specialis in a given circumstance will require an examination of which norms are the most developed. In the present context of subsistence rights, human rights law has not only been given more content than the relevant humanitarian law norms but also provides (in theory) more extensive protection of access to essential materials and services.
For example, humanitarian law rules do prohibit the use of starvation as a method of warfare and the targeting of essential resources (being classed as civilian objects),Footnote 12 thereby providing limited protection of materials. The rules on access to humanitarian aid are more developed for international armed conflicts. For non-international armed conflicts, however, the applicable treaty rules do not explicitly refer to humanitarian aid (Swiss Federal Department of Foreign Affairs 2011, 25–26). Regardless, the Swiss Federal Department of Foreign Affairs has interpreted Common Article 3 to include a principle that civilian populations may not be intentionally subjected to situations that would, due to a lack of access to essential supplies, threaten their dignity or result in “serious mental or physical suffering” (Swiss Federal Department of Foreign Affairs 2011, 26). However, these rules are constructed as ‘negative’ obligations—prohibitions of certain conduct requiring parties to refrain from interfering with access to essential supplies. Whilst the same obligations can be found under economic, social and cultural rights, human rights law goes further, requiring states parties to not only respect the rights (i.e. refrain from interfering with their enjoyment) but also protect and fulfil the rights by providing the means and/or substance for the right to be effectively realised (Shue 1980, 260; Eide 1987).Footnote 13
In addition, the rule in Common Article 3 relating to the lack of access to essential supplies is not buttressed by a wider range of provisions applicable during NIAC. Indeed, humanitarian assistance (i.e. the provision of food, water and healthcare) as such is scarcely regulated during NIAC, which may raise a presumption that human rights law constitutes the lex specialis. Provisions regulating humanitarian assistance during international armed conflicts can be found in (for example) Article 23 Geneva Convention IV and Article 70 Additional Protocol I (see ICRC, 2014). However, other provisions relating to humanitarian assistance during NIAC are limited to Article 18 Additional Protocol II. This article provides for the undertaking of humanitarian “relief actions” (with the consent of the concerned state party) in the event that the “civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival” (Article 18, para 2). The very vagueness of this protection, extending to “foodstuffs and medical supplies” suggests that the much more embellished human rights law would offer more protection of subsistence rights than humanitarian law. It may be argued that the Manual on the Law of Non-International Armed Conflict
2006 (the San Remo Manual) provides further detail in this respect. The manual is a restatement of the law applicable during NIAC, though like the ICRC codifications of law, it is not legally binding. Chapter 5 of the Manual states that “humanitarian assistance should be allowed and facilitated by those engaged in military operations whenever essential needs in an emergency are not being met” and provides more information on the definition of humanitarian assistance. The Manual still refrains from placing positive obligations on parties to the conflict to ensure that the essential needs are, in fact, met. Taken together with the lack of more detailed information on what constitutes essential foodstuffs etc., this contributed to the argument that the lex specialis in the present context is human rights law.
Further support for the argument that human rights law constitutes the lex specialis in relation to a humanitarian crisis caused by a NIAC may be found in the non-limitation and non-derogability of subsistence rights in such a situation. The implications of these two aspects of subsistence rights and the nature of the obligations deriving from them, as economic, social and cultural rights, will now be explained.
Limited application of economic, social and cultural rights
Legitimate limitations of human rights
Despite the general applicability of economic, social and cultural rights in times of armed conflict, there are measures which states may take to restrict the scope of their obligations. These consist primarily of derogations and limitations of the rights. However, as Müller (2009) has suggested, the legitimacy of invoking these methods during an armed conflict is, at least regarding the abovementioned subsistence rights, questionable.Footnote 14
Legitimate limitations to economic, social and cultural rights are allowed under Article 4 of the International Covenant on Economic Social and Cultural Rights (ICESCR) for the promotion of the general welfare in a democratic society, providing that they are not contrary to the nature of the right. This sole reason justifying limitations is more restrictive than the several reasons found in the International Covenant on Civil and Political Rights
1966a (ICCPR). Article 19 ICCPR on freedom of expression, for example, allows limitations for several reasons, including the respect of the rights or reputation of others, the promotion of national security or pubic order, or of public health or morals. Müller has persuasively argued that this reason effectively means that states may not limit the ‘minimum core’ of economic, social and cultural rights, since they would go against the nature of the rights (Müller 2009, 575).Footnote 15 In addition to these requirements, limitations to economic, social and cultural rights must be prescribed by law, proportionate to the aim pursued, and necessary in a democratic society. Furthermore, as the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights state, “[article 4] was not meant to introduce limitations on rights affecting the subsistence…of the person.” (United Nations Commission on Human Rights 1987, para 47). Taken together with the nature of subsistence rights as providing for the basic necessities required for human existence, it can therefore be inferred that limitations to subsistence rights would not be considered legitimate.
Derogations from economic, social and cultural rights
The question of whether state parties may derogate from economic, social and cultural rights in times of public emergency has been a matter of much debate. Derogating from a right essentially allows states to put their obligations on hold for a specified period of time. As derogating is a somewhat extreme measure, whether or not a particular right may be derogated from, and under which circumstances, is usually laid down in the text of a human rights treaty. However, this is not the case for the ICESCR, which neither contains a derogation clause allowing for derogations, nor a provision prohibiting derogations. This is unlike the ICCPR, Article 4 of which specifies the conditions for derogations from its provisions, and prohibits derogations from several rights (Article 4, paragraphs 1 and 2, respectively). Nonetheless, the fact that there is no derogation clause in ICESCR does not necessarily mean that states would be precluded from derogating from them.
However, it can be inferred from the purpose of derogation clauses that at least some economic, social and cultural rights are non-derogable. According to Müller, this would extend to subsistence rights (Müller 2009, 593). The purpose of derogations is not to allow states to decrease their attention to the rights, but (following the criteria of Article 4 ICCPR) must be to ensure that the state is in a position where it is capable of ensuring human rights and to restore a situation of normalcy (United Nations Human Rights Committee 2001, para 1). This is evident from the requirement that a state be in a “time of public emergency that threatens the life of the nation” before it may make derogations. Whilst it may be true that a non-international armed conflict may cause such a situation of public emergency, it cannot reasonably be expected that derogating from rights such as the right to food, water and healthcare, could help to restore the state to a situation of normalcy. On the contrary, reducing access to essential resources would aggravate, rather than ameliorate, a situation of public emergency.
Allan Rosas and Monika Sandvik-Nylund have also suggested that the relationship between subsistence rights and the right to life can contribute to the argument in favour of the non-derogability of subsistence rights (Rosas and Sandvik-Nylund, 2001, 414). Subsistence rights are of the utmost importance for the protection of human dignity and survival in emergency situations and are interrelated with the right to life—a non-derogable right (to the extent that a life may not be arbitrarily taken) (see Müller 2009, 599). This view is supported by several human rights bodies which, lacking jurisdiction over (or the justiciability of) economic, social and cultural rights, have interpreted the right to life to include subsistence rights. For example, the Inter-American Court of Human Rights has repeatedly read the right to life (protected by Article 4 of the American Convention on Human Rights) to include healthcare as one of its essential attributes (see Case of Children´s Rehabilitation v. Paraguay
1999). This reading is now “solidly part” of the Court’s jurisprudence, having been embellished upon in several cases (e.g. Yakye Axa Indigenous Community v. Paraguay
2006, discussed in Melish 2008, 389).
The nature of ESCR
Whether or not the manner of using the right to life in this way is found to be persuasive for present purposes, the fact that Article 2(1) ICESCR allows economic, social and cultural rights to be progressively realised is also of relevance here.Footnote 16 The provision means that whilst some immediate measures have to be taken by states to contribute to the realisation of economic, social and cultural rights, their full realisation is not an immediate obligation. States must, however, make continuous and progressive measures to increase the realisation of the rights, depending on their available resources. Whilst it may be argued that a state has less resources available during armed conflicts, which would naturally lead to a lesser degree of the rights’ realisation, the Committee on Economic, Social and Cultural Rights (CESCR) has introduced a concept of ‘minimum core obligations’ of the Covenant rights (CESCR 1990, para 10). Simply speaking, this means that there is a certain floor of human rights realisation that states must ensure, regardless of their particular domestic situation. In relation to the rights to food, water, and highest attainable standard of health, which have been given more content through CESCR’s General Comments 12, 15 and 14, respectively, the minimum core would arguably provide more protection of subsistence rights than the norms under humanitarian law, despite their progressive nature.
In addition, the Committee has suggested that the notion of progressive realisation makes it extremely cumbersome for states to justify any retrogressive measures.Footnote 17 The extent to which this would also hold true during armed conflicts, during which time resources may need to be redistributed, is unclear. However, it may be deduced that at least the minimum core of subsistence rights may not be derogated from, even during situations of public emergency threatening the life of the nation. This conclusion is particularly significant when viewed in light of the below discussion on the absence of human rights obligations for NSAGs. If subsistence rights were derogable, it would mean that the obligations on the state and NSAGs would be more equal and would provide some level of justification for the fact that individuals’ rights were not being realised.
The above discussion demonstrates that the more embellished standards relating to the provision of food, water and healthcare found within international human rights law makes these norms, rather than those found in humanitarian law, the lex specialis in the present context. This finding is strengthened by the conclusion that subsistence rights are non-derogable and may not be limited during NIAC. Unfortunately, whilst this affords perhaps more protection to individuals within territory controlled by a state, it leaves individuals in areas controlled by NSAGs (as non-human rights obligations-holders) without human rights protection. This problem and efforts to use human rights law to remedy the gap in protection through the indirect application of human rights obligations to NSAGs will now be assessed.
NSAGs and the indirect horizontal effect of human rights
Under the current international human rights framework, NSAGs do not have direct human rights obligations; as non-state actors, NSAGs cannot be party to international human rights treaties. Rather, human rights obligations are vertical in nature, being owed by the state on a vertically superior legal plane, to individuals. Unlike other international treaties, human rights treaties do not even have horizontal application, or ‘horizontal effect’ between states. Human rights treaties allow for neither substantive horizontal effect (i.e. allowing individuals to claim violations of actual rights owed to them by NSA), nor procedural horizontal effect, often known as drittwirkung
Footnote 18 (reflected in the rule that complaints of human rights violations may only be brought before the human rights treaty bodies by individuals against states) (e.g. Optional Protocol to the International Covenant on Civil and Political Rights
1966c, Article 1).
However, the ever-increasing power and influence of non-state actors (including NSAGs) and their ability to interfere with the enjoyment of human rights has led to an application of ‘indirect horizontal effect’ by many human rights monitoring bodies and courts. Although being achieved through several different methods, indirect horizontal effect essentially holds states responsible for human rights interference resulting from the conduct of non-state actors. In the past, this has been used in relation to corporations, NSAGs, and even individuals (e.g. European Court of Human Rights (ECtHR) Fadeyeva v. Russia
2005; United Nations Committee against Torture Sadiq Shek Elmi v. Australia
1999; ECtHR, X and Y v. The Netherlands
1985). Perhaps the most prevalent way of achieving indirect horizontal effect is to use states’ positive obligation to protect individuals from human rights interference with the enjoyment of their rights.
The obligation has been fleshed out using a ‘duty of due diligence’. Under international human rights law, this means that states must take all appropriate measures to ‘prevent, investigate and punish’ third party interference with human rights enjoyment (Inter-American Court of Human Rights Velásquez-Rodríguez v. Honduras
1988, paras 79, 172). When assessing whether or not a state has acted with due diligence, the focus is on the conduct, and the progressive measures that states took in a particular situation, rather than the result of the measures and whether or not they were actually successful in protecting an individual (Office for the United Nations High Commissioner for Human Rights 2005, 61). In practice, this means that a state will not be expected to protect every individual all of the time. Rather, they will be expected to take protective measures when they know, or should have known, of a threat to an individual’s rights by a third party (see, e.g. ECtHR, Osman v. United Kingdom
1998b; ECtHR, Z and Others v. United Kingdom
2001, ECtHR Kaya v Turkey
Whereas this is arguably more reasonable for states, it has obvious flaws in relation to non-state actors outside of state control, such as NSAGs. An illustrative example is that of the Fuerzas Armadas Revolucionarias de Colombia (FARC) in Colombia. The non-international armed conflict between the NSAG and the state has been taking place for over 50 years, with the FARC having gained in 2000 effective control over a large area of Colombian territory (Rollins 2010, 18). The Human Rights Council has expressed concern at the lack of inquiry and investigation into crimes committed by demobilised individuals from the FARC against women and children, in particular the recruitment of child soldiers (Human Rights Council, Working Group on the Universal Periodic Review 2008, para 57).
This would also presumably fail to comply with the state’s obligation under Article 4(2) of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) to “take all feasible measures” to ensure that the relevant norms are respected. The Inter-American Commission on Human Rights emphasised the importance of the obligation to investigate and punish actions by NSA in its assessment of whether Colombia had acted with due diligence in relation to FARC activity, but ultimately stated that “in situations of civil strife, the State cannot always prevent, much less be held responsible for, the harm to individuals and destruction of private property occasioned by the hostile acts of its armed opponents.” (Inter-American Commission on Human Rights, Organization of American States 1999, Chapter IV para 4, discussed in Clapham 2006b, 422). This appears to place a lower (albeit more realistic) burden on states than the European Court of Human Rights. In the case of Illascu and others v. Moldova and Russia (1999), the Court was called upon to question the responsibility of Moldova for harm that occurred in an area of its territory over which it no longer had effective control. The Court opined that “States retain the obligation to use all means and resources available to them to guarantee human rights” (para 333) and upheld Moldova’s responsibility. Whilst encouraging states to make efforts to guarantee human rights throughout its territory regardless of situations of conflict is laudable, finding the state to have violated its obligations in areas where it is no longer capable of securing human rights is questionable. Although the approach of the Inter-American Commission may appear to be too soft-handed, the much more heavy-handed approach of the ECtHR has been questioned, not least by dissenting judges (Illascu and Others v. Moldova and Russia
1999, Partly Dissenting Opinion Of Judge Sir Nicolas Bratza).
Ultimately, whichever view is taken could result in a gap in human rights protection. Even if a state were to use all means and resources available to try to secure human rights in areas controlled by NSAGs, it may not be possible. Additionally, and unfortunately, the vast majority of previous cases upholding indirect horizontal effect have been in relation to civil and political rights. Until recently, it was not possible to bring an individual complaint in relation to rights contained in the International Covenant on Economic, Social and Cultural Rights.Footnote 19 The entry into force of the Optional Protocol to the Covenant now allows for this possibility, but it remains to be seen how the Committee on Economic, Social and Cultural Rights will deal with such situations.Footnote 20 These factors all culminate in a gap in effective legal protection of subsistence rights during armed conflicts. Whilst some NSAGs take it upon themselves to provide public services and to essentially fulfil some human rights on a de facto basis, there exists a legal lacuna. A correlative of this is an inequality in human rights protection. Victims living in an area controlled by the state may still be able to receive redress for their human rights violations by bringing a complaint directly against the state. For those living in NSAG-controlled areas, depending on the situation on the ground and the efforts that states have made in securing human rights enjoyment despite the control of the NSAG, this may not be possible. Individuals suffering the effects of severe humanitarian crises may therefore be left with no way of accessing essential materials. Despite laudable efforts by humanitarian aid organisations to deliver materials to those in need, and the humanitarian norms prohibiting the restriction of their access to areas in need of essential materials,Footnote 21 some areas remain rife with crisis. For these reasons, more measures need to be taken to try to achieve a rounder, more comprehensive protection of human rights.
This contrasts with international humanitarian law, which contains the fundamental principle of equality of obligations.Footnote 22 This means that all parties to a conflict owe the same obligations and hold the same rights “irrespective of the ‘justness’ of the cause”, even during NIAC (Sivakumaran 2012, 242–246). Consequently, civilians belonging to both sides of the conflict are in theory equally protected from the effects of the conflict. However, the developments in the range of laws applicable during NIAC remains limited in comparison with international armed conflicts due to the reasons mentioned above. The limited scope of the norms renders the equality of obligations during NIAC less meaningful, particularly in situations where the high threshold for application of Additional Protocol II is not met. Indeed, the equality of obligations in NIAC was seemingly a response to the need to ensure equal protection for civilians during internal as well as international conflicts rather than to recognise NSAGs as bodies competent of discharging obligations.
In this respect, it is possible to compare the application of humanitarian law to NSAGs with that of human rights norms to some extent. States have shown a reluctance to impose direct obligations on non-state actors under both spheres of law, resulting in the (deliberate) gaps in the obligations of state vs. non-state actors. With respect to both legal fields, the primary reason for this is the prevailing state-centric, Westphalian approach to international relations. States are still considered to be the sole subjects of international law; sovereign entities endowed with the power and responsibility of managing their internal affairs (including the regulation of non-state actors). This is reflected, for example, in the fact that only states may be party to international human rights law treaties and the Geneva Conventions (including Additional Protocol II). Changes in the prevalence and power of NSAGs are highlighting the insufficiency of this paradigm for dealing with situations of humanitarian crisis during NIAC. Interestingly, some level of equality has been transposed into the younger field of international criminal law, which allows for individuals to be held individually criminally responsible for breaches of international humanitarian law. This is possible where an individual has committed one of the ‘grave breaches’ of the norms, some of which concern human rights principles.Footnote 23 Nonetheless, the principles involved do not relate to subsistence rights. This makes the deterrent aspect of international criminal law less valuable in the context of humanitarian crises. Consequently, the gap in both humanitarian and human rights law makes it difficult to govern the actions of NSAGs effectively.
Christa Rottensteiner has noted, “the primary responsibility for meeting the needs of the civilian population in an armed conflict rests with the warring parties that are in effective control of the territory on which that population lives” (Rottensteiner 1999). As the international legal framework does not currently envisage NSAGs as obligation-holders, and in light of the lack of evidence of political will to alter this, extra-legal efforts are necessary to bring NSAGs’ conduct in line with human rights standards and alleviate humanitarian crises caused by NIAC.