Report on ANSAs by Special Repporteur on Extrajudicial Killings, June 2018

About the author(s):

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Agnes_CallamardKeen observers of the law relating to non-international armed conflicts will already have seen the report on armed non state actors (ANSAs) that was issued by Dr Agnes Callamard, the UN Special Rapporteur on Extrajudicial Killings in June 2018 (UN Doc A/HRC/38/44). The report is important because it addresses the topic of armed groups and human rights law more comprehensively than any report ever issued by a UN special rapporteur.

In the report, the Special Rapporteur starts by surveying the factual and legal landscape relating to ANSAs and the right to life. Factually, she explains how ANSAs (e.g. armed opposition groups, insurgents, rebels, terrorists, militias, criminal cartels or gangs) have become a pervasive challenge to human rights protection. Legally, she maps the way in which ANSAs have been dealt with by the Security Council and Human Rights Council. She shows that over the last 20 years, States have regularly addressed ANSAs both as perpetrators of human rights violations and as duty bearers.

In the body of the report, the Special Rapporteur explains what she sees as the ‘rationale’ for binding ANSAs to human rights norms. She reviews the limitations of the duty to protect under human rights law vis-a-vis ANSAs, the conceptual constaints of IHL and the drawbacks of criminal law and the counter terrorism framework. After reviewing the main theories to explain how ANSAs may be bound by human rights law, the Special Rapporteur goes on to set out how human rights law could be applied to ANSAs, in a graduated manner. This is the most interesting part of the report, as the Special Rapporteur not only delves into how the right to life might be implemented by ANSAs at the level of the obligation to respect, protect and fulfil but also sets out possible methods of implementation.

In short, this is a bold report – with important recommendations – and readers are encouraged to take a look at it, as it will surely stir important debate on the topic.


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