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Back to Basics: Non-State Armed Actors and Human Rights Obligations
It’s the same old story. Are non-state armed actors bound solely by international humanitarian law (IHL) or by international human rights law (IHRL) as well? The discussion is on-going, unsettled, borderline passé and, still, painfully relevant.
In a gist, while no one denies the applicability of IHL to non-state armed actors when they are parties to a non-international armed conflict, the question of whether such actors also have IHRL obligations is a bit more complex and has encountered vehement opposition by certain factions of the international community. Leading the charge in said opposition are predominantly states themselves, which fear that such a concession would legitimize the status of such actors and strip states of certain sovereign prerogatives by forcing them to ‘share’ responsibilities with ‘rebels’, at best, or ‘terrorists’, at worst. In this (steadily flailing) attempt to preserve their sovereign interests, states – and other supporters of this position – will invoke the proverbial ‘big guns’ of their legal armory: IHRL was born out of a historical imperative to protect human individuals from the power of governments. It regulates the vertical relation between sovereign states and their subjects. It was crafted to address states and states alone. End of story.
Or…to be continued?
Indeed, it seems that contemporary reality no longer justifies this paradigm, as discussed in a recent webinar organized by Fight for Humanity. Even more, contemporary reality dictates a deconstruction of doctrinal orthodoxy, lest the IHRL enterprise be warped into a normative scheme which lends itself to the preservation of power structures, as opposed to a framework which concerns itself with the protection of human dignity. In light of such considerations, certain scholars (some of which are participating in this symposium) have proposed that non-state armed actors should also be bound by IHRL, at least to a degree which is commensurate with the context and the capabilities of each specific non-state armed actor.
Institutional practice to this effect has also been gaining traction. Reports by UN Special Rapporteurs, independent commissions of inquiries and also IHL focused organizations such as the ICRC have been gradually accepting the applicability of IHRL to non-state armed actors, with varying degrees of caution and qualifiers in their statements. These developments indicate a coalescing consensus that non-state armed actors, at least in cases where they control territory and exercise government-like functions, are bound by IHRL norms as well. This is a welcome advancement that better corresponds to the protection needs of contemporary reality, which is mind-boggling. It has been estimated that approximately 60-70 million civilians currently live in areas under the control of non-state armed actors, their lives and all manifestations thereof subject to the conduct of these actors, which, if not subsumed under IHRL, will – by default – be left discretionary and unregulated, at least when IHL does not apply.
Freedom of Expression in Areas Controlled by Non-State Armed Actor Areas: Why does it Matter?
While theory and practice may be incrementally accepting that IHRL binds non-state armed actors, the discussion, as for example in the 2014 UN Report on South Sudan, still revolves mostly around rights related to the so-called integrity of the person or ‘protection rights’ that are more closely related to IHL. This is to some extent understandable, but it overlooks the reality on the ground. Non-state armed actors are not solely committing abuses. Rather, they are also capable of engaging in less vilified conduct, such as administering territory through military and civilian institutions, setting up judicial systems and holding trials, running prisons, structuring healthcare or organizing elections. By emphasizing solely on rights which refer to the integrity of the person, the international community is failing to address other civil and political rights (or ‘participation rights’), which are equally relevant, and which non-state armed actors can and should respect in order not to leave a rights’ gap.
One such right is freedom of expression. Often cited as the ‘cornerstone’ for a free and democratic society, freedom of expression is considered an indispensable condition for the full development of a person. Indeed, freedom of expression is not a hermetic right. Rather, it permeates the entire IHRL edifice, constituting an essential prerequisite for the unfettered enjoyment of other cardinal rights, such as freedom of religion, freedom of assembly and association or the right to vote and take part in the conduct of public affairs.
As for its substantial safeguards, freedom of expression – which is inherently linked to freedom of opinion – generally includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any medium. Moreover, while freedom of expression is a limitable right, it can only be restricted for reasons relating to the protection of rights and freedoms of others, the protection of national security, public safety and order, and subject to necessity and proportionality conditions being met (See Art. 19(2), ICCPR; Art. 10, UDHR; Art. 10(1) ECHR; Art. 13(1) ACHR).
In light of these observations, it is easy to discern why freedom of expression is immensely important for populations living under the control of non-state armed actors. In general, the displacement of state authorities by the non-state armed actors and the corresponding substitution of control will usually result in a certain degree of social volatility and political heterogeneity (which may well include ethnic or religious heterogeneity). In turn, this context can engender fervent expression of opinion, which may directly oppose the rule of the non-state armed actors in control, question its administrative methods and capabilities, openly condemn its conduct or call for a return of governmental authorities or alternative authorities, tempting the non-state armed actors to repress such voices.
This is why advocating for the respect of freedom of expression by non-state armed actors is important. People living in territories controlled by such actors need to feel that they can voice their content or dissatisfaction with the status quo, without fearing retribution. They must be allowed access to information and ideas which may question the non-state armed actor’s rule or legitimacy, without fearing for their lives and that of their families. Local media and journalists need to be free to report on the situation transpiring on the ground without suffering repercussions. Such reporting could not least help strengthen the compliance with IHRL, as well as IHL, by shedding light on violations occurring on the ground.
In this vein, non-state armed actors must understand that they cannot propagate the oppression which they, and the people they may claim to protect, may have faced at the hands of governmental authorities, by silencing voices and ideas of people who oppose them. Freedom of expression is a human right which must be respected, not a ‘reward’ only for those who are in the process of overthrowing an oppressive regime or have succeeded to do so.
Moreover, freedom of expression is an imperative channel for social cohesion and peace, which is desperately needed in many areas controlled by non-state armed actors. It combats oppression by allowing people to articulate, develop, amend, deconstruct, reject, criticize, own or advocate ideas and opinions and opens up space for dialogue. This is especially essential in non-state areas where a minority has become a majority, creating new minorities, new grievances, and additional hinders to solving conflicts.
In short, freedom of expression fosters a sense of justice by enabling accountability and representation of different groups. Ultimately, these lay the foundation for a functioning society, which conforms to IHRL standards and democratic values.
An Unexplored Opportunity –Respect for Freedom of Expression as an Avenue for Compliance?
For the skeptics, who still insist that only IHL binds non-state armed actors, one may viably argue that IHL also safeguards freedom of speech, albeit in a more rudimentary way. Indeed, IHL of non-international armed conflicts, which is binding upon non-state armed actors, prohibits violence to life and person. According to the ICRC, respect for the person should be understood in the widest possible sense to include all
‘rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers; it includes, in particular, the right to physical, moral and intellectual integrity’.
Under this interpretation, one could argue that freedom of opinion and expression is also protected by IHL, as cardinal manifestations of respect to the person. Simply put, under IHL, the limiting of such a freedom may be more easily justifiable, for legal reasons which space does not allow us to extrapolate upon.
And for the non-skeptics, Fight for Humanity and the Centre for Applied Human Rights of the University of York, are developing a research project that will further explore the role and potential of non-state armed actors and freedom of expression. Story to be continued.