Image: UN Photo/Mark Garten [link], Dec. 4, 2000

The United Nations Security Council “reiterates that it holds the Rassemblement Congolais pour la Democratie-Goma, as the de facto authority, responsible to bring to an end all extrajudicial executions, human rights violations and arbitrary harassment of civilians in Kisangani, and all other areas under RCD-Goma’s control...; [and] calls on the de facto authorities in [the Ituri region and South Kivu] to ensure the protection of civilians and the rule of law”

—U.N. Security Council, Resolution 1417 (2002), ¶¶ 4–5


Briefing Report with Annexes 

Jessica S. Burniske with Naz K. Modirzadeh and Dustin A. Lewis

HLS PILAC • June 2017

Report

  • PDF [link]
  • Online version (below)

Online database (Annexes II.A–C)

  • Google spreadsheet [link] and below

Credits

About HLS PILAC

The Harvard Law School Program on International Law and Armed Conflict (HLS PILAC) provides a space for research on critical challenges facing the various fields of public international law related to armed conflict, including jus ad bellum, jus in bello (international humanitarian law/the law of armed conflict), international human rights law, international criminal law, and the law of state responsibility. Its mode is critical, independent, and rigorous. HLS PILAC’s methodology fuses traditional public international law research with targeted analysis of changing security environments. The Program does not engage in advocacy. While its contributors may express a range of views on contentious legal and policy debates, HLS PILAC does not take institutional positions on these matters. 

About the Authors

The report was written by Jessica S. Burniske, a Law and Policy Associate at HLS PILAC; Naz K. Modirzadeh, the Founding Director of HLS PILAC and a Professor of Practice at Harvard Law School; and Dustin A. Lewis, a Senior Researcher at HLS PILAC. Burniske oversaw the research underlying the databases (Annexes II.A–C), including the contributions of Research Assistants Molly Doggett, Jillian Ventura, and Loren Voss.

Acknowledgments and Disclaimers

The authors extend their thanks to Molly Doggett, Jillian Ventura, and Loren Voss for research assistance and to the staff of the Harvard Law School Library for research support.

This research briefing has been produced, in part, with financial assistance from the Swiss Federal Department of Foreign Affairs (FDFA). The views expressed in this Study and Comment should not be taken, in any way, to reflect the official opinion of the Swiss FDFA. HLS PILAC is grateful for the support the Swiss FDFA provides for independent research and analysis. The research undertaken by the authors of this research briefing was completely independent; the views and opinions reflected in this research briefing are those solely of the authors; and the authors alone are responsible for any errors in this research briefing.

License

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license (CC BY-NC-SA 4.0).


BRIEFING REPORT (online Version)

For a PDF version, click here [link]

I. Introduction

Two interrelated trajectories are exerting pressure on a fundamental premise that has long undergirded international human rights law (IHRL). That premise—that the state is the primary entity that bears international-legal responsibility for respecting, protecting, and fulfilling human rights—stems in part from the (largely exclusive) competence of states to make, adjudicate, and enforce rules within their respective jurisdictions. Several significant legal, policy, and practical concerns are at issue in whether this foundational premise will remain intact or will be modified such that armed non-state actors (ANSAs) will ultimately be recognized—by all relevant institutions and actors—as bearing human-rights obligations in general under international law in a manner previously reserved primarily for states.

The first trajectory is that, in a number of key respects, certain entities and scholars are increasingly recognizing the possibility of non-state entities bearing de-jure or de-facto human-rights obligations or related responsibilities.[1] And the second trajectory is that, seemingly increasingly, ANSAs control access to territory and exercise control over civilian populations. This occurs, for instance, in relation to many contemporary armed conflicts waged between states and ANSAs or between ANSAs. Yet important questions surrounding potential human-rights obligations or related responsibilities of ANSAs may (also) arise in relation to situations not connected with armed conflict.

In its contemporary form, IHRL arose out of an attempt to regulate, as a matter of international law and policy, the relationship between the state—through its governmental authority—and its population.[2] Unlike the relatively narrow field of international humanitarian law (IHL), which is concerned with armed conflict, IHRL spans an ever-growing range of dealings an individual, community, or nation may have with the state. In recent decades, the connection between IHRL and IHL has been the subject of a growing interest by states, adjudicatory bodies, and international institutions. The precise links between these two branches of public international law have also merited extensive academic commentary. The debate over this relationship largely centers on three issues. The first issue is whether IHRL applies extraterritorially such that states bring all, some, or none of their IHRL obligations with them when they engage in armed conflicts (as defined in IHL) outside of their territories. The second issue is whether non-state actors (including organized armed groups) have de-jure IHRL obligations (or, at least, de-facto IHRL-related responsibilities). And the third issue is what is the germane interpretive procedure or principle to use when ascertaining the content of a particular right or obligation under the relevant framework(s). This last point is especially pertinent where the two bodies of law—IHL and IHRL—are thought to apply simultaneously.

Against this backdrop, several concerns are at stake in whether ANSAs are seen by all relevant institutions and actors as bearing human-rights obligations in general under international law. Those stakes include the effective protection and promotion of human rights, perhaps especially for individuals and populations in territories under the de-facto control of ANSAs. They also include, more broadly, the discernibility, coherence, and comprehensiveness of the international-legal framework governing human rights and connected normative regimes.

In considering this set of issues, it is important to clarify what obligations, if any, the United Nations (U.N.) Security Council and the U.N. General Assembly recognize ANSAs as possessing under IHRL.[3] This briefing report provides an overview of research conducted by the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC) concerning modalities in which the U.N. Security Council and the U.N. General Assembly have addressed ANSAs with respect to human rights; ways in which these U.N. principal organs have distinguished between different types of ANSAs; and the consequences of these organs possibly establishing responsibility of ANSAs in relation to the protection and fulfillment—or, at least, the non-abuse—of human rights. This briefing report begins by examining possible characteristics of ANSAs, and outlines the methodology that HLS PILAC used to conduct the research. It then discusses the findings, including the geographic, temporal, material, and personal scope of the various documents HLS PILAC identified from the U.N. Security Council and U.N. General Assembly. It explores possible legal implications of the language and documents of these U.N. principal organs. And the briefing concludes by noting issues that states might consider in deciding whether to support further normative developments by the U.N. Security Council and by detailing some possible questions for future research.

II. Defining ANSAs

No specific definition of ANSAs has been adopted by either the U.N. Security Council or the U.N. General Assembly. Nonetheless, a starting point for the analysis arises in U.N. Security Council Resolution 1540 and subsequent related resolutions, which address non-proliferation of nuclear, chemical, and biological weapons. For purposes of these resolutions only, the U.N. Security Council defines “non-state actor” as “an individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of [the relevant] resolution.”[4] However, for two reasons, HLS PILAC elected not to use this definition as the primary definition of ANSAs in its research: first, because the U.N. Security Council limited its definition of “non-state actor” to these resolutions only; and, second, because the definition does not comprehensively address the armed element.

HLS PILAC also considered a concept contained in Article 1.1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977:

“[D]issident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its [the High Contracting Party’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”
However, based on its preliminary findings, which indicated a broad range of terms used to describe ANSAs, HLS PILAC considered that it would be beneficial to expand its search beyond the definition contained in Protocol II to include those groups that may or may not be considered to act—as a party or otherwise—in relation to armed conflict as well as groups whose control over territory may be tenuous or in dispute.

Ultimately, in the absence of a stand-alone definition of “ANSAs” by the U.N. Security Council or the U.N. General Assembly, HLS PILAC developed an initial list of search parameters based on various terms used by those U.N. organs to refer to ANSAs.[5]

III. Methodology and Data Collection

HLS PILAC developed an initial research plan with the assistance of its dedicated research librarian. HLS PILAC conducted research through the U.N. Official Document System (ODS), an online database that contains official, searchable U.N. documents from 1946 to the present. ODS includes all resolutions of the U.N. principle organs, including all U.N. Security Council documents and U.N. General Assembly official records. HLS PILAC developed an initial list of search parameters based on the various terms used by relevant U.N. organs to refer to ANSAs, and HLS PILAC expanded the list as additional terms were identified. In addition, HLS PILAC conducted an initial (non-exhaustive) review of secondary sources that discuss possible human-rights obligations or related responsibilities of ANSAs in relation to relevant U.N. practice. HLS PILAC also used these sources to help identify the search terms used to locate U.N. documents.

HLS PILAC compiled its detailed findings in an online searchable database and in Annexes II.A–C.[6] That database and those annexes excerpt germane portions of relevant U.N. documents and include other information, such as document number, year, and geographical and/or thematic context.

IV. Findings

HLS PILAC’s research focused on U.N. Security Council and U.N. General Assembly resolutions, as well as statements by the President of the U.N. Security Council, using the various terms and phrases identified in Annex I. HLS PILAC identified over 125 U.N. Security Council resolutions, approximately 65 U.N. General Assembly resolutions, and over 50 U.N. Security Council Presidential Statements that pertain to what might be conceptualized as possible human-rights obligations or other related responsibilities of (certain) ANSAs. This section outlines HLS PILAC’s findings in each of these areas, with a particular focus on the practices of the U.N. Security Council through its resolutions and Presidential Statements as compared with possibly relevant U.N. General Assembly resolutions.

A. U.N. Security Council Resolutions

HLS PILAC’s research identified several relevant trends in U.N. Security Council practice, including trends related to the geographic, temporal, personal, and material character of the resolutions addressing potential human-rights obligations or other responsibilities of ANSAs, as well as the language used to describe such obligations or other responsibilities.

i. Geographic scope

The geographic scope of relevant U.N. Security Council practice may concern at least two interlinked sets of issues: first, the various pertinent geographic areas (including territories where ANSAs exercise certain forms of de-facto control) addressed by the Council; and, second, the geographic parameters concerning where a human-rights obligation or related responsibility (if any) of an ANSA may be considered to be applicable. This sub-section focuses on the first set of issues.

Ninety of the 127 U.N. Security Council resolutions HLS PILAC identified in its research, or approximately 71 percent, address the activities of ANSAs in African states, particularly those in the Central African Republic, the Democratic Republic of the Congo (DRC), Mali, Somalia, South Sudan, and Sudan.[7] Over one-third of these 90 resolutions (32) address ANSAs in the DRC. Eleven resolutions involve ANSAs in Sudan. Eight resolutions address ANSAs in South Sudan. And nine resolutions concern ANSAs in Somalia.

HLS PILAC also identified 16 U.N. Security Council resolutions addressing (possible) human-rights obligations or related responsibilities of certain ANSAs in relation to Afghanistan. Other identified states addressed by the U.N. Security Council in relation to such issues include East Timor, Georgia, Haiti, Iraq, Syria, and Yemen.

ii. Temporal scope

The temporal scope of relevant U.N. Security Council practice may concern at least two sets of issues: first, the time period(s) during which that practice has occurred; and, second, when a human-rights obligation or related responsibility (if any) of an ANSA was initiated and when (if ever) it ceased. This sub-section focuses on the first set of issues.

Of the 127 possibly relevant U.N. Security Council resolutions HLS PILAC identified in its research, 119 of the resolutions, or 94 percent, date from 2000 through the present. The remaining eight resolutions date from the 1995–1999 period and address (possible) ANSAs operating in Afghanistan, Angola, East Timor, Guinea-Bissau, Liberia, or Sierra Leone.[8] The year containing the greatest number of resolutions addressing potential human-rights obligations of ANSAs was 2015, with 17 resolutions dating from that year. Eleven of the 17 resolutions that HLS PILAC identified from 2015 addressed African nations, in keeping with the broader geographic focus of U.N. Security Council resolutions pertaining to possible human-rights obligations of ANSAs. In earlier years, particularly from 2000 to 2010, resolutions addressing African nations remained a significant portion of HLS PILAC’s findings, punctuated by resolutions on Afghanistan and Haiti, and thematic resolutions on the protection of civilians in armed conflict. From 2011 to the present day, HLS PILAC identified resolutions that addressed these issues in respect of other geographic areas, particularly Iraq, Syria, and Yemen, as well as thematic resolutions relating to designated-terrorist ANSAs.

The clear majority of relevant U.N. Security Council resolutions date from 2000 to the present. During this period, the majority of armed conflicts were of a non-international character. That may help explain part of the relatively recent increase in attention by U.N. organs, including the Security Council, to armed conflicts involving ANSAs. Moreover, at least one commentator has argued that, since the early 1990s, the intensity and frequency of state collapse coupled with changing perceptions of security, state sovereignty, and international responsibility may have contributed to the U.N. Security Council more frequently addressing possible human-rights obligations or related responsibilities of ANSAs.[9]

iii. Personal scope

The personal scope of relevant U.N. Security Council practice may concern at least two sets of persons: first, those who may be considered ANSAs; and, second, the individuals and populations whose human rights may be implicated. This sub-section focuses on the first set of persons.

U.N. Security Council practice has not adopted a uniform definition of ANSAs. HLS PILAC’s research uncovered a vast range of terms describing actors (or activities of actors) that may—depending on the situation and context—be considered ANSAs (at least in theory):

  • Armed group
  • Armed actor
  • Armed elements
  • Armed rebel group
  • Armed activities
  • Armed movement
  • Armed unit
  • Armed terrorist group
  • Armed opposition group
  • Belligerents
  • Dissident armed forces
  • Factions
  • Foreign elements
  • Guerillas
  • Illegal armed group
  • Insurgents
  • Organized armed group
  • Rebel group and
  • Terrorist group.[10]
Resolutions of the U.N. Security Council under examination do not explicitly define many of these terms. Nor do those resolutions tend to adopt particular terms uniformly. U.N. Security Council resolutions concerning the Democratic Republic of the Congo (DRC) are particularly illustrative of the varied terms used by the Security Council to address certain ANSAs, ranging from “all parties to the conflict,”[11] “armed groups,”[12] “rebel groups,”[13] “militias,”[14] “illegal armed groups,”[15] and armed “elements,”[16] to specifically named groups such as the Lord’s Resistance Army[17] and M23.[18]

In comparison, the majority of the relevant Afghanistan resolutions contain language recognizing some form of human-rights obligations of the Taliban,[19] al-Qaeda,[20] or other entities, including “Afghan factions,”[21] “violent and extremist groups,”[22] “extremist groups,”[23] and “illegal armed groups.”[24] Other terms used to describe possible ANSAs—whether particular activities of ANSAs, specific ANSAs, or general categories in which ANSAs might fit—include “armed activities and banditry,”[25] “ISIL [the Islamic State of Iraq and the Levant], associated armed groups, and militias,”[26] “terrorist groups,”[27] and “all parties and armed groups.”[28] These examples constitute an illustrative, but not exhaustive, list of terms describing possible ANSAs that HLS PILAC identified in its research.

iv. Material scope

The material scope of relevant U.N. Security Council practice may concern the content or the character—or both—of a pertinent human-rights obligation or related responsibility (if any) of an ANSA.

In its resolutions containing possible human-rights obligations or related responsibilities of ANSAs, the U.N. Security Council has taken a varied approach to describing and enumerating these (potential) obligations. These resolutions often refer to acts of ANSAs, in diverse contexts, as either “abuses” or “violations” of human rights—or, in some instances, both “abuses” and “violations.”[29] Yet no clear pattern or practice emerges with respect to the use of these terms. As one example, resolutions regarding ANSAs in the DRC demonstrate the U.N. Security Council’s varying practice of referring to acts by ANSAs as both human rights “abuses” and “violations,” with each term being invoked over time.[30] These abuses or violations are often noted in conjunction with references to (other) legal violations, primarily those of IHL. In at least one instance pertaining to ANSAs, the U.N. Security Council has indicated that certain (unspecified) acts constitute “grave violations” of human rights.[31]

The U.N. Security Council has not explicitly defined what constitutes an “abuse” or “violation” of human rights concerning ANSAs. Nor are these terms uniformly defined as such in IHRL instruments. Nonetheless, guidance in interpreting the use of these terms by the U.N. Security Council might be sought by reference to general international human rights law as well as in common-usage definitions. In general, obligations and duties assumed by states under IHRL treaties are often characterized as obligations to respect, to protect, and to fulfill human rights. According at least to the Office of the U.N. High Commissioner for Human Rights, for instance, the obligation to respect requires refraining from interfering with or curtailing the enjoyment of human rights; the obligation to protect requires protecting individuals and groups against human-rights abuses; and the obligation to fulfill means that positive action must be taken to facilitate the enjoyment of basic human rights.[32] Moreover, concerning common usage, the Oxford English Dictionary (OED) defines “abuse,” in one possibly relevant sense, as a “wrong or improper use (of something),” a “misuse,” a “misapplication,” or a “perversion.”[33] “Violation,” on the other hand, may be considered, according to a possibly relevant definition in the OED, an “infringement, breach, or contravention of a rule, code, [or] principle.”[34] That common-usage definition presumes that for a “violation” to occur, the pertinent rule must be binding on the relevant actor (otherwise no “infringement” or “breach” of the rule could arise).

With those considerations in mind, the use by the U.N. Security Council of “abuse” to describe conduct of certain ANSAs might suggest that the Council considers the relevant ANSAs to have at least failed to respect human rights (in the sense that the Council might consider those ANSAs to have interfered with or curtailed the enjoyment of human rights or otherwise misused human rights). And the use by the U.N. Security Council of “violation” to describe conduct of certain ANSAs might suggest that the Council considers that those ANSAs have not conformed to a binding human-rights rule in their respective failure(s) either to protect human rights (in the sense of not protecting individuals and groups against human-rights abuses) or to fulfill human rights (in the sense of not taking sufficient positive action to facilitate the enjoyment of human rights)—or in those ANSAs’ failure both to so protect and fulfill human rights.

In practice, the U.N. Security Council has taken a varied approach to identifying human-rights abuses or violations purportedly committed by ANSAs. In some resolutions, the U.N. Security Council has directed or called upon a particular set, or sets, of ANSAs to merely “respect” human rights, without clarifying what it considers to constitute the particular “human right[s]” to be respected.[35] In several instances, the U.N. Security Council has specifically stated the potential human-rights abuses and violations committed by various ANSAs, including in a wide range of geographic contexts, with some of the acts described possibly implicating jus-cogens norms[36] and some other acts possibly implicating certain (other) prohibitions under IHRL or IHL, or both. For instance, in a resolution concerning the Central African Republic, the U.N. Security Council “condemned continued violations of international humanitarian law and human rights law, including the recruitment and use of children, killing and maiming, rape, sexual slavery and other sexual violence and abductions perpetrated by armed groups.”[37] In a resolution concerning the DRC, the U.N. Security Council particularly condemned “the targeted attacks against the civilian population, sexual violence, recruitment of child soldiers and summary executions” committed by various ANSAs, including “militias” and other “armed groups.”[38] Many resolutions explicitly mention sexual or gender-based violence committed by ANSAs,[39] or “extrajudicial and summary executions.”[40] The U.N. Security Council has also laid down language “condemning,”[41] “strongly condemning,”[42] or “deploring”[43] human-rights abuses or violations pertaining to ANSAs—or “expressing”[44] concern over such abuses or violations. Other resolutions have called on various ANSAs to “prevent human rights abuses and violations of international humanitarian law”[45] or to “protect human rights and respect international humanitarian law.”[46] Seemingly fueled by context-dependent (and often private) political assessments, the uneven approach of the U.N. Security Council in these respects thwarts legal uniformity. It also frustrates attempts to predict whether the Council will identify human-rights obligations—and, if so, the content and character of those obligations—concerning a particular set of ANSAs.

Notably, in some of the DRC resolutions, the U.N. Security Council stated that it holds accountable certain named and unnamed groups maintaining control over territory throughout the DRC for “ensur[ing] protections for civilians.”[47] In one such resolution, the U.N. Security Council specifically emphasized that “it holds the Rassemblement Congolais pour la Democratie-Goma [RCD Goma], as the de facto authority, responsible to bring an end to all extrajudicial executions, human rights violations and arbitrary harassment of civilians in Kisangani, and all other areas under RCD Goma’s control…and calls on the de facto authorities in [the Ituri region and South Kivu] to ensure the protection of civilians and the rule of law.”[48] In discussing U.N. Security Council resolutions regarding potential human-rights obligations of ANSAs with control over territory, one legal scholar argued that the DRC resolutions are illustrative of the emergence of the extension of human-rights obligations, in customary international law, to those ANSAs that control territory.[49]

Similarly, in respect of Georgia, the U.N. Security Council stated in one resolution that the “Abkhaz side [referring to the Abkhaz side of the civil war in Georgia, composed of armed groups and militias that exercised some governmental functions[50]] bears a particular responsibility to protect the returnees and to facilitate the return of the remaining displaced population,”[51] and, in another, it urged the “Abkhaz leadership to address seriously the need for a dignified return of [internally displaced persons] and refugees, including their security and human rights concerns.”[52]

In certain sets of thematic resolutions—such as those addressing acts of Al-Qaida and associated terrorist groups; protection of civilians in armed conflict; protection of children in armed conflict; and use of small arms and light weapons—the U.N. Security Council has implied that at least ANSAs that are parties to armed conflict are capable of violating (certain aspects of) human rights law. These resolutions expressly refer to particular ANSAs, such as ISIL, Boko Haram, and al-Shabaab,[53] and/or to more general categories of possible ANSAs, such as “parties to armed conflict” or “armed groups.”[54] In some instances, the U.N. Security Council refers to the potential human-rights obligations of states along with those of particular ANSAs,[55] while in other instances, the U.N. Security Council addresses the potential human-rights obligations of ANSAs independently of the state in which it operates.[56] As with U.N. Security Council resolutions aimed at the activities of parties in a particular state or region, at least some of these thematic resolutions refer to both potential “abuses” and “violations” of human rights committed by ANSAs.[57] These abuses and violations are frequently mentioned not only in relation to IHRL but also to other fields of international law, including IHL and refugee law.

In 2009, the U.N. Security Council addressed the thematic area of protection of civilians in armed conflict. While the U.N. Security Council emphasized that “States bear the primary responsibility to respect and ensure the human rights of its citizens,” the resolution also stated that “parties to armed conflict bear the primary responsibility to take all feasible steps to ensure the protection of civilians.”[58] In the first operative paragraph of the resolution, the U.N. Security Council “demand[ed]” that parties to armed conflict comply with all applicable obligations under international humanitarian, human rights, and refugee law, and urged those parties to “take all required measures to respect and protect the civilian population and meet its basic needs.”[59]

Finally, and perhaps importantly from an international-legal perspective, while the U.N. Security Council expressly adopts some of the resolutions analyzed herein under its Chapter VII authority, in certain other resolutions the Council states that the situation being addressed by the resolution constitutes “a threat to international peace and security in the region”[60] but does not (also) expressly invoke its Chapter VII authority.

B. U.N. Security Council Presidential Statements

The 54 U.N. Security Council Presidential Statements identified as relevant cover a broad range of states and thematic issues, with considerable overlap with those states, issues, and particular ANSAs addressed in the previously mentioned U.N. Security Council resolutions.

Thirty-four of the Presidential Statements, or 62 percent, address African nations or regions, with 12 of those statements relating specifically to the DRC. Fifteen of the Presidential Statements, or approximately 28 percent, address thematic issues ranging from the protection of civilians in armed conflict to peace and security in Africa. The Presidential Statements HLS PILAC identified through its research date from 1998 to the present, with nearly half of the statements dating from the period 2010 to 2017.

As with U.N. Security Council resolutions relating to potential human-rights obligations of ANSAs, the Presidential Statements appear to lack a clear pattern or practice of specific terminology used to describe ANSAs, using terms such as “belligerents,”[61] “armed groups,”[62] “illegal armed groups,”[63] “militias,”[64] “non-state parties” to armed conflicts,[65] as well as “terrorist and other armed groups.”[66] HLS PILAC identified at least one Presidential Statement directly addressing Boko Haram,[67] while another statement, entitled “threats to international peace and security caused by terrorist acts,” also focused on potential human-rights obligations of Boko Haram.[68] Other specific, designated-terrorist ANSAs were discussed in Presidential Statements involving Syria[69] and thematic resolutions on issues such as the maintenance of international peace and security.[70]

The statements also appear to lack a clear pattern or practice with respect to referring to potential “abuses” or “violations” of human rights, with both terms being used in relation to various geographic and thematic contexts.[71] The statements often call on relevant parties to “respect”[72] or “comply with”[73] IHL and (“as applicable”) human rights law[74] (or, at least, to protect the civilian population consistent with human rights law), as well as, in some instances, refugee law.[75]

C. U.N. General Assembly Resolutions

The U.N. General Assembly has also addressed potential human-rights abuses and violations—as well as potential human-rights obligations or other responsibilities—of ANSAs. However, certain differences emerge between the approaches of the U.N. General Assembly and the U.N. Security Council. These differences may concern (among other things) relevant geographic focuses, as well as an emphasis on addressing some ANSAs thematically or in groups. Also, the legal bindingness (or not) of U.N. General Assembly resolutions may distinguish them from certain relevant U.N. Security Council resolutions.

i. Geographic scope

The U.N. General Assembly has adopted resolutions on states that have (also) been addressed in relevant terms by the U.N. Security Council (such as in respect of Sudan and the DRC). Yet the U.N. General Assembly has also addressed ANSAs in geographic contexts that the U.N. Security Council has not, including in relation to Bosnia and Herzegovina and Myanmar. Eighteen of the 66 General Assembly resolutions address Afghanistan (the greatest number of resolutions concerning a particular state).

ii. Temporal scope

Many of the possibly relevant U.N. General Assembly resolutions date from 1993 to 2010, as compared with the practice of the U.N. Security Council, which appears to have increasingly recognized potential human-rights obligations on the part of ANSAs over time. (One possible reason for this variance may relate to the powers of the U.N. General Assembly under Article 12 of the U.N. Charter, which states that the U.N. General Assembly may not make recommendations on any dispute or situation being currently addressed by the U.N. Security Council.)

iii. Personal scope

Similarly to the U.N. Security Council, the U.N. General Assembly appears to use varying terms to describe ANSAs in relation to certain geographic contexts over time. In some instances in its resolutions regarding the DRC, the U.N. General Assembly refers to the acts of “parties to the conflict,”[76] although in other resolutions it refers to ANSAs as “armed forces and groups”[77] or “rebel groups” or those armed groups maintaining control over certain regions or territories.[78] In the case of Afghanistan, earlier U.N. General Assembly resolutions refer to the actions of the “Afghan parties,”[79] while later resolutions often refer specifically to acts of the Taliban, Al-Qaida, “extremist groups,” and “illegal armed groups.”[80]

iv. Material scope

The U.N. General Assembly generally refers to acts of various ANSAs as “violations of human rights and international humanitarian law.”[81] One of these earliest resolutions “vigorously” condemns the “human rights violations” committed by “parties to the conflict” in Bosnia and Herzegovina.[82] More recently, the U.N. General Assembly has “strongly condemn[ed] all violations and abuses of international human rights law and all violations of international humanitarian law” committed by parties to conflict in Syria, including “armed extremists,” “armed anti-Government groups,” “Al-Qaida-affiliated terrorist groups,” and the “so-called Islamic State in Iraq and the Levant (Da’esh) and Al-Nusrah Front and their continued gross, systematic and widespread abuses of human rights and violations of international humanitarian law.”[83] In relation to the context of Afghanistan, however, the U.N. General Assembly has taken a slightly different approach, with most resolutions finding certain ANSAs responsible for the “significant majority of civilian casualties” in Afghanistan,[84] and (further) “call[ing] for compliance with international humanitarian law and international human rights law.”[85] Other resolutions call on these various ANSAs to “respect” human rights, and, in some instances, “to fully implement the human rights provisions of the Afghan Constitution.”[86]

Like the U.N. Security Council, the U.N. General Assembly has also referred to acts of ANSAs as “abuses,” “violations,” or “violations and abuses”[87] of human rights, occasionally (further) qualifying these acts as “massive,”[88] “grave,”[89] or “gross”[90] abuses or violations. With respect to those ANSAs with de-facto control over regions or territories, the U.N. General Assembly maintains that ANSAs should have “accountability” for human-rights violations in areas under their control.[91] In contrast with the approach of the U.N. Security Council, the U.N. General Assembly detailed with great specificity human-rights violations committed by ANSAs in the DRC, to include such violations as “breaches of freedom of expression, opinion, association and assembly.”[92]

Moreover, 18 of the 66 possibly relevant U.N. General Assembly resolutions address thematic issues as diverse as hostage-taking; protection of human-rights defenders; human rights and terrorism;[93] safe drinking water; and sanitation. Compared with the whole of U.N. General Assembly resolutions addressing possible human-rights obligations of ANSAs, these resolutions tend to address “non-state actors” explicitly in the resolution. In one such resolution on human-rights defenders, the U.N. General Assembly stated that it was “[g]ravely concerned also about incidents of human rights defenders being subjected to attacks, threats and other abuses by non-State actors, and underlin[ed] the need for the human rights and fundamental freedoms of all persons, including human rights defenders, to be respected and protected,” and “[u]rged non-State actors to respect and promote the human rights and fundamental freedoms of all persons.”[94] Another resolution, addressing sexual violence in armed conflict, “[s]trongly condemn[ed] all acts of violence against women and girls, whether these acts are perpetrated by the State, by private persons or by non-State actors,” and further “[r]ecogniz[ed] that rape or any other form of sexual violence is unlawful in all circumstances and in all places…whether or not committed by State or non-State actors in the course of achieving political or military objectives, whether or not in the course of an international or non-international armed conflict, or in areas under foreign occupation.”[95]

V. Possible Legal Implications of Adopted Language

In considering existing international law regarding possible human-rights obligations or related responsibilities of ANSAs, addressing two questions may help to clarify the implications of identified practices of the U.N. Security Council and the U.N. General Assembly: first, is none, some, or all of a relevant document legally binding; and, second, if the document is considered binding, whom or what does it bind?

The U.N. Security Council derives its authority from the Charter of the United Nations, which provides that the Security Council maintains the “primary responsibility for the maintenance of international peace and security.”[96] The U.N. Charter also lays down that U.N. member states “agree to accept and carry out decisions of the Security Council in accordance with the present Charter.”[97] The interpretation of U.N. Security Council resolutions—in particular, whether (a provision within) a resolution is legally binding—may hinge on an array of factors, including the invocation (or not) of particular legal authorities bestowed on the U.N. Security Council, such as whether to impose measures to “maintain or restore international peace and security,”[98] or the use of particular language signaling that the U.N. Security Council intends for a certain provision or entire document to be binding on member states.

In general, U.N. Security Council resolutions expressly adopted under its Chapter VII authority, or containing language that indicates the existence of a threat to the peace, breach of the peace, or act of aggression, may contain obligations that are legally binding on member states. Chapter VII of the U.N. Charter authorizes the U.N. Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to “make recommendations, or decide what measures shall be taken…to maintain or restore international peace and security.”[99] These measures may include so-called “provisional measures”[100]—that is, “measures not involving the use of armed force…to give effect to its decisions”[101]—or more coercive measures, such as authorized “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”[102] However, not every resolution expressly adopted under the U.N. Security Council’s Chapter VII powers necessarily contains—without more indicia—obligations binding on member states. That is because, as noted above, Chapter VII (also) provides the U.N. Security Council with the authority to issue “recommendations,”[103] which would not in general be considered legally binding. The use of certain language, such as “decides,” in an operative paragraph—in distinction to the preamble—of a resolution may also indicate the intent of the U.N. Security Council to create binding obligations.[104]

Thus, even where the U.N. Security Council invokes Chapter VII, that resolution or certain provisions within it may not necessarily be legally binding.[105] Determining whether a particular U.N. Security Council resolution imposes an obligation (or not) may (also) involve other considerations, as indicated by the International Court of Justice (ICJ) in an opinion addressing the interpretation of U.N. Security Council resolutions:

The language of a resolution of the Security Council should be carefully analyzed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25 [of the U.N. Charter], the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution being interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.[106]
A commentator argues that the U.N. Security Council should be considered a “political organ” rather than a legislative or judicial body, in part because it is composed of five permanent member states and ten rotating member states, each with varying perspectives, interests, and equities.[107] Negotiations over the language of resolutions remain a largely informal, non-public process, which can result in few, if any, materials to aid in the assistance of understanding the object and purpose of U.N. Security Council resolutions.[108] Furthermore, given the political nature of the U.N. Security Council, it may ultimately choose to adopt unclear or ambiguous language in resolutions to obtain consensus on certain issues. As one scholar notes, “In an ideal world, each resolution would be internally consistent, consistent with earlier Council action on the same matter, and consistent with Council action on other matters…[U.N. Security Council resolutions] are frequently not clear, simple, concise or unambiguous.”[109] This context may help explain the various approaches, terminologies, and methodologies the U.N. Security Council has adopted to address the possible human-rights obligations of ANSAs.

To aid in discerning the intent of the U.N. Security Council, the preambular paragraphs of a resolution may, as one scholar notes, “assist in interpretation, by giving guidance as to [the resolution’s] object and purpose, but they need to be treated with caution since they tend to be used as a dumping ground for proposals that are not acceptable in the operative paragraphs.”[110] U.N. Security Council Presidential Statements may also provide clarity as to the intent of the U.N. Security Council in adopting a particular resolution; however, at least according to one commentator, they are not considered to be binding documents.[111]

With respect to the U.N. General Assembly, the U.N. Charter provides that it “may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12 [which states that the U.N. General Assembly may not make recommendations on any dispute or situation being currently addressed by the U.N. Security Council], may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.”[112] Each member state has one vote on matters before the U.N. General Assembly, and “the greater part of [U.N. General Assembly] resolutions are adopted with a large majority, often even without any opposition.”[113]

Regarding the binding nature (or not) of U.N. General Assembly resolutions, one commentator has argued that, “[i]n principle, those resolutions of the [U.N. General Assembly] that go beyond the scope of its internal powers [for instance, the power to elect non-permanent members of the U.N. Security Council] possess no binding force. In terms of international law, such resolutions are legal acts which are not capable of creating direct legal obligations as such. The relevant provisions of the U.N. Charter unmistakably classify them as recommendations.”[114] Nevertheless, that commentator notes, “it has frequently been argued in recent times that resolutions adopted unanimously or by consensus should be considered as legally binding stricto sensu if they purport to set forth legal rules,” citing as the most notable example the Universal Declaration of Human Rights.[115]

Therefore, to answer the first question, with limited exceptions U.N. General Assembly resolutions, on their own, are in general considered not binding but might reflect emerging state practice or opinio juris. Some (but only some) U.N. Security Council documents—most obviously, decisions expressly adopted under its Chapter VII authority authorizing “all necessary measures”—impose legal obligations. The use of particular language or invocation of certain legal authorities under the U.N. Charter (among other things) tends to indicate whether the U.N. Security Council intends for a (provision of a) resolution to be legally binding. For their part, Presidential Statements or other statements made by members of the U.N. Security Council may, in general, help illuminate its intent in adopting a particular decision.

As to whom or what can be bound pursuant to a relevant U.N. Security Council resolution, it may be helpful to begin by considering the various parties addressed in those resolutions. First, certain (provisions within) U.N. Security Council resolutions are often directed at U.N. member states. As noted above, the U.N. Charter provides that its member states “confer on the Security Council primary responsibility for the maintenance of international peace and security”[116] and that member states “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”[117] Chapter VII of the Charter also establishes the responsibility of U.N. member states to “carry out” decisions of the U.N. Security Council and to afford “mutual assistance” in doing so.[118] As one example, the ICJ addressed legal consequences arising for states from the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970):

A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence. Once the Court is faced with such a situation, it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end.[119]
Second, as HLS PILAC’s research indicates, the U.N. Security Council has increasingly addressed (provisions of) resolutions to ANSAs and other non-state actors. At least in certain key respects, the legal effect (if any) of these provisions is currently unclear. The organization Security Council Report has explained that, at least according to its research, “no consensus has emerged and existing positions present many problems. On the one hand, the Charter is silent about non-state actors, and there are concerns about the continuous, practical expansion of Security Council powers. On the other, there are problems from seeing Council demands against non-state actors…as solely political statements.”[120]

In general, while it is widely accepted that in relation to armed conflict relevant ANSAs are bound by applicable provisions of IHL,[121] the obligations (if any) of ANSAs under IHRL law remain less clear.[122] The implications of U.N. Security Council resolutions addressing potential human-rights abuses or violations of ANSAs are also unclear and are the subject of vigorous debate among legal scholars. Disagreement often concerns issues involving the capability (or not) of non-state entities to consent to be bound by IHRL; the extent to which various ANSAs exercise control over territory, a situation under which the ANSA may be capable of (de facto if not also de jure) guaranteeing certain human rights to the population; and what the general invocation of “human rights” in this context may mean, given the vast array of human-rights provisions in international law.[123] With respect to that last issue, much of the practice of the U.N. Security Council and U.N. General Assembly has contributed to a lack of clarity through vague references to “human rights law” in nearly all relevant instances identified in HLS PILAC’s research, without clarifying what precisely is meant by invoking “human rights law,” or speaking of “abuses” or “violations” of human rights.[124]

In short, at this time, it may be argued that the U.N. Security Council, in speaking in terms of potential human-rights obligations or related responsibilities of ANSAs, more often than not appears to be making statements of a moral or political character—not necessarily (also) of a legal character. Depending on future practices of the U.N. Security Council, those statements may or may not ultimately coalesce or evolve in general into measures of a legal character. In theory, for instance, the U.N. Security Council could seek to transform statements concerning potential human-rights obligations or related responsibilities of ANSAs into legal measures by (among other things) including language in binding decisions that are expressly adopted under Chapter VII, that clearly demonstrate the Council’s intention to impose such obligations on ANSAs, and that are laid down in sufficiently concrete terms addressing the geographic, temporal, personal, and material scope of relevant obligations. Currently, it is not clear that the U.N. Security Council wants to do so or will do so. Nor is it obvious that doing so would necessarily lead to greater overall respect for and enjoyment of human rights in practice.

VI. Conclusion

In sum, it is incontrovertible that the U.N. Security Council and the U.N. General Assembly have recognized, at a minimum, that the conduct of at least some ANSAs—in contexts as diverse as the DRC to Syria—can amount to violations or abuses of human rights. It is not currently possible to state, however, that either of these principal U.N. organs has taken sufficient steps to formally endow ANSAs with human-rights obligations in general under international law. Taking those steps would, in a key respect, contribute to a radical revision of a key conceptual foundation of the IHRL system. That is because that system has long been premised on states bearing international responsibility for respecting, protecting, and fulfilling human rights. Nor is it possible currently to state that either of these U.N. organs has precisely defined what is meant in invoking the general term “human rights” with respect to possible human-rights obligations under international law in relation to ANSAs.

In relation to the development of international law and the imposition of legal obligations, U.N. Security Council action is of much greater significance than that of the U.N. General Assembly. That is due to the powers bestowed on the Council in the contemporary collective-security system. For its part, the U.N. Security Council appears to assume, at a minimum, that (at least certain) ANSAs must respect or comply with (certain provisions of) human rights law and that (at least certain) ANSAs may bear responsibility to take appropriate steps to protect a relevant civilian population consistent with human rights.

The trend in the U.N. Security Council, in short, is toward increasing recognition that (at least certain) ANSAs have a role in helping to ensure that human rights are not abused. Yet it is currently not possible to establish that the U.N. Security Council has taken—and it is not clear that it will take—the steps that would be necessary to help progressively develop the concept of human rights such that ANSAs will ultimately be recognized by the Council in general as bearing human-rights obligations as such under international law.

Whether U.N. Security Council and U.N. General Assembly action in support of such a development would ultimately be seen as promoting greater protection and enjoyment of human rights and accountability concerning violations of human rights may turn on many factors. Consider three such factors.

First, in general, U.N. Security Council and U.N. General Assembly action in support of the premise that ANSAs can have human-rights obligations (as some legal scholars have argued[125] in relation to various contexts) would represent an endorsement by those U.N. organs of the proposition that states are no longer (solely) responsible under international law for respecting, protecting, and fulfilling human rights. It may be noted in that connection that many states are already failing in key respects to fulfill their human-rights commitments. A related line of argumentation might also emphasize that numerous civilian populations already live in territories under de-facto control of ANSAs. And, considering that reality, the expansion of the number of bearers of human-rights obligations might, according to this argument, strengthen the overall protection of human rights in practice. Yet U.N. Security Council and U.N. General Assembly action in support of (more formally) endowing ANSAs with human-rights obligations may raise countervailing concerns as well. For instance, dispersing human-rights obligations among disparate actors—state and non-state alike—may ultimately be seen as diluting the force of the underlying obligations. Such an approach might also raise concerns regarding the coherence of the legal system: for example, would it be possible (short of a level of specificity that is rarely, if ever, found in relevant U.N. Security Council decisions) to discern the precise scope of obligations of ANSAs in the context of such U.N. Security Council and U.N. General Assembly action? Ultimately, would treaty-based international-human-rights mechanisms need to be revised, and, if so, would states consent to these revisions?

A second factor is whether the U.N. Security Council, in particular, should be considered a desirable or an appropriate vehicle through which to help bring about these changes. From one perspective, the U.N. Security Council might be lauded for innovating protective norms. Over the last quarter century, for instance, it raised, in an increasingly broad set of contexts, the protection of individual human beings to a matter of international concern. This line of argumentation might further emphasize the capacity of the Council to act quickly to bind all member states, surpassing the relatively slow processes of codification or customary-international-law formation. Yet countervailing arguments might emerge here as well. For example, the Council is much less likely, it appears, to scrutinize situations where its permanent members are active. It might also be noted that in relation to counterterrorism decisions—the primary area where the Council has already been seen as “legislating”—the Council itself has been subject to certain criticisms from human-rights perspectives.

A third, related factor is the uneven approach of the U.N. Security Council to date in pursuing accountability concerning human-rights abuses. Given the political character of the U.N. Security Council, it is perhaps unsurprising that states politically or militarily aligned with one or more permanent members of the Council are less likely to be subject to such Council scrutiny. This situation often occurs even though, in relation to many situations of grave human-rights violations, the state that is being shielded by a permanent member bears far greater responsibility in practice than any ANSAs might.

VII. Possible Areas of Focus for Future Research

To better understand trends and trajectories concerning relevant practice of the U.N. Security Council and U.N. General Assembly with respect to ANSAs, additional empirical and normative research may prove illuminating. Possible areas of inquiry in that connection might include:
  • Exploring whether a correlation exists between a failure by a state to meet its human-rights obligations and an increased willingness of the U.N. Security Council to address human-rights matters in relation to ANSAs in relation to that context;
  • Examining the precise legal status (especially the bindingness, if any) of a cross-section of U.N. Security Council resolutions, especially in light of the Council’s uneven practice in expressly or impliedly invoking (or not) its various authorities;
  • Comparing the U.N. Security Council’s approach to addressing human rights regarding ANSAs in areas where permanent members are active versus areas where they are not;
  • Seeking to better understand the substantive content of “human rights” as addressed by the U.N. Security Council and U.N. General Assembly. This would likely involve at least qualitative research that not only examines public debates and discussions by these two organs but also looks at how individual states have articulated their understanding of these terms. Assuming that it is unlikely that states will have been explicit regarding the specific content of references to “human rights,” this research might also involve exploring potential answers from secondary sources;
  • Seeking to identify whether there is a correlation between the U.N. Security Council’s (and potentially the U.N. General Assembly’s) determination that a group is “terrorist” and subsequent references to “violations” or “abuses” of human rights;
  • Undertaking empirical research that would create well-founded numerical values for different types of language (e.g., varying levels of obligation, specificity of rights, types of ANSAs) and that would establish findings regarding the perspectives of these two U.N. principal organs;
  • Examining the extent to which the U.N. Security Council and the U.N. General Assembly see ANSAs as having human-rights obligations only—or, at least, primarily—in relation to situations of armed conflict;
  • Exploring the approaches of the U.N. Security Council and the U.N. General Assembly with respect to instances where “refugee law” is invoked along with potential human-rights obligations for ANSAs; and
  • Considering critically the various avenues available to states that might wish to move international law toward a more formal recognition of ANSA-related obligations or responsibilities under IHRL. This research might examine such areas as developments in treaty law, the progressive development of practice in key contexts, and a more strategic approach to advocating for positions in salient multilateral contexts. 

Annex I - Search Terms

HLS PILAC used the following search terms, either individually or in combination with other terms, to conduct its research of U.N. documents:
  • Al-Qaida
  • Al-Shabaab
  • Armed activities
  • Armed actor[s]
  • Armed element[s]
  • Armed forces
  • Armed group[s]
  • Armed movement
  • Armed non-state actor[s]
  • Armed opposition group[s]
  • Armed rebel group[s]
  • Armed terrorist group[s]
  • Armed unit[s]
  • Belligerents
  • Colonial
  • Combatant[s]
  • Dissident armed forces
  • Faction[s]
  • Foreign element[s]
  • Freedom[s]
  • Guerilla[s]
  • Hamas
  • Hezbollah
  • Human rights
  • Illegal armed group[s]
  • Insurgent element[s]
  • Insurgents
  • Insurrectional movement
  • Islamic State/ISIL
  • Liberation movement
  • LTTE/Tamil
  • Military junta
  • Militia[s]
  • National liberation movement
  • Organized armed actor[s]
  • Organized armed group[s]
  • Palestine/PLO
  • Rebel[s]
  • Rebel militia[s]
  • Terrorist group[s]
  • Terrorists.

Annex II.A–C - Database of Excerpts concerning ANSAs and IHRL in U.N. Security Council Resolutions, in U.N. Security Council Presidential Statements, and in U.N. General Assembly Resolutions


[1]. See, e.g., Daragh Murray, Human rights obligations of non-state armed groups (2016); Gilles Giacca, Human Rights Obligations of Armed Non-State Actors, in Economic, Social, and Cultural Rights in Armed Conflict (2014).

[2]. The language and analysis in this paragraph are drawn extensively from Dustin A. Lewis, Gabriella Blum, and Naz K. Modirzadeh, Indefinite War: Unsettled International Law on the End of Armed Conflict, Harv. L. Sch. Program on Int’l L. & Armed Conflict, February 2017, p. 9 < https://pilac.law.harvard.edu/indefinite-war >.

[3]. For an examination of related issues with respect to the U.N. Human Rights Council, see Geneva Academy, Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council, Briefing No. 7, December 2016 < https://www.geneva-academy.ch/joomlatools-files/docman-files/InBrief7_web.pdf >.

[4]. UNSCR 1540 (2004), Preamble footnote.

[5]. See Annex I. For additional guidance, HLS PILAC consulted, among other things, the publication Humanitarian Negotiations with Armed Groups, developed by the U.N. Office for the Coordination of Humanitarian Affairs (OCHA) and referenced in secondary sources discussing various characteristics of ANSAs. See, e.g., Medecins Sans Frontieres, The Practical Guide to Humanitarian Law, Non-State Armed Groups < http://guide-humanitarian-law.org/content/article/3/non-state-armed-groups/ >. That OCHA guidance—while not necessarily definitive—may be helpful in identifying some possible characteristics of ANSAs (e.g., the potential to employ arms in the use of force for political, ideological, or economic objectives; possessing a group identity and acting in pursuit of their objectives as a group; not operating within the formal military structures of states, alliances of states, or intergovernmental organizations; and not operating under the command or control of the state(s) in which they operate). See U.N. Office for the Coordination of Humanitarian Affairs, Humanitarian Negotiations with Armed Groups: A Manual for Practitioners (January 2006), at 14–16.

[6]. For the online database, see HLS PILAC, Database concerning ANSAs, IHRL, and UNSC and UNGA Practice, June 2017, < https://pilac.law.harvard.edu/ansas >.

[7]. Several resolutions address multiple countries or regions, such as certain resolutions on the Central African Republic and Chad, or others addressing conflicts in the Great Lakes Region of Africa. See, e.g., UNSCR 1778 (2007) and UNSCR 1653 (2006).

[8]. In conducting its research, HLS PILAC did not generally place time restraints on its searches in the U.N. online database system, based on initial research indicating that the United Nations had not addressed the potential human-rights obligations of ANSAs until the mid-1990s. See Aristotle Constantinides, Human Rights Obligations and Accountability of Armed Opposition Groups: The Practice of the U.N. Security Council, 4 Human Rights and International Legal Discourse 89 (2010), at 98–99 (“In the early 1990s the [U.N. Security] Council did not address [armed opposition groups] in human rights terms… It was in 1995 that it first ‘call[ed] on the Liberian factions, especially the combatants, to respect the human rights of the civilian population and to respect international humanitarian law’” [citing UNSCR 1001 (1995), Preamble].) This comports with HLS PILAC’s findings regarding the time period in which the U.N. Security Council (and as discussed later in this briefing report, the U.N. General Assembly) began addressing potential human-rights obligations of ANSAs.

[9]. See, e.g., id. at 90 (“Armed conflicts involving such groups are nothing new. The novelty lies in the changing character(istics) of the conflicts [armed organized groups] are involved in—many of them in weak, failing or failed states—coupled with changing perceptions of the international community regarding, inter alia, (human) security, state sovereignty and international (state, individual and group) responsibility. Even though there have always been unstable states, the intensity and frequency of state collapse since the early 1990s has been unprecedented.”)

[10]. In conducting its research, HLS PILAC also attempted to find relevant documents related to potential human-rights obligations of specific so-called “state-like” ANSAs, such as Hamas and Hezbollah. While HLS PILAC did not find evidence that the U.N. Security Council has addressed potential human-rights obligations or related responsibilities of these or other similar actors, it did find relevant statements by various U.N. Special Rapporteurs, which expressed the view that these actors did have human-rights obligations vis-à-vis the (relevant) civilian population. For a discussion of these various findings, see Giacca, supra note 1, at 254–55 (regarding Hamas: “non-State actors that exercise government-like functions and control over a territory are obliged to respect human rights norms when their conduct affects the human rights of the individuals under their control” and regarding Hezbollah: “It is especially appropriate and feasible to call for an armed group to respect human rights norms when it exercises significant control over territory and population and has an identifiable political structure” [internal citations omitted]).

[11]. UNSCR 1291 (2000), ¶ 17.

[12]. UNSCR 1332 (2000), ¶ 13.

[13]. UNSCR 1376 (2001), ¶ 5.

[14]. UNSCR 1592 (2005), Preamble.

[15]. UNSCR 1991 (2011), ¶ 18.

[16]. UNSCR 1756 (2007), Preamble.

[17]. UNSCR 1925 (2010), ¶ 18.

[18]. UNSCR 2076 (2012), ¶ 3.

[19]. UNSCR 1333 (2000), Preamble. Particular mentions of the Taliban may be relevant only insofar as it was considered, at the time the resolution was adopted, an ANSA and was thus not considered to represent the State or government of Afghanistan, which may be considered a contested issue.

[20]. UNSCR 1833 (2008), Preamble.

[21]. UNSCR 1193 (1998), ¶ 14.

[22]. UNSCR 2011 (2011), Preamble.

[23]. UNSCR 1917 (2010), Preamble.

[24]. UNSCR 2096 (2013), Preamble.

[25]. UNSCR 1861 (2009), Preamble (regarding Chad).

[26]. UNSCR 2233 (2015), Preamble (regarding Iraq).

[27]. UNSCR 2227 (2015), Preamble (regarding Mali and also referring to “Al-Qaida in the Islamic Maghreb (AQIM), Ansar Eddine, the Movement for Unity and Jihad in West Africa (MUJAO)”).

[28]. UNSCR 1814 (2008), ¶ 17 (regarding Somalia).

[29]. See, e.g., UNSCR 2340 (2017), Preamble (regarding Sudan) (“Emphasizing the imperative for all armed actors to refrain from all acts of violence against civilians, in particular members of vulnerable groups such as women and children, and to end all violations and abuses of human rights and violations of international humanitarian law…”).

[30]. See, e.g., UNSCR 1565 (2004), ¶ 19 (“Strongly condemns violence and other violations of international humanitarian law and human rights, in particular those perpetrated against civilians, in the Democratic Republic of the Congo, and demands that all parties and Governments concerned in the region…take without delay all necessary steps to bring to justice those responsible for these violations and to ensure respect for human rights and international humanitarian law [emphasis added]”) and UNSCR 1925 (2010), ¶ 18 (“Demands that all armed groups, in particular FDLR and the LRA, immediately cease all forms of violence and human rights abuse against the civilian population in the Democratic Republic of the Congo [emphasis added]”).

[31]. UNSCR 1592 (2005), Preamble.

[32]. Office of the United Nations High Commissioner for Human Rights, International Human Rights Law, < http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx > (arguing that “[i]nternational human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.”).

[33]. Abuse n., Oxford English Dictionary (online ed., 2017).

[34]. Violation n., Oxford English Dictionary (online ed., 2017).

[35]. See, e.g., UNSCR 1181 (1998), ¶ 12 (“The Security Council…demands that all factions and forces in Sierra Leone…respect human rights and abide by applicable rules of international humanitarian law…”) and UNSCR 1574 (2004), Preamble (“The Security Council…recalling in this regard that all parties, including the Sudanese rebel groups such as the Justice and Equality Movement and the Sudanese Liberation Army, must respect human rights and international humanitarian law…”).

[36]. See, e.g., UNSCR 1478 (2003), ¶ 8 (regarding Liberia) (“Calls upon…all parties, particularly the LURD and other armed rebel groups…to prevent sexual violence and torture”).

[37]. UNSCR 2031 (2011), ¶ 14.

[38]. UNSCR 1856 (2008), Preamble.

[39]. See, e.g., UNSCR 2149 (2014), Preamble (regarding the DRC).

[40]. See, e.g., UNSCR 2295 (2016), Preamble (regarding Mali).

[41]. See, e.g., UNSCR 2071 (2012), Preamble (regarding Mali) (“Condemning strongly the abuses of human rights committed in the north of Mali by armed rebels, terrorist and other extremist groups”).

[42]. See, e.g., UNSCR 2248 (2015), Preamble (regarding Burundi) (“Strongly condemning the increased cases of human rights violations and abuses…and all violations and abuses of human rights committed in Burundi both by security forces and by militias and other illegal armed groups”).

[43]. See, e.g., UNSCR 1649 (2005), Preamble (regarding the Democratic Republic of the Congo) (“Deploring the violations of human rights and international humanitarian law committed by these [foreign armed] groups and militias”).

[44]. See, e.g., UNSCR 1906 (2009), Preamble (regarding the Democratic Republic of the Congo) (“Expressing its extreme concern at the deteriorating humanitarian and human rights situation and the continued impunity of those [armed groups] responsible for human rights abuses and other atrocities”).

[45]. UNSCR 1332 (2000), ¶ 13.

[46]. UNSCR 1291 (2000), ¶ 17.

[47]. See, e.g., UNSCR 1445 (2002), ¶ 15.

[48]. UNSCR 1417 (2002), ¶¶ 4–5.

[49]. Constantinides, supra note 8, at 102–103.

[50]. Id. at 95.

[51]. UNSCR 1494 (2003), ¶ 15.

[52]. UNSCR 1716 (2006), ¶ 9. While some of these obligations may (also) be laid down in IHL, some legal scholars have interpreted this language as also reflective of possible human-rights obligations of particular ANSAs. See Constantinides, supra note 8, at 101.

[53]. UNSCR 2331 (2016), ¶ 11 (concerning trafficking in persons in armed conflict).

[54]. See, e.g., UNSCR 2220 (2015), ¶ 20 (concerning small arms and light weapons).

[55]. See, e.g., UNSCR 1464 (2003) ¶ 14 (regarding Côte d’Ivoire) (“[U]rges all parties, including the Government, to take all necessary steps to prevent further violations of human rights and international humanitarian law, in particular against civilians regardless of their origin”).

[56]. See, e.g., UNSCR 2031 (2011) ¶ 13 (regarding the Central African Republic) (“[C]ondemns human rights violations perpetrated by the [Front Populaire pour le Redressement]”).

[57]. Compare id. with UNSCR 2071 (2012), Preamble (regarding Mali) (“Condemning strongly the abuses of human rights committed in the north of Mali by armed rebels, terrorist and other extremist groups”).

[58]. UNSCR 1894 (2009), Preamble.

[59]. Id. at ¶ 1.

[60]. See, e.g., UNSCR 1376 (2001), Preamble.

[61]. S/PRST/2001/17 (June 29, 2001) (regarding Burundi).

[62]. S/PRST/2011/11 (May 18, 2011) (regarding the Democratic Republic of the Congo).

[63]. S/PRST/2015/18 (Oct. 28, 2015) (regarding Burundi).

[64]. S/PRST/2014/20 (Sept. 19, 2014) (regarding Iraq).

[65]. S/PRST/2004/46 (Dec. 14, 2004) (regarding the protection of civilians in armed conflict).

[66]. S/PRST/2015/25 (Dec. 16, 2015) (regarding the maintenance of international peace and security).

[67]. S/PRST/2015/4 (Jan. 19, 2015) (regarding Boko Haram).

[68]. S/PRST/2015/14 (July 28, 2015) (regarding threats to international peace and security caused by terrorist acts).

[69]. S/PRST/2015/15 (August 17, 2015) (regarding Syria and referring to “the Islamic State in Iraq and the Levant” and “Al-Qaida”).

[70]. S/PRST/2015/25 (December 16, 2015) (regarding the maintenance of international peace and security and referring to the “Islamic State of Iraq and the Levant (ISIL, also known as Da’esh)”).

[71]. See, e.g., S/PRST/2012/22 (Oct. 19, 2012) (regarding the Democratic Republic of the Congo), in which the Security Council “strongly condemns” M23 for, among other things, its “abuses of human rights.” Compare with S/PRST/2013/7 (June 6, 2013) (regarding Somalia), in which the Security Council expressed “deep concern at reports of continued violations and abuses of human rights by all parties to the conflict in Somalia…”).

[72]. See, e.g., S/PRST/1998/13 (May 20, 1998) (regarding Somalia).

[73]. See, e.g., S/PRST/2015/8 (March 22, 2015) (regarding Yemen).

[74]. S/PRST/2004/46 (December 14, 2004) (regarding the protection of civilians in armed conflict).

[75]. Id.

[76]. See, e.g., A/RES/56/173 (2002), Preamble.

[77]. A/RES/57/233 (2003), ¶ 2.

[78]. A/RES/56/173 (2002), ¶ 2.

[79]. A/RES/53/203 A-B (1999), ¶ 16.

[80]. A/RES/68/11 (2013), ¶ 41.

[81]. See, e.g., A/RES/58/123 (2003), ¶ 6.

[82]. A/RES/44/88 (1993), ¶ 14 (regarding Bosnia and Herzegovina).

[83]. A/RES/70/234 (2016), Preamble, ¶¶ 1, 4–5 (regarding Syria).

[84]. See, e.g., A/RES/67/17 (2012), Preamble.

[85]. See, e.g., A/RES/70/77 (2016), Preamble.

[86]. See, e.g., A/RES/62/6 (2007), ¶ 22.

[87]. A/RES/68/182 (2013), ¶ 5 (regarding Syria).

[88]. A/RES/70/167 (2016), Preamble (regarding the Subregional Centre for Human Rights and Democracy in Central Africa).

[89]. A/RES/50/230 (2003), Preamble (regarding Sudan).

[90]. A/RES/66/253B (2012), ¶ 2 (regarding Syria).

[91]. A/RES/56/173 (2002), ¶ 2.

[92]. Id.

[93]. See, e.g., A/RES/48/122 (1994) (regarding “human rights and terrorism”). This particular series of resolutions, which express concern over “gross violations of human rights” by “terrorist groups,” might be germane insofar as “terrorist groups” share relevant characteristics with ANSAs.

[94]. A/RES/70/161 (2016), Preamble and ¶ 7 (regarding “human rights defenders in the context of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”).

[95]. A/RES/62/134 (2008), Preamble (regarding “eliminating rape and other forms of sexual violence in all their manifestations, including in conflict and related situations”). Separately, in a resolution addressing the human rights to safe drinking water and sanitation, the U.N. General Assembly “call[ed] upon non-State actors, including business enterprises, both transnational and others, to comply with their responsibility to respect human rights, including the human rights to safe drinking water and sanitation, including by cooperating with State investigations into allegations of abuses of the human rights to safe drinking water and sanitation, and by progressively engaging with States to detect and remedy abuses of the human rights to safe drinking water and sanitation.” A/RES/70/169 (2016), ¶ 6 (regarding “the human rights to safe drinking water and sanitation”). As most businesses are not “armed” actors in a relevant sense under review here, HLS PILAC has not included this reference in the text.

[96]. Charter of the United Nations, Chapter V, Article 24.

[97]. Id. at Article 25.

[98]. Id. at Chapter VII, Article 39.

[99]. Id.

[100]. Id. at Article 40.

[101]. Id. at Article 41.

[102]. Id. at Article 42.

[103]. Michael C. Wood, The Interpretation of Security Council Resolutions, Max Planck Yearbook of United Nations Law, 74–95 (1998).

[104]. Id. at 82; see Charter of the United Nations, Chapter V, Article 25. [105]. Security Council Report, Special Research Report No. 1: Security Council Action Under Chapter VII: Myths and Realities (June 23, 2008).

[106]. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, at 53.

[107]. Wood, supra note 103, at 78–79. But see Paul C. Szasz, “The Security Council Starts Legislating,” 96 American Journal of International Law 901 (2002) (concerning certain counterterrorism resolutions).

[108]. Id. at 94. See also Michael Wood, United Nations, Security Council, in Max Planck Encyclopedia of Public International Law (2007).

[109]. Wood, supra note 103, at 82.

[110]. Id. at 86–87.

[111]. Id. at 83.

[112]. Charter of the United Nations, Chapter IV, Article 10.

[113]. Christian Tomuschat, United Nations, General Assembly, in Max Planck Encyclopedia of Public International Law (2011).

[114]. Id. See also Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, at ¶ 70 (“The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.”).

[115]. Tomuschat, supra note 113.

[116]. Charter of the United Nations, Chapter V, Article 24.

[117]. Id. at Article 25.

[118]. Id. at Articles 48–49.

[119]. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, at 54.

[120]. Security Council Report, supra note 105.

[121]. See generally Sandesh Sivakumaran, Binding Armed Opposition Groups, The International Law and Comparative Law Quarterly, Vol. 55, No. 2, 369–394 (2006).

[122]. See, e.g., Giacca, supra note 1.

[123]. For an early discussion of various perspectives, see generally Andrew Clapham, Human Rights Obligations of Non-State Actors in Conflict Situations, International Review of the Red Cross, Vol. 88, No. 863 (2006).

[124]. Giacca finds the distinction between “abuses” and “violations” of human rights throughout U.N. documents to represent a “semantic distinction” without a legal consequence. See, e.g., Giacca, supra note 1, at 250.

[125]. See, e.g., Murray, supra note 1.