Towards international human rights law applied to armed groups
| Author | Agnes Callamard |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
| DOI | http://doi.org/10.1177/0924051918822848 |
| Subject Matter | SIM Peter Baehr Lecture |
Lecture
SIM Peter Baehr Lecture
Towards international human
rights law applied to armed groups
Agnes Callamard
United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings
Abstract
This lecture explores the place of justice, accountability and remedies in the global agenda against
terror, illustrated by a case study on Iraq and the Islamic State in Iraq and the Levant (ISIL.) The two
international regimes traditionally applicable to the acts of armed groups, including ‘‘terrorist
groups’’, are international criminal law and international humanitarian law. The lecture argues that
they carry each strong limitations, such as those related to the ‘‘armed conflict’’ nexus require-
ment. This lecture shows that a third regime, international counter-terrorism, has developed over
the last two decades and become the de facto legal regime for armed non-State actors. This regime
has displaced and weakened international humanitarian and criminal law while further eroding
victims’ protection and accountability. The lecture further suggests that all three legal frameworks
fail to capture the nature of control exercised by armed groups such as ISIL, and the extent of their
functions, including those amounting to governance. The lecture argues that such functions can
best be apprehended through international human rights law (IHRL). Tracing armed groups’ human
rights obligations and legal personality to treaty and customary law, the lecture concludes with
proposals to hold armed groups accountable under IHRL as well as possible approaches to
strengthen accountability for crimes committed by ISIL.
Keywords
Armed groups, terrorism, international counter terrorism, International Humanitarian Law,
International Criminal Law, accountability, Iraq, ISIL
Corresponding author:
Agnes Callamard, United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings.
E-mail: ac3699@columbia.edu
Netherlands Quarterly of Human Rights
2019, Vol. 37(1) 85–100
ªThe Author(s) 2019
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DOI: 10.1177/0924051918822848
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NQHR
Annual SIM Peter Baehr Lecture, 14 September 2018
1
Introduction
I think it is fair to say that real or perceived fears over national security have largely driven the
political agenda both nationally and internationally throughout the twenty-first century. Such fears
have taken on a renewed dimension in recent years – as revealed by the many denunciations of
foreign interference in elections and concerns over cyber security, to name a few recent charac-
teristics of the security agenda. In the world of the 21st century, the national security agenda is
largely dominated by ‘‘terrorism,’’ and ‘‘terrorist groups,’’ countering them and preventing their
ideology of violent extremism to take hold of people’s minds. These are some of the concerns that
have defined an all-encompassing domestic and international agenda.
My purpose today is to address the place of justice, accountability and remedies in this global
agenda against terror. Rather than tackling these questions in the abstract, I will consider them
against the backdrop of one reality I have explored and researched, that of Iraq and of one
‘‘terrorist’’ group, the so-called Islamic State in Iraq and the Levant (ISIL)
2
. Through this inquiry
I wish to highlight what the response to ‘‘terrorist groups’’ and in particular what the legal framing
of these groups reveal about international law and what a victim-centered accountability regime for
crimes committed by these groups may require. I propose to develop the following intertwined
arguments.
The first line of inquiry and argumentation is related to the legitimacy and effectiveness of the
counter-terrorism legal framework to frame groups such as ISIL and their crimes. The position I
wish to defend goes as follow:
1. A group such as ISIL can both be an ‘‘organised armed group’’ for the purposes of
International Humanitarian Law (IHL) or International Criminal Law (ICL) as well as a
‘‘terrorist’’ group for the purposes of domestic law or international, UN Security Council
resolutions and listing. This is true as well for individual members of such groups.
3
2. ISIL is an ‘‘organised armed group’’ according to the criteria developed under IHL and ICL
relating to territorial control, command structure, and military strategy. As such, ISIL is
bound by international customary humanitarian law.
3. In situations such as Iraq, there is sufficient evidence to suggest that the crimes committed
by ISIL may meet the threshold of war crimes, crimes against humanity and genocide. This
has been recognised by the international community through United Nations Security
Council Resolution 2379 mandating an international team to support Iraq in investigating
the aforementioned crimes perpetrated by ISIL.
1. This lecture was presented as the 8th annual SIM Peter Baehr lecture, delivered at Utrecht University, the Netherlands.
The annual SIM Peter Baehr lecture marks both the anniversary of the Netherlands Institute of Human Rights (SIM),
established in 1981, and commemorates one of its former directors, Professor Peter Baehr. This lecture is partially based
on the report by Agnes Callamard, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
on Armed Non-State Actors: The Protection of the Right to Life’ (5 June 2018) A/HRC/38/44.
2. Or the Islamic State in Iraq and Syria (ISIS), Islamic State (IS) or its Arabic acronym ‘‘Daesh’’.
3. Sandesh Sivakumaran, ‘The Potential Applicability of IHL to the Use of State Force Against Large-scale Criminal
Organizations’ paper presented at the conference, The Interface of National Security and Humanitarian Law in
Situations of Low-Intensity Armed Conflict/High-Intensity Emergency (7 November 2017).
86 Netherlands Quarterly of Human Rights 37(1)
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