conict featured ‘protracted armed violence between governmental authorities and organized armed groups within a state’,60
as the Libyan government under Gadha and the NTC had been engaged in armed conict since February 2011. As
illustrated above, the NTC fell under the denition of ‘DFR’ and possessed organizational capacity. Furthermore, the NTC
was an active party to the conict, performing structured attacks against the Libyan military, which made them culpable as
a group for illegal military action and individually for the perpetration of international crimes. ese circumstances made
the NTC, like other DFRs, bound by at least the basic provisions of IHL and ICL. It would, for instance, have been legally
prohibited for the NTC’s forces to purposely attack or torture unarmed civilians, make use of chemical weaponry or commit
crimes against humanity.
To conclude, under international law, DFRs must respect at least some of the rules developed under IHL and ICL. Although
these basic provisions only protect against the most barbarous forms of warfare and attacks on human dignity, they provide
‘for a minimum set of humanitarian standards, which remain applicable in times when core human rights are endangered
3. e Prohibition of the Use of Force
e prohibition of the use of force, as set out in Article 2(4) of the UN Charter, prohibits the ‘threat or use of force against
the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations’.62 e provision is ‘regarded […] as a principle of customary international law’63 and, according to some,
‘even as jus cogens’.64 It is disputed whether the customary character of the prohibition of the use of force in itself binds entities
other than states.65 Corten (2010) notes: ‘at present, there is nothing to show that any general agreement has been observed in
favour of the applicability of article 2(4) to situations that do not pertain to relations among States’.66 is does not, however,
mean that DFRs are never bound by the prohibition of the use of force.
In drafting the text of Article 2(4), several states proposed to explicitly ‘extend applicability of the rule to all “political
entities”’,67 including DFRs. e proposition met with ‘rm opposition’ from other states.68 e fact that the literal inclusion
of these groups was rejected in drafting the text of article 2(4), coupled with the consideration of state practice, lead Corten
(2010) to conclude: ‘Ultimately, no group of States has consistently defended an extension of the notion of ‘international
relations’ as an essential element of the prohibition of the use of force’.69 Conversely, Frowein (2009) argues: ‘State practice,
especially within the United Nations, clearly proves that the prohibition of the use of force applies […] to all independent
de facto regimes’.70 He bases this assumption on the UN Friendly Relations Declaration,71 the General Assembly’s Resolution
3314 and state practice.72 Frowein concludes that DFRs are both protected by and bound to the prohibition of the use of
Although there does not seem to be unanimity in hard law, state practice, or literature, I would agree with Frowein that DFRs
are (at least) partially bound by the prohibition of the use of force.74 is assumption is supported by the scholarly discourse
on the applicability of the use of force to actions of and reactions to the Taliban regime.75 According to Wolfrum (2002) the
Taliban, in its status as a DFR, enjoyed the right ‘not to become the target of force as referred to in Article 2 para. 4 of the UN
Charter’.76 Wolfrum further notes that ‘acts carried out by […] the Taliban […] could be made the target for actions of self-
defence’.77 is means that the prohibition of the use of force applied to the Taliban both as a right and a duty, as it does to
60 Tadic (n 58), para 70.
61 Schoiswohl (n 12) 62. Human rights obligations of DFRs will receive closer attention in paragraph III.C.
62 1945 Charter of the United Nations. 1 UNTS XVI, Art 2(4).
63 Shaw (n 20) 1123.
64 Evans et al., International Law (Oxford University Press 2010) 617.
65 Cassese (n 17) 157. According to Cassese, the customary nature of the prohibition of the use of force would indeed be enough to bind non-state entities.
66 O Corten, e Law Against War: e Prohibition on the Use of Force in Contemporary International Law (Hart 2010) 159. Italics added.
67 UN Doc. A/AC.134/L.17 (1969).
68 UN Doc. A/AC.134/SR.58 (1970); A/C.6/SR.1206 (1970).
69 Corten (n 66) 160.
70 J Frowein, ‘De Facto Regime’ (2009) .mpepil.com> accessed 14 July 2011, para 4.
71 UN Doc. A/RES/2625 (1970) 121. ‘Every State [...] has the duty to refrain from the threat or use of force to violate international lines of demarcation. Consider:
J Frowein (n 70), para 5. ‘is includes the borders of [...] de facto regimes’.
72 Un. Doc. A/RES/1134 (1974); J Frowein (n 70), paras 4-5.
73 J Frowein (n 6) 69. ‘[d]ie sich in einer befriedeten internationalen Stellung benden’.
74 H Blix, ‘Contemporary Aspects of Recognition’  Recueil de Cours 618.
75 See R Wolfrum et al., ‘e Status of the Taliban: eir Obligations and Rights Under International Law’  Max Planck Yearbook of United Nations Law.
76 ibid 585. Wolfrum adds that this protection only applies ‘between the de facto regime and third states not engaged in the [internal] conict’.
77 ibid 596.
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