FILLING THE GAP:THE NEW REGIME OF RESPONSIBILITY FOR ARMED NON-STATE ACTORS.

• Author: Kleczkowska, Agata

I INTRODUCTION

The motivation behind this article is to critically assess the views which claim that armed non-state actors (ANSAs), as parties to armed conflicts, are bound by international law, or at least some of its norms (eg Common Article 3 to the Geneva Conventions and Second Additional Protocol to the Geneva Conventions), (1) and have an international legal personality, even if the scope of this personality is strictly connected with their functions and differs from the legal personality of States. However, if ANSAs as collectives have international legal personality and rights and duties under international law, they should be also held responsible as such for breaches of international law. This is so since, as one author aptly put it: '[a]n effective legal system implies there are consequences to violations of norms it seeks to promote.' (2) Thus, international law would prove itself to be an ineffective system if ANSAs could not be held internationally responsible. (3)

The aim of this article is to explore whether ANSAs as such may bear responsibility for their violations of international law. By 'responsibility' (4) the present article understands the consequences stemming from violations of international legal norms. The current article is focused on the direct responsibility of ANSAs, in contrast to indirect responsibility, which may be defined as a situation in which the legal consequences of violations of international law committed by ANSAs 'are borne by another actor, somehow related to the group', (5) and which refers to the responsibility of States and individuals for violations of international law committed by ANSAs. (6)

So far no international or domestic judicial organ has found ANSAs responsible for violations of international humanitarian law ('IHL'); (7) likewise, the regime of direct responsibility of ANSAs has not yet been created, due to the legal and political dilemmas accompanying it. The main political problem is that States are reluctant to strengthen the status of ANSAs, which could move them closer to the status of States. (8)

In response to this situation, the current article undertakes the task of both reconstructing the current state of law when it comes to the responsibility of ANSAs, as well as submitting a proposal for a model of direct responsibility of ANSAs. Section II compares the current regulation (or lack thereof) of responsibility of ANSAs with the regimes of responsibility of States and international organisations ('IOs') under international law. Section III examines how ANSAs may currently be held responsible under international law. The final section seeks to build a model of direct responsibility of ANSAs under international law, drawing on the conclusions from the previous parts. At the same time the article also pays attention to the fact that the situation of different ANSAs is diversified, examining separately the status of insurrectional movements and de facto regimes created by ANSAs.

At the beginning, one should also note that in international legal doctrine responsibility is considered to be 'the consequence of international legal personality'. (9) However, the current article does not assume that ANSAs have international legal personality (on the contrary, it explicitly claims they are not international legal persons). Its aim is rather to examine how actors with a collective nature which play an important role in international relations, regardless of their international legal personality, may be held responsible for the violations of the international norms that regulate these relations.

II DIRECT RESPONSIBILITY OF ANSAS -THE CURRENT STATE OF THE LAW

This section analyses the current state of the law when it comes to the international responsibility of ANSAs from the perspective of responsibility of States and IOs under international law. Thus, this part of the article examines the similarities and differences between these regimes in order to identify how ANSAs may be held responsible under the existing state of international law.

The starting point is the fundamental question concerning the international legal personality of ANSAs, since the answer to this question determines the further considerations on the responsibility of ANSAs under international law. The further analysis focuses on the possible grounds of responsibility of ANSAs, how responsibility could be attributed to ANSAs, what the consequences could be, and if it is possible to adjudicate claims submitted against ANSAs before international organs.

It should be also highlighted here that this section does not refer to insurrectional movements and de facto regimes, whose situation differs and is discussed in the following section.

STATES International legal Primary subjects of personality international law Basis of Breach of international responsibility legal obligations Attribution of Organs/individuals/groups conduct to an actor of individuals Consequences of Restoration of the status responsibility quo ante Organ to settle Upon consent--before a disputes judicial organ IOs International legal Dependent on the will personality of States Basis of Breach of international responsibility legal obligations Attribution of conduct to an actor Consequences of Restoration of the status responsibility quo ante Organ to settle Upon consent--before disputes a judicial organ ANSAs International legal Lack of international legal personality personality Basis of Cannot be held responsible for breaches of international law/ may responsibility be held responsible for damage Attribution of Organs and persons--but there is conduct to an actor the problem of attribution Consequences of Obligation to pay compensation responsibility Organ to settle No judicial organ (only monitoring disputes organs with limited mandates) A. International legal personality

There is no universally accepted legal definition of international legal personality. However, most generally it is assumed that international legal personality amounts to having the capacity to be the bearer of rights and obligations under international law. (10)

Needless to say, States are the 'primary', 'fundamental' (11), 'original' (12) or 'direct' (13) subjects of international law. When it comes to IOs, today it is universally recognised that they also have international legal personality. (14) In general there are two concepts of the origins of their legal personality--the so-called subjective and objective theories. (15) While it is beyond the scope of this article to discuss these concepts in detail, it should be observed here that no matter which theory one applies it is still the will of States that is, in one way or another, behind the creation of IOs, (16) since the 'creation of an international organization is effected by the consent (accord) between States.' (17) Consequently, in the end it is the States that decide about the creation of IOs.

When it comes to ANSAs, the majority of authors claim that they also possess international legal personality. (18) However, they describe this personality in different ways, usually without going into detail. Some commentators claim that ANSAs possess 'aspects' of international legal personality, (19) while others claim that ANSAs have limited international personality under art 3 of the Geneva Conventions (20) or only with regard to 'fundamental human rights obligations', (21) as well as that they are subject to IHL. (22) It is also said that their international legal personality is a 'functional' one. (23) However some authors, like Katherine Fortin, further elaborate on their theories. Fortin distinguishes between a general and specific international legal personality of ANSAs, depending on who recognises them. (24)

To sum up, neither of these conceptions form a comprehensive and convincing narrative. They seem to express more a desire to make certain norms binding on ANSAs than actually refer to the realm of international law. There are a few arguments in support of such an approach.

First, it seems that any discussions on the international legal personality of ANSAs should be rooted in the definition of ANSAs. Most authors focus on the traits of ANSAs such as level of organisation, responsible command, (25) and independence from States, (26) but they seem secondary in relation to other, more fundamental, characteristics which are hardly ever mentioned. The definitions presented in legal doctrine fail to answer what is probably the most important question: When are ANSAs formed and when do they cease to exist? Without any criteria to precisely determine these points, it is hard to establish which violations of international law ANSAs may be held responsible for. Nevertheless, one has to admit that answering the question is not an easy task. While the creation of States is governed by the criteria of Statehood, and IOs are formed as soon as States reach an agreement about them, '[t]here is generally no clearly identifiable moment at which an armed group starts to exist in either factual or legal terms. (27) Moreover, many ANSAs suddenly disappear, because they are defeated, demobilized, integrated into the State's armed forces or other armed groups, or they may split up. (28) To make the matter even more complicated, there is a wide range of groups included under the notion of ANSAs. 'Thus, the drafters of the definition would have to also decide whether to apply one pattern to all ANSAs or whether to differentiate these two important moments, given the specificity of a group.

Secondly, as was mentioned above, States are not only the 'primary' subjects of international law, but they also decide about the establishment of IOs, since in the end the decision of States is necessary for their founding. On the other hand, States are reluctant to empower ANSAs in any way. Although some authors claim that States may recognise ANSAs, (29) there are no examples from the practice of...