Non-state actors and human rights in non-international armed conflicts

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Szablewska, N 2007, 'Non-state actors and human rights in non-international armed conflicts', South African Yearbook of International Law, South African Yearbook of International Law, vol. 32, no. 1, pp. 345-360.

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Non-international armed conflicts are defined as conflicts that have crossed a certain threshold of violence and where at least one party is a non-state actor. In situations like these, international humanitarian law (IHL) takes primacy and, is widely accepted to be binding on all sides. However, the situation becomes complicated when a state does not accept that there is an internal armed conflict at all and thus refuses to apply IHL as the binding legal system. On the other hand, if human rights law (HRL) is applied instead (and exclusively), the position and role of a non-state actor raise some significant questions.

This paper does not necessarily suggest one solution over others, but rather considers some emerging possibilities, albeit controversial, as well as aiming to expose some limits and obstacles that one might encounter when faced with the decision whether non-states actors can / should be or already are bound by HRL. It will be shown that frequently political rather than legal reasons drive this debate, and accepting this situation may lead us to some conclusions as to whether this 'new tendency' is a desirable one (both politically as well as legally), and whether there may be any alternatives available. However, in order to make this debate viable it is first necessary to explain how and why the two regimes, IHL and HRL, are different. Then it will be considered why non-international armed conflicts are so different from international ones, followed by a discussion on how the appearance of new international actors has changed the application and scope of IHL as well as HRL. The penultimate section assesses how HRL may bind non-state actors and concludes with a discussion on trends in the current scholarship

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