The Right to Education and Armed Opposition Groups: The Protection of the Right to Education in Insecurity and Non-International Armed Conflict

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University of Amsterdam

Faculty of Law

Mastertrack: Public International Law

The Right to Education and Armed Opposition Groups:

The Protection of the Right to Education in Insecurity and

Non-International Armed Conflict

Thesis presented by Levina Gordet (11148802)

Date of submission: 1

st

of July 2016

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Introduction

On the 20th of January 2016, at least 20 people, most of them students and teachers, were killed by a Taliban attack at Bacha Khan University in Pakistan.1_{This happened a year}

after the same armed group attacked an army-run school in Peshawar in Pakistan, killing 141 people, 132 of them were children.2_{This has been Taliban’s deadliest attack in the country so}

far.3_{However Pakistan is not the only country facing this kind of attacks. In April 2014 in}

Nigeria, the Islamist militant group Boko Haram kidnapped around 300 schoolgirls when it stormed a secondary school provoking international outrage.4 On the 22nd of December 2015, Islamic State terrorists targeted the all-girls school in the east of Syria with a rocket attack, killing nine children.5

These examples show that the right to education is far from being respected and protected in many States where armed conflicts are going on. Children’s right to education is threatened although the majority of States is party to international human rights treaties, which expressly oblige those States to guarantee the right to education. For example the International Covenant on Economic, Social and Cultural Rights imposes on States to protect the right to education in article 13. Pakistan has ratified this treaty, Nigeria and Syria have acceded to it6, which means that children within their jurisdiction have a right to education. So States have clear obligations under human rights treaties to protect this right. Why are then so many children prevented from the free exercise of their right to education?

Even though in some cases we observe a clear failure of States to fulfil their obligations under those treaties, armed opposition groups are more and more often playing a

1_{D Walsh IT Mehsud and I Khan ‘Taliban Attac kat Bacha Khan University in Pakistan Renews}

Fears’ New York Times (New York 20 January 2016)

<http://www.nytimes.com/2016/01/21/world/asia/bacha-khan-university-attack-charsadda.html> (14 May 2016)

2_{‘Pakistan Taliban: Peshawar School Attack Leaves 141 Dead’ BBC (16 December 2014)}

<http://www.bbc.com/news/world-asia-30491435> (14 May 2016)

3_Ibid

4_{Save the Children Australia ‘No Child Left Behind : Education in Crisis in the Asia – Pacific}

Region’ (2014) 5

<http://www.protectingeducation.org/sites/default/files/documents/save_the_children_australia_-_no_child_left_behind.pdf> (29 May 2016)

5_{S Coughlan ‘How many Attacks on Schools around the World ?’ BBC (17 December 2014)}

<http://www.bbc.com/news/education-30512451> (14 May 2016)

6_{United Nations Human Rights Office of the High Commissioner ‘Status of Ratification Interactive}

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major role in this. Most of conflicts today take place within and not between States7 and “a bewildering variety of organisations, in widely different contexts, have taken up arms against the State (or are armed and outside State control)”.8_{Indeed, a lot of attacks that are carried out}

on schools are part of a planned strategy by armed opposition groups (AOGs) like ISIS/Daesh, Boko Haram or the Taliban.9 It should be noticed that AOGs act independently from States and do not necessarily constitute terrorist groups,10 as we will see in Chapter 2 of this research. Although human rights treaties might target these entities, AOGs are not parties to those treaties, which therefore only create direct legal obligations for states parties. Can AOGs violate the right to education, as they have no obligation to protect this right?

In order to know to what extent AOGs are addressed by international human rights law, it is interesting to note that there is a current reflection related to the reporting of the behaviour of these non-state actors by the UN Security Council. The question, which arises is namely if one can only talk of human rights “abuses”, as the expression of human rights “violations” should be reserved for states,11 as they are bound by treaty obligations. As we will see later in this research, we can note that the UN Security Council has used both terms in its resolutions,12 sometimes even interchangeably and in a confusing way.13 The use of these specific terms in its resolutions is particularly relevant as the term “human rights violation” would imply that AOGs do have obligations under international human rights law14 whereas the term “human rights abuses” would lead to the conclusion that this body of law does not bind these actors and so they cannot violate human rights.15 Andrew Clapham writes

7_{International Council on Human Rights Policy (ICHRP) ‘Ends & Means: Human Rights Approaches}

to Armed Groups’ (2000) 1 <http://www.ichrp.org/files/reports/6/105_report_en.pdf> (29 May 2016)

8_ibid

9_{J Somer ‘Education and Armed Non-State Actors: Towards a comprehensive agenda’ (Background}

Paper for the PEIC/Geneva Call Workshop, Geneva, Switzerland 23-25 June 2015) 21

<http://educationandconflict.org/sites/default/files/publication/EAA1949-20150922.pdf> (29 May 2016)

10_{G Giacca ‘ V. Human Rights Obligations of Armed Non-State Actors’ in Economic, Social and}

Cultural Rights in Armed Conflict (Oxford University Press 2014) 232

11_{A Clapham, ‘Human Rights Obligations for Non-State-Actors : Where Are We Now ?’ in F}

Lafontaine F Larocque (eds) Doing the Peace the Rights Way : Essays in International Law and

Relations in Honour of Louise Arbour (2015) 6

12_{A Constantinides ‘Human Rights Obligations and Accountability of Armed Opposition Groups: The}

Practice of the UN Security Council’ 4 Hum. Rts & Int’l Legal Discourse 89 (2010) 96 and UNSC Res 1332 (14 December 2000) UN Doc S/RES/1332 para13 and UNSC Res 1663 (14 March 2006) UN Doc S/RES/1663 para7

13_{A Constantinides (n12) 96 and UNSC Res 1370 (18 December 2001) UN Doc S/RES/1370 para 4} 14_{G Giacca (n10) 250}

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that one should use the term of human rights violation for the behaviour of AOGs.16 In order to emphasize his point of view, he raises the following questions: “Is it seriously being considered that the UN should explain that Israel has violated international law, but that Hamas and relevant armed groups have only behaved immorally (in human rights terms), and that the two types of human rights transgression cannot be compared? Syria violates human rights, while the self-styled ‘Islamic state’ merely abuses them?”17 For Clapham, there is no clear logic in using the term human rights abuses for armed groups18 as they commit the same acts as States. Throughout this research, I will use the term ‘violation’ in order to report the behaviour of AOG’s. However this should not indicate that I assume that AOGs have legal obligations under human rights treaties but I believe that this term differentiates clearly their infringing behaviour from that of the States.

There is a current debate between state lawyers and scholars that there might be a progressive development towards consensus that armed opposition groups have obligations under international human rights law.19 This would mean that those entities should respect economic, social and cultural rights including the right to education in situations of insecurity and non-international armed conflicts. The present research will focus on this current debate and the main question that I will endeavour to answer is the following:

What obligations do armed opposition groups have under the right to education in international human rights law during insecurity and non-international armed conflicts?

The perspective of this analysis will be international human rights law; international humanitarian law will only be considered in passing. Indeed, international humanitarian law does not apply at all in times of insecurity and when it does in non-international armed conflicts, it does not explicitly protect all human rights such as the right to education.20 International human rights law might fill the gap of protection of the right to education that is left by international humanitarian law. As the subject of my research is based on recent debates and developments of the law, there are only a limited number of articles written by scholars that I could use. Therefore, some parts of the chapters may rely only on a few articles 16_{A Clapham (n11) 6} 17_ibid 18_ibid 19_{J Somer (n9) 26} 20_{A Constantinides (n12) 94}

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and reflect the opinion of selected authors and do not necessarily represent general opinion in international law.

To answer the main question, the first Chapter will describe the obligations of States under the right to education and especially their obligation to protect individuals against other private actors, consisting therefore first of a descriptive research. In order to do so, mainly primary sources will be used like the relevant human rights treaties, judgements and advisory opinions of the International Court of Justice and interpretations given by monitoring bodies.

Chapter 2 will continue the descriptive research by analysing what arguments justify the application of international human rights law to armed opposition groups. In furtherance of examining the arguments that counterbalance the reluctance to apply international human rights law to armed opposition groups, one first needs to understand what armed opposition groups are and how they impact on the right to education. Primary sources will be analysed such as the Convention on the Rights on the Child, UN Security Council resolutions but also General Comments of the Human Rights Council as well as secondary sources such as articles written by legal scholars.

In the third Chapter, we will deal with the factual and legal requirements for the application of international human rights law to AOGs as prior characteristics have to be fulfilled before one can apply the right to education to those entities. There is also a need for a legal basis, which has to be able to impose legal obligations on AOGs. We will rely on a descriptive research screening human rights treaties, UN Security Council and General Assembly resolutions but also reports of Special Rapporteurs, reports of Commissions of Inquiry, concluding observations by the CESCR as well as writings of scholars will be referred to.

A last chapter is introduced by a descriptive part analysing if there are possible legal obligations of AOGs under the right to education. It will end with a normative research, as the possibilities (by means of international human rights law) to enhance the protection of the right to education by these specific non-state actors will be examined. For this, reports of the UN Secretary General but also of the Committee on the Rights of the Child, as well as Human Rights Council and UN Security Council resolutions and articles written by scholars will be used.

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Chapter 1: State’s obligations under the right to education

Before analysing the different obligations of States under the right to education and if this right might apply during times of insecurity and non-international armed conflict, it is important to understand the traditional State centred approach that can be found in international human rights law.

Section 1: The traditional State centred approach in international human rights law including the right to education

The Universal Declaration of Human Rights (UDHR) was adopted in 1948 by the General Assembly (GA) of the UN.21_{The preamble of this document declares that “Member}

States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms”.22 Even though the UDHR was not legally binding as such upon States, it is today recognised as customary international law and it became thus binding on States.23 The preamble indicates clearly that States have to promote respect for and observance of human rights. Furthermore article 26 (1) of the UDHR states that “everyone has the right to education”. Almost the same wording can be found in the International Covenant on Economic, Social and Cultural Rights (ICESCR) where one can read the following in article 13: “the States Parties to the present Covenant recognize the right of everyone to education”.24 This treaty is binding upon all States Parties and establishes a clear obligation on them to protect the right to education to individuals that are within the territorial jurisdiction of that State25 but also when they are acting “in the exercise of jurisdiction outside their territory”.26 The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) also mentions the right to education in article 10 and requires States “to

21_{UNGA Res 3/217 (10 December 1948) UN Doc A/Res/3/217}

22_{Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)}

(UDHR) Preamble

23_{J von Bernstorff ‘The Changing Fortunes of the Universal Declaration of Human Rights : Genesis}

and Symbolic Dimensions of the Turn to Rights in International Law’The European Journal of

International Law Vol.19 no.5 (2008) 913

24_{International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,}

entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art.13

25_{Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory}

Opinion) [2004] ICJ para 111-113 and S Joseph and A Fletcher ‘ch6 Scope of Application’ in D Moeckli S Shah and S Sivakumaran (eds) International Human Rights Law (2nd edn Oxford University Press 2014) 134

26_{Armed activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)} (Judgement, Merits) [2005] ICJ para 216 and S Joseph and A Fletcher (n24) 134

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take appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education”.27 This treaty creates thus positive obligations for States to ensure education for women in a non-discriminatory way. Finally articles 28 and 29 of the Convention on the Rights of the Child (CRC) recognise the right to education to children and especially article 28 imposes several obligations on States to ensure this right.28

There are thus several treaties29 that impose on States an obligation to ensure the right to education. As States are the only signatories of these treaties and as the treaties themselves are addressed to them, they are the only entities responsible to fulfil the obligations stemming from them. This is the traditional state-centred approach that can be found in international human rights law30 as other entities like NGO’s, international organisations or armed opposition groups are not bound by these human rights treaties. For the purpose of this research we will principally rely on article 13 of the ICESCR as it gives a general right to education to everyone and does not only target a specific group of people.

Section 2: Obligations of States to respect, protect and fulfil the right to education The importance of the right to education has been clearly mentioned by the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment 13 in 1999 as it paves the way to realize other fundamental rights.31 The Committee states that “as an empowering right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities”.32 So one of the main reasons for States to invest in the

27_{Convention on the Elimination of All Forms of Discrimination against Women (entered into force 3}

September 1981) 1249 UNTS 13 (CEDAW) art.10

28_{Convention on the Rights of the Child (entered into force 2 September 1990) 1577 UNTS 3 (CRC)}

art.28

29_{Regional treaties such as for example the European Convention on Human Rights (ECHR) or the African}

Charter on Human and People’s Rights (ACHPR) also guaranty the right to education. For the purpose of this research I will however only focus on the universal instruments of the UN system.

30_{A Constantinides (n12) 93}

31_{CESCR, General Comment 13, 1999 para 1} 32_ibid

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right to education is “the social utilitarian and individual welfare perspectives and the perception of education as a pre-requisite to individual dignity and development.”33

Contrary to civil and political rights which have to be immediately implemented by States,34 article 2 of the ICESCR declares that States should achieve “progressively the full realization of the rights” recognised in the Convention. This provision also applies to article 13 of the ICESCR, which means that the right to education has to be progressively realised if an immediate realisation is not possible to achieve. This Convention thus acknowledges that the realisation of the right to education may take some time,35 especially in developing countries. However, this does not mean that there aren’t immediate obligations under the right to education.36_{There are some minimum core obligations}37_{to “ ‘ensure the satisfaction of, at}

the very least, minimum essential levels’38 of each of the rights enunciated in the Covenant”.39 Indeed, according to the CESCR, those core obligations that have an immediate effect are the implementation of the right to education in a non-discriminatory way, the provision of free primary education and that it conforms to the objectives laid down in article 13(1) of the ICESCR, the adoption and implementation of a national educational strategy that includes secondary, higher and fundamental education and the free choice of education without State interference.40

Furthermore, article 2 of the ICESCR makes a reference to the State’s available resources. So the Convention also recognises that some States may have difficulties in fulfilling the right to education not because of a lack of will but because of its limits of available resources.41 This does not “deprive States parties obligations of all meaningful content” but they have a “continuing obligation ‘to move as expeditiously and effectively as possible’42_{towards the full realisation of article 13”.}43

33_{D Hogson ‘Education, Right to, International Protection’ Max Planck Encyclopedia of Public} International Law para2

34_{International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force}

23 March 1976) 999 UNTS 171 (ICCPR) article 2 and T van Boven ‘ch7 Categories of Rights’ in D Moeckli S Shah and S Sivakumaran (eds) International Human Rights Law (2nd edn Oxford University Press 2014) 144 35_ibid 36_{CESCR, General Comment 13, 1999 para 43} 37_{CESCR, General Comment 3, 1990 para 10} 38_ibid 39_{CESCR, General Comment 13, 1999 para57} 40_ibid 41_{ICCPR and T van Boven (n34)} 42_{CESCR, General Comment 3, 1990 para 9} 43_{CESCR, General Comment 13, 1999 para 44}

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Before analysing the realisation of the right to education, it is important to understand the general theory that obligations under that right can be of positive or of negative nature, a distinction that has been introduced by the Human Rights Committee (HRC) in its General Comment 13. 44 Positive obligations require States to “adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations”.45 This also includes that the State has to protect individuals within its jurisdiction against violations of human rights that may be committed by its agents but also against those that may be committed by private persons or entities.46 On the other side, negative obligations require States to refrain from taking acts that may violate the relevant human rights treaty and restrictions of a right have to be permissible under the treaty.47_Such

restrictions must be necessary and proportionate and need to achieve a legitimate aim.48 Another distinction that has been made is the one between obligations of conduct and obligations of result.49 Indeed, “international human rights obligations may be fulfilled through a state’s behaviour (conduct) and/or the end result of this behaviour (result)”.50 Article 2 of the ICESCR for example “imposes both the obligation of conduct (eg to take steps and to guarantee against non-discrimination) and result (eg to achieve progressively the full realisation of the rights guaranteed under the Covenant)”.51

Finally, there is a tripartite typology of obligations that has been developed under the ICESCR, namely the obligation to respect, protect and fulfil human rights.52 The obligation to respect human rights is a negative obligation of conduct of States and which obliges them “not to take any measures that result in a violation of a given right”.53 The obligation to protect implies that the State has a positive obligation to ensure that third parties do not violate human rights and do not cause harm to persons within its jurisdiction.54_{Indeed States}

44_{D Shelton and A Gould ‘Chapter 24 Positive and Negative Obligations’ in D Shelton (ed) The} Oxford Handbook of International Human Rights Law’ 566

45_{HRC, General Comment 13, 1984 para 7} 46_{ibid para 8}

47_{ibid para 6} 48_{ibid para 6}

49_{M Ssenyonjo Economic, Social and Cultural Rights in International Law (2009) 22 and CESCR,}

General Comment 3, 1990 para 1

50_{M Ssenyonjo (n49) 22} 51_ibid

52_{F Mégret ‘ch5 Nature of obligations’ in D Moeckli S Shah and S Sivakumaran (eds) International} Human Rights Law (2nd edn Oxford University Press 2014) 101

53_{ibid 102} 54_ibid

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have a due diligence obligation in international human rights law,55 which entails the obligation to “protect individuals from harmful interference by private/non-state actors, be it individuals or groups”. 56_{This obligation has been clearly defined by the Inter-American}

Court in the Velasquez Rodriguez v Honduras case57 where it indicated that States have to investigate situations where human rights have been violated.58 It has also been recognised by the HRC in its General Comment 359 and by the Security Council in its resolution 1653 where it states that “governments in the region have a primary responsibility to protect their populations, including from attacks by militias and armed groups”.60 Finally States have the obligation to fulfil human rights, “by which it is understood that states should take positive steps that have as a consequence the greater enjoyment of rights”.61

States have a clear obligation to protect the general right to education under article 13 (1) of the ICESCR. But the realisation of this right has to be done in a certain way as it belongs to the category of economic, social and cultural rights and therefore requires certain efforts from the State.62 States first have to ensure a “right to receive an education” as it has been laid down by the CESCR. 63 This means that States have a positive obligation under article 13 (2) of the ICESCR to make education first of all available,64 that is to say that “functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party”.65 Education has also to be physically and economically accessible to everyone in a non-discriminatory way.66 Other features67 of the right to education are that education should be acceptable and adaptable.68 This entails respectively that “the form and substance of education, including curricula and teaching methods have to be acceptable to students and, in appropriate cases, parents”69 and that

55_{A Constantinides (n12) 93} 56_ibid

57_{K Hausler N Urban and R McCorquodale, Protecting Education in Insecurity and Armed Conflict:} An International Law Handbook 28

58_{Vélásquez Rodriguez Case (Judgement) [1988] Inter-American Court of Human Rights (para 172}

and 176

59_{HRC, General Comment 3, 1981 para 8}

60_{UNSC Res 1653 (27 January 2006) UN Doc S/RES/1653 para 10} 61_{F Mégret (n52) 103}

62_{F Coomans ‘ch12 Education and Work’ in D Moeckli S Shah and S Sivakumaran (eds)} International Human Rights Law (2nd edn Oxford University Press 2014) 241

63_{CESCR, General Comment 13, 1999 para 6} 64_{ibid para 6 (a)}

65_ibid

66_{ibid para 6 (b) (i) (ii) (iii)} 67_{ibid para 6}

68_{ibid para 6 (c) and (d)} 69_{ibid para 6 (c)}

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flexibility is an important element of education, as it is essential to adapt to the needs of societies that are constantly changing.70

Next to this, the right to education also entails the right to educational freedom in article 13 (3) and (4) of the ICESCR.71 Individuals and especially guardians and parents must have the opportunity to choose an education for their children72, which can be a moral or a religious one,73 but they can also choose between public or private schools.74 Finally, article 13 (4) establishes the “liberty of individuals and bodies to establish direct educational institutions”. These two paragraphs of article 13 of the ICESCR include a negative obligation75_{on the State, which should “follow a policy of non-interference in private}

matters”.76

In the end, according to the CESCR, one can distinguish three types of obligations of States, namely the obligation to respect, protect and fulfil the right to education.77 The obligation to respect the right to education implies that the State should refrain from interfering.78 It requires states parties inter alia “not to adopt laws or other measures, and to repeal laws and rescind policies, administrative measures and programmes”79 which are not in conformity with the right to education. In addition, the State has to make sure that the right to education is guaranteed between private groups or individuals, that is to say in horizontal relations.80 This is part of the obligation to protect the right to education.81 States have to take the necessary measures such as implementing policy, legislative, regulatory, judicial, inspection and enforcement frameworks to prevent violations of the right to education by such actors and they also have to investigate and punish the harm caused by private entities and to provide effective remedy.82 Finally, the obligation to fulfil requires States to take specific measures,83_{such as adopting “appropriate legislative, administrative, budgetary, judicial,}

70_ibid

71_{ibid para 28-30} 72_{F Coomans (n62)}

73_{CESCR, General Comment 13, 1999 para 28} 74_{ibid para 29}

75_{F Coomans (n62)} 76_ibid

77_{CESCR, General Comment 13, 1999 para 50} 78_{F Coomans (n62) 247} 79_{M Ssenyonjo (n49) 23} 80_{F Coomans (n62) 247} 81_ibid 82_{M Ssenyonjo (49) 24} 83_{F Coomans (n62) 247}

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promotional and other measures including relevant national policies to ensure the goal of full realisation”84 of the right to education.

Section 3: Applicability of human rights treaties during Insecurity and Non-International Armed Conflict

Contrary to international humanitarian law, which only applies when there is an armed conflict,85 international human rights law applies at all times.86 As a consequence, international human rights law and therefore the right to education also apply during insecurity and non-international armed conflicts. The latter two situations are relevant for the purpose of this research as they entail inter alia situations of conflict between a State and an armed group.

Indeed, even though the term ‘insecurity’ is not a legal term,87 it describes “situations of disturbance and tension within a State that disrupt the normal functioning of key political, social and legal institutions, including those that are used to facilitate education. (…) ‘Insecurity’ does not include situations of intense violence that reach the threshold of armed conflict.”88_{Therefore the principles of international humanitarian law do not apply to these}

situations and international human rights law remains the only remedy to protect human rights in these circumstances.

Concerning non-international armed conflicts, it has to be distinguished from the state of insecurity as the relevant situation in this case amounts to an ‘armed conflict’.89 According to international customary law,90 “‘non-international armed conflict’ is a situation of violence between a State and a non-State armed group on its territory, or a situation of violence between non-State armed groups on the territory of the State”.91 But in order to not constitute a situation of insecurity, the violence in this case must be protracted and reach a certain level of intensity.92 The applicability of international humanitarian law to non-international armed

84_{M Ssenyonjo (n49) 25}

85_{K Hausler N Urban and R McCorquodale (n57) 8} 86_{ibid 18} 87_{ibid 7} 88_ibid 89_{ibid 8} 90_{ibid 8} 91_{ibid 8} 92_{ibid 8}

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conflicts93 does however not exclude the applicability of human rights treaties to these situations.94 Therefore it appears that the right to education is applicable and has to be respected in times of insecurity and of non-international armed conflicts.

As already mentioned in section 1 of this chapter, article 2 (1) of the ICESCR does not lay down the jurisdictional or territorial scope of the Convention but the International Court of Justice has shed some light on this. Indeed, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory the ICJ states that the ICESCR and so the right to education apply to “territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction”.95_The

construction by Israel of a part of the wall in the Occupied Palestinian Territory and thereby precluding access inter alia to educational facilities was found by the ICJ to violate the ICESCR.96 So the right to education in the ICESCR is applicable on “the territory of a State party and thus to all individuals situated on its territory, no matter their nationality or statelessness status”97 but it also applies extraterritorially. In Democratic Republic of Congo v Uganda the ICJ declared that “states are responsible under international human rights treaties for acts done in the exercise of jurisdiction outside their territory, especially in occupied territories”.98 The extraterritorial application of the rights laid down in the ICESCR has also been confirmed by the CESCR as it has indicated that “the State party’s obligations under the Covenant apply to all territories and populations under its effective control”.99

Nevertheless, it should be noted that the right to education is not an absolute right and it can be limited according to the general limitation clause in article 4 of the ICESCR. Such a limitation must be prescribed by law, be compatible with the nature of the relevant right and must have “the purpose of promoting the general welfare in a democratic society”.100_Only

when these three conditions are fulfilled, a limitation to the right to education is authorised. But the CESCR has added that the limitations clause in article 4 ICESCR is “primarily intended to be protective of the rights of individuals rather than permissive of the impositions

93_{ibid 8} 94_{ibid 18}

95_{S Joseph and A Fletcher (n25) 134 and Legal Consequences of the Construction of a Wall in the} Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ para 112

96_{S Joseph and A Fletcher (n25) 134}

97_{K Hausler N Urban and R McCorquodale (n57) 22} 98_{S Joseph and A Fletcher (n25) 134}

99_{K Hausler N Urban and R McCorquodale (n57) 23 and CESCR ‘Concluding Observations of the}

Committee on Economic, Social and Cultural Rights: Israel’ (26 June 2003) E/C.12/1/Add.90 para31

100_{International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,}

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of limitations by the State.”101 Concerning derogations of the right to education, which permit States to “ ‘escape’ temporarily from some of their treaty commitments during times of crisis”102_{, one should note that there is no derogation clause in the UN treaties protecting}

economic, social and cultural rights.103 This is however not determinative of whether derogations of such rights are permitted or not.104 According to the CESCR, serious limitations to the right to education for matters of national security or the preservation of public order have to be proportionate and clearly justified.105 It also appears that the CESCR has taken the view that “there can be no derogation by a State from any of the core obligations in the ICESCR”106_{which include inter alia basic education and non-discrimination as well.}107

101_{CESCR, General Comment 13, 1999 para 42}

102_{EM Hafner-Burton LR Helfer and CJ Fariss ‘Emergency and Escape : Explaining Derogations}

from Human Rights Treaties’ International Organization Vol.65 No.04 (2011) 674

103_{M Ssenyonjo (n49) 39} 104_{ibid 40}

105_{CESCR, General Comment 13, 1999, para 42} 106_{K Hausler N Urban and R McCorquodale (n57) 22} 107_ibid

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Chapter 2: Justifications for the application of international human rights law to

armed opposition groups

As seen in the previous chapter, States have obligations to respect, protect and fulfil the right to education. However, in situations of insecurity and non-international armed conflicts, States might be unable to fulfil these obligations. This second chapter will therefore essentially focus on the legal arguments that may justify the application of international human rights law to armed opposition groups. But it is of particular importance to first define the term ‘armed opposition group’.

Section 1: Armed opposition groups and their impact on education in insecurity and non- international armed conflict

There is no universal definition of the term ‘armed opposition group’108 and no standard definition can be found in the existing international human rights treaties. For the purpose of this research, the definition of armed opposition group used will be the one given by Gilles Giacca who described them as “any group, distinct from and not operating under the control of the state, which has political, religious and/or military objectives and lacks the legal capacity to become party to relevant international treaties. This conceptually encompasses entities ranging from armed groups, national liberation movements to de facto governing regimes, as well as partially internationally recognised states”.109 But one should note that this definition is “a doctrinal construct that remains open to diverse approaches and interpretations”110 and AOGs can have different sizes, adopt different structures, behaviours, motives and can have different goals and resources.111

There are several terms that might be used to describe these entities such as “armed groups”, 112 “armed non-state actors (ANSAS)”, 113 “non-state entities”,114 “non-state actors”,115 “non-governmental entities”,116 “insurgents”117 and “organised armed groups”118. 108_{G Giacca (n10) 232} 109_ibid 110_{ibid 233} 111_ibid 112_{ICHRP (n7) 5-6} 113_{J Somer (n9) 2} 114_{ICHRP (n7) 6} 115_ibid 116_ibid 117_{G Giacca (n10) 232} 118_ibid

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These terms give a more neutral designation to these entities (as they may sometimes be referred to as “liberation fighters”, “terrorists” or “bandits” which is more partisan)119 and “captures the idea that the group uses force and operates beyond state control and authorisation”.120

AOGs have an important impact on education in times of insecurity and armed conflict121 as children and educators are harmed in attacks on schools and educational facilities are destroyed.122 Next to the physical consequences to those attacks on education,123 there are also psychological effects that include “trauma, fear, insecurity, demotivation and despondency”.124_{Children will face fear when going to school and parents will be more}

reluctant to send their children there but also teachers will have doubts as to the continuation of their profession.125 Furthermore, “evidence suggests that education ‘as such’ is not simply the victim of collateral damage but that it has itself become a specific target of attacks.”126 Attacks on schools by AOGs have clearly a negative impact on children’s and people’s right to have access to education.127

Section 2: Arguments against the reluctance to apply international human rights law to armed opposition groups

As we have seen in Chapter 1, human rights treaties only address States. Therefore judicial or quasi-judicial bodies as for example UN human rights treaty monitoring bodies, have exercised jurisdiction only with regard to the behaviour of states.128 So AOGs have no formal obligations under international human rights law, 129 which led Zegveld to the conclusion that “such human rights treaties would (…) ‘neither [be] intended, nor adequate, to

119_{ICHRP (n7) 6}

120_{ibid 6}

121_{T Karimova G Giacca and S Casey-Maslen ‘United Nations Human Rights Mechanisms and the}

Right to Education in Insecurity and Armed Conflict’ (Protect Education in Insecurity and Conflict (PEIC)) 1

122_{ibid XXVI}

123_{B O’Malley ‘2010 Education under Attack : A global study on targeted political and military}

violence against education staff, students, teachers, union and government officials, aid workers and institutions’ (2010) 27 124_ibid 125_ibid 126_{T Karimova (n121) XXVI} 127_{ibid 36} 128_{G Giacca (n10) 243} 129_ibid

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govern armed conflict between the state and armed opposition groups’ ”.130 As the aim of this research is to identify what obligations AOGs might have under the right to education, it is important to understand why there might be reluctance to apply human rights law to AOGs. As we will see, there are strong arguments that overthrow those doubts.

Indeed, many human rights diplomats and lawyers maintain the traditional view that international humanitarian law should be the only body of law that should be applied to AOGs, leaving the applicability of international human rights law to States.131 This would avoid the distortion of human rights law132 and would permit to apply “appropriate criteria for armed conflict situations”.133_{But in Chapter 1 we noted that in many situations of insecurity,}

international humanitarian law cannot be applied, as the threshold of an armed conflict has not been reached.134 According to Clapham, “to fail to address the human rights obligations of the armed group at that point is to miss an opportunity to inform the international community and perhaps even alter the behaviour of the groups themselves”.135

Furthermore, international humanitarian law only holds AOGs accountable for a limited range of actions136 and is “unable to cover all the violations which may be committed by the armed groups against the civilian population but do not relate to the armed conflict, such as interference with rights to freedom of (…) education.”137 One can add to this that “human rights bodies and organisations”,138 such as the UN Committee on the Rights of the Child139 and Special Rapporteurs140 and Commissions of Inquiry of the Human Rights Council141, with their mandates restricted to international human rights law,142 regularly report violations of human rights (including the right to education), which are not committed by States but by armed groups143. One should notice that the fact that the UN Committee on

130_{L Zegveld Accountability of Armed Opposition Groups in International Law (Cambridge}

University Press 2002) 53-54 in G Giacca (n10) 244

131_{A Clapham (n11) 4} 132_ibid 133_ibid 134_ibid 135_ibid 136_{G Giacca (n10) 249} 137_ibid 138_{A Clapham (n11) 5}

139_{UN Committtee on the Rights of the Child ‘Report on the twenty-seventh session’ (23 July 2001)}

CRC/C/108 para 155

140_{UN Human Rights Council ‘Report of the Special Rapporteur on the situation of human rights in}

Myanmar, Yanghee Lee’ (23 March 2015) UN Doc A/HRC/28/72 para 31 and 35

141_{UN Human Rights Council ‘Report of the Independent International Commission of Inquiry on the}

Syrian Arab Republic’ (5 February 2013) UN Doc A/HRC/22/59 para 33, 114 and 116

142_{A Clapham (n11) 5} 143_ibid

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the Rights of the Child addresses AOGs is a new development as treaty bodies’ role is composed of the supervision of the implementation of human rights treaties.144 If those bodies cannot report on human rights violations committed by AOGs simply because international humanitarian law is considered to be the appropriate body of law for these entities,145 then this “could unnecessarily jeopardize their effectiveness”.146 “By not criticizing armed opposition groups, human rights organisations also threaten their legitimacy as unbiased observers. The repeated and vociferous criticism of the government on the human rights front seen in conjunction with the apparent silence of some human rights groups regarding the abuses committed by armed opposition groups, meets with a hostile reception.”147_{If these human}

rights bodies and special procedures of the Human Rights Council don’t report on human rights violations committed by AOGs, then they could loose their credibility.148

Another point that has been stressed against the applicability of human rights treaties to AOGs is the fact that some scholars consider that these entities have no capacity to “function as de facto governments and lack any effectiveness for protecting human rights”.149 In a certain sense, international human rights law would become useless if it would apply to non-state actors that are not able to comply with it.150 As we have seen in Chapter 1, economic, social and cultural rights such as the right to education need positive action on behalf of the State in order to be properly guaranteed and only refraining from interfering with those rights is not enough. The reality shows however that in many cases, AOGs do function as de facto governments and might have the capacity to at least comply with a negative obligation to respect human rights.151 “Therefore, it would not be entirely accurate to imply somehow that human rights obligations are an indivisible whole that cannot be tailored to any situation.”152

As explained in Chapter 1, States have a positive (indirect) due diligence obligation in international human rights law.153 Some scholars argue that conferring obligations arising

144_{United Nations Human Rights Office of the High Commissioner ‘Monitoring the core international}

human rights treaties’ <http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx> (26 June 2016)

145_{A Clapham (n11) 5} 146_ibid

147_{R Nair ‘Confronting the Violence Committed by Armed Opposition Groups’ Volume 1 Issue 1}

Article 1 Yale Human Rights and Development Journal Vol.1 Iss.1 Article 1 (1998) 10

148_ibid

149_{G Giacca (n10) 244} 150_ibid

151_ibid

152_{ibid and L Moir The Law of Internal Armed Conflict (Cambridge University Press) 194} 153_{A Constantinides (n12) 93}

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from human rights treaties to AOGs would therefore lead to the ineffectiveness of the human rights system protection154 as it is said that this would “somehow dilute the state’s responsibility to abide by its obligations as the main duty bearer”.155_{But according to Giacca,}

this point is not convincing as “there is no such thing as indivisibility of responsibilities under human rights law”156 and “there should be no compelling reasons to think that conferring obligations on ANSAs would diminish or even displace the concurrent responsibility of the territorial states”.157

Finally, reluctance of some human rights lawyers to apply human rights treaties to AOGs may also arise because the fact that such entities may have human rights obligations may provide them some kind of legitimacy158_{“by attributing State-like prerogatives to}

them”.159 In international humanitarian law this issue has been solved as many treaties state that the application of the obligations arising out of these instruments “changes neither the legal status of the parties to the conflict nor the legal status of a disputed territory”.160 Human rights treaties have begun to include similar provisions161 such as the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict in its article 4(3).162 Furthermore a resolution adopted by experts of the Institut de Droit International provided the following statement163: “All parties to armed conflicts in which non-State entities are parties, irrespective of their legal status, as well as the United Nations, and competent regional and other international organizations have the obligation to respect international humanitarian law as well as fundamental human rights. The application of such principles and rules does not affect the legal status of the parties to the conflict and is not dependent on their recognition as belligerents or insurgents.”164 So we can say that there are strong arguments that justify the application of the right to education to AOGs.

154_{G Giacca (n10) 245}

155_ibid 156_ibid 157_ibid

158_{Non-State Actors Committee, ‘Non State Actors: 3}rd_{report prepared by the co-rapporteurs, Cedric}

Ryngaert and Jean d’Aspremont’ (International Law Association, Washington 2014) 7

159_ibid

160_{G Giacca (n10) 248} 161_ibid

162_{Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in}

Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) art 4(3)

163_{G Giacca (n10) 249}

164_{The Institute of International Law, ‘The Application of International Humanitarian Law and}

Fundamental Human Rights in Armed Conflicts in which Non-State Entities are Parties’ (Berlin, 25 August 1999), para II <http://www.justitiaetpace.org/idiE/resolutionsE/1999_ber_03_en.PDF> (27 May 2016)

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Chapter 3: Factual and legal requirements for the application of international

human rights law to armed opposition groups

As we have seen previously, AOGs can have different forms, structures and goals. In order to determine if AOGs should bear obligations under international human rights law and especially under the right to education, AOGs must first fulfil certain factual characteristics, and there is also the need for a legal basis, which are prerequisites to open the way for the imposition of human rights.165

Section 1: Fulfilment of prior characteristics before applying international human rights law to armed opposition groups

As it is the case for States, in order to trigger human rights obligations of an AOG, the latter needs first to have effective territorial control.166 One could also apply the Al-Skeini reasoning of the ECtHR, namely where State agents exercise control and authority over an individual, the State has to secure to that individual the rights of the ECHR that are relevant to the situation of the individual, to AOGs.167 So AOGs have to guaranty specific human rights to an individual when they have personal factual control over that individual on a certain territory.

This requisite is crucial as it firstly proofs that the State has lost control over that territory168 or over that individual, even temporarily, “which justifies regulation of the situation by international law”.169 It is also necessary, as human rights law should not be imposed on a “pick-and-choose basis”170 but as a “comprehensive body of law”.171 “Since territorial control provides, at least prima facie, powers which affect the full gamut of human rights of individuals within the territory, it enables imposition of the full gamut of corresponding obligations.”172_{Another point justifying the requisite of territorial control or}

control over people is the fact that it carries with it that human rights have not only to be

165_{Y Ronen ‘Human Rights Obligations of Territorial Non-State Actors’ Vol. 46 Cornell International} Law Journal (2013) 25

166_{ibid 26}

167_{B Rainey E Wicks and C Ovey The European Convention on Human Rights (6th edn Oxford}

University Press 2014) 94 168_{Y Ronen (n165) 25} 169_ibid 170_ibid 171_ibid 172_ibid

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respected but also to be protected by AOGs in these cases.173 So a “categorical imposition of international human rights law as a comprehensive body of law”174 is only possible if AOGs exercise effective control over a territory175_{or over an individual. As an example, the UN}

Commission of Inquiry on Libya declared that176 “where non-state groups exercise de facto control over territory, they must respect fundamental human rights of persons in that territory.”177

A second characteristic that is needed for AOGs to bear human rights obligations is the capacity of those entities to create and implement policies.178 “The existence of an organizational apparatus exercising public functions and capable of securing human rights”179

is required, although this apparatus does not need to be sophisticated.180_{This capacity to}

protect human rights is closely linked to the requisite of effective territorial control or personal control, as you need to have an organization apparatus in order to have such control.181 Indeed, in a joint report of four special rapporteurs on Lebanon and Israel182, one can read that “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’ ”.183

According to Ronen, there is a last characteristic that is necessary and which is the “independent functioning”184 of the AOG that has territorial control185. It needs to be in a position that allows it to change its conduct when this is required without being dependant on

173_ibid 174_{ibid 27} 175_ibid

176_{T Rodenhäuser ‘International legal obligations of armed opposition groups in Syria’ International} Review of Law (2015) 4 http://dx.doi.org/10.5339/irl.2015.2 (28 May 2016)

177_{UN Human Rights Council ‘Report of the International Commission of Inquiry to investigate all}

alleged violations of international human rights law in the Libyan Arab Jamahiriya’ (1 June 2011) UN Doc A/HRC/17/44 para72

178_{Y Ronen (n165) 27} 179_ibid

180_ibid 181_ibid

182_{A Clapham ‘Human rights obligations of non-state actors in conflict situations’ International} Review of the Red Cross Vol.88 No.863 (2006) 507

183_{UN Human Rights Council ‘Report of the Special Rapporteur on extrajudicial, summary or}

arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-General on human rights of internally displaced persons, Walter Kälin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari’ (2 October 2006) UN Doc A/HRC/2/7 para19 in A Clapham (n182)

184_{Y Ronen (n165) 27} 185_ibid

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other entities, especially states.186 “The independence at issue is factual rather than normative, bringing to the fore the primacy of effective control over international title as a trigger for obligations”.187_{If an AOG is acting under the control of a state, which might mostly be}

difficult to prove, then the acts of that non-state actor will be attributable to the state under international law and not to the AOG.188 If all these factual requirements are met, the AOG can be considered to be able to trigger human rights obligations.189

Section 2: Possible legal basis for the application of international human rights law to armed opposition groups

In the first Chapter, we saw that human rights treaties such as the ICESCR explicitly address the behaviour of States and not of AOGs. So one would exclude human rights treaty law as a source of human rights obligations for AOGs. However, there exist two treaties in which armed groups are being addressed.190 Article 4(1) of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict provides that191 “Armed groups that are distinct from armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.”192_{According to Clapham, “the use of the word ‘should’ expresses a desire rather than a}

command but the wording ‘under any circumstances’ can be interpreted as a clear indication of a meaningful international obligation for ANSAs”.193_{This remains however subject to}

interpretation. The second human rights treaty that addresses the activities of armed groups is the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa194 and which declares in its article 2 that the objectives of this treaty are inter alia “to provide for the respective obligations, responsibilities and roles of armed groups, non-state actors and other relevant actors, (…) with respect to the prevention of

186_ibid 187_ibid 188_ibid 189_{ibid 30} 190_{G Giacca (n10) 245} 191_{ibid 246}

192_{Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in}

Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) art 4(1)

193_{A Clapham ‘The Rights and Responsibilities of Armed Non-State Actors : The Legal Landscape &}

Issues Surrounding Engagement’ (2010) 25

<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1569636> (28 May 2016) in G Giacca (n10) 246

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internal displacement and protection of, and assistance to, internally displaced persons”.195 However one should be careful as this treaty creates obligations for individual members of AOGs and not for the whole group as such.196_{Even though these two treaties do not address}

the right to education, it shows that there is a move in international law to extend obligations to AOGs and “thus reflecting the contemporary thinking of the nature of armed conflicts today in expanding conceptualizations of violence”.197 However, one should remind itself that AOGs have not given their consent to be bound by such treaty obligations and the binding nature of such provisions on AOGs is questionable.

Another way that might make the right to education binding on AOGs are jus cogens norms.198_{Indeed, even though reports of special rapporteurs, international commissions of}

inquiry and of international fact-finding missions are not binding,199 when the Commission of Inquiry reported in Syria in 2012 about the activities of the Free Syrian Army200, it stated that “at a minimum, human rights obligations constituting peremptory international law (jus cogens) bind States, individuals and non-State collective entities, including armed groups”.201 As jus cogens norms are peremptory norms from which no derogation by treaty or by customary law can be made and as they have a superior status and rank to all other rules of the international community,202 there might be a possibility that AOGs may be bound by these norms even though this remains debatable. If we follow the list of peremptory norms of international law such as the “prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination”203 that has been drawn by the International Law Commission,204 we can notice that the right to education is not a jus cogens norm and so this source of obligations for AOGs can be excluded in our case.

195_{African Union Convention for the Protection and Assistance of Internally Displaced Persons in}

Africa (adopted 2009 and entered into force 6 December 2012) (Kampala Convention) art 2

196_{G Giacca (n10) 248} 197_ibid

198_{G Giacca (n10) 257}

199_{United Nations Human Rights Office of the High Commissioner ‘Commissions of Inquiry and}

Fact-Finding Missions on International Human Rights and Humanitarian Law : Guidance and

Practice’ (2015) 7 <http://www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf> (29 May 2016)

200_{G Giacca (n10) 257}

201_{ibid 257-258 and UN Human Rights Council ‘Report of the Independant International Commission}

of Inquiry on the Syrian Arab Republic’ (22 February 2012) UN Doc A/HRC/19/69 para106

202_{A Cassese International Law (second edn Oxford University Press) 199}

203_{International Law Commission ‘Commentary of Article 26’ Yearbook of the International Law} Commission Vol II Part Two (2001) 85

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We have already noticed in the previous paragraphs that Commissions of Inquiry not only report violations of human rights law of States but also of AOGs.205 Interestingly, the Commission of Inquiry on Lebanon made the following statement:206_{“In addition to the}

international treaty obligations, rules of customary international human rights and humanitarian law bind States and other actors. (…) As a party to the conflict, Hezbollah is also bound to respect IHL and human rights.”207 Customary international human rights law is identified as a source of human rights obligations for AOGs. This statement has been confirmed by the Syria Commission of Inquiry,208 which provided that “Non-state actors cannot formally become parties to international human rights treaties. They must nevertheless respect the fundamental human rights of persons forming customary international law (CIL), in areas where such actors exercise de facto control.”209 The creation of CIL is composed of the actual behaviour of states (material facts) and of the belief that such behaviour is binding also called opinio juris (subjective belief).210 The CESCR has considered that211 “ ‘even in a situation of armed conflict, fundamental human rights must be respected’ and that ‘basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law and are also prescribed by international humanitarian law’ ”.212 So according to the CESCR, minimum standards of economic, social and cultural rights, such as implementing the right to education in a non-discriminatory way and providing free primary education, are part of CIL. One could then argue that AOGs might have an obligation to guaranty the minimum standard of the right to education under international customary law. However, as only commissions of inquiry have stated that AOGs are bound by human rights forming CIL and as States themselves have not made any such declarations, it can be debatable whether those non-state actors are bound by CIL for now, considering that the reports of those commissions of inquiry are not binding.

If we look at the practice of the UN Security Council, one can clearly see that it does not hesitate in its resolutions to address directly human rights violations committed by AOGs,

205_{ibid 255} 206_{ibid 256}

207_{UN Human Rights Council ‘Report of the Commission of Inquiry on Lebanon pursuant to Human}

Rights Council Resolution S-2/1’ (23 November 2006) UN Doc A/HRC/3/2 para67

208_{G Giacca (n10) 260}

209_{UN Human Rights Council, ‘3rd Report of the Independent International Commission of Inquiry on}

the Syrian Arab Republic’ (16 August 2012) Annex II UN Doc A/HRC/21/50 para10

210_{MN Shaw International Law (7th edn Cambridge University Press 2014) 53} 211_{G Giacca (n10) 261}

212_{CESCR, Concluding Observations: Israel (26 June 2003) E/C.12/1/Add.90 para 31 in G Giacca}

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by naming those groups or indirectly by using expressions such as “all parties to the conflict”213 or by distinguishing them from governments.214 Some of the resolutions of the Security Council have even been adopted under Chapter VII of the UN Charter.215_{It was in}

1995 that the Security Council addressed for the first time AOGs, namely the Liberian factions, by declaring that they have to respect the human rights of the civilian population.216 Since then, the Security Council continued to address AOGs in human rights terms in all situations of on-going armed conflict.217 For example with regard to the protracted conflict in DRC, it stated that it “welcomed undertakings by armed groups to abide by human rights law”.218_{The Security Council often refers in its resolutions at the same time to international}

humanitarian law, as it also requires for the respect for some rights in armed conflicts.219

However, according to Constantinides, “calls on AOGs to observe human rights in addition to or independently from international humanitarian law have been a noticeable innovation in Security Council practice and are in line with similar calls at all levels of the United Nations.”220 All these Security Council resolutions but also reports of Committees and Special Rapporteurs221 where AOGs are addressed in human rights terms have led Constantinides to the conclusion of the emergence of a customary rule “that extends human rights obligations to AOGs in control of territory”.222

A last possible source of human rights obligations for AOGs are the so called “consent-based sources”223 that is to say “unilateral declarations, internal documents such as codes of conduct, or ‘constitutions’ adopted by ANSAs, international agreements, and other deeds of commitment”.224 In such documents, AOGs can express their consent to be bound by human rights standards and the international community might rely on these documents.225 In the report of the Special Rapporteur on torture and other cruel, inhuman or degrading

213_{A Constantinides (n12) 97 and UNSC Res1529 (29 February 2004) UN Doc S/RES/1529 para7 and}

UNSC Res 1539 (22 April 2004) UN Doc S/RES/1539 para4

214_{A Constantinides (n12) 97 and UNSC Res1484 (30 May 2003) UN Doc S/RES/1484 para7} 215_{A Constantinides (n12) 97}

216_{ibid 99 and UNSC Res1001 (30 June 1995) UN Doc S/RES/1001 preamble} 217_{A Constantinides (n12) 100}

218_{ibid 99 and UNSC Presidential Statement 2 (2008) UN Doc S/PRST/2008/2} 219_{A Constantinides (n12) 100}

220_ibid

221_{ibid 102 and UN Committtee on the Rights of the Child ‘Report on the twenty-seventh session’ (23}

July 2001) CRC/C/108 para 155 and Commission on Human Rights ‘Situation of Human Rights in the Sudan, Report of the Special Rapporteur, Gerhart Baum’ (23 January 2002) E/CN.4/2002/46 para 91

222_{A Constantinides (n12) 102-103} 223_{G Giacca (n10) 264}

224_ibid