A/HRC/12/48
page 80
question of their human rights obligations must be addressed. It should be noted that the same
issue does not arise with regard to IHL obligations, the question being settled some time ago. As
the Special Court for Sierra Leone held, “it is well settled that all parties to an armed conflict,
whether States or non-State actors, are bound by international humanitarian law, even though
only States may become parties to international treaties.” 184
305. The relationship between IHL and IHRL is rapidly evolving, in particular in relation to
non-State actors’ obligations, with the ultimate goal of enhancing the protection of people and to
enable them to enjoy their human rights in all circumstances. In the context of the matter within
the Mission’s mandate, it is clear that non-State actors that exercise government-like functions
over a territory have a duty to respect human rights.
306. The Mission notes that the Palestinian Authority, through its public undertakings as well
as those of the Palestine Liberation Organization (PLO) and the Palestinian Legislative Council,
has declared its commitment to respect international human rights law in several instances,
including in the context of international agreements. This commitment is also contained in the
Palestinian Basic Law.185
307. The obligations of the Gaza authorities may be viewed through a different lens but leading
to the same result. The Gaza authorities also reiterated to the Mission their commitments to
respect human rights. Hamas has also made a series of unilateral declarations of respect for
human rights. Furthermore, the Palestinian Basic Law with its many human rights provisions
also applies in the Gaza Strip.186
308. A third issue to be addressed here relates to the right to self-determination and its
application to the definition of combatant status and its impact on the principle of distinction.
Armed conflicts opposing national liberation movements and/or resistance movements against
colonialism and occupation are regarded as international armed conflicts by Additional Protocol
I, article 1 (4). Under international law, notably Additional Protocol I to the Geneva
Conventions, any action of resistance pursuant to the right to self-determination should be
exercised with full respect of other human rights and IHL.
See for instance, Prosecutor v. Sam Hinga Norman, case SCSL-2004-14-AR72(E), Decision on preliminary
motion based on lack of jurisdiction (child recruitment) (31 May 2004), para. 22.
184
Legal Consequences…, para. 91; A/HRC/10/22, para. 21; Barcelona Declaration, 27-28 November 1995,
available at: http://www.euromedrights.net/281. The Palestinian Basic Law can be found at
http://www.palestinianbasiclaw.org/2002-basic-law. See also “Report of the High Commissioner for Human Rights
on the implementation on Human Rights Council resolution 7/1” (A/HRC/8/17, para. 8).
185
Meeting and correspondence with the Mission. In this respect nine special procedures mandate holders have
stated: “non-State actors that exercise government-like functions and control over a territory are obliged to respect
human rights norms when their conduct affects the human rights of the individuals under their control” (A/HRC/10/22,
para. 21). This view follows the statement in the same line by four other special procedures mandate holders who
visited Lebanon in the aftermath of the 2006 war: “Although Hezbollah, a non-State actor, cannot become a party to
these human rights treaties, it remains subject to the demand of the international community, first expressed in the
Universal Declaration of Human Rights, that every organ of society respect and promote human rights … 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.” (A/HRC/2/7, para. 19).
See also A/HRC/10/22, para. 9.
186
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