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5 See the ICRC database of customary IHL, available at: http://www.icrc.org/customary-ihl/eng/docs/home (last visited 8 August 2011). See also International Commission of Inquiry on Darfur, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004’, Geneva, 25 January 2005, para. 166, available at: http://www.un.org/news/dh/sudan/com_inq_darfur.pdf (last visited 20 January 2012).

6 SCSL, Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (Appeals Chamber), 31 May 2004, para. 22.

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8 ICC Rome Statute, Art. 7(2)(a), emphasis added.

9 Ibid., Art. 6, which does not specify that perpetrators must be state officials or agents.

10 See e.g. ICTY, The Prosecutor v. Ramush Haradinaj, Idriz Balaj & Lahi Brahimaj, Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008.

11 See e.g. SCSL, The Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (RUF Case), Case No. SCSL-04-15-T, 2 March 2009.

12 See ICC, ‘Situations and cases’, available at: http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/ (last visited 8 August 2011).

13 See e.g. Fletcher, Laurel E. and Weinstein, Harvey M., ‘Violence and social repair: rethinking the contribution of justice to reconciliation’, in Human Rights Quarterly, Vol. 24, No. 3, 2002, pp. 573–639CrossRefGoogle Scholar.

14 L. Zegveld, above note 4, p. 223.

15 For example, the Office of the Special Representative of the Secretary-General for Children and Armed Conflict.

16 See for example the work of the non-governmental organization Geneva Call, available at: http://www.genevacall.org/Themes/themes.htm (last visited 8 August 2011).

17 De Greiff, Pablo (ed.), The Handbook of Reparations, Oxford University Press, Oxford, 2006CrossRefGoogle Scholar; International Center for Transitional Justice, Reparations in Theory and Practice, New York, 2007.

18 Garcia-Godos, Jemima, ‘Victim reparations in the Peruvian truth commission and the challenge of historical interpretation’, in International Journal of Transitional Justice, Vol. 2, 2008, p. 65CrossRefGoogle Scholar.

19 Adopted by UNGA Res. 60/147, 21 March 2006.

20 Bassiouni, Cherif, ‘International recognition of victims’ rights’, in Human Rights Law Review, Vol. 6, No. 2, pp. 203–279CrossRefGoogle Scholar. Victims’ rights were also formulated in an overlapping UN instrument, ‘The updated set of principles for the protection and promotion of human rights through action to combat impunity’, Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher, UN Doc. E/CN.4/2005/102/Add.1, 8 February 2005.

21 Roht-Arriaza, Naomi, ‘Reparations decisions and dilemmas’, in Hastings International and Comparative Law Review, Vol. 27, 2004, pp. 157–200Google Scholar; Max Du Plessis and Stephen Pete, Repairing the Past? International Perspectives on Reparations for Gross Human Rights Abuses, Intersentia, Oxford, 2007.

22 See United Nations Human Rights Council, Study on the Right to the Truth, UN Doc. E/CN.4/2006/91, 8 February 2006.

23 Mégret, Frédéric, ‘The International Criminal Court and the failure to mention symbolic reparations’, in Social Science Research Network, 2008, p. 3Google Scholar, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1275087 (last visited 8 August 2011).

24 For an overview see Office of the United Nations High Commissioner for Human Rights (OHCHR), Rule of Law Tools for Post-conflict States: Reparation Programmes, United Nations, New York and Geneva, 2008, pp. 22–23Google Scholar.

25 Cavalaro, James L. and Brewer, Stephanie Erin, ‘Reevaluating regional human rights litigation in the twenty-first century: the case of the Inter-American Court’, in American Journal of International Law, Vol. 102, No. 4, pp. 768–827CrossRefGoogle Scholar.

26 F. Mégret, above note 23, p. 6.

27 C. Bassiouni, above note 20, p. 272.

28 Yael Danieli, ‘The right to restitution, compensation, and rehabilitation for victims of gross violations of human rights and fundamental freedoms: preliminary reflections from a psychological perspective’, in Eduardo Vetere and Pedro David (eds), Victims of Crime and Abuse of Power, United Nations, New York, 2005, p. 261.

29 OHCHR, above note 24, p. 23.

30 J. Garcia-Godos, above note 18, pp. 64–65.

31 Gillard, Emanuela-Chiara, ‘Reparation for violations of international humanitarian law’, in International Review of the Red Cross, Vol. 85, No. 851, 2003, p. 535Google Scholar.

32 Jann Kleffner, ‘The collective accountability of organized armed groups for system crimes’, in André Nollkaemper (ed.), System Criminality in International Law, Cambridge University Press, Cambridge, 2009, p. 255.

33 Ibid., p. 256.

34 M. Sassòli, above note 3, p. 47.

35 See rule 150 in the ICRC customary law study, Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2009Google Scholar, available at: http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule150 (last visited 8 August 2011).

36 Ibid., Vol. II, Ch. 42, Rule 150, Section C, XII.

37 For example, in an analysis of the ICRC study, Fleck argues that non-state actors have obligations ‘to make reparations to victims of war for acts committed under their responsibility’, apparently with no distinctions between them and states. See Fleck, Dieter, ‘International accountability for violations of the ius in bello: the impact of the ICRC study on customary international humanitarian law’, in Journal of Conflict and Security Law, Vol. 11, No. 2, 2006, pp. 179–199CrossRefGoogle Scholar.

38 It is interesting to note that the ICRC has recently identified the issue of reparation for victims of violations as an area in which legal development is urgently required, and presumably this could include the question of reparations by armed groups. See ‘Strengthening legal protection for victims of armed conflicts: the ICRC study on the current state of international humanitarian law’, Address by Dr Jakob Kellenberger, President of the International Committee of the Red Cross, 21 September 2010, available at: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/ihl-development-statement-210910 (last visited 8 August 2011).

39 International Commission of Inquiry on Darfur, above note 5, para. 590 onwards, esp. para. 600.

40 See Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 15 September 2009, paras. 1770–1771. It is interesting to note, however, that the commission recommended that the Palestinian Authority should ensure prompt and independent investigations of all allegations of serious human rights violations.

41 Gready, Paul, The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond, Routledge, London, 2010, p. 41Google Scholar.

42 Rosalind Shaw, ‘Linking justice with reintegration? Ex-combatants and the Sierra Leone experiment’, in Rosalind Shaw and Lars Waldorf (eds), Localizing Transitional Justice: Interventions and Priorities after Mass Violence, Stanford University Press, Stanford, CA, 2010, pp. 127–129.

43 See ‘Guatemala rebels apologize for abuses during civil war’, in Miami Herald, 14 March 1999.

44 Theidon Kimberly, ‘Histories of innocence: postwar stories in Peru’, in R. Shaw and L. Waldorf, above note 42, pp. 92–109.

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46 Catalina Diaz, ‘Challenging impunity from below: the contested ownership of transitional justice in Colombia’, in Kieran McEvoy and Lorna McGregor (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change, Hart, Oxford, 2008, pp. 189–216.

47 Baines, Erin, ‘The haunting of Alice: local approaches to justice and reconciliation in northern Uganda’, in International Journal of Transitional Justice, Vol. 1, 2007, pp. 91–114CrossRefGoogle Scholar.

48 See Human Rights Watch, Turning a Blind Eye: Impunity for Laws-of-War Violations during the Gaza War, 2010, p. 47 (in relation to Hamas); Human Rights Watch, All Quiet on the Northern Front? Uninvestigated Laws of War Violations in Yemen's War with Huthi Rebels, 2010, p. 6 (in relation to Huthis rebels); Amnesty International, Israel/Lebanon: Out of All Proportion: Civilians Bear the Brunt of the War, 2006, p. 68 (in relation to Hezbollah).

49 M. Sassòli, above note 3, p. 7.

50 ‘States do not wish to attribute government-like qualities to these groups. Conferring international legal personality on armed groups would involve recognizing the existence of another authority within the state’, L. Zegveld, above note 4, pp. 162–163.

51 ICTJ, Providing Meaningful Reparations to Victims, Briefing, December 2009, available at: http://www.iccnow.org/documents/ICTJ_SDN_briefing_AUPD-Reparatns.pdf (last visited 20 January 2012).

52 C. Rose, above note 45, pp. 309–310.

53 J. Kleffner, above note 32, p. 265.

54 Maria José Guembe and Helena Olea, ‘No justice, no peace: discussion of a legal framework regarding the demobilization of non-state armed groups in Colombia’, in Naomi Roht-Arriaza and Javier Mariezcurrena (eds), Transitional Justice in the Twenty-first Century: Beyond Truth versus Justice, Cambridge University Press, Cambridge, 2006, p. 136.

55 Anti-state armed groups that seek independence, autonomy, the end of perceived foreign or hostile domination, or a radical transformation of the political order, tend to operate within a broader community, usually with similar national, ethnic, religious, cultural, or linguistic attributes, in which there is usually wide passive support for the goals (if not always the means) of the group, from which active members are recruited, and which the group can claim as a constituency.

56 Fichtl, Eric, ‘The ambiguous nature of collaboration in Colombia’, in Colombia Journal, 29 March 2004Google Scholar.

57 Amnesty International, ‘As if Hell Fell on Me’: The Human Rights Crisis in Northwest Pakistan, 2010, pp. 45–46Google Scholar.

58 Human Rights Watch, Indonesia: The War in Aceh, 2001, p. 23.

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61 Zulaika, Joseba, Basque Violence: Metaphor and Sacrament, University of Nevada Press, Reno, NV, 1988, p. 85Google Scholar.

62 Brendan O'Leary and Andrew Silke, ‘Understanding and ending persistent conflicts’, in Marianne Heiberg, Brendan O'Leary, and John Tirman (eds), Terror, Insurgency, and the State: Ending Protracted Conflicts, University of Pennsylvania Press, Philadelphia, PA, 2007, p. 398.

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67 Americas Watch, Violations of Fair Trial Guarantees by the FMLN, 1990.

68 Ellis, Stephen, ‘Mbokodo: security in ANC camps, 1961–1990’, in African Affairs, Vol. 93, 1994, pp. 279–298CrossRefGoogle Scholar.

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71 Human Rights Watch, ‘Being Neutral is Our Biggest Crime’: Government, Vigilante, and Naxalite Abuses in India's Chhattisgarh State, 2008, p. 11.

72 Hayner, Priscilla B., Unspeakable Truths: Facing the Challenge of Truth Commissions, Routledge, New York, 2002, p. 60Google Scholar.

73 See Christie, Kenneth, The South African Truth Commission, Palgrave, New York, 2000, pp. 79–80CrossRefGoogle Scholar; Hayner, Priscilla, ‘Fifteen truth commissions 1974 to 1994: a comparative study’, in Human Rights Quarterly, Vol. 16, 1994, pp. 632–633CrossRefGoogle Scholar.

74 For a critical view on these commissions, arguing that they did not result in concrete alleviation of the victims’ suffering, see Cleveland, Todd, ‘“We still want the truth”: the ANC's Angolan detention camps and post-apartheid memory’, in Comparative Studies of South Asia, Africa and the Middle East, Vol. 25, No. 1, 2005, pp. 63–78CrossRefGoogle Scholar.

75 Ellis, Stephen and Sechaba, Tsepo, Comrades against Apartheid: The ANC and the South African Communist Party in Exile, James Currey, London, 1992Google Scholar.

76 Freeman, Mark, Truth Commissions and Procedural Fairness, Cambridge University Press, Cambridge, 2006, p. 18CrossRefGoogle Scholar.

77 Hayner, Priscilla B., Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, 2nd edition, Routledge, New York, 2010Google Scholar.

78 See McEvoy, Kieran, Paramilitary Imprisonment in Northern Ireland, Clarendon, Oxford, 2001, p. 11Google Scholar.

79 On the issue of IRA informers and the treatment of real and alleged informers more generally, see Dudai, Ron, ‘Informers and the transition in Northern Ireland’, in British Journal of Criminology, Vol. 52, No. 1, 2012, pp. 32–54CrossRefGoogle Scholar.

80 United Nations Human Rights Council, above note 22, para. 8.

81 See e.g. Moloney, Ed, Voices from The Grave: Two Men's War in Ireland, Public Affairs, New York, 2010, pp. 111–132Google Scholar.

82 David McKittrick, ‘The bloodstained soil of Ireland yields first of the “disappeared”’, in The Independent, 29 May 1999.

83 See e.g. Kim Sengupta, ‘Families appeal to IRA over graves’, in The Independent, 8 September 1998.

84 See ‘Help us find bodies – IRA’, in BBC News, 8 December 1998, available at: http://news.bbc.co.uk/1/hi/events/northern_ireland/latest_news/230227.stm (last visited 20 January 2012); ‘IRA continues search for missing bodies’, in An Phoblacht, 10 December 1998, available at: http://www.anphoblacht.com/news/detail/31650 (last visited 20 January 2012).

85 ‘IRA investigation locates grave sites’, in An Phoblacht, 1 April 1999, available at: http://www.anphoblacht.com/news/detail/32141 (last visited 20 January 2012). The IRA later admitted responsibility for the disappearances of two other people.

86 D. McKittrick, above note 82.

87 The actual recovery was carried out by a special body, the Independent Commission for the Location of Victims Remains (ICLVR), which was established by the British and Irish governments to co-ordinate the search for the disappeared. According to the legislation setting up the ICLVR, information passed in relation to locations of disappeared will be inadmissible in courts and forensic examination of the bodies will be limited to identifying the individuals and will not be used in police investigation. This was set up in two parallel legalizations, in the UK and in the Republic of Ireland: the Northern Ireland (Location of Victims’ Remains Act) 1999 (in the UK) and the Criminal Justice (Location of Victims’ Remains Act) 1999 (in the Irish Republic).

88 See Sinn Féin statement, available at: http://www.sinnfein.ie/contents/15239 (last visited 8 August 2010).

89 ‘Republican efforts continue to retrieve missing bodies’, in An Phoblacht, 13 July 2006, available at: http://www.anphoblacht.com/news/detail/15069 (last visited 20 January 2012); ‘IRA “was wrong” over bodies issue’, in BBC News, 11 July 2006, available at: http://news.bbc.co.uk/1/hi/northern_ireland/5170594.stm (last visited 20 January 2012).

90 See updated details on the ICLVR website, available at: http://www.iclvr.ie/en/ICLVR/Pages/TheDisappeared (last visited 1 September 2010). Many of the bodies were secretly buried in beaches, and the shifting and difficult terrain meant that the location of bodies has been difficult even when information was passed from the IRA. A former senior police officer who directs the ICLVR's investigative forensic work has confirmed that the information received has been mostly accurate and of high quality: see ‘Interview with Geoff Knupfer’, in BBC News, available at: http://news.bbc.co.uk/1/hi/northern_ireland/8020817.stm (last visited 1 September 2010).

91 Basic Principles, Art. 22(b).

92 Ibid., Art. 22(c).

93 Ibid., Art. 22(e).

94 McEvoy, Kieran and Conway, Heather, ‘The dead, the law and the politics of the past’, in Journal of Law and Society, Vol. 31, No. 4, 2004, p. 560CrossRefGoogle Scholar.

95 Basic Principles, Art. 22(d).

96 OHCHR, above note 24, p. 25.

97 An example of this type of reparation is the case of Juan Manuel Contreras San Martín et al. v. Chile, in the Inter-American Court of Human Rights, where, as a form of reparation for individuals wrongly convicted of crimes, the government has agreed in a friendly settlement: ‘[t]o publicly provide reparation to the victims before their community by means by an act of the Regional Government duly disseminated by the mass media, designed to restore their reputation and honor that had been certainly damaged by the judicial decisions that once harmed them’. Inter-American Court of Human Rights, Juan Manuel Contreras San Martín et al. v. Chile, Case 11.715, Report No. 32/02, 12 March 2002, para. 14.

98 F. Mégret, above note 23.

99 There is some overlap with the issue of the disappeared, but most individuals killed by the IRA as alleged informers were not disappeared. On the killings of informers by the IRA, see e.g. Moloney, Ed, A Secret History of the IRA, 2nd edition, Penguin, London, 2007Google Scholar.

100 Toolis, Kevin, Rebel Hearts: Journeys within the IRA's Soul, Picador, London, 1995, p. 194Google Scholar; R. Dudai, above note 79.

101 McKay, Susan, Bear in Mind These Dead, Faber and Faber, London, 2009, p. 235Google Scholar.

102 Ardoyne Commemoration Project, Ardoyne: The Untold Truth, Beyond the Pale Publications, Belfast, 2002, p. 367Google Scholar.

103 In an interview with the author, an ex-combatant and community activist said that: ‘When somebody was outed as an informer, the families felt themselves distanced from the republican community, because it was the republican community that killed their loved ones – but they were supposed to be part of it. They partly withdrew, because of the shame. The civilian population, especially young adults, didn't help because they inflicted a lot of cruelty on them’. Interview in Belfast, April 2009.

104 S. McKay, above note 101, p. 235.

105 Interview with ex-combatant, Belfast, August 2010.

106 Interview with ex-combatant, Belfast, August 2010. In the interview, he explained further the dynamics behind such pressure from republicans: ‘There's a tendency in a conflict situation that your first priority is to protect the army, and everything else is secondary. That happened and the leadership wasn't questioned. Like any other army the IRA wasn't a democratic organization. It's only when you're coming out of conflict that the possibility opens up to look at previous actions.’

107 Rosie Cowan, ‘He did the IRA's dirty work for 25 years – and was paid £80,000 a year by the government’, in The Guardian, 12 May 2003.

108 Jim Cusack, ‘Terror chiefs say “Sorry” to families of slain informers’, in The Independent, 5 October 2003.

109 Normally by way of a statement from the IRA published in the republican weekly An Phoblacht, usually signed by the codename P. O'Neill, the traditional code attesting to the authenticity of statements from the IRA.

110 ‘IRA Statement’, in An Phoblacht, 25 September 2003, available at: http://www.anphoblacht.com/news/detail/1407 (last visited 20 January 2012).

111 J. Cusack, above note 108.

112 ‘IRA apology’, in An Phoblacht, 5 April 2007, available at: http://www.anphoblacht.com/news/detail/18563 (last visited 20 January 2012).

113 ‘15-year-old Bernard Teggart was not an informer’, in An Phoblacht, 6 August 2009, available at: http://www.anphoblacht.com/news/detail/38660 (last visited 20 January 2012).

114 See e.g. ‘Killed for being an informer, but it was just a lie’, in Belfast Telegraph, 25 September 2010.

115 Basic Principles, Art. 22(d).

116 In addition, another consideration could be that campaigning for armed groups to provide symbolic reparations could also be a method of publicly ‘shaming’ groups that commit abuses.

117 ‘Volunteer cleared in IRA probe: Lenadoon man was not paid informer, family is told after in-depth inquiry’, in Irelandclick.com, 25 September 2003, available at: http://www.nuzhound.com/articles/Irelandclick/arts2003/sep25_IRA_volunteer_cleared.php (last visited 8 August 2010).

118 ‘Statement from the Braniff family in Belfast’, in An Phoblacht, 25 September 2003, available at: http://www.anphoblacht.com/news/detail/1407 (last visited 20 January 2012). See also e.g. Suzanne McGonagle, ‘Murdered teen's family welcome admission he was not an informer’, in Irish News, 7 August 2009.

119 IRA statement from 16 July 2002. The full text is available at: http://cain.ulst.ac.uk/events/peace/docs/ira160702.htm (last visited 8 August 2010).

120 The girl was killed by a stray bullet from an IRA unit shooting at a British army patrol. The IRA at the time claimed that she was killed by British Army bullets and even later claimed that it had killed a soldier in retaliation. See Eamonn MacDermott, ‘IRA apologise for death of Derry schoolgirl’, in Derry Journal, 24 June 2005. The full text of the IRA 2005 statement is available at: http://cain.ulst.ac.uk/othelem/organ/ira/ira230605.htm (last visited 8 August 2011).

121 ‘IRA apology’, in An Phoblacht, 13 April 2006, available at: http://www.anphoblacht.com/news/detail/13838 (last visited 20 January 2012).

122 ‘IRA offers apology’, in An Phoblacht, 6 September 2007, available at: http://www.anphoblacht.com/news/detail/20561 (last visited 20 January 2012).

123 See e.g. A.-M. La Rosa and C. Wuerzner, above note 4, p. 333.

124 See e.g. African National Congress National Executive Committee's Response to the Motsuenyane Commission's Report, 29 August 1993.

125 Unlike some recent codes of conduct that include explicit references to IHL or human rights, the IRA's code, often referred to as the ‘Green Book’, has no such references. It does contain a rudimentary procedural system of court martial for investigations and punishments of members. Though theoretically confidential, the Green Book was, for example, published in an annex in Martin Dillon, The Dirty War, Hutchinson, London, 1990.

126 ‘IRA apology’, 5 April 2007, above note 112.

127 ‘IRA statement’, 25 September 2003, above note 110.

128 Interview with ex-combatant, Belfast, 31 August 2010.

129 See contemporary condemnation of informer killings by the IRA in Human Rights Watch, Northern Ireland: Human Rights Abuses by all Sides, 1993, and Amnesty International, Political Killings in Northern Ireland, 1994.

130 A similar and perhaps even stronger case can be made in relation to de facto states or ‘state-like entities’, such as South Ossetia or Somaliland.

131 M. Sassòli, above note 3.

132 For example, Zegveld argued that ‘opposition groups which fail to achieve their goals typically disintegrate and disappear after the conflict’: L. Zegveld, above note 4, p. 156; and see also J. Kleffner, above note 32, p. 265.

133 This is also a result of the fact that many transitions out of internal, identity-based conflicts can be long, complex, and non-linear. See Campbell, Colm and Ní Aoláin, Fionnuala, ‘The paradox of transition in conflicted democracies’, in Human Rights Quarterly, Vol. 27, 2005, pp. 172–213Google Scholar.

134 Beck, Teresa, ‘Staging society: sources of loyalty in the Angolan UNITA’, in Contemporary Security Policy, Vol. 30, 2009, pp. 343–355CrossRefGoogle Scholar.

135 Ibid., p. 344.