State Responsibility in the context of non-state actors

State Responsibility in the context of non-state actors

Lilian Nyamwaro

Are the International Law Commission’s 2001 Articles on State Responsibility for Internationally Wrongful Acts sufficiently robust in the context of non-state actors who commit acts of terrorism?

The principle of state responsibility under international law was created to protect the rights of all sovereign states in the international community and dictates that any state which violates its international obligation must be held accountable for its actions. As a general rule all sovereign states are equal in right as well as in their corresponding duties to respect the rights of other sovereign states. Traditionally, state responsibility only applied to injured aliens and was not sufficiently robust in the context of state responsibility. However, the new rule on state responsibility was adopted and codified into the Draft articles on Responsibility of States for Internationally Wrongful Acts in August 2001 by the ILC,[1]  which are now fundamental principles that reflect customary international law and impose a binding obligation upon all states.

The law of state responsibility is based on the perception of acting through an agent. The key question to ask here is whether a person(s) has acted as an agent of a state and if his action(s) can qualify as those of a state. Article 2 states that, “There is an internationally wrongful act of a state when conduct consisting of an action or omission is; a) attributable to the state under international law, and b) constitutes a breach of an international obligation of the state”.[2]

These 2 elements were key in the PCIJ deliberation in the Phosphate in Morocco Case. The court linked the creation of an international responsibility with the creation of an “act being attributable to the state and described it as being contrary to the treaty rights of another state.[3]  Similarly, in the Dickson’s car wheel company case, the USA General Commission established that the condition required for a state to incur international responsibility is that “an unlawful act must be imputed to the state”.[4]

In theory, the conduct of all human beings and corporations linked to the State by nationality, habitual residence or incorporation might be attributed to the State, whether or not they have any connection to the Government. In international law, such an approach is avoided; both with a view to limiting the responsibility to conduct which engages the state as an organisation and also to recognise the autonomy of a person acting on their own account and not under duress of any form. Hence the rule is that the only conduct attributed to the state at international level is that of its organs of government, or of others who have acted under the direction, instigation or direct control of those organs, i.e. as agents of the state.

The attribution articles are found in articles 4-11 of the ILC draft articles on state responsibility. However the ones that deal specifically with the conduct of non-state actors are articles 8-11.

Article 8 states that, “the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”. [5]

As a general principle, the conduct or actions of a private person is not attributable to the state, however where there is a specific factual relationship between the state and that private person, then the actions of that person might be attributable to the state. The difficulty with this article involves the link that must be established in order to equate acts of private actors as those of a de facto state agent. One might argue what degree of control is required? In the Military and Parliamentary activities against Nicaragua case, the question was whether the conduct of the contras was attributable to the US so as to hold the latter generally responsible for the breach of international humanitarian law committed by the contras.[6]  It was clear from the evidence provided that the contras were a proxy army for the Unites States and had full financial support from the US. The ICJ in looking at the issue of control held that the US was not responsible for the planning, direction and supporting of the Nicaragua operatives. They concluded that “For this conduct to give rise to legal responsibility of the united states, it would in principle have to be proved that the state had effective control over the military or paramilitary operations in the course of which the alleged violations were committed”.[7]  The courts confirmed that a general situation of dependence and support would be insufficient to justify attribution of the conduct to the state. [8]

However in the Tadic case, the Appeal chambers of the International Tribunal for the former Yugoslavia in addressing the issue of degree of control stated that, “The requirement of international law for the attribution to States of acts performed by private individuals is that the state exercises control over the individuals. The degree of control may however vary according to the factual circumstances of each case. The appeal chambers failed to see why in each and every circumstance, international law should require a high threshold for the test of control. [9]  The Appeal chambers held that the necessary degree of control by the Yugoslavian authority over the armed forces was overall control as it involved participation in the planning and supervision of the military operation. The ICTY asserted that the state should have control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of the military operation.[10]

The Overall control test in the Tadic case with reference to non-state actors are seen to be less stringent as it can easily show attribution which in effect will open a floodgate of cases. The principle of effective control founded in the Nicaragua case was reaffirmed later in the Bosnia Genocide case. [11] The Court rejected the overall control test which in attributing the acts of the irregular militia to the state that the ICTY had laid down in Tadic. They instead re-affirmed the effective control test adopted by the ICJ in Nicaragua. The court held that, “the applicant has not proved that instructions were issued by the federal authority in Belgrade, or by any other organ of the FRY, to commit the massacre.” [12]

In applying these principles to the Al-Qaeda and Taliban relationship in Afghanistan, one might argue that it is difficult to establish that the Taliban directed and controlled the Al-Qaeda action with specific reference to the World Trade Centre bombing. Therefore the effective control test is hard to administer. The overall control test argument is more persuasive in this case as it can show that the Al-Qaeda has been operating in the territory of Afghanistan and has a very close and mutual beneficial relationship with the Taliban regime. Although the overall test is less stringent, it highlights the importance of considering the facts surrounding every individual case for the purpose of having a sensible discernment of state responsibility.

Article 9 deals with the conduct carried by a person or groups of people exercising governmental authority in the absence or default of the official authority. Under international law this act or conduct is considered as an act of a State.[13] This ground for state responsibility is only usable in very exceptional cases, where the regular authorities have been disintegrated, suppressed or inoperative.[14]  The most feasible example in such a case would be futile states in the context of terrorism.

The general rule is that the conduct of non state actors must be attributable to the State for the purpose of State Responsibility. Article 11 however deals with the conduct that has been acknowledged and adopted by a state as its own. The article states that, “conduct which is not attributable to a state under the preceding article shall nevertheless be considered an act of that state under international law if and to the extent that the state acknowledges and adopts the conduct in question as its own.” [15]

This exception is concerned not with the implied state complicity arising out of the failure to prevent or prosecute the private offender but with the explicit ratification and adoption of the private conduct by the state. [16] It is important to pay attention to the Language used in this article. The reference to adoption in the article is intended to lay emphasis on the idea that the conduct must be acknowledged by the state as in effect its own conduct. This is clearly illustrated in the United States Diplomatic and Consular staff in Tehran case.[17] This case involved the seizure of the United States Embassy and its personnel’s by Muslim Student Followers of the Imam’s Policy, a group which had no official status in the Iranian government. The ICJ in this case had to decide whether the Iranian government was responsible for the conduct of the students. In the following days after the attack, there were numerous endorsements by the Iranian authority condoning what the students had done.

Although this was an act by private individuals, the state of Iran expressed approval of such a conduct and maintained the situation. In the words of the ICJ Court,  “The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States Government were complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State”. [18]
 

Although the question of whether the attribution in this case is prospective or retroactive remains heavily debatable, the ILC has expresses a more realistic view. “Where the acknowledgment and adoption is unequivocal and unqualified, there is good reason to give it a retroactive effect”.  [19]

This can easily be related to the Al-Qaeda and the Taliban regime. Although the Taliban as the de facto government of Afghanistan were not directly involved in the September 11 Attacks, they did not publicly condemn the Al-Qaeda actions. They have been aware of the Al-Qaeda terrorist operation in Afghanistan but have always played the silent card. In applying the principle of adoption, one can say that the Taliban regime can be construed as the due adoption of the Al-Qaeda attacks. On the other hand if we look at the emphasis by the ILC on the adoption being clear and Unequivocal, it will be hard to provide sufficient evidence to support this argument based on the principle of adoption. There is no conclusive argument but the judicial reasoning behind some of the illustrated cases proves the ILC articles in relation to state responsibility are indeed sufficiently robust in dealing with acts of terrorism by non-state actors.

Lilian Nyamwaro is International Relations Officer for Facilitate Global.  She can be contacted at  lilian.nyamwaro@facilitateglobal.org