Post No.: 0768
Regardless of whether international law violations committed by States are settled by an international court or via independent interactions between States – the legal consequences are guided by general rules of international law on State responsibility. (This is unless a more specific rule exists in a more specific area of law, such as with respect to International Humanitarian Law (IHL).)
These general rules are codified in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which were drafted by the International Law Commission (ILC). They however haven’t been adopted in the form of a multilateral treaty as yet. Nevertheless, most of the Articles are considered to be already part of customary law.
Here, the violations of international law must be attributable to a State rather than to an individual – yet States are abstract entities and cannot commit any actions, let alone ones that break international law. Breaches are always in practice committed by individuals or groups of individuals. Yet breaches can be attributed to States when a conduct is from a person who is qualified as, and is acting in the capacity of, an organ of that State. The precise definition of an ‘organ of the State’ is left largely to the domestic law of each State to decide, but it generally means any person or entity who is empowered by the law of the State to exercise elements of the governmental authority of that State.
Attributable acts will include any acts that are carried out in the capacity of an organ of the State, even if they exceed the person’s authority or the person contravenes his/her orders. The private acts of these individuals won’t count for State responsibility though.
An example of an organ of the State is the armed forces of that State, hence any violations committed by members of the armed forces will count as State responsibility, as long as they were acting in their official capacity. However, there is a special rule, applicable only in international armed conflicts (IACs), which says that even acts committed by members of a State’s armed forces in their private capacity might also be attributable to the State for which they’re fighting for (e.g. a soldier who commits rape when temporarily on leave). This is based on the idea that armed forces are characterised by strict internal discipline. This clearly obliges States to exercise a permanent and strong control over their own troops.
A State can also be held internationally responsible for the conduct of private persons or entities – such as armed groups – when the State in fact instructs, directs or controls those private individuals.
How much control is enough though? A case that’s well-known in international law circles is the 1986 case brought by Nicaragua against the USA (Nicaragua v. United States). The US armed, trained and supported an armed group called the Contras to fight against the local Sandinistas, and then the Contras committed serious breaches of international law, including IHL violations. One of the questions was whether those violations were attributable to the USA?
The International Court of Justice (ICJ) used the ‘effective control’ test – where a State must be involved in planning and providing continuous support to any operation in which the alleged violations occurred i.e. a control over each military operation but not necessarily each wrongful act in the course of those operations. The ICJ ruled that this wasn’t the case here. But critics of this verdict assert that the threshold of this test is too high and is almost impossible to prove in facts.
In contrast, when a similar issue was examined in the 1999 Tadić case regarding serious violations committed during the Yugoslav Wars, the International Criminal Tribunal for the former Yugoslavia (ICTY) used an ‘overall control’ test. This test is similar to the ‘effective control’ test but the control needn’t be exercised on each military operation. However, the purpose for asking this question in the Tadić case was to determine whether a non-international armed conflict (NIAC) had been internationalised into an IAC by the intervention of a foreign State (which is important because more kinds of war crimes are applicable in IACs), rather than to establish State responsibility for a wrongful act.
Another way that a State can be held responsible for violations committed by private persons or entities is when insurrectional or separatist movements successfully take control of the government of a State, or when any kind of movement succeeds in establishing a new State in a part of the territory of a pre-existing State or in a territory under its administration. This means that this attribution would apply retroactively to an armed group before it became an organ of a State. But this is controversial because such rebels might not really represent the population. Therefore the ILC used the continuity between the existing or new State and the rebels as the justification for this rule. But this has also been criticised because the transition from rebel group to new State is frequently characterised by discontinuity as much as continuity. This rule is designed to avoid situations of impunity after civil wars, but it should be noted that armed groups could still be responsible for IHL violations that they conduct whilst being armed groups anyway.
Last time in this series (Post No.: 0744), we looked at the work of the International Committee of the Red Cross (ICRC). We had also already learnt that State responsibility is distinguished from individual criminal responsibility.
State responsibility resembles ‘civil’ rather than ‘criminal’ national law in the sense that the legal consequences if a State commits an internationally wrongful act include firstly a duty to cease that wrongful conduct, to make full reparations for the injury caused by that act, and to potentially face some form of economic sanction. State responsibility isn’t established by criminal courts but by institutions such as the ICJ. The notion of the criminal responsibility of States doesn’t exist.
Meanwhile, individual person criminal responsibility is determined by criminal courts, including by the International Criminal Court (ICC) at the international level. Concerning IHL, only serious violations of law that amount to war crimes may give rise to individual criminal responsibility. States, in contrast, can potentially be responsible for any kind of breach of IHL norms, serious or otherwise. An individual convicted of a war crime faces a criminal sanction, which generally consists of the deprivation of liberty i.e. time in prison.
Ultimately, State responsibility and individual criminal responsibility are regulated by two different and separate legal regimes. This means that it’s possible for a State to be held responsible for a serious violation of IHL without the concrete author of that violation being held individually criminally responsible for it, or vice-versa even if an individual was acting on behalf of a State. Having said that, one area of overlap concerns the establishment of facts – the facts established by a criminal court may be relied upon by the court ruling on State responsibility.
According to the ARSIWA, a State won’t be held responsible for an act that’d ordinarily violate international law if that act were performed with the consent of the affected State (which doesn’t actually need to be given in advance, although the violation cannot be a grave breach); under self-defence (the use of force in self-defence, although this doesn’t mean that all rules can be suspended in such circumstances); or as a countermeasure (reprisals not involving the use of force, such as temporarily suspending the performance of certain obligations in response to prior violations of international law by another State, although under strict conditions).
A State also won’t be held responsible if an act were performed because of force majeure (incredibly rare, unforeseeable events beyond the control of a State may render the performance of an obligation impossible, as long as they weren’t brought about by the conduct of a State seeking to escape its duty to perform its obligations, and the responsibility of the risks weren’t assumed at the time e.g. the collapse of the judicial institutions to prosecute suspected war criminals due to an armed conflict); distress (when an organ of the State couldn’t stay alive or save a life entrusted in their care without voluntarily violating international law, as long as the State didn’t bring about the situation of danger upon themselves e.g. a military vessel entering the territorial waters of another State due to mechanical failure); or necessity (States should be allowed to protect their own essential interests against grave and imminent perils when the ordinary performance of their international legal obligations would endanger those interests, as long as doing so doesn’t endanger the essential interests of other States, along with some other strict conditions).
These are circumstances precluding wrongfulness. Some of these reasons may not be specifically applicable to IHL though. And we must remember that under no circumstances can any act ever justify violations of peremptory norms.
Once it has been determined that a State has breached international law, the responsible State will need to cease violating the law, it must continue being bound by that law, and it needs to offer appropriate guarantees that it won’t break the law again. An international legal obligation isn’t simply terminated by its non-performance.
Injured States are entitled to receive reparations from the responsible or breaching State – in the form of restitution (to restore, as best as possible, the situation back to how it was prior to the breach); compensation (to cover all financially estimable damage and lost profits where restitution isn’t possible); and/or satisfaction (to receive acknowledgement and apologies for the wrongdoing where restitution or compensation are unsuitable). Injured States are also entitled to adopt countermeasures against the responsible State, subject to strict conditions such as they can never consist of violating IHL but only violations of other types of reciprocal obligations, like trade agreements. Regarding compensation, the responsible State won’t be made to indemnify the total war damages though if doing so would endanger the existence of that State itself, since this would violate fluffy human rights law because a population cannot be deprived from its own means of subsistence.
Non-injured States can also invoke the responsibility of a breaching State if the obligation that was breached is owed to a group of States or owed erga omnes (owed to the international community as a whole). They’re entitled to the cessation of the wrongful act, to receive assurances of non-repetition, and to claim reparations on behalf of an injured State(s). They might potentially be able to adopt certain countermeasures too.
All States can invoke the responsibility of another State if the violations are serious (gross or systemic) and relate to jus cogens or peremptory norms, which are fundamental norms of international law where no derogation is permitted by way of agreements i.e. any treaty that attempts to override such a norm (such as override the prohibitions on genocide or torture, or the protection of persons in the hands of the enemy) will be automatically deemed void. All States are required to cooperate through lawful means to bring the breach to an end, to not recognise any new situations (e.g. acquired territory) that arise because of the breach, and to not aid or assist in the maintenance of those situations.
Woof. We will look at how individuals, in contrast to States, who violate international law are prosecuted next time.