Non-State actors: Use of force and State attribution

Picture Courtesy: https://zhuanlan.zhihu.com/p/24927919

This article was written by Piyush Tiwari, a student of WBNUJS, Kolkata.

Introduction

International law has developed considerably in the recent past. However, the status of Non-state actor is still under developed. Also there is no regulations on the use of force by NSA.  Article 2(4)[1] of the UN Charter prohibit the use of force by member state against territorial integrity of any other member state. However, it is still unclear if this includes non-state actors. Also if the states have a right to self-defence (pre-emptive and anticipatory) as countermeasures against the actions of non-state actors.[2] International humanitarian law and customary international law openly apply to terrorist armed groups.[3] Also we have seen that how United Nations Security Council (UNSC) obligates non-state actors, to adhere to its earlier resolution and ceasefire settlements.[4]

Articles on the Responsibility of States for Internationally Wrongful Acts(ARSIWA) talks about responsibility of states for the acts done by non-state actors.[5] However, the state is not directly responsible for the acts of private actors still it is attributed to the state on the basis of what kind of control it exerts. This is the most important element of attributability to state under ARSIWA. The concept of attribution under international law has become very important after the 9/11 attacks, emergence of Al-Qaeda etc. Also in some countries these non-state actors have so much power that they have even captured large territories and they administer those parts as per their wish.

LEGALITY OF USE OF FORCE BY NON-STATE ACTORS

One of the fundamental tenets of the UN Charter is the prohibition of either the use of force or the threat to do so[6]. It is, in fact, so fundamental that it has attained the status of customary international law and is universally acknowledged as a peremptory norm.[7] It must be noted that the aforementioned prohibition does not discriminate on the basis of the magnitude of the force used or threatened. As such, it encompasses all forms of use of force, ranging from the relatively minor incidents of cross-border violence to blown out war. While the expanse of the prohibition might be vast, Article 2(4) of the UN charter seems to limit its applicability solely to the context of inter-state relations. That is to say, the said article does not explicitly prohibit usage or threat of the same of force against non-state actors, even when it’s done in an extra-territorial manner. This is not to imply full authority to states to engage in said extra-territorial activities against non-state actors, however, since any such action would invariably violate the sovereign integrity of the state within which said action occurs, regardless of the ultimate target of the use of force in the first place. In essence, this impairment effectively limits unilateral actions of states, in absence of an UNSC authorisation, to cases of self-defence as laid down under Article 51[8] of the UN charter and customary international law. Thus, unilateral action is possible only if the use of force by a non-state actor can be attributed to another State as constituting an armed attack.

This interpretation of the reconciliation between Articles 2(4) and 51 of the UN charter is not without its detractors though, even counting among them some judges of the ICJ in their personal capacity.[9] The 9/11 attacks, and the resulting ‘War on Terror’, created fertile ground for a potential redesign of the entire concept of the law of self-defence. One sign of this conceptual rejig can be seen in UN Resolutions 1368 (2001)[10] and 1373 (2001)[11] which saw the UNSC recognise the inherent right of individual or collective self-defence while consciously shying away from referring to an armed attack by a state. This led to many scholars postulating that the ambit of the prohibition of use of force has been widened significantly to cover the activities of terrorist groups and raising the possibility of bringing such actions by the terrorist groups within the definition of armed attack.

The wording of article 2(4) of the UN Charter meant that use of force by private actors was excluded. Indeed, many states took the argument that the words ‘in their international relations’ used in article 2(4) of the UN charter specifically excluded use of force in cases of civil wars or internal rebellions. There exist, however, scholars on the other side of the aisle who point to the practice of the UNSC in the 90s to bolster their view of extension of the prohibition of the use of force to conflicts within the states.[12] These practices referred to above include resolutions on non-international armed conflicts, enforcing an obligation to observe a ceasefire, refrain from using any force, condemning violations of said ceasefires and the refusal to grant legitimacy to territorial gains achieved by force by any party to a conflict. As O. Corten rightly cautions, finding a basis for extending the prohibition of use of force to non-state actors in such practices by the UNSC would be fallacious and wrong in law[13]. To prove his point, he points out a few things. First, ‘the condemnation sometimes made of the use of force within a State is not made by reference to article 2(4) but rather on the basis of observance of the elementary rules of protection of human rights, including in times of non-international armed conflict’.[14] Second, the UNSC never once resorted to Article 2(4) while detailing the obligations contingent on the parties to a non-international armed conflict.[15]

These arguments, however, need to be looked at through the lens of article 51 of the UN Charter which does not prescribe the origin of armed attack and the growing state practice of regarding self-defence as being applicable against non-state actors. Examples of such an exercise include the famous Operation Enduring Freedom in 2001, Rwanda’s actions in the territory of the Democratic Republic of Congo in response to acts of former Armed Forces of Rwanda/Interahamwe forces[16] or Israel’s response to Hezbollah’s attacks.[17] Similar claims have been made by Senegal, Thailand and Tajikistan.[18] Closer to the Western world, the US raids on several camps and installations in Sudan and Afghanistan as a response to the bombings of American embassies in Kenya and Tanzania supply further proof of state practice. In the latter case, the US never attributed the said bombings to the governments of either Sudan or Afghanistan, but said that the failure of its efforts to convince the governments to shut down said terrorist activities left them with no choice but to conduct air strikes in their territory. Furnishing of so many examples, however, should not be construed as demonstrating the unanimous position of the world because the reaction of many third states as to the legality of the abovementioned actions remains mixed in nature.

USE OF SELF DEFENCE AGAINST NON-STATE ACTORS

Under Article 2(4)[19] of the UN Charter the use of force by state is prohibited. It is regarded as jus cogens. However, exception to this principle of law exists under Article 51[20] of the UN Charter. Article 51 recognises the “inherent right of individual or collective self-defence” against an “armed attack”. However, the scope of this right is still debatable. International Law prohibits the use of force by state against non-state actors however in practice it is not strictly adhere to and there have been instances where self-defence has been invoked by states against non-state actors.[21] In the Nicaragua case[22], the ICJ held that the states can only use self-defence against non-state actors in case of any armed attack if there is involvement of the host state. Thus ruling that the inherent right of self-defence cannot be used against non-state actors when there is no state involvement.[23]

After the 9/11 attacks there has been a slight shift in the state practice. United Nations Security Council passed two resolutions after the 2001 attack namely as resolution 1368[24] and 1373[25] which recognised the US right of self-defence against Al-Qaeda without attributing the acts of the non-state actors to a state. Also the use of self-defence against non-state actors was supported by China and Russia during the War on Terrorism. Also NATO, ANZUS, OAS and EU members acknowledged the response by US against Al-Qaeda.[26] Judges Kooijimans and Buergenthal in the Construction of a Wall[27] case gave separate opinions and according to them these you abovementioned resolution does not limit the use of self-defence to state actors rather it widens the scope of the principle of self-defence and supports it use against non-state actors. Judge Simma in his separate opinion in the Democratic Republic of the Congo v. Uganda[28] case, said that there is a pressing need for a revaluation of the restrictive reading of the right to self-defence enshrined under Article 51 of the UN Charter. He further opined that the UNSC resolutions passed after 9/11 attacks gives legitimacy to the use of force against non-state actors in case of an armed attack.[29]

STATE ATTRIBUTION OF USE OF FORCE BY NSA

It is the basic premise of international attributability that the conduct of private/non-state actors will not make the state responsible.[30] The reasoning behind this principle is the concept of private and public entities, one cannot be held liable for other unless there is some nexus between them.[31] Therefore state liability is only limited to action of its agency or institutions performing state functions.[32] Only in certain circumstances can the state be held liable for the acts of non-state actors, there are three criteria when the acts of the NSA can be attributed to the state they are when a non-state actor acts under the state’s command or control.[33] The justification behind this principle is that when a non-state actor words on the instruction of the state then the consequences are considered to be its own, also the actor becomes a state organ.[34] The Customary International Law that is opinion juris and wide state practice indicates control as the primary criteria for determining the attributability of the actions of non-state actors working on the instructions of the state.[35] The moot point in this context is the kind of control or the extent of control that has to be exercised by the state to attribute the acts of non-state actor to the state. Article 4[36] and 8[37] of ARSIWA talk about state control. Under ARSIWA two types of liability arises one is when the non-state actor is de facto organ and the other is when it acts on behalf of the state.[38] In Nicaragua case the ICJ discussed the two standards mentioned in Article 4 and 8 of ARSIWA dealing with state responsibility.[39]

Article 4 of ARSIWA deals with the type of entities which are closely linked with the state and hence they may be called as de facto organ.[40] Under this article states that the conduct of such de facto state organ will be considered as the acts of the state and the latter will have to take responsibility for any misconduct of the former.[41] For determining if a private actor can be taken as a de facto organ we have look into the internal law of the state and hence it becomes very subjective. Nonetheless practice is also taken into consideration while determining the status of private actor, in addition to the functional and structural test.[42] The threshold for proving de facto organ is very high as a result it can only be established in exceptional cases.

On the other hand, Article 8 of ARSIWA deals with the entities which work outside the ambit of de facto organ. It states “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.”[43]  This article is similar to the analysis given by ICJ in the Nicaragua case. In that case the US was financing, training and was supplying goods to an armed group which was a group fighting the Nicaraguan government. The ICJ held that actions of the armed group were not attributable to the US despite its support. It held that the control has to be in all fields so as to say that the armed group is working on behalf of the US or that it can be said that the US instructed to act in violation of the International humanitarian law.[44] It also held that instruction given in general will not satisfy the criteria of effective control, the instructions should be given for each and every operation in which the violation of any law is alleged.[45]

These approaches create a responsibility gap as the threshold is very high and because of this this there is no attribution to the state even in cases of flagrant violation of human rights and international law. This scenario makes it imperative to re-evaluate the principle of attribution. Some obligations should be imposed on the states to prevent such incidences of violation by private actors.

ATTRIBUTABILITY GAP

Even though the existing law of state responsibility in regard to the practice of attribution exists for state as such, but fails to be expansive and applicable, especially in case of a non-state. The law for state conduct and its responsibility in practice of attribution flows from Article 4 and 8 of ARSIWA, in case of non-state actors however the provision fails to mind circumstances in which financial, military or other support to a non-state actor.

This kind of a very literal and narrow domain provision leads to legal uncertainty and vagueness in case of attribution of state responsibility for conduct of non-state actors.

 This inference is supported by the international community in judicial precedents such as the case law of the ICJ, namely the Nicaragua, Armed Activities[46] and Bosnia Genocide case[47], in which the court went for a limited interpretation of attribution of non0state actor activities to the state. Court took this approach as in regard for the limited scope provided by the provisions of the law.

Through its judgment ICJ has set up on an inference of law, according to which, a financial contribution or the sending of military equipment, even more so if it is a sporadic one, does not turn a private actor into a de facto organ of the state. The judgement of the court leaves questions like is there room to consider financial or military contribution to the wrongdoing as part of the control, direction or instructions test?  This approach of court requires that the non-state actor which is being funded or helped by the state be under control and influence of state for a considerable amount of time. The Court substantiated this approach as by stating, that for responsibility of the USA to arise in respect of some actions of the Contras, which were in breach of international humanitarian law (killing of prisoners, indiscriminate killing of civilians, torture, rape and kidnapping),[48] it would have to go beyond mere financing or equipping, and the USA would have had to have ‘directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State’.[49] In other words, the Court required ‘the issuance of directions to the contras by the US concerning specific operations …and ordering of those operations by the US, or … the enforcement by the US of each specific operation of the contras, namely forcefully making the rebels carry out specific operations’.[50] A mere financial or military contribution will most certainly fall short of this test. This approach taken by the court absolves state in their control of non-state actors by setting up a higher standard of control, but also ensures that a mere support by a state cannot be shown to associated with control of a non-state actor, for its conduct in international law.

The ICJ confirmed this standard of effective control in both the Armed Activities[51] and the Bosnia Genocide[52] cases. In the latter case, the Court held that:

“the particular characteristics of genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua … The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis.”[53]

Though the thought of diluting the standard of effective control over non-state actors may seem to be logical, but such an action would not only dilute national sovereignty, but also be dreadful to international peace and security as mere support or influence, would be assumed to be control. This leaves us to the other question of equating financial or military contribution, with attribution on the state for the conduct of the non-state actor, which receives such financial or military contribution.[54] The contribution to be attributed on state conduct would have to satisfy very stringent criteria in international law, as in many cases the contribution may not be direct as may that the group misrepresented on contribution, simply used the contribution for purposes other than what the state intended etc. Furthermore, there also arises the situation in which a state provides support for a particular work to any non-state actor, but if in pursuance of that objective, if the non-state actor does an internationally illegal act then the liability of state cannot be to that the extent of the crime. There are many other such scenarios, in which the question of contribution and effective control intertwines, as outlined by the ICTY’s Appeals Chamber in the Tadić case, provided for more flexible definition of effective control but went on the nature of the non-state actor receiving any contribution from a state, to make the state liable for its conduct. This approach even though as by the provisions of the law fails to accommodate for the situation of evolution of the non-state actor and its purposes, in continuance of contribution by the state, would the state be liable for any new acts or crimes which the non-state actor does or would the state be only liable for negligence or lack of regulatory control? International law must adapt and understand, that control over such non-state actors arises not only from equipping, financing or training and providing operational support to the group but also from coordinating or helping in the general planning of its military or paramilitary activity.[55] An expansive interpretation and jurisprudence on non-state actors and their conduct in international law is very much needed, to define the limits of control and also the extent of nature of any such non-state actor for the attribution of its conduct to the contributing state. A strict interpretation of effective or overall control would only lead to miscarriage of justice as states like Syria, South Sudan etc. would evade responsibility for the acts committed by a non-state actor, whether applying the effective or overall control,[56] due to the difficulty of attributing the conduct of non-state actors to third states that have provided varying degrees and forms of assistance.

For reforming the problem of gap of law and practice in international law on the conduct of non-state actors and attribution of such conduct to states, several scholars have taken issue to work on the limitations of the existing attribution framework.[57] The main contention raised by them focuses on the rigidity of Article 8 of the ARSIWA. They state that the supplementary grounds of attribution have developed in the form of ‘harbouring’, ‘tolerating’ or ‘supporting’ the activities of private actors, and thus with evolution of such activities, there must be evolution of attribution of such activities to the state.[58] Generally, scholars state collaboration in the form or ‘harbouring, tolerating or supporting’, even though not fulfilling the established criteria of effective or full control by a state over a non-state actor, does place a burden of complicity on the state for the conducts of non-state actors, in an internationally wrongful act.[59] This approach places a burden on the state to be more cautious and vigilant of the conduct of the non-state individuals and organizations, which it gives its patronage to, in the form or contribution or support. While complicity, in the form of state either providing ‘aid’ or ‘assistance’, did become an attributing factor under the provisions of ARSIWA, as a form of responsibility in the inter-state context, due to absence of any precise and direct legal recognition of the ground of complicity for attribution to state, there exists a vagueness and gap in practice and law, and this can be solved by an expansive interpretation and law, so as to more prepare for attributing responsibility to states delegating their crimes to non-state actors.

CONCLUSION

The project has analysed the legal framework on the actions of non-state actors and the responsibility of state with regard to NSA under ARSIWA. The problem arises because of the very narrow understanding of the attribution of private conduct to a state. It can be resolved by re-evaluating the few judgements of the ICJ on this subject matter such as Nicaragua case and Bosnia Genocide case. The paper also discusses the use of self-defence against non-state actors in case of an armed attack. From the above analysis it is clear that the victim state has an inherent right to self-defence against non-state actors even if the acts of the NSA are not attributable to the state. This practice is widely followed and accepted by the international community.

[1] United Nations Charter, Art. 2(4).

[2] Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), International Court of Justice (ICJ), 3 February 2006, available at: https://www.icj-cij.org/files/case-related/116/116-20051219-JUD-01-00-EN.pdf (accessed 27 September 2018).

[3] Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol.2, (2005).

[4]On the situation in Somalia, Security Council resolution 1474 (2003), U.N Doc. S/RES/1474 (2003).

[5]International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/48/129), chp.IV.E.1

[6] Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), International Court of Justice (ICJ), 3 February 2006, available at: https://www.icj-cij.org/files/case-related/116/116-20051219-JUD-01-00-EN.pdf (accessed 27 September 2018).

[7] Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America)(1986) ICJ Rep 14.

[8] United Nations Charter, Art. 51.

[9] Legal Consequences of the construction of a wall in the occupied Palestinian Territory, (Advisory Opinion), ICJ Rep. 136 (9 July 2004).

[10] Threats to international peace and security caused by terrorist acts, Preamble, S.C. Res. 1368 (2001), U.N Doc. S/RES/1368 (12 September 2001).

[11] Threats to international peace and security caused by terrorist acts, Preamble, S.C. Res. 1373 (2001), U.N Doc. S/RES/1368 (28 September 2001).

[12] Olivier Corten, The Law Against War: The Prohibition on the use of Force in Contemporary International Law, (2012).

[13] Id.

[14] Id.

[15] S.C. Res. 1494(2003), U.N. Doc. S/RES/1494/2003; S.C. Res. 1554(2004), U.N. Doc. S/RES/1554/2004.

[16] UN Doc. S/2004/951.

[17] UN Doc. A/58/687.

[18] Sean D. Murphy, Self-Defence and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, 2017.

[19] United Nations Charter, Art. 2(4).

[20] United Nations Charter, Art. 51.

[21] Federica I. Paddeu Use of Force against Non-State Actors and the Circumstance Precluding Wrongfulness of Self-Defence, Vol.1, 2007.

[22] Supra note 7.

[23] Id.

[24] Threats to international peace and security caused by terrorist acts, Preamble, S.C. Res. 1368 (2001), U.N Doc. S/RES/1368 (12 September 2001).

[25] Threats to international peace and security caused by terrorist acts, Preamble, S.C. Res. 1373 (2001), U.N Doc. S/RES/1368 (28 September 2001).

[26] George Robertson, NATO Secretary-General, Statement at Resolution of the Twenty Fourth Meeting of

Consultation of Ministers of Foreign Affairs, OAS Doc No RC24/RES1/01 (21 September 2001).

[27] Legal Consequences of the construction of a wall in the occupied Palestinian Territory, (Advisory Opinion) (Separate Opinion of Judge Kooijimans and Buergenthal), ICJ Rep. 136 (9 July 2004).

[28] Case Concering Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), (Separate Opinion of Judge Simma), ICJ Reports (2005) 168.

[29] Id.

[30] Supra note 5.

[31] Id.

[32] James Crawford, State Responsibility: The General Part (2013).

[33] Supra note 5.

[34] Wolfrum, ‘State Responsibility for Private Actors: An Old Problem or Renewed Relevance’, in M. Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (2005) 423, at 427.

[35] Third Report on State Responsibility, UN Doc. A/CN.4/246.

[36] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 4, November 2001, Supplement No. 10 (A/48/129), chp.IV.E.1

[37] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 8, November 2001, Supplement No. 10 (A/48/129), chp.IV.E.1

[38] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 4, November 2001, Supplement No. 10 (A/48/129), chp.IV.E.1

[39] Supra note 7.

[40] Supra note 36.

[41] Id.

[42] James Crawford, State Responsibility: The General Part (2013).

[43] Supra note 37.

[44] Supra note 7.

[45] Id.

[46] Supra note 7.

[47] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice, 11 July 1196.

[48] Supra note 7.

[49] Id.

[50] Cassese, The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgement on Genocide in Bosnia, available at http://www.ejil.org/article.php?article=233&issue=9, 2007.

[51] Supra note 7.

[52] Supra note 47.

[53] Id.

[54] Supra note 50.

[55] Supra note 34.

[56] Christine Chinkin, A Critique of the Public/Private Dimension, available at http://ejil.org/pdfs/10/2/588.pdf, 1999.

[57] T. Ruys, Of Arms, Funding and Non-Lethal Assistance: Issues Surrounding Third-State Intervention in the Syrian Civil War.

[58]  Christian J. Tams, The Use of Force against Terrorist, available at http://www.ejil.org/pdfs/20/2/1793.pdf, 2009.

[59] Supra note 34.