State Responsibility: A Weak Cage for International Wild Animals? – By Daniel Kang

Despite states increasingly enabling armed non-state actor groups (ANSAG) to commit internationally wrongful acts, the rules on attribution of state responsibility for such conduct remain unsatisfactory, with the legal status of ANSAGs synonymous to that of a wild animal under the state-focused public international law system. This essay argues that an accountability gap exists in the international rules on state responsibility, with limited capacity to tackle existing and emerging challenges around the attribution of responsibility for stateenabled ANSAG international law violations. The essay first explores the relevant law on attribution of state responsibility, then examines its inadequacies, before posing possible solutions.

2 Attribution

2.1 Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)

Currently codified in the ARSIWA, the international rules on state responsibility emerged in the early 20 th century to address inter-state relations, leaving nonstate actors largely unconsidered. ANSAG conduct is attributable to a state through either Article 4 (if the ANSAG constitutes a de jure state organ), or Article 8 (if the state exerts sufficient control over the ANSAG’s operations).

2.1.1 Article 4

Article 4 attribution requires the ANSAG to be in ‘complete dependence’ on the state, with state practice demonstrating the absence of ANSAG autonomy. Satisfying this high standard is difficult, given evidence of state funding and logistical support is insufficient to establish such dependence. Moreover, ANSAGs are markedly different from de jure state organs, making attribution for ANSAG conduct under Article 4 ‘problematic’, with Article 8 attribution more likely.

2.1.2 Article 8

Article 8 requires satisfaction of the International Court of Justice’s (ICJ) effective control test. The state must exercise a high level of ‘effective control’ over specific ANSAG operations resulting in international law violations. While the exact state conduct required to satisfy this test remains unclear, the threshold is onerous, with the ICJ rejecting ‘mere’ provision of financial and logistical support, and requiring direct instructions to the ANSAG to commit a specific internationally wrongful act.

In The Prosecutor v Duško Tadic, the International Criminal Tribunal for the former Yugoslavia (ICTY) rejected the ICJ’s test, instead establishing an ‘overall control’ test of strict liability, whereby the existence of a general level of state control allows for the attribution of all ANSAG conduct to the state. However, it is unlikely to replace the ICJ’s test, given the ICJ’s subsequent counter-rejection, and the lack of broad acceptance of this standard for Article 8 non-state actor conduct. Additionally, while the International Law Commission has avoided endorsing either test, it cites the effective control test favourably, recognising that the ICTY’s mandate concerned ‘individual criminal responsibility’ and ‘not state responsibility’. Instead, the ICJ’s and ICTY’s tests may be reconciled appropriately as separate tests applicable to Articles 4 and 8 respectively.

3 Inadequacies

3.1 Reality

3.1.1 Accountability gap

While these rules exist to prevent states from avoiding international responsibility by utilising non-state actors, a major inadequacy surrounds their application. These rules do not satisfactorily address the accountability gap in state responsibility where neither the ANSAG conduct nor the state’s support constitutes an internationally wrongful act, with the unlikelihood of attribution granting both states and ANSAGs significant impunity. As secondary rules, the failure of ANSAG conduct to successfully trigger attribution precludes state accountability and prevents establishing a violation of international law. ANSAG committed and state-enabled violations are therefore unregulated, with ANSAGs, lacking general international capacity, given a legal status analogous to a ‘wild animal’ under tort law, committing no recognisable wrong without a ‘legal person’s’ involvement. Given the high threshold contained in the aforementioned rules, attribution is also unlikely, granting states significant leeway to continue providing ANSAGs with both substantial support enabling international law violations, and explicit encouragement to do so. This unlikelihood is exacerbated by requisite evidence that is generally classified and therefore exclusively available to the state avoiding responsibility, limiting satisfaction of the high evidentiary burden.

3.1.2 Repercussions

This accountability gap incentivises states to preference ANSAGs as proxies over their own armed forces, enabling violations of international law and the avoidance of state responsibility. This problem remains an observable reality, with multiple states increasingly engaging with and supporting ANSAG international law violations during intrastate conflict, and thus enjoying impunity despite factually enabling and contributing to the resulting harm. Furthermore, without successful attribution, injured States are precluded from seeking remedies despite suffering significant harm.

3.2 Emerging challenges

These rules also inadequately respond to an emerging challenge of attributing state responsibility for ultra vires ANSAG violations. As the effective control test focuses on state control over specific operations, states are possibly responsible for ultra vires acts committed during ANSAG operations it effectively controls. However, the ILC confines responsibility to ultra vires acts ‘integral’ to operations, excluding responsibility for ‘peripheral’ acts. This discourages states from actively mitigating and preventing ANSAG violations to avoid demonstrating effective control and incur responsibility for ultra vires violations. This problem has manifested recently in the 2014 downing of the Malaysian Airlines flight MH17 by Ukrainian separatists, killing 298 civilians of 10 different nationalities, and thus involving multiple injured states.

However, even if evidence demonstrating that Russia provided substantial support satisfies the effective control test, Russia may nevertheless escape responsibility by asserting it was a ‘peripheral’ ultra vires act with MH17 mistaken by separatists for a military plane. Similar attacks significantly present a broad challenge in applying attribution rules, especially with commercial flights travelling daily over various conflict zones.

4 Solutions?

4.1 Amendments?

Successfully amending the aforementioned attribution rules to address these inadequacies remains unlikely. While ARSIWA could be amended to attribute responsibility based on factual outcomes instead of legal violations, the five successive failures by the United Nations General Assembly’s Legal Committee to reach agreement on ARSIWA’s future demonstrates the bleak prospect of significant amendments to ARSIWA. Moreover, the ICJ’s current jurisprudence is similarly unlikely to shift towards a more capacious threshold, with the Court facing political pressure from states.

4.2 Ex ante accountability

Addressing these challenges may therefore require preventative, not reactionary, mechanisms to circumvent harmful and internationally wrongful conduct committed by ANSAGs. While such rules already exist, with international due-diligence norms requiring states to prevent wrongful ANSAG conduct, they apply similarly strict thresholds for attribution, and their application is severely limited. A more viable solution involves shifting away from ex post international responsibility under the current state responsibility rules, and establishing an expansive ex ante accountability regime to circumvent ANSAG violations through standardsetting initiatives instead.

4.2.1 Standard-setting

Standard-setting regulates ANSAG conduct by establishing non-binding obligations and criteria for states to monitor ANSAG compliance with international law, with supervisory processes establishing accountability. Moreover, standard-setting encourages states to implement a priori joint conduct standards and assessment frameworks to ensure ANSAG compliance with international law. Furthermore, grievance frameworks provide significant remedies for injured states through reparations and commitments to non-repetition. These initiatives are therefore better designed to prevent violations by giving ANSAGs increased ownership over norms by influencing and encouraging good behaviour rather than seeking to punish them outright, and engaging different stakeholders to appropriately acknowledge the potential for multiple actors to contribute to wrongful conduct.

However, three significant obstacles hinder successful implementation of standard-setting initiatives. Achieving successful participation remains difficult without enforcement frameworks to ensure compliance and states may be reluctant to participate to avoid granting ANSAGs legitimacy. Moreover, standard setting has a limited scope, only effective in influencing well-organised ANSAGs that value their reputation and seek legitimacy, and not undisciplined ANSAGs purely motivated by personal gain. Lastly, ANSAGs may either lack the capacity to comply with grievance mechanisms if they usually disband after conflicts, or avoid making adequate reparations through hiding or laundering their resources. Ultimately, these difficulties call for the adoption of supplementary initiatives, including strengthening domestic dispute settlement mechanisms. For example, domestic court proceedings could be bolstered to establish ANSAG responsibility and uncover requisite information in establishing a state’s international responsibility in later international proceedings.

5 Conclusion

Ultimately, the international rules discussed are at best marginally equipped to deal with the aforementioned challenges surrounding ANSAG violations. However, this appropriately reflects a hard truth: this regime cannot realistically serve as a perfect cage to capture an unpredictable beast. Successfully overcoming these challenges instead necessitates better tailored approaches, and a paradigm shift in the international conceptualisation of international responsibility.