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State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plücken

Published online by Cambridge University Press:  01 June 2009

MARKO MILANOVIĆ
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Abstract

This article comments on Jörn Griebel and Milan Plücken's recent analysis in the Leiden Journal of International Law of the approach of the International Court of Justice to state responsibility in its judgment in the Genocide (Bosnia v. Serbia) case. The article also provides more general remarks on the law of state responsibility as it pertains to acts of non-state actors. In that regard, it discusses attribution based on de facto organ status and attribution based on direction and control, as well as whether, as a matter of policy, the law of state responsibility meets the needs of the modern world.

Keywords

attributionde facto organseffective controlgenocideNicaraguastate responsibilityTadić
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 22 , Issue 2 , June 2009 , pp. 307 - 324
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 Griebel, J. and Plücken, M., ‘New Developments Regarding the Rules of Attribution? The International Court of Justice's Decision in Bosnia v. Serbia’, (2008) 21 LJIL 601CrossRefGoogle Scholar.

2 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 27 February 2007 (not yet published), available at www.icj-cij.org (hereinafter Genocide judgment).

3 ILC, Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the Work of its Fifty-Third Session, Official Records of the General Assembly, Fifty-Sixth Session, UN Doc. A/56/10 Supplement No. 10 (2001), chp.IV.E.2 (hereinafter ASR Commentary).

4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 1, at 14 (hereinafter Nicaragua).

5 Case materials available at www.icj-cij.org/docket/index.php?p1=3andp2=3andcode=GRandcase=140andk=4d.

6 Genocide judgment, supra note 2, paras. 386, 388.

7 Ibid., para. 391.

8 Ibid., para. 394.

9 Ibid., paras. 408–13.

10 Griebel and Plücken, supra note 1, 606.

11 Ibid., 607 (emphasis and annotation theirs).

12 Ibid.

13 Ibid., 607–11.

14 Ibid., 608.

15 Ibid., 606–7.

16 Ibid., 602, n. 8. Judges Koroma and Shi were likewise members of the ILC, although before the final stages of the drafting of the ASR, bringing the total number of former ILC members on the Court's bench to seven.

17 Griebel and Plücken, supra note 1, at 621.

18 Ibid.

19 Genocide judgment, supra note 2, para. 384 (emphasis added).

20 Ibid., at 142 (emphasis added).

21 Ibid., para. 401 (emphasis added).

22 Ibid., para. 406 (emphasis added).

23 Griebel and Plücken, supra note 1, at 607.

24 Genocide judgment, supra note 2, para. 397.

25 Griebel and Plücken, supra note 1, at 607.

26 Ibid., at 608.

27 Ibid.

28 Ibid., n. 41, citing Milanović, M., ‘State Responsibility for Genocide: A Follow-up’, (2007) 18 EJIL 669CrossRefGoogle Scholar.

29 ASR Commentary, supra note 3, at 80 ff.

30 Ibid., at 80, para. 2 (emphasis added).

31 Milanović, M., ‘State Responsibility for Genocide’, (2006) 17 EJIL 553CrossRefGoogle Scholar, 577 ff.

32 Genocide judgment, supra note 2, para. 384 (emphasis added).

33 Milanović, supra note 31, 577 and 582.

34 ASR Commentary, supra note 3, at 83, para. 8 (emphasis added).

35 See, e.g., A. Cassese, International Law (2005), 247–50.

36 Genocide judgment, supra note 2, para. 397.

37 Indeed, the ILC does much the same in its commentary on Article 4 ASR:

Certain acts of individuals or entities which do not have the status of organs of the State may be attributed to the State in international law, and these cases are dealt with in later articles of this chapter. But the rule is nonetheless a point of departure. It defines the core cases of attribution, and it is a starting point for other cases. For example, under article 8 conduct which is authorized by the State, so as to be attributable to it, must have been authorized by an organ of the State, either directly or indirectly. (ASR Commentary, at 84, para. 2. See also ASR Commentary, at 103 ff.)

38 Which reads, ‘The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.’

39 ASR Commentary, supra note 3, at 103, para. 9.

40 ‘Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation.’ ASR Commentary, at 104, para. 3.

41 See more Milanović, supra note 28, at 673 ff.

42 Genocide judgment, supra note 2, paras. 238 ff.

43 Griebel and Plücken, supra note 1, at 612–14.

44 Ibid., at 614.

45 Genocide judgment, supra note 2, paras. 392–3.

46 A general principle of international law if there ever was one – cf. Art. 27 of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS, 331.

47 Genocide judgment, supra note 2, para. 397; ASR Commentary, supra note 3, at 87, 91 ff.

48 Griebel and Plücken, supra note 1, at 613.

49 Ibid., at 614.

50 Ibid.

51 Genocide judgment, supra note 2, Dissenting Opinion of Vice-President Al-Khasawneh, paras. 36–39.

52 Griebel and Plücken, supra note 1, at 618–19.

53 Genocide judgment, supra note 2, para. 394.

54 Prosecutor v. Duško Tadić, Judgement, Case No. IT-94–1-A, App. Ch., 15 July 1999, para. 131 (emphasis added).

55 See Cassese, A., ‘The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, (2007) 18 EJIL 631CrossRefGoogle Scholar, at 657.

56 Griebel and Plücken, supra note 1, at 613.

57 Genocide judgment, supra note 2, para. 394 (emphasis added).

58 See generally Dimitrijević, V. and Milanović, M., ‘The Strange Story of the Bosnian Genocide Case’, (2008) 21 LJIL 65CrossRefGoogle Scholar, esp. at 67, n. 9

59 Article 4 ASR reads as follows:

  1. 1.

    1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.

  2. 2.

    2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

60 Genocide judgment, supra note 2, paras. 385 ff.

61 Griebel and Plücken, supra note 1, at 614.

62 See generally Milanović, supra note 31, at 576–83.

63 J. Alvarez, ‘Luncheon Address’, Canadian Council of International Law, 27 October 2006, available at www.asil.org/aboutasil/documents/CCILspeech061102.pdf, at 2 (emphasis in original).

64 Thus the ILC explains that the purpose of the formulation of Article 4(2) is that ‘a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law. This result is achieved by the use of the word “includes” in [Article 4] paragraph 2.’ ASR Commentary, supra note 3, at 91. This is indeed the same rationale that was used by the Court to justify its conception of de facto organs – see Genocide judgment, supra note 2, paras. 392 and 393.

65 Griebel and Plücken, supra note 1, at 618.

66 See Ratner, S., ‘Jus ad Bellum and Jus in Bello after September 11’, (2002) 96 AJIL 905CrossRefGoogle Scholar; see also Milanović, supra note 31, at 583 ff.

67 See the Address to the Nation by President Bush on 11 September 2001, available at http://www.whitehouse.gov/news/releases/2001/09/20010911--16.html, who inter alia stated that ‘We will make no distinction between the terrorists who committed these acts and those who harbor them.’

68 See more Murphy, S. D., ‘Terrorism and the Concept of “Armed Attack” in Article 51 of the UN Charter’, (2002) 43 Harvard International Law Journal 41Google Scholar; Trapp, K., ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence against Non-state Terrorist Actors,’ (2007) 56 ICLQ 141Google Scholar.

69 For a discussion of this most recent example see T. Waisberg, ‘Colombia's Use of Force in Ecuador against a Terrorist Organization: International Law and the Use of Force against Non-state Actors’, ASIL Insights, 22 August 2008, available at www.asil.org/insights/2008/08/insights080822.html.

70 Although a dictum of the Court in its Wall Advisory Opinion has been taken as adopting the interpretation of Article 51 as requiring attribution, the Court expressly reserved its position on the matter in the Congo v. Uganda case. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, para. 131; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep., para. 116, as well as the separate opinions of Judges Simma and Koojimans.

71 Compare, for example, the essay by Crawford, J. and Viles, T., ‘International Law on a Given Day’, in Ginther, K. et al. . (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität: Festschrift für Karl Zemanek (1994), 45Google Scholar, on the development of customary rules on the continental shelf after the Truman Proclamation.

72 For example, one of the issues in the rather ingenious 2008 Jessup Moot Court problem was precisely self-defence in response to armed attacks by non-state actors –www.ilsa.org/jessup/jessup08/compromis.htm.

73 For recent examples see the separate opinion of Judge Simma in Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, [2003] ICJ Rep. 161, or the opinions of Judges Simma and Koojimans in Congo v. Uganda, supra note 70.

74 Griebel and Plücken, supra note 1, at 619.

75 Cassese, supra note 55, at 654 ff., 665 ff.

76 Griebel and Plücken, supra note 1, at 620.

77 Ibid.

78 Cassese, supra note 55, at 666.

79 Griebel and Plücken, supra note 1, at 619–20.

80 Corfu Channel (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, at 22 (speaking of ‘every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.’) See also the Trail Smelter Arbitration (United States v. Canada), (1931–41) 3 Reports of International Arbitral Awards 1905.

81 This, of course, does not mean that Serbia got away with all these violations scot-free, as it was subjected to wide-ranging UN sanctions.

82 See generally Milanović, supra note 28, at 689–92

83 Griebel and Plücken, supra note 1, at 620.

84 It should be noted that attribution is truly a core concept of the law of responsibility. Although lex specialis rules of attribution are conceptually possible, the ILC made no reference to any such rule in its ASR commentary. ASR Commentary, supra note 3, at 356. Creating such rules would undermine the value of having a general international law of wrongs in the first place. As the Court put it in the Genocide case, such a rule has to be clearly established. It is, moreover, difficult to justify why there should be a special rule of attribution, say, for terrorism, but not for genocide. Is terrorism really that much more dangerous for the international community than genocide? Hardly so.

85 But see Cassese, supra note 55, at 651, who argues that the burden was on the ICJ to disprove the customary nature of the overall control test. It must be said that Cassese is quite right to point out that the Court's holdings suffer from a ‘tinge of oracularity’ and that the Court should have engaged more fully with the precedents cited in support of the overall control test by the Tadić Appeals Chamber.