Old Law and New Trends – A Rejoinder to Professor Cryer and Hannah Tonkin

Both Professor Cryer’s post, as well as Hannah Tonkin’s reply to my article (introduced here) raise very interesting issues. I am thankful for their contributions to this discussion and happy to offer my reactions to some of the points they raise. Before reacting to their specific arguments, I believe a note of clarification is in order. As I argue in my article under the heading “Back to the Basics: Responsibility for the Armed Forces”, I do not believe positive obligations are truly our best hope for  plugging the responsibility gap. Rather, I argue that while these obligations are important, establishing state responsibility under the rule contained in Art. 3 Hague IV and Article 91 AP I is the more effective way to go.

Tadic redivivus – Are we using the wrong test?

In my opinion Tadic is not the law with respect to attribution for the purposes of state responsibility, and I do not have much hope this will change any time soon, if we take state practice and opinio iuris, as well as the ICJ’s specific rejection of the test in Bosnia Genocide into account. Of course there is always room for considerations de lege ferenda. I agree, if it were the law, attribution of PMSC conduct to the hiring state would be easier, given that the Tadic bar is lower. In turn, this would reduce the gap in state responsibility of the hiring state for acts of PMSC personnel, as compared to the responsibility that such state would incur for acts of its national soldiers.

Stretching Article 5 of the ILC State Responsibility Articles

Hannah Tonkin makes the compelling argument that especially once we take into account the Commentary to Article 5, we may be able to attribute the majority of guarding and protective services under this clause to the respective hiring state. First, a word of caution may be in order when relying on the Commentaries to the ILC Articles as a source of international law. Although one can make persuasive arguments that they constitute a valuable subsidiary source for interpretation, they should in my view not be taken without further argumentation to carry equal weight as the Articles they accompany.

Second, taking the Commentaries at face value and granting Hannah Tonkin’s argument about Article 5, it would in my mind not apply to guards who are off-duty when violations are committed.  These guards are still not acting in he requisite capacity at the time they engaged in the relevant conduct, and thus still fall through Article 5.

Third, even if we take into account the location of the activity, and the persons for the benefit of whom the functions are executed, the “contextual approach” remains rather complex to wade through. Ultimately I believe it will be very difficult to properly assess whether elements of governmental authority were exercised at the time. Let’s stick with the guarding and protection example in a theater of armed conflict – protection of military officials may be a convincing example, but how about protection of diplomats? Maybe they would also qualify. But would we be willing to extend the reach of the exercise of governmental authority  to the protection of an official of a private firm involved in the reconstruction effort, if the protection is arranged by the hiring state? Moreover, what is the “overall purpose” of guarding and protection in a war zone?

I do believe Hannah Tonkin raises important issues here, but I also believe that the inquiry necessary to attribute under Article 5 is to date still not very clearly mapped out. Moreover, even if we could agree on a clearer test for the exercise of governmental authority in this context, once we add the factual uncertainties inherent in any operation in an area of turmoil. I am not so sure whether it will thus truly be possible to attribute the majority of guarding and protection services provided on behalf of states, as Hannah Tonkin suggests.

A general duty to prevent?

Professor Cryer’s “devil’s advocate” remarks, regarding a broadening of states’ obligations are very thought-provoking. Yet, I am not convinced by his suggestion that recent developments in State responsibility may have led to broader responsibility for failure to prevent actions than the ILC Articles might suggest.

As a preliminary remark, I do not think that there is doubt today in the law of state responsibility, or specifically the ILC Articles, that the violation of a (positive) obligation to prevent gives rise to state responsibility, as expressed for example in Article 1 of the ILC articles. The positive obligation suggested by Professor Cryer seems in my mind very similar in nature to the positive obligations I treat in my piece (although derived from customary international law rather than IHL or Human Rights). As such, it is also subject to the problem regarding the indeterminacy of just how much diligence is “due diligence”. However, just to be clear, such a general duty, if it exists, would not offer a way to get around the rules of attribution, rather it is a completely separate inquiry.

To establish state responsibility, we still need to show that the state either

1) violated a negative obligation, as a person attributable to the state engaged in internationally unlawful conduct (be it an action or omission); or
2) the state failed to meet a positive obligation with respect to the conduct of persons whose conduct is was at the time not attributable to it (e.g. an obligation to prevent)

Unless the question arises whether the conduct of individuals who may have been under a positive obligation mentioned in 2) was actually attributable to the state at the time, this form of state responsibility is independent from the rules of attribution (i.e. the conduct triggering the positive obligation does not have to be attributable to the state).  Of course, there are situations where nevertheless questions of attribution arise. One example would be a scenario where it remains unclear whether individuals who were seen at the scene of a massacre and didn’t do anything to stop it, were actually Ruritanian troops (presumably giving rise to responsibility of Ruritania), or rather frightened civilians.

Regarding Professor Cryer’s Article 16 argument, can Article 16 somehow become a standard of attribution? This would be quite contrary to the ICJ’s jurisprudence under Nicaragua. There is no rule of attribution based on aid or assistance, and knowledge of an offense is in my mind irrelevant to the question of attribution altogether.
Of course, knowledge could be relevant if it would be the trigger for a positive obligation, as discussed by the ECtHR in Osman and Mahmut Kaya.  Similarly, payment to the PMSC could constitute a trigger for a general positive obligation to prevent, however, I do not believe that international law as it stands can be interpreted that way.

Specifically, I am curious how the  Nicaragua judgment could support such a positive obligation. Granted, the United States was held responsible for “its obligation under customary international law not to intervene in the affairs of another State” (Merits, Judgment of 27 June 1986, operative para 3), but this to me seems to have been a violation of a negative obligation (not to interfere) and not a positive one, such as an obligation to prevent rebels from engaging in certain conduct.

As regards the issue of state responsibility in occupied territory, however, I completely agree with Professor Cryer that the occupying power has far-reaching obligations that can give rise to responsibility.

Summing up, it is the uncertainty inherent in approaches such as the ones suggested by Hannah Tonkin and Professor Cryer that leads me to believe that rather than seeking to attribute under Article 5, or putting too much faith into positive obligations, attribution under Article 3 HC IV 1907 and Article 91 AP I remains much more promising in international law as it stands today.