Strengthening the rule of law in time of war: An IHL perspective on the present and future of the Articles on State Responsibility

International humanitarian law is one of the oldest areas of international law. As such, it was unsurprisingly a key source for the International Law Commission in its work on the Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereafter ‘Articles’). This is apparent, among other things, from the frequent references to IHL in Special Rapporteur Crawford’s First and Second reports or in the final text of the Articles with commentaries.

The Articles have also had significant impact on the application and interpretation of IHL over the past two decades. They have become an indispensable resource in analysing State responsibility for violations of IHL both in theory and in practice. This can be seen in the growing number of references to the Articles in decisions of international tribunals, including those concerning specific questions of IHL (see e.g. this 2007 report by the UN Secretary General for several examples).

It is also confirmed by the prominent role given to the Articles in IHL studies, such as the ICRC’s Updated Commentaries on the 1949 Geneva Conventions, which consider the law of State responsibility – as reflected in the Articles – to constitute a key part of the legal framework within which the Conventions must be interpreted and applied (see paras 110–115 of the 2020 Commentary).

These developments have contributed to creating a rich and complex relationship between IHL and the law of State responsibility. In this post, I will discuss how the coexistence of these two bodies of law fosters respect for IHL and then offer some thoughts from an IHL perspective on the possible future development of the law of international responsibility.

Ensuring respect for IHL through interlocking structures of legal responsibility

Most of the time, the Articles are almost invisible in the interpretation and application of IHL. The building blocks of State responsibility, attribution and breach, are simply accepted as a given. For example, to say that a Detaining Power would violate IHL by failing to provide prisoners of war with sufficient food, means that:

• the camp authority’s failure would be an omission attributable to the State to which it belongs (typically under Article 4 of the ILC’s Articles, because armed forces are a State organ), and
• such conduct would breach that State’s obligation under Article 26 GCIII to provide prisoners with sufficient food rations.

However, certain challenges posed by armed conflicts make it essential to examine the interaction between the Articles and IHL more closely.

Firstly, as secondary rules, the Articles may be complemented by specific primary obligations, including those contained in IHL. This is the case, for example, with respect to establishing the responsibility of States in relation to violations of IHL committed by other States—such as when one State spreads misinformation designed to encourage violations of IHL by another State’s armed forces. As noted by Lawrence Hill-Cawthorne, the Articles leave a prominent ‘accountability gap’ with respect to such conduct. This is because the ILC commentary considers mere encouragement of wrongful conduct (i.e., unaccompanied by ‘concrete support’) as insufficient to give rise to responsibility of the acting State (p. 65, para. 9).

Therefore, it is of crucial importance that IHL includes a general obligation to respect and ensure respect for IHL (see Common Article 1, Article 1 API, and Rule 144 ICRC CIHL Study). This obligation applies at all times. The ICRC’s Updated Commentary explains that the duty to ensure respect includes a negative obligation to refrain from encouraging, aiding, or assisting violations of the Conventions (para. 191), which complements the relevant secondary rules on State responsibility, thus ‘fill[ing]’ or at least narrowing the said accountability gap.

Secondly, IHL may also provide for standards of responsibility that diverge from the Articles. In theory, this is unproblematic, because the ILC commentary acknowledges that the Articles ‘operate in a residual way’ and may thus be overridden by special rules of international law (p. 140, para. 2; see further Katja Creutz’s contribution to this symposium). However, the specialty of a given rule of IHL may not always be easy to establish, given that most IHL treaty rules predate the Articles and thus do not expressly state that they displace the general rules in the Articles.

Perhaps the best-known example in this respect is the longstanding debate about the level of control by a foreign State over a non-State armed group necessary for the attribution of that group’s conduct to the said State under Article 8 of the ILC’s Articles. As far too much ink (including mine) has been spilled over this clash between the so-called ‘overall control’ and ‘effective control’ tests, let’s rather choose a different illustration.

For instance, would an Occupying Power be responsible for the breaches of IHL that its soldiers commit in the occupied territory on their own initiative, while on leave and out of uniform? This scenario raises the issue of responsibility for private (i.e., unauthorized) conduct of members of State armed forces. The relevant general rule as formulated by the ILC is that a State is only responsible for unauthorized conduct of its organs or agents if they are acting with at least ‘apparent authority’ (p. 46, para. 8). Under this approach, if the soldiers’ conduct was private and not ‘cloaked with governmental authority’ – as evidenced by the absence of uniform and so on – it would not be attributable to their State.

By contrast, a party to an armed conflict is responsible for ‘all acts committed by persons forming part of its armed forces’ (Article 3 HR, Article 91 API, emphasis mine). This comprehensive and unconditional formulation indicates that under IHL, it is immaterial whether the soldiers acted with real, apparent, or no authority at all. As Marco Sassòli has argued, this IHL rule is the lex specialis, which prevails over the general rule of State responsibility (p. 86).

This example demonstrates that IHL can bolster the protections available in armed conflict also by establishing a secondary rule of State responsibility that diverges on a particular point from the Articles. This is a reflection of IHL’s nature as a body of law specifically designed for times when normal responsibility structures have collapsed. Its interaction with the Articles thus contributes to the protection of victims of war and, more broadly, to the rule of law during armed conflicts.

Responding to the changing nature of warfare through future development of the law

As it is often said (though the origin of the quote isn’t entirely clear), ‘it is difficult to make predictions, especially about the future’. Instead of engaging in such risky endeavours, I will thus highlight two aspects of the changing nature of warfare, which may require a clarification of the law of international responsibility in the Articles’ third decade. These relate to the rapid development of new technologies of warfare and the growing engagement of non-State actors in armed conflicts.

Firstly, since 2001, the use of cyber operations during armed conflicts has become a reality, leading to new challenges in the application of existing rules of international law. For instance, the fact that cyberspace provides technical possibilities for actors to cover their traces has brought the ‘attribution problem’ into sharp relief. Existing modes of attribution, as reflected in the Articles, undoubtedly apply ‘whether the conduct is carried out by cyber or any other means’ (p. 491). However, analysis of specific incidents suggests that these rules may be ‘too stringent for the attribution of cyber operations to States’ (p. 74). In this respect, the growing trend of issuing national positions on the application of international law to cyber operations presents an opportunity for States to clarify how the relevant standards apply, taking into account the particularities of cyberspace.

Relatedly, increasing autonomy in weapon systems has given rise to concerns about the diffusion of responsibility and a potential ‘accountability gap’ due to the loss of human control (p. 46). As responsibility for compliance with IHL cannot be transferred to machines, software, or weapon systems (Davison, p. 7), parties to armed conflicts – and ultimately, human beings – remain responsible for the consequences of their use. However, holding individuals and parties to armed conflicts responsible for resulting IHL violations may be practically challenging. Autonomous weapons that incorporate AI, especially machine learning, present particular difficulties due to lack of predictability, understandability and explainability of their functioning (pp. 13–21). Ongoing efforts at the Convention on Certain Conventional Weapons to agree on the applicable normative and operational framework therefore present a key opportunity for adopting new binding rules on autonomous weapons and clarifying responsibilities for their use.

Secondly, today there are hundreds – if not thousands – of armed groups around the world, many of whom are involved in armed conflicts. According to the ICRC, non-State parties to armed conflicts currently outnumber States by a ratio of nearly 2:1 and their absolute number continues to grow. Although it is generally accepted that non-State armed groups possess international legal personality for the purposes of IHL, in light of their unprecedented proliferation, it is concerning that the exact contours of their responsibility under international law remain unclear.

The ILC’s Articles expressly exclude from their scope questions of the responsibility under international law of non-State entities (p. 32, para. 4(d)). However, that does not mean that the Articles are entirely silent with respect to IHL violations committed by non-State actors. They do confirm that States are responsible for such violations if these are attributable to them, including when the State instructed, directed, or controlled the underlying conduct (Article 8). They also codify the responsibility for the conduct of insurrectional movements that become the new governments of States (Article 10).

Still, beyond those links to States, it remains controversial whether violations of primary rules of IHL entail legal consequences for non-State armed groups as collective entities and if so, what those consequences might be (Bílková, p. 263). In his First Report on State Responsibility, Special Rapporteur Crawford noted that the responsibility of such groups, including for breaches of IHL, could ‘certainly be envisaged’ (p. 53, para. 272). Whether and how the law of international responsibility applies to non-State armed groups thus requires further work.

Conclusion

Since their adoption in 2001, the ILC’s Articles have brought a welcome degree of legal clarity that permeates all specific areas of international law, including IHL. As illustrated in this post, the co-application of the Articles and IHL also contributes to enhancing the rule of law during armed conflicts. At the same time, the nature of warfare has significantly evolved over the past twenty years. These developments have underscored the need for the regime of international responsibility to also continue to adapt to remain relevant and respond to new challenges, including those posed by the emergence of new technologies and the proliferation of non-State actors.

The author is grateful to Thibaud de la Bourdonnaye for his research assistance