State responsibility
Under general international law, the responsibility of a State is engaged if the actions of its agents or actions otherwise attributable to it constitute internationally wrongful acts, in violation of its international obligations. Five circumstances may preclude wrongfulness and are listed in the ILC’s Articles on State Responsibility (Arts. 21- 25). There are distinct legal consequences in the case that a State’s responsibility is engaged. The State is required to cease the unlawful conduct and to make reparation for the injury caused by its wrongful conduct.
In terms of IHL, Common Article 1 to the Four Geneva Conventions demands that every State, whether party to an armed conflict or not, ensure respect for the laws of war. Hence, if a violation occurs, not only the injured State but every State may and must take measures to restore respect for IHL. When involved in armed conflict, a State bears responsibility for complying with IHL. To ascertain the existence of a violation, Article 90 of Protocol I establishes a Fact-Finding Commission and sets out procedures for its functioning. If a State is found responsible, it has to compensate the injured State but, in conformity with the traditional structure of international law, no right to compensation arises for individual victims of violations. However, in situations of internal armed conflicts, victims are often nationals of the State concerned. Therefore, Human Rights Law requires that the State makes reparations directly to the beneficiary of the rule.
In the event that a State does not cease its unlawful conduct, injured States are entitled to take countermeasures against the State that is in violation of its obligations. However, under IHL, reprisals against the civilian population or protected persons and objects are prohibited. Furthermore, certain circumstances precluding wrongfulness, such as consent and countermeasures, cannot be used to preclude the wrongfulness of acts that are violations of IHL.
See Reparation; Individual criminal responsibility; Reprisals; Sanctions;
OUTLINE
DOCUMENTS
CASES
- The Netherlands, Responsibility of International Organizations
- Democratic Republic of the Congo, Conflict in the Kivus (Part III., Paras. 7, 29-60)
- United Kingdom, The Case of Serdar Mohammed (High Court Judgment) [paras 158-222]
- ECHR, Al-Jedda v. UK (80-86)
- General Assembly, The use of drones in counter-terrorism operations
- UN, Report of the Secretary-General for the World Humanitarian Summit
- ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts in 2015 (Paras. 309-310)
- Libya, Report of the Office of the UN High Commissioner for Human Rights (2014/15)
- USA, Al-Shimari v. CACI Premier Technology, Inc.
- South Sudan, Activities of Oil Companies
- Yemen , Humanitarian Impact of the Conflict
- The Netherlands, Fighting in the Chora District (Afghanistan)
- Nepal, Torture and Extra-Judicial Killing of a Child in the Context of the Nepalese Conflict
BIBLIOGRAPHIC RESOURCES
Suggested readings:
BIERZANEK Remigiusz, “The Responsibility of States in Armed Conflicts”, in Polish Yearbook of International Law, Vol. 11, 1981-1982, pp. 93-116.
CONDORELLI Luigi, “L’imputation à l’État d’un fait internationalement illicite : solutions classiques et nouvelles tendances”, in Collected Courses, Vol. 189/VI, 1984, pp. 9-222.
FLECK Dieter, “International Accountability for Violations of the Ius in Bello: the Impact of the ICRC Study on Customary International Humanitarian Law”, in Journal of Conflict and Security Law, Vol. 11, No. 2, 2006, pp. 179-199.
KLEFFNER Jann K., “Improving Compliance with International Humanitarian Law through the Establishment of an Individual Complaints Procedure”, in Leiden Journal of International Law, Vol. 15/1, 2002, pp. 237-250.
PELLET Alain, “Can a State Commit a Crime? Definitely, Yes!”, in EJIL, Vol. 10/2, 1999, pp. 425-434.
QUIGLEY John, “State Responsibility for Ethnic Cleansing”, in UC Davis Law Review, Vol. 32/2, 1999, pp. 341-387.
SASSÒLI Marco, “State Responsibility for Violations of International Humanitarian Law”, in IRRC, No. 846, June 2002, pp. 401-434.
University Centre for International Humanitarian Law, Expert Meeting on Private Military Contractors: Status and State Responsibility for their Actions, Report, Geneva, 2005, online:
http://www.adh-geneve.ch/pdfs/2rapport_compagnies_privees.pdf
ZWANENBURG Martin, Accountability of Peace Support Operations, Leiden, Boston, M. Nijhoff, 2005, 363 pp.
Further readings
BLISHCHENKO Igor P., “Responsibility in Breaches of International Humanitarian Law”, in International Dimensions of Humanitarian Law, Geneva, Henry-Dunant Institute/UNESCO, 1986, pp. 283-296.
BOISSON DE CHAZOURNES Laurence, QUÉGUINER Jean-François & VILLALPANDO Santiago (eds), Crimes de l’histoire et réparations : les réponses du droit et de la justice, Brussels, Bruylant, 2004, 401 pp.
BOSCH Shannon, “Private Security Contractors and State Responsibility: Are States Exempt from Responsibility for Violations of Humanitarian Law Perpetrated by Private Security Contractors?”, in The Comparative and International Law Journal of Southern Africa, Vol. 41, No. 3, 2008, pp. 353-382.
DECAUX Emmanuel, “The Definition of Traditional Sanctions: their Scope and Characteristics”, in IRRC, Vol. 90, No. 870, June 2008, pp. 249-257.
MILANOVIC Marko, “State Responsibility for Genocide”, in EJIL, Vol. 17, No. 3, 2006, pp. 553-604.
SANDOZ Yves, “Unlawful Damages in Armed Conflicts and Redress Under International Humanitarian Law”, in IRRC, No. 339, May 1982, pp. 131-154.
TALMON Stefan, “The Responsibility of Outside Powers for Acts of Secessionist Entities”, in ICLQ, Vol. 58, Part 3, July 2009, pp. 493-517.
ZEGVELD Liesbeth, Accountability of Armed Opposition Groups in International Law, Cambridge, CUP, 2002, 290 pp.