Rebellion and State Responsibility: Wrongdoing by Democratically Elected Insurgents
International and Comparative Law Quarterly, Vol. 58, pp. 427-442, 2009
23 Pages Posted: 26 Mar 2009 Last revised: 28 Apr 2011
Date Written: March 26, 2009
This paper argues that the rule enshrined in article 10 of the International Law Commission's articles on State responsibility, according to which violations of international law by rebels that subsequently seize power are attributable to the State, rests neither on sound precedential nor systemic grounds. It seeks to demonstrate that this provision rather constitutes the outcome of a political choice to lessen impunity and promote accountability in case of violation of international law by non-State actors. Since the rule is not based on any precise precedent nor systemic logic but only on political motives, there is no reason why one could not resort to similar motives to attempt to refine the currently hazy scope of application of that rule. Along this line of reasoning, this paper submits that - contrary to what has been advocated by the ILC and its Special Rapporteur - excluding the responsibility of the State for acts committed by victorious rebels in situations of national reconciliation or power-sharing agreements is not justified. It is argued that the exclusion of the application of the rule of attribution of the victorious rebels should only apply in cases where rebels eventually seize power through democratic elections. It is eventually explained that the ILC's limitation to the scope of application of article 10 could have been more easily justified if the responsibility of the State for acts of victorious rebels had been designed as a rule of attribution of responsibility and not as a rule of attribution of conduct.
Keywords: International Law, State, Responsibility, Insurgents, Rebels, Rebellion, Democracy, Elections, Attribution, Civil War, Failed States
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