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Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors

52 Pages Posted: 3 Apr 2016  

Oona A. Hathaway

Yale University - Law School

Emily Chertoff

Yale University, Law School, Student

Lara Dominguez

Yale University, Law School, Students

Zachary Manfredi

Yale University, Law School, Students; University of California, Berkeley, College of Letters & Science, Department of Rhetoric, Students

Peter Tzeng

International Court of Justice

Date Written: March 23, 2016

Abstract

In Syria, the United States is “training and equipping” non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training and support to separatists. In China, “private” computer hackers create codes designed to infiltrate sensitive computer systems. These are just a few examples of the many ways in which states to work with non-state actors to accomplish their military and political objectives. While state/non-state collaboration can be benign, it can be malignant where a state uses a non-state actor as a proxy to violate international law with impunity. In extreme cases, a state could go as far as to fund, train, and instruct a non-state actor to commit war crimes and escape without international legal responsibility. This is no mere academic hypothetical: consider the Former Republic of Yugoslavia’s support of the Free Serbian Army, which committed the genocide at Srebrenica.

Recognizing this problem, international courts have developed a doctrine of state responsibility designed to hold states accountable for internationally wrongful acts of their non-state actor partners.  Unfortunately, existing doctrine leaves an accountability gap and fails to correct the perverse incentive to use non-state actors as proxies for illegal acts. Moreover, it creates a second perverse incentive: states with good intentions might avoid training non-state actors in international law compliance to avoid crossing the “bright line” for attribution.

This Article proposes a fix to these problems, drawing on a novel interpretation of the Geneva Conventions released by the ICRC in March 2016. It argues that the duty “to ensure respect” in Common Article 1 can fill the gap. In addition, it argues that Common Article 1 will be more widely embraced and therefore more effective if states that have exercised due diligence to prevent violations are allowed an affirmative defense against liability for any ultra vires violations. The Article concludes with recommendations for states that wish to fulfill their Common Article 1 obligations in good faith while working with non-state actors.

Keywords: Geneva Conventions, ICRC, international humanitarian law, ICTY, ICJ, state responsibility

JEL Classification: K33, N40

Suggested Citation

Hathaway, Oona A. and Chertoff, Emily and Dominguez, Lara and Manfredi, Zachary and Tzeng, Peter, Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors (March 23, 2016). Texas Law Review, Vol. 95, (2017) Forthcoming; Yale Law School, Public Law Research Paper No. 563. Available at SSRN: https://ssrn.com/abstract=2756202

Oona Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Emily Chertoff

Yale University, Law School, Student ( email )

127 Wall Street
New Haven, CT 06511
United States

Lara Dominguez

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Zachary Manfredi

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

University of California, Berkeley, College of Letters & Science, Department of Rhetoric, Students ( email )

7409 Dwinelle
Berkeley, CA 94720
United States

Peter Tzeng

International Court of Justice ( email )

Carnegieplein 2
The Hague, 2517 KJ
Netherlands

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