LL. M., Lecturer of International Law, Institute of Law, University of Tartu
State Responsibility for Private Armed Groups in the Context of Terrorism
In today's world, there are hundreds of informal private groups that are involved in armed activities against local and foreign governments1. Such terrorist groups use, as a rule, means and methods incompatible with international humanitarian law, and their activities can potentially endanger both domestic and international peace and security. As more than a few recent examples have shown, some terrorist groups can even perpetrate attacks comparable, in scale and gravity, to those of regular armed forces2. Therefore it is completely understandable that states, especially injured states but also potential target states, want to react decisively and to make sure that such attacks do not happen again. The fight against private armed groups - the so-called 'war on terrorism' - involves many practical and legal difficulties. However, there is one aspect of it that has a fundamental impact on such a fight as a whole: private armed groups do not exist in stateless enclaves but always operate from the territory of states3. This means, essentially, that if the injured state wants to use armed force, as a matter of self-defence, against the terrorist group responsible for its attack, it automatically acts also against the state from which that particular group operates. But in order to use force lawfully against the host state 4 , the injured state must first demonstrate that the terrorist attack, in at least its consequences, is attributable to the former under customary or conventional international law. If this is not duly done, the injured state instead commits an internationally wrongful act and is itself liable before the host state. Although the law of state responsibility includes a number of rules that aid in determining whether a particular act is attributable to a state, their application is, unfortunately, neither uniform nor consistent. States tend to broaden the scope of these rules if and when doing so offers better protection for their national security interests or simply serves to further their political goals to a greater extent. This article analyses both actual and hypothetical situations in which a private armed group has acted forcibly against a foreign state, and it attempts to establish under which circumstances the host state can be held legally responsible for such acts.
All sovereign states are equal in rights as well as in corresponding duties to respect the rights of other states. When a state violates the rights of another state and causes injury to the latter as a result, it is responsible for said injury and has to compensate fully for all damages. As the Permanent Court of International Justice has appropriately found, "it is a principle of international law, and even a greater conception of law, that any breach of an engagement involves an obligation to make reparation"5. In simpler words, the state is responsible for the breaches of its international obligations and becomes subject to whatever remedial action is legally permissible in the circumstances.
The rules covering state responsibility were recently codified into the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) 6 , which reflect customary international law binding upon all states7. These provide that "every internationally wrongful act of a State entails the international responsibility of that State"8. The responsibility arises from conduct, an action, or an omission that (1) is attributable to that state under international law and (2) constitutes a breach of an international obligation of the state9. Article 12 explains that such a breach occurs when an act of a state is not in conformity with what is required of that state by the particular obligation in question, regardless of its origin or character. For the sake of objectiveness, it is exclusively for international law to determine what constitutes an internationally wrongful act, irrespective of municipal law10. If any of these requirements is not duly satisfied, there is no internationally wrongful act and the state cannot be held legally responsible for the action in question.
The law of state responsibility is based on the concept of agency. States are political abstractions and act not as such but through persons. So, the key question is whether a person has acted as an agent of a particular state and his acts qualify as action of that state. This is particularly true in cases involving formal state organs, especially their officials, that have been authorised to exercise public functions and, as a result, represent the state in question. If it is established that an act is indeed attributable to a state, the latter is considered to have itself committed that act, without further regard to the identity of the person who actually carried it out.
The traditional rule is that the conduct of private actors, both persons and entities, is not normally attributable to the state under international law11. However, it is equally well settled that the acts of de facto state agents are attributable to the state; i.e., the conduct of apparently private actors may in fact be sufficiently connected with the exercise of public functions that otherwise private acts may be deemed state action instead. The rules of state responsibility have gradually developed to hold a state answerable for its own wrongdoings also in relation to private violence. Where the state has a duty to prevent private harm or to abstain from any support for it, its responsibility is engaged when it violates these obligations12. In these cases, it is often difficult to make a determination. It is, however, less likely that it is going to be possible to demonstrate that a state is responsible for the private acts itself (direct responsibility) than it is to prove that the state is responsible for its own related wrong - i.e., its inadequate efforts to prevent the private action in question (indirect responsibility). The fact of whether the state bears direct or indirect responsibility usually determines also what kind of countermeasures may be appropriate and lawful in the case in question.
The legal response to the terrorist attacks of 11 September 2001 in the United States and other recent developments strongly suggest that the scope of state responsibility for private conduct has expanded. Quite a few states have indicated that they are prepared to hold other states responsible for international terrorism where there is less incriminating evidence13. Most famously, President Bush declared that the United States would "make no distinction between the terrorists who committed these acts and those who harbor them"14. This shift hints that states may hold other states directly responsible for private acts that were previously held to confer indirect responsibility and led to the possibility of taking countermeasures only of lesser degree than military operations. The United States held the Taliban regime of Afghanistan directly responsible for the 11 September 2001 terrorist attacks because it allowed al-Qaeda to operate in its territory, not because it directed or controlled the entity's action.
Does such expansion of responsibility have the positive effect for which states are hoping? The results are most likely going to be mixed15. Although states have acknowledged the significant changes in circumstances that have been dominating and influencing international affairs since 11 September 2001, there has been very little progress in refashioning the 'primary rules' specifying the content of state obligations in the context of terrorism; states have instead relaxed the 'secondary rules' defining state responsibility for breaches of any such obligations16. States should formulate support for terror as a clear breach of primary legal obligations, which leads to liability under the traditional rules of state responsibility. Unfortunately, states cannot agree on a workable and universally accepted general definition of terrorism17. The last four decades have seen a number of efforts, some less serious than others, to formulate such a definition, but there is still no legally binding solution concerning the matter, except 13 special conventions on specific offences commonly described as terrorist acts18. Perhaps the most persistent obstacle is summed up in the infamous maxim that one man's terrorist is another man's freedom fighter. Geoffrey Levitt has very aptly described the situation by saying that "the search for a legal definition of terrorism in some ways resembles the quest for the Holy Grail: periodically, eager souls set out, full of purpose, energy and self-confidence, to succeed where so many others before have tried and failed"19. The Holy Grail remains undiscovered. Even the 11 September 2001 events, which caused unprecedented solidarity in the world, could not lead to formulation of a general definition of terrorism as was optimistically hoped. The amendments to the 'secondary rules' remain, so far, the lone workable solution to the problem of state responsibility for private forcible acts, although commentators have correctly expressed concern that such an "approach is unsound...