In what circumstances may a state be legally responsible for acts of terrorism conducted by private individuals or organizations?

Résumé du document

Under international law all sovereign states enjoy certain rights and perform and observe their duties towards other states. With respect to state responsibility, the Permanent Court of International Justice ruled in 1928, in the case of Germany v Poland, that any violation of the rights resulting in an injury shall create an obligation to compensate the injured state with an award of damages. Today, there is a proliferation of private groups and organizations which continue to threaten international and domestic peace and stability. These private groups launch armed attacks, which are considered terrorist attacks on states. The most difficult obstacle in addressing this problem is the fact that such armed private groups exist, and are located within the territory of the states. Consequently, the injured state may, as an act of self defense, attack the terrorist group. However, this cannot be done without attacking the state in which they are operating.

Extraits

[...] Consequently, the injured state may, as an act of self defense, attack the terrorist group. However, this cannot be done without attacking the state in which they are operating. The rules on state responsibility are embodied in the Draft Articles on Responsibility of States for Internationally Wrongful Acts which was adopted in a General Assembly Resolution on 28 January 2001 (General Assembly Resolution 56/83). Articles 1 and 2 of the Draft Articles provide that “every internationally wrongful act of a State entails the international responsibility of that State” and for responsibility to arise, the act or omission should be one which may be attributed to the state under customary international law and that it is esteemed a violation of the obligation of the state (Draft Articles Article 1 and 2). [...]

[...] Finally, another situation whereby a state can be held responsible for the terrorist acts of private individuals is when it supports and harbors terrorists as this may be considered a violation of international law and Security Council Resolutions. The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States provides, “every state has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to involve a threat or use of force”. [...]

[...] It ruled that effective control test does not require proof of orders or instructions issued, it is sufficient that the state has ‘overall control' Another instance whereby the state may be held liable for the acts of private individuals is embodied in Article 9 of the Draft Articles. The state is responsible in cases where private individuals discharge governmental authority in the absence of government authorities. This refers to a situation when the state authorities are inoperative such as in the case of a revolution. [...]

[...] References Becker, T 2006 Terrorism and the State: Rethinking the Rules of State Responsibility, Oxford Hart Publishing, p Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXV) retrieved from http://www.whatconven tion.org/en/conv/0703.htm General Assembly Resolution 56/ Annex (Draft Articles). International Court of Justice Reports 1986, Nicaragua v. United States 14, paragraph 195. Security Council Resolution paragraph Schmitt Counter-Terrorism and the Use of Force in Internationa l Law Marshall Center Papers, No. 5,George C. Marshall European Center for Security Studies Vark, R 2006 ‘State responsibility for private armed groups in the context of terrorism,' Juridica International, vol pp. [...]

[...] Using the traditional rule in international law, it is generally not the legal responsibility of the state when the act or omission is committed by private persons. This rule however, has evolved into making the state responsible for private terrorist acts or private persons and entities when the state has failed to observe and comply with its duties of preventing harm or from abstaining from giving support to it (Becker 2006, p.3). Under Article 8 of the Draft Articles the imputability of the states responsibility is recognized when the actor is in fact, carrying out the instructions of the state or is “under the direction or control of the state.” The International Court of Justice (ICJ) laid down the ‘effective control' test in the case of Nicaragua where it ruled that despite preponderance of evidence that the United States was financing, supporting, training the proxy army in Nicaragua, it was not enough to hold U.S. [...]