InBrief7_web

Human Rights Obligations of Armed Non-State Actors:
An Exploration of the Practice of the UN Human Rights Council
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2. The International Legal
Framework
State Responsibility for Acts Committed by
ANSAs
In some instances, the behaviour of an ANSA directly engages state responsibilities.
The Articles on the Responsibility of States for internationally wrongful acts, which
represent customary international law, foresee that possibility, for example when
an ANSA in fact acts under the control of a State (article 8), or when certain forms
of conduct take place due to the absence or default of official authorities (article
9), or when an ANSA becomes the new government (article 10). 35
Under article 8, ‘the conduct of a person or group of persons shall be considered
an act of a State under international law if the person or group of persons is in
fact acting on the instructions of, or under the direction or control of, that State in
carrying out the conduct’. The level of control that a state must exercise over an
ANSA in order to trigger state responsibility has been discussed by the case law,
and has evolved. The requirement shifted from ‘effective’ 36 to ‘overall’ 37 control
over the actions of the wrongdoer. In its Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, however, the International
35 See International Law Commission, ‘Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries’, in Yearbook of the International Law Commission, 2001, Vol. II, Part Two.
36 In Military and Paramilitary Activities (Nicaragua v United States), the ICJ held that Contra rebels were
not de facto agents of the United States because the United States’ ‘participation, even if preponderant
or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection
of ... targets, and the planning of the whole of its operation, is still insufficient in itself … for the purpose
of attributing to the United States the acts committed by the contras. […] For this conduct to give rise
to legal responsibility of the United States, it would in principle have to be proved that that State had
effective control of the military and paramilitary operations in the course of which the alleged violations were
committed’. International Court of Justice, Military and Paramilitary Activities (Nicaragua v US), 1986, §115.
37 In Tadic, the Appeal Chamber of the International Tribunal for ex-Yugoslavia (ICTY) held that the ‘effective
control’ test was contrary to the logic of state responsibility and was inconsistent with state and judicial
practice. The ICTY concluded that states needed only to exercise ‘overall control’ over an ANSA to incur
responsibility for unlawful acts by that group. ICTY, Prosecutor v Tadic, Case N° IT-94-1-A, 1999, §116-
144. See also D. Jinks, ‘State Responsibility for the Acts of Private Armed Groups’, 83 Chicago Journal of
International Law (2003), 83-95.