Alternative to State Responsibility for use of force by non-state actors in an armed conflict

Abstract

Under the existing international law framework, state responsibility is invoked to attribute the wrongful acts of armed non-state actors to states. The existing rule of attribution of ‘effective control’ is stringent and requires a high threshold of ‘control’ to attribute responsibility to states for the violations committed by non-state actors. This dissertation criticized the existing rule of attribution of ‘effective control’ which is based on the agency paradigm as incorrect. The emphasis on agency discounts the possibility that the relationship between a state and a non-state actor could be that of ‘partners’ instead of ‘principal-agent’. This dissertation distinguished the two concepts of ‘conflict delegation’ and ‘conflict intervention’ to highlight that a situation of ‘conflict intervention’ is more in the nature of a ‘partnership’ between the external state and the armed non-state actor. Factors determining a situation of conflict intervention are existence of a civil war, organizational autonomy and objective by the non-state actor, transnational ethno-ideological alliance, and armed non-state actors with regional influence. Given that a situation of conflict intervention is not in the nature of an agency and more like a ‘partnership’ between armed non-state actors and their externally supporting states – this dissertation attempted to analyse the Uppsala Armed Conflict dataset to determine whether the existing armed conflicts were in the nature of ‘conflict intervention’ or ‘conflict delegation’. My empirical analysis shows that all armed conflicts were in the nature of ‘conflict intervention’ and armed non-state actors and their externally supporting states function as ‘partners’ rather than as ‘principal-agent’. This finding is significant because the existing rule of attribution for state responsibility is based on the assumption of ‘control’ by states of armed non-state actors. If non-state actors are independent in their functioning and approach in an armed conflict, it is important to directly regulate their conduct under law. Subsequently, this dissertation assessed the existing status of armed non-state actors under international law to analyse the potential issues surrounding direct regulation of armed non-state actors in international law. At present, armed non-state actors have limited legal personality because they have obligations under international humanitarian law. There is also an emerging practice in the United Nations that human rights law is applicable to armed non-state actors when they control territory. However, non-state actors are not subjects of international law, which remains state centric till date. The Reports of the UN Commissions of Inquiry have clarified that armed non-state actors have primary obligations under international law but there is no clarity on the secondary rules applicable to armed non-state actors. It is still not clear what the consequences are legally for armed non-state actors for violations of their legal obligations. This is the accountability gap in international law where armed non-state actors cannot be held responsible for their violations despite being bound by international law. To fill this accountability gap, this dissertation proposes accountability of armed non-state actors through consent based, standard setting and compliance monitoring through existing mechanisms such as the Geneva Call and the ICRC. Standards are not strictly law and fall in the arena of ‘soft law’ which have enormous persuasive value. Soft laws provide a readily available body of norms associated with greater legitimacy and exert enormous compliance pull. Some of the mechanisms that Geneva Call and ICRC utilize to induce compliance of international humanitarian law by armed non-state actors is to employ incentives such as reputation, reciprocity, and rewards. Supervisory mechanisms such as the Geneva Call and ICRC have been successful in ensuring compliance of international humanitarian law by incentivising rational choice on the part of armed non-state actors. Armed non-state actors sign the Deed of Commitment with Geneva Call for several factors ranging from reputational benefits to improving the stability and civil life of the area under their control. Geneva Call and ICRC use reputational rewards as a tool to encourage compliance by armed non state actors because these actors are image conscious and seek greater legitimacy both in the local population and the international community at large. This dissertation suggests engagement of armed non-state actors in the humanitarian aid process conducted by the UN because such an involvement provides armed non-state actors recognition in the international community. Such inclusion of armed non-state actors in the humanitarian process by the UN can provide a reward and incentive to comply with international humanitarian law. It is important to engage with armed non-state actors directly to ensure that they comply with international law and are accountable for breach of their obligations.