Rule 149. Responsibility for violations of International Humanitarian Law

Volume II, Chapter 42, Section A.

State practice establishes this rule as a norm of customary international law applicable to violations committed in both international and non-international armed conflicts.

It is a long-standing rule of customary international law, set forth in Article 3 of the 1907 Hague Convention (IV) and repeated in Article 91 of Additional Protocol I, that a State is responsible for “all acts committed by persons forming part of its armed forces”.[1] This rule is an application of the general rule of State responsibility for internationally wrongful acts, whereby a State is responsible for the behaviour of its organs.[2] The armed forces are considered to be a State organ, like any other entity of the executive, legislative or judicial branch of government. The application of this general rule of attribution of responsibility to international humanitarian law is reflected in the four Geneva Conventions, which specify that State responsibility exists in addition to the requirement to prosecute individuals for grave breaches.[3] The principle that State responsibility exists in addition to individual criminal responsibility is also reaffirmed in the Second Protocol to the Hague Convention for the Protection of Cultural Property.[4]

A number of military manuals specify that a State is responsible for violations of international humanitarian law. Some of these manuals expressly refer to acts committed by members of the armed forces of a State, while others more generally deal with responsibility for grave breaches or war crimes, not specifying by whom such acts must be committed in order to be attributable to the State.[5] However, it is clear from the above-mentioned general principle of international law that the acts of all State organs are attributable to the State, be they military or civilian.

There is also national case-law supporting this rule. In its judgment in the Eichmann case in 1961, Israel’s District Court of Jerusalem attributed the wrongful acts committed by the accused to Germany as its own “acts of State”.[6] Furthermore, in the Reparation Payments case in 1963, Germany’s Federal Supreme Court referred to the “principle of public international law according to which a State party to a conflict is also responsible for acts committed by its nationals in relation to the conduct of hostilities which are not in line with public international law” (emphasis in original).[7] In the Distomo case in 2003, the same German court affirmed that the responsibility of States for internationally wrongful acts committed during hostilities “comprises liability for the acts of all persons belonging to the armed forces”.[8] The J. T. case before the District Court of The Hague in the Netherlands in 1949 involved a claim for reimbursement of money that had disappeared during the arrest of an individual by the Dutch resistance movement during the Second World War and was later found to have been taken by the police.[9] The case is further evidence of the rule that States are responsible for violations of international humanitarian law committed by State organs. Official statements and reported practice further support this conclusion.[10]

The International Criminal Tribunal for the former Yugoslavia, in its judgment in the Furundžija case in 1998 and in its judgment on appeal in the Tadić case in 1999, held that a State is responsible for the behaviour of its armed forces.[11]

A State is also responsible for the omissions of its organs when they are under a duty to act, such as in the case of commanders and other superiors who are responsible for preventing and punishing war crimes (see Rule 153). This principle is reflected in Article 2 of the Draft Articles on State Responsibility, which states that an internationally wrongful act can consist of “an act or omission”.[12] In the British Claims in the Spanish Zone of Morocco case in 1925, the arbitrator Max Huber stated that a State that failed to exercise due diligence in preventing or punishing the unlawful actions of armed groups could be held responsible for such failure.[13] In the Essen Lynching case before the UK Military Court at Essen, the members of a German military escort were convicted because they failed to protect allied prisoners of war from being aggressed by a crowd.[14] In the Velásquez Rodríguez case, the Inter-American Court of Human Rights stated that a State would be responsible for the actions of armed groups if it did not seriously investigate acts that violated an individual’s rights.[15] The same point was made by the African Commission on Human and Peoples’ Rights in relation to killings and ill-treatment during the armed conflict in Chad.[16]

States are also responsible for acts committed by other persons or entities which they have empowered, under their internal law, to exercise elements of governmental authority.[17] This rule is based on the consideration that States can have recourse to para-statal entities in carrying out certain activities instead of letting State organs carry them out, but do not thereby avoid responsibility.

States are responsible for the acts of private firms or individuals that are used by the armed forces to accomplish tasks that are typically those of the armed forces. Examples of such individuals or entities are mercenaries or private military companies.

A State is responsible for all acts committed by its organs and other persons or entities empowered to act on its behalf, even if such organs or persons exceed their authority or contravene instructions.[18]

With regard to the armed forces of a State, this principle is contained in Article 3 of the 1907 Hague Convention (IV) and in Article 91 of Additional Protocol I, which provide that a party to the conflict is responsible for “all acts” committed by persons forming part of its armed forces.[19] In the Distomo case in 2003, Germany’s Federal Supreme Court stated that the responsibility of a State “comprises liability for the acts of all persons belonging to the armed forces, and this not only in case these persons commit acts falling within their sphere of competence, but also in case they act without or against orders”.[20]

The Report on US Practice, however, states that it is the opinio juris of the United States that a State is not responsible for “private” acts of its armed forces.[21] The US Air Force Pamphlet states that no obligation of the State arises for violations by individuals of the law of armed conflicts committed outside their general area of responsibility unless some fault can be shown such as inadequate supervision or training.[22] The commentary on the Draft Articles on State Responsibility similarly distinguishes between “cases where officials acted in their capacity as such, albeit unlawfully or contrary to instructions”, which are attributable to the State, and “cases where the conduct is so removed from the scope of their official functions that it should be assimilated to that of private individuals”, which are not attributable to the State.[23]

A State can also be held responsible for the actions of persons or groups which are neither its organs nor entitled, under national law, to exercise governmental authority, if these persons or groups act in fact on the instructions of, or under the direction or control of, that State.[24]

The International Court of Justice stated in the Nicaragua case (Merits) in 1986 that to be responsible for violations of international human rights and humanitarian law committed by the Contras in Nicaragua, the United States would have to have had “effective control over the military or paramilitary operations in the course of which the violations occurred”.[25] In the judgment on appeal in the Tadić case in 1999, the International Criminal Tribunal for the former Yugoslavia stated that “the extent of the requisite State control varies”. According to the Tribunal, the conduct of a single private individual or a group that is not militarily organized is attributable to the State only if specific instructions concerning that conduct were given. However, conduct of subordinate armed forces, militias or paramilitary units is attributable to a State which has control of an “overall character”. [26] Such control would exist, according to the Tribunal, where a State “has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”. But the requirement of “overall control” does not go so far as to include “the issuing of specific orders by the State, or its direction of each individual operation”. In cases where the armed groups operate in the territory of another State, the Tribunal considered that “more extensive and compelling evidence is required to show that the State is genuinely in control of the units or groups not merely by financing and equipping them, but also by generally directing or helping plan their actions”.[27]

As stated in the commentary on the Draft Articles on State Responsibility, “the legal issues and the factual situation” in the above-mentioned cases before the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia were different and “it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it”.[28]

In 2001, in a report on the alleged killings in 1991 in Riofrío in Colombia, the Inter-American Commission on Human Rights established that the State was responsible for the actions of the paramilitary forces because there was evidence to show that agents of the State (namely branches of the army) helped coordinate the massacre, carry it out and then cover it up.[29]

As to private individuals or groups which are not militarily organized, the International Criminal Tribunal for the former Yugoslavia, in the Tadić case in 1999, stated that they could be considered a de facto organ of a State, and thus responsibility for their acts could be attributed to that State, if specific instructions concerning the commission of those acts had been issued to the individual or group.[30]

State practice also indicates that State responsibility for acts committed by private individuals or groups can arise through subsequent acknowledgement and adoption of the acts of these persons or groups.[31] Such acts then become acts of the State, regardless of the fact that the acting person or entity was not, at the time of the commission of the acts, an organ of the State and was not mandated to act on behalf of the State. For example, in the Priebke case in 1996, the Military Tribunal of Rome attributed responsibility to Italy for the behaviour of Italian partisans during the Second World War on the basis that it had encouraged their actions and had officially recognized them after the conflict.[32] In the J. T. case in 1949, the District Court of The Hague also raised the question of how far a State whose territory had been occupied could be held liable, after liberation, for acts committed by the resistance movement organized with the consent of the government-in-exile.[33] The International Criminal Tribunal for the former Yugoslavia made the same point in its judgment on appeal in the Tadić case in 1999, when it held that a State was responsible for the acts of individuals or groups that were not militarily organized and that could be regarded as de facto State organs if the unlawful act had been publicly endorsed or approved ex post facto by the State.[34]

Armed opposition groups must respect international humanitarian law (see Rule 139) and they must operate under a “responsible command”.[35] It can therefore be argued that they incur responsibility for acts committed by persons forming part of such groups, but the consequences of such responsibility are not clear.

Article 14(3) of the Draft Articles on State Responsibility, as provisionally adopted on first reading in 1996, stated that the fact that the conduct of an organ of an insurrectional movement was not to be considered an act of State “is without prejudice to the attribution of the conduct of the organ of the insurrectional movement to that movement in any case in which such attribution may be made under international law”.[36] While this Article was subsequently deleted because it was deemed to fall outside the scope of the subject matter under discussion, the Special Rapporteur noted that “the responsibility of such movements, for example for breaches of international humanitarian law, can certainly be envisaged”.[37] As a result of the exclusion of this subject from the Draft Articles, Article 10 states only that the conduct of an insurrectional movement which becomes the new government must be considered an act of that State under international law.[38]

In addition to practice indicating the obligation of armed opposition groups to respect international humanitarian law (see commentary to Rule 139), there are some examples of attribution of responsibility to armed opposition groups. For example, in a report on the situation of human rights in Sudan, the Special Rapporteur of the UN Commission on Human Rights stated that the Sudanese People’s Liberation Army was responsible for the killing and abduction of civilians, looting and hostage-taking of relief workers committed by “local commanders from its own ranks”.[39]