Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors

Abstract

In Syria, the United States is "training and equipping" non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training, and support to separatists. In China, "private" computer hackers operating with state support create codes designed to infiltrate sensitive computer systems. These are just afew examples of the many ways in which states work with nonstate actors to accomplish their military and political objectives. While state/ non-state collaboration can be benign, it can be malignant where a state uses a non-state actor as a proxy to violate international law. This is no mere academic hypothetical: consider the Former Republic of Yugoslavia's support of the Free Serbian Army, which committed the genocide at Srebrenica. Recognizing this problem, international courts have developed a doctrine of state responsibility designed to hold states accountable for internationally wrongful acts of their non-state-actorp artners. Unfortunately, existing doctrine leaves an accountability gap and fails to correct the perverse incentive to use non-state actors as proxies for illegal acts. Moreover, it creates a second perverse incentive: states with good intentions might avoid training non-state actors in international law compliance to avoid crossing the "bright line" for attribution. This Article proposes afix to these problems, building on an interpretation of the Geneva Conventions released by the International Committee of the Red Cross (ICRC) in March 2016. It argues that the duty "to ensure respect" in Common Article 1 can fill the legal gap. In addition, it argues that Common Article I will be more widely embraced, and therefore more effective, if states that have exercised due diligence to prevent violations are allowed an affirmative defense against liability for any ultra vires violations. The Article concludes with recommendations for states that wish to fulfill their Common Article 1 obligations in good faith while working with non-state actors.