Hathaway et al.: Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors

Oona A. Hathaway (Yale Univ. - Law), Emily Chertoff (Yale Univ. - Law Student), Lara Dominguez (Yale Univ. - Law Student), Zachary Manfredi (Yale Univ. - Law Student), & Peter Tzeng (Yale Univ. - Law Student) have posted Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors (Texas Law Review, forthcoming). Here's the 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 create codes designed to infiltrate sensitive computer systems. These are just a few examples of the many ways in which states to work with non-state 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 with impunity. In extreme cases, a state could go as far as to fund, train, and instruct a non-state actor to commit war crimes and escape without international legal responsibility. 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 actor partners. 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 a fix to these problems, drawing on a novel interpretation of the Geneva Conventions released by the ICRC in March 2016. It argues that the duty “to ensure respect” in Common Article 1 can fill the gap. In addition, it argues that Common Article 1 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.