Diversification of Civilian Agency: An Accountability Perspective
Several recent developments have challenged the traditionally assumed passivity of civilians in armed conflict. Most notable are calls to participate in a volunteer IT army, the facilitation of an app that can provide intelligence to armed forces, and calls to fabricate Molotov cocktails. Other States have also adopted a “whole of society” approach to defense. In this way, States seem to actively encourage and facilitate the engagement of citizens. This practice, however, has the potential to frustrate established elements of accountability regarding potential international humanitarian law (IHL) violations.
As States encourage their citizens to take on a more active role in armed conflict, it does not seem a purely theoretical possibility that these citizens would also, in these actions, violate IHL. For example, operations by the volunteer IT army or kinetic actions by citizens against civilian targets could potentially violate the principle of distinction. The use of Molotov cocktails would also be limited by the applicable legal framework. Yet, as this post argues, the notion of the State acting indirectly through its citizens poses many problems when considered from an accountability perspective. As argued by Professors Gaeta and Jain, State responsibility should remain the primary avenue through which to address responsibility for IHL violations.
This post first considers whether States can be held responsible for violations committed by their citizens under the general framework of State responsibility. It then examines States’ responsibility under Common Article 1 to the Geneva Conventions.
The State Responsibility Perspective
IHL includes provisions regarding the responsibility of States for the conduct of their armed forces in both Additional Protocol I (AP I) and Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (Hague IV).
Article 91 of AP I states,
A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
Similar wording is found in Article 3 of Hague IV, which likewise places responsibility on a State for “all acts committed by persons forming part of its armed forces.” The question therefore arises whether these provisions can lead to State responsibility for the conduct of civilians.
While initial reporting identified the formal integration of the IT army into Ukraine’s armed forces, this does not yet seem the case. In the other examples mentioned, we have also found little practice of States formally integrating these participants into their armed forces. It is difficult then to argue that the groups in question are members of the State’s armed forces or fall within any other category of State organ.
Article 91 of AP I and Article 3 of Hague IV are not the only basis on which to attribute potential violations of IHL to a State. As argued by Remy Jorritsma, courts have relied on the general attribution framework under international law to establish State responsibility for violations of IHL. Yet, it does not seem that this is a way out of this attribution “gap.”
The relevant starting point in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) is that actions of private persons are not attributable to a State. There are, however, various exceptions to this general rule. The first is reflected in Article 4 ARSIWA, which attributes the conduct of State organs to a State. A further basis of attribution is enshrined in Article 8 of ARSIWA. That article states,
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.
As noted in the International Court of Justice (ICJ) judgment in the Genocide case, to be attributed to a State, it must be proved that the State had effective control over the actions of those carrying out the violations (paras. 399-407). This mirrors the standard put forward in the Paramilitary Activities judgment, where the ICJ held that two forms of conduct on the part of the State would satisfy the rule of attribution. States either must have given specific instructions regarding these violations, engaging their legal responsibility, or there would have to be evidence that the State directed or enforced the conduct that potentially violated IHL.
It would be difficult to argue that the earlier mentioned examples in Ukraine satisfy the effective control threshold or demonstrate that the State gave direct instructions leading to the violation. While it might be true that States have called on citizens to contribute to the defense of the country, Ukraine has not made specific calls to engage in violations of IHL. Thus, establishing effective control or that the individuals acted on the State’s instruction in this context might prove difficult.
Alternatively, and perhaps also relevant in the context of armed conflict, would be the standard put forward under Article 9 of ARSIWA. This provides,
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 exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.
A further explanation of these elements is found in the commentary to Article 9 ARSIWA. The commentary indicates that this basis of attribution refers to agents of necessity and identifies three conditions which must be satisfied for the conduct to be attributable to the State. First, “the person or group acting must be performing governmental functions, though they are doing so on their own initiative.” In the case of civilians performing tasks normally executed by the armed forces and contributing to defense, this condition seems to be, at first sight, satisfied.
More challenging are the further conditions set out in the International Law Commission’s commentary. The second condition states that the rule of attribution addresses “cases where the official authorities are not exercising their functions in some specific respect, for instance, in the case of a partial collapse of the State or its loss of control over a certain locality.” This element might be satisfied in some cases, such as by conduct on active frontlines or in occupied territory. But it would be challenging to argue that this condition is satisfied more broadly. In many examples, we can instead see that citizens act in support of and not as a replacement for the armed forces.
A third criterion presents a further challenge. It states, “the circumstances surrounding the exercise of elements of the governmental authority by private persons must have justified the attempt to exercise police or other functions in the absence of any constituted authority.” Once again, this condition is difficult to satisfy in the context of civilians acting in support of the regular armed forces.
Whereas the normative element of this criterion might be satisfied in a situation of national self-defense, in which a strong argument can be made that the situation validates the actions undertaken, a strong link is still required with the absence of the constituted authority. Failing to prove this element also seems to pose challenges for satisfaction of the third criterion. Ultimately, this may lead to a situation in which the requirements for attribution cannot be satisfied, posing a contrast with historical precedents such as the Komiteh in Iran.
Ultimately, it may be the case that we are dealing with a legal grey area. It is seemingly possible for States to activate their citizens to participate in an armed conflict and subsequently avoid responsibility for any potential violations committed under the broader framework of State responsibility. The next section considers this issue from a different angle, namely the primary obligation of States to ensure respect for IHL.
The Obligation to Ensure Respect for IHL
Common Article 1 (CA 1) to the Geneva Conventions provides, “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” CA 1 is IHL’s phrasing of the pacta sunt servanda principle. A similar obligation can be found in Article 1(1) of AP I. Questions can be posed about the scope and value of this primary obligation in closing the aforementioned accountability gap.
In general, there has been broad agreement that the obligation to respect applies to the acts and omissions of State organs and to those of other persons or groups which can be attributed to the State in accordance with the rules of State responsibility. Most commentators distinguish between an internal and external dimension of the obligation to ensure respect and focus on the external dimension, i.e., the extent States would be obliged to ensure respect for IHL by other States (or parties to an armed conflict under customary law; see, for example, here and here). However, the focus of this post concerns the obligation to ensure respect from an internal dimension, concerning the State in relation to private persons under its authority.
The internal dimension concerns the obligation of States to ensure respect by the whole population over which a State exercises authority, as identified by the drafters (p. 53). This part of CA 1 has received far less attention (with some notable exceptions in regards to non-State actors and private military and security companies, see, e.g. here and here). According to an updated International Committee of the Red Cross (ICRC) Commentary, the State has an obligation to ensure respect for IHL by “private persons whose conduct is not attributable to it” under the rules of State responsibility. Indeed, this view addresses the identified accountability gap as it confirms that IHL obligations in an international armed conflict are not generally addressed to private persons but to States and that a State can be held responsible even when the individual’s conduct is not attributable to it. However, responsibility can only be assumed to the extent a State fails to ensure respect by private persons. “In other words, responsibility is incurred if the Party to the conflict has not acted with due diligence to prevent such acts from taking place, or to ensure their repression once they have taken place” (ICRC, Commentary, para. 3660).
The ICRC specifies that this part of the obligation to ensure respect for IHL attaches due diligence obligations to prevent and repress IHL violations. Further, “[t]his is an obligation of means, whose content depends on the specific circumstances, in particular the foreseeability of the violations and the State’s knowledge thereof, the gravity of the breach, the means reasonably available to the State and the degree of influence it exercises over the private persons.”
The updated Commentary subsequently identifies specific treaty obligations related to private persons, mainly concerning prevention. It points to obligations that “require the High Contracting Parties to take measures to ensure respect for the Conventions by private persons” (para. 184). These include dissemination of the Conventions’ principles among the population, suppression of breaches, and obligations related to the protection of specific persons and objects.
Even if there is no material breach of any obligation by a private individual, the State can still be held responsible for violating CA 1. If that were not the case, CA 1 could not be decoupled from obligations found elsewhere in the Geneva Conventions. A violation of the duty to ensure respect in its internal dimension will engage the responsibility of the State when that State fails to ensure respect for IHL by private individuals even if the non-State actor concerned does not actually violate IHL (Genocide case, para. 382; DRC v Uganda, Declaration of Judge Tomka, para. 4). This includes situations in which the State itself is prevented from complying with its IHL obligations due to the interference by private persons under its authority when it had the required knowledge and the means to prevent the interference.
The obligation to take feasible steps to prevent private persons from violating international law has been recognized in a number of areas, including IHL. This aspect of CA 1 does not seem to be controversial. Rule 139 of the ICRC Customary International Humanitarian Law study (CIHLS) argues, clearly refers to relationships that are covered by ARSIWA only, as the ICRC acknowledges in its justification for the rule (referencing CIHLS, rule 149). As described earlier, such a narrow approach seems to arguably leave a gap when considering States activating civilians beyond such relationships.
However, whilst not closing the gap entirely, we argue that there is more to the internal dimension of the obligation to ensure respect than the preventive and repressive measures alone. In the case of a State activating civilians to act in a way that violates IHL, “logic dictates that a State cannot have satisfied an obligation to prevent [an unlawful act] in which it actively participated” (Genocide case, para. 382). Equally, in such a case it is doubtful that repressive measures will be taken. The preventive and repressive measures correspond to a large degree with the positive obligations mentioned by the ICRC as part of the obligation to ensure respect by others (the external dimension). We argue that there are also complementary negative obligations attached to the obligation to ensure respect of IHL by the whole population under a State’s authority. These negative obligations find expression in the obligation not to encourage violations of IHL similar to the one applicable to ensure respect by others in the external dimension. This aspect seems neither addressed by the ICRC Commentary relating to the internal dimension of CA 1, nor by the ICRC’s findings in its CIHLS (see also rule 144), yet can be derived from the jurisprudence of the ICJ.
In the Paramilitary Activities case (para. 220) the ICJ identified in connection with CA 1, but more precisely based on “the general principles of humanitarian law to which the Conventions merely give specific expression, an obligation not to encourage persons or groups engaged in the conflict . . . to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions.” States would thus be prohibited from encouraging, and—we argue, by logical extension—facilitating or aiding, private individuals to violate IHL. Notably, the Court did not distinguish here between an internal and an external dimension. It is therefore certainly arguable that this obligation is part of the obligation to ensure respect for IHL by the whole population under the authority of a State.
In practice, we have, however, seen that States have a mixed record regarding these obligations. Ultimately, what we see here might be a current paradox in the legal reasoning, as the more States engage with their positive obligations to prevent these violations, the more their behavior might fall under the notion of effective control making them responsible for the actual violations (see Hathaway). Irrespective, we make the case that CA 1 places positive and negative obligations on States if they decide to activate their civilian population and have them engage in battlefield roles, and that States can be held responsible when violating these obligations.
Conclusion
The increasing role of civilians on the battlefield poses a range of legal challenges. Amongst those is the challenge of attribution. The new roles these actors assume seem to poorly match the accepted perceptions and attribution framework in international law. If and when such actors act in a manner that potentially violates IHL, it will thus be difficult to hold States responsible for those acts, taking away a main avenue of responsibility in international law.
As these concepts develop further, it might be necessary to examine broader means of holding States accountable for potential violations. This contribution has noted that the traditional State responsibility framework seems ill-suited to do so. Yet, through CA 1 and customary international law, there might be a potential alternative means by which States can be held legally responsible for their use of civilians in battlefield roles.
Given the importance of the values and norms of IHL to the international community, a more expansive accountability through primary norms is warranted. Our analysis reflects the need for such accountability without necessarily limiting a State’s freedom of action. Our analysis suggests that the diversification of civilian agency in and of itself is not contrary to the obligation to ensure respect by the whole population over which a State has authority.
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Major Steven van de Put is a Legal Advisor in the Royal Netherlands Air Force.
Arjen Vermeer is Assistant Professor of Military Law at the Netherlands Defence Academy.
Photo credit: Mstyslav Chernov
