This article has been authored by Mili Gupta , an LLM student of Nirma University, Gujarat
One of the oldest facets of international law is International Humanitarian Law (IHL). As a result, while the International Law Commission (ILC) began working on the “Draft Articles on Responsibility of States for Internationally Wrongful Acts”, it was a valuable resource. This is evident, among various things, that IHL is frequently mentioned in Special Rapporteur Crawford’s First and Second Reports, as well as in the final wording of the Articles with commentary.
Over the last two decades, the Articles have had a considerable influence on the implementation and interpretation of IHL. In both concept and practice, they have proven an essential resource for analyzing State responsibility for infringement of IHL. This may be noticed in the rising number of citations to the Articles in the ruling of international tribunals; particularly those dealing with specific IHL issues.
It is further approved by the noteworthy position provided to the Articles in IHL studies, like the Updated Commentaries of International Committee of the Red Cross (ICRC) on the 1949 Geneva Conventions that regard the law of State responsibility – as expressed in the Articles – to serve as an important aspect of the lawful structure under which the Conventions should be construed and implemented.
These advancements have resulted in a rich and intricate connection between IHL and the law of State Responsibility. In this article, I'll examine how the convergence of these two institutions of law develops respect for IHL and then provide some views from an IHL standpoint on the potential future growth of the legislation of international responsibility.
Guaranteeing respect for IHL via interconnecting frameworks of legal responsibility
When it comes to the interpretation and implementation of IHL, the Articles are almost unnoticed. The fundamental elements of state responsibility, attribution, and violation are just taken for granted. For instance, to argue that a Detaining Authority would breach IHL by neglecting to give appropriate sustenance to prisoners of war indicates that:
The failing of the camp authorities would constitute an omission ascribable to the State to which it belonged (usually under Article 4 of the ILC’s Articles, as armed units are a State agency), and
This would be a violation of the State’s responsibility under Article 26 of the Geneva Convention (GCIII) to supply adequate food supplies to detainees.
However, some problems created by armed disputes necessitate a closer examination of the interconnection between IHL and the Articles.
To begin with, as secondary norms, the Articles may be accompanied by particular primary duties, such as those found in IHL. This is the situation, for instance, concerning establishing the accountability of states in terms of infringements of IHL perpetrated by other states, like when one state disseminates false information to urge infringements of IHL by military troops of another state. As Lawrence Hill-Cawthorne points out, the Articles create a significant “accountability vacuum” when it comes to such behavior. This is because the ILC commentary regards simple encouragement of unlawful behavior (i.e., without “concrete assistance”) as inadequate to render the acting state liable.
Thus, it is critical that IHL contains a general duty to respect and guarantee that IHL is respected. This requirement is in effect at all times. The Updated Commentary of ICRC
implies that the obligation to guarantee respect encompasses an adverse obligation to abstain from empowering, facilitating, or assisting infringements of the Conventions, that enhance the pertinent secondary rules on State responsibility, thereby ‘fill(ing)’ or at least limiting the aforementioned accountability vacuum.
Secondly, IHL may establish responsibility criteria that differ from those established by the Articles. In principle, this isn’t an issue, since the ILC opinion recognizes that the Articles “function in a residual manner” and may therefore be overturned by specific international standards. Nevertheless, it is not always simple to establish the specialty of a specific IHL regulation, considering that many IHL treaty rules precede the Articles and hence do not declare that they supersede the general regulations in the Articles.
The long-running argument over the degree of command that a foreign State must have over a non-state armed institution to attribute that group’s behavior to that State within Article 8 of the ILC’s Articles is probably the most known example in this regard.
Reacting to the evolving character of warfare via future evolution of the Law
The two components of the evolving character of conflict that may necessitate a clarification of the international responsibility law in the third decade of the Articles. These are linked to the fast advancement of new combat technology and the increasing involvement of non-state entities in armed disputes.
To begin with, the usage of cyber activities in armed disputes has been a fact since 2001, posing significant problems in the implementation of established regulations international law. For example, the notion that cyberspace affords technical opportunities for actors to hide their tracks has placed the “attribution issue” into clear focus. Present attribution methods, as stated in the Articles, are unquestionably applicable “whether the behavior is carried out via cyber or some other ways”. However, an examination of particular instances shows that these regulations may be ‘too strict for attributing cyber activities to states’. In this regard, the rising practice of releasing national positions on the implementation of international law to cyber activities provides a chance for states to explain how the applicable standards apply while accounting for the unique characteristics of cyberspace.
Relatedly, rising autonomy in weapon framework has caused concerns regarding the dispersion of liability and a possible ‘accountability vacuum’ owing to the lack of human supervision. As responsibility for conformity with IHL cannot be transmitted to devices, weapon frameworks, or software, parties to armed disputes – and, in the end, humans – are accountable for the repercussions of their usage. Nonetheless, holding people and parties to armed disputes accountable for IHL infringements may be difficult to implement in practice. Autonomous weapons that utilize Artificial Intelligence (AI) particularly machine learning; pose special challenges owing to the absence of predictability, clarity and explanation in their operation. As a result, continuing attempts at the Convention on Certain Conventional Weapons to settle on the adequate normative and practical structure provide a vital opportunity for enacting newly obligatory regulations on autonomous weapons and defining responsibility for their usage.
Furthermore, there are hundreds of armed institutions operating across the globe today, many of which are engaged in armed disputes. As per the ICRC, non-State entities to armed disputes presently outweigh States by ratio of approximately 2:1 and their total number tends to rise. Though it is widely acknowledged that non-State armed institutions have international legal identity for the reasons of IHL, it is troubling that the precise bounds of their accountability under international law remains uncertain, especially in context of their extraordinary expansion.
The Articles of the ILC specifically exempt from their ambit concerns of non-State liability within international law. That does not, though, imply that the Articles are completely silent on IHL infringements committed by non-state parties. They do affirm that states are liable for such infringements if they are traceable to them, notably where the underlying behavior was commanded, ordered, or regulated by the state (Article 8). They also define who is responsible for the behavior of insurgent movements that lead to the formation of new administrations (Article 10).
Despite those linkages to States, it’s yet debatable whether infringements of fundamental principles of IHL have legal implications for non-state armed institutions as collective bodies, and if yes, what those implications could be. Special Rapporteur Crawford observed in his 1st Report on State Liability that the liability of such entities, particularly for violations of IHL, might ‘clearly be envisaged’. Additional work is indeed to determine if and how the law of international responsibility applicable to non-state armed institutions.
Conclusion
The Articles of the ILC have provided a desirable level of legal certainty that pervades all aspects of international law, especially international humanitarian law, following their adoption in 2001. The implementation of the Articles and IHL together, as shown in this piece, also helps to strengthen the rule of law amidst armed disputes. At the same time, the character of warfare has changed dramatically in the last two decades. These advancements have highlighted the necessity for the framework of international responsibility to evolve to stay effective and address new problems, such as those brought by the advent of new technologies and the expansion of non-state entities.
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