rEalizacióN dE UN ExamEN GENEral (continuación)

FORCES AND NON-STATE ACTORS

When can a forcible intervention be attributable to a state?20 Naturally, this question does not pose major difficulties when a state makes overt use of its regular armed forces. However, when irregular forces enter the picture, the issue of attribution becomes paramount. The question of state responsibility for acts taken by irregular forces – or the attribution of these acts to a state – has been one of steadily increasing importance since the end of World War II, as the use of irregular forces has been a recurring and dominant feature of forcible interventions in internal conflicts. This has been a feature of the cold war’s proxy conflicts;21 of Africa’s disastrous internal conflicts since the 1990s;22 and of contemporary struggles involving religious extremists in the early 21st century.23

20

Article 2(a) of the ILC Articles on State Responsibility conditions state responsibility on the act being attributable to the state; however, it does not specify the elements of such attribution, which may differ between different fields of international law. See U.N. Int'l Law Comm'n Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, arts. 51, 53 in Rep. of the Int'l Law Comm'n, U.N. GAOR, 53d Sess., Supp. No. 10, A/56/20 (2001), ¶¶1–5 [hereinafter ILC Draft & Commentaries].

21

For instance, the relation between North Vietnam and the Pathet Lao insurgents in the Laotian internal conflict of the 1960s; the alleged connection between the Nasserite rebels and the United Arab Republic in the Lebanese conflict of 1958 (both prompted U.N. commissions to investigate these connections – both found no conclusive evidence). See John Main, The Civil War in Laos, in INTERNATIONAL REGULATION OF CIVIL WARS 91(Evan Luard ed., 1972); Malcolm Kerr, The Lebanese Civil War, in INTERNATIONAL REGULATION OF CIVIL WARS,id., at 65,66–67.

A relatively clear-cut example for the use of irregular forces can be found in the first stage of the Syrian intervention in the Lebanese conflict of 1975, in which Syria sent the "Palestinian Liberation Army" (PLA) – an officially Palestinian, but effectively Syrian force – to intervene in favor of the rebelling National Front in its struggle against the ruling, Maronite dominated elite. The PLA forces were directed from Damascus and utilized Syrian military hardware, which was hastily covered in PLA insignia.24 Another instance of forcible intervention through irregular forces is the involvement of the Rwandan Patriotic Army (RPA) in the 1996–1997 Zaire/Congo conflict, in which RPA forces, loyal to Rwandan president Kagame, were instrumental in the removal of Zaire’s dictator Mobuto Sésé Seko.25 Recently, Iranian officials reportedly admitted that units of Hizbullah, crossing from Lebanon, have participated in the defense of army bases in Syria, after these have allegedly come under attack by the Syrian opposition.26 The latter situation demonstrates the attribution problem in full force, and namely whether Hizbullah’s intervention can be attributed to Lebanon, Iran, both or neither.

Regarding irregular forces, article 3(g) of the Definition of Aggression27 – augmented by a similar provision in the 2010 Kampala definition of the crime of aggression –28 provides that the term aggression includes

22

This was a feature of the 1990s conflicts in Rwanda, Burundi, Sierra Leone and Sudan. See William G. Thom, Congo-Zaire’s 1996-1997 Civil War in the Context of Evolving Patterns of Military Conflict in Africa in the Era of Independence, 19 J. CONFLICT STUDIES (1999).

23

See, e.g., the perplexing status of Hizbullah within Lebanon's political structure. See INTERNATIONAL

CRISIS GROUP,DRUMS OF WAR:ISRAEL AND THE “AXIS OF RESISTANCE”4–6(Aug. 2, 2010) (analyzing the possible consequences of the “embedding” of Hizbullah in the Lebanese state).

24

See NAOMI JOY WEINBERGER,SYRIAN INTERVENTION IN LEBANON:THE 1975-1976CIVIL WAR 142 (1986).Syria has made use of the “Palestinian Liberation Army” banner also in 1970, during the Black September events in Jordan, where Syrian tanks were camouflaged under PLA insignia. See id. at 130. 25

The Rwandan president admitted that RPA troops were heavily involved, and even took leadership, of the rebel forces in Zaire. Thom, supra note 22. This admission was retroactive, as during the conflict Rwanda repeatedly denied its involvement. See 1997 U.N.Y.B.73–74.

26

See Source: Lebanese, Syrian Situation May Lead to Abductions, NOW LEBANON, Jan. 22, 2012, available at http://www.nowlebanon.com/NewsArticleDetails.aspx?ID=355577.

27

Definition of Aggression, G.A. Res. 3314 (XXIX), ¶3(g), U.N. Doc A/9631 (Dec. 14, 1974). 28

[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

In the Nicaragua case, the ICJ reaffirmed this article as reflecting customary international law, holding that the court

sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending

by a State of armed bands to the territory of another

State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.29

Thus, the ICJ has recognized the possibility of attribution between a state and irregular forces actively sent by it. Regarding the level of state control required such attribution, the Nicaragua court held that the state must exercise “effective control” over the specific operation.30 The ICTY, conversely, in the famous Tadic case, required a more lax standard of “overall control.”31 Article 8 of the Articles on State Responsibility requires, in this context, that “the person or group of persons is in fact acting on the instructions of, or under the direction or control” of the state.32 The Commentary to Article 8 addressed the different standards established in Nicaragua and Tadic, and summarized that “. . . it is a matter for appreciation in each case whether particular

29

Nicaragua, supra note 12 ¶195 (emphasis added). 30

Id. ¶¶115 –116. 31

Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chambers Judgment ¶¶17–18 (Int’l Crim. Trib. For the Former Yugoslavia, Jul. 15, 1999).

32

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.”33 In the 2007 Bosnia Genocide Case, the ICJ once again advanced the "effective control" test as established in Nicaragua, critiquing the ruling in Tadic and holding that the effective-control standard is also compatible with the aforementioned Article 8 of the ILC Draft, which it saw as reflecting customary international law.34

The additional recognition by the ICJ – based on the Declaration on Friendly Relations – that a state’s toleration of or acquiescence to forcible acts by non-state actors operating from its territory can also amount to a forcible act by that state (albeit a “less- grave” form in the eyes of the Court),35 also raises the question of attribution between the tolerated or acquiesced acts and the state. Of course, the level of toleration or acquiescence required to create a linkage between the state and the non-state actors is a complex question; it is also a relevant factor to consider whether the state has at all the

capacity to control these actors. We shall not address this question widely in this work;

suffice it to say that since the attacks of September 11th, 2001, and the ensuing (and widely accepted) forcible response, some have argued that a positive duty of “due diligence” to prevent acts by non-state actors has emerged.36 Such a positive duty to prevent actions can perhaps justify – in our context – viewing attacks launched from a state’s territory, in specific situations, as forcible interventions attributable to the latter.

33

Id. at 48. 34

Case Concerning the Application of the Convention on the Preventionand Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. ¶398, ¶¶405–406 (February 26th_{); see} also Antonio Cassese, The Nicaragua and the Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18 EUR.J.INT’L L. 649 (2007) (surveying the rulings in the aforementioned cases regarding the "effective" or "overall" control standards, and critiquing the court's reasoning in the Bosnia Genocide Case).

35

See sec. I.2. 36

See, e.g., ROBERT P.BARNIDGE,NON-STATE ACTORS AND TERRORISM:APPLYING THE LAW OF

STATE RESPONSIBILITY AND THE DUE DILIGENCE PRINCIPLE 53–110(2007);see generally TAL

Some have read the “due diligence” concept into the “overall control” standard, as imposing “protective duties” on the territorial state vis-à-vis other states. However, it is unclear to what extent, if at all, they see this duty as creating an attribution sufficient to implicate the territorial state itself, beyond allowing the attack of the non-state actor in its territory.37 In this context, it has been claimed – and this indeed seems reasonable and fair – that the question whether a state is genuinely “unable” to reign in the activities of non- state actors operating from its territory, or is rather is merely “unwilling” to do so, can affect the scope of the right to self-defense of the attacked state.38 Such a distinction can also be understood as affecting the attribution of actions of non-state actors to territorial states. However, the exact ramifications of the concept of “due diligence” are beyond the scope of this work.

In sum, forcible intervention by a state encompasses also forcible actions conducted through irregular forces controlled by that state – whether according to the "effective" or "overall" control tests – either by active encouragement, toleration or acquiescence –the latter are possibly affected by a duty of “due diligence,” however it is defined.