State Responsibility For The Support Of Armed Groups In The Commission Of International Crimes Presented by: Narissa Ramsundar Date: March 28, 2022 The Current Interpretation Creates A Gap In The Law On State Responsibility - Contemporary warfare is largely driven by groups of individuals who exist outside of de jure army formations but, nevertheless rely on states to support them for training, the provision of arms, logistic support, food, shelter and survival supplies. - Their state supporters, under the current rules of attribution could possibly never be held accountable in international law. Thesis  The current interpretation on the rules for attribution of conduct of individuals to States, under articles 4 and 8 of the Articles on State Responsibility for Wrongful Acts (ARSIWA) allows for state impunity in the commission of international crimes. This occurs in cases where States exercise strong and very powerful degrees of control and influence over armed groups, but fall short of satisfying the requirements for' effective control' or 'complete dependence' as articulated in the current case law that interprets article 4 and 8 of the ARSIWA. There is thus need to re-examine these interpretations and discuss whether a reinterpretation of the operative clauses "effective control" or " complete dependence" is possible. Why Is This Inquiry Important? - If the new face of conflict is marked by the increasing commission of international crimes by members of armed groups which rely substantially on the support of states, there is urgent need to examine whether the current interpretation of the law needs to be reconsidered so as to probe deeply into these relationships to determine more fully questions of state control over these groups. - If the new face of conflict is marked by the increasing commission of international crimes by members of armed groups which rely substantially on the support of states, there is urgent need to examine whether the current interpretation of the law needs to be reconsidered so as to probe deeply into these relationships to determine more fully questions of state control over these groups. Statement Of The Law In Article 4 Under article 4 of the ARSIWA: 1. The conduct of any State organ shall be considered an act of that State un international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, an whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State. Statement Of The Law In Article 8 Under article 8: 1. 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. Acts Of State And De Jure Agency - These provisions are underpinned by the principle of the unity of the State. Under this principle the State is indivisible and as such, the acts or omissions of any de jure organs are considered acts or omissions of the State. Under this provision, all entities which exercise functions of the state, are organs of the State and the State will be responsible for any wrongful act issuing from any of them, whether these entities are part of the central government, or a territorial unit of the State because all these entities act with the sovereign authority of the state. - The acts of private entities can be considered acts of State, because the State has instructed, directed or controlled the private entity to engage in the wrongful conduct. The instructions or the direction and control over the private entity to commit wrongful conduct creates a relationship between the State and the entity, so that the entity becomes a de facto organ of the State and thus, the international responsibility of State is engaged for the wrongful acts of these entities. - De facto agency also occurs where the private entity was completely dependent on the supporting State. Interpretation Of These Tests In The Nicaragua Case  "What the Court has to determine at this point is whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government..."[109] Interpretation Of These Tests In The Bosnian Genocide Case - "According to the Court's jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in "complete dependence" on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious" [392] Dependence - High dependency is insufficient, what is required is complete dependency - Evaluation of evidence to consider: 1. Creation of the group 2. Infusion of funds, logistical and other forms of military support 3. Ability of the group to survive without these funds and military support 4. Was the dependency total or did the group maintain a real margin of independence Control  Control over the military or paramilitary operation in the course of which international crimes occurred;  By radio or direct command  Removal of doubt could well be committed by members of the contras without the control Motivations For States To Support Armed Groups  The support of an armed group serves as a means to prevent direct confrontation with another state but nevertheless realize foreign policy objectives without the costs of a dedicated policy objective;  The armed group may have an ideological connection with major religious or ethnic groups in the supporting state and want to imprint that ideology on the state the group operates;  To extract human and material resources within the borders of other countries, without the intentional sponsorship of these states or governments;  To use support of an armed group to conquer one state so as to launch into more elaborate military strategies on neighboring states. Reality Of The Relationship - ... "It is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious." [392] Different Forms Of Control Dependency relationships maintain power imbalance that: 1. Can afford a psychological dimension for control that allows the powerful to manipulate plans, goals, strategies of the weaker party; 2. Take a supervisory role in the planning of military operations in situations where it is directly foreseeable that international crimes are likely to happen; 3. Creates a common criminal purpose in the relationship as the means to achieve the goals of the group are within a general context that international crimes can occur; 4. Allows for the Hinter Mann, i.e. an armchair controller that facilitates the commission of international crimes. Limitations Of Current Interpretations Of Effective Control Does not include: 1. Psychological control 2. Ideological or ideational control 3. Manipulation of the group to achieve supporting states own foreign policy agenda: a. Through legislating for aid for the group in congress/parliament as part of foreign budget b. Using the group to create "puppet" states to assist in invasions, annexations c. Using the group to exploit neighboring resources for the benefit of the supporting state Prevent And Punish Duties  Due diligence obligations on treaty and customary norms  Distinguishable from criminal responsibility and does not call out the role of the state in driving international crimes through subversive means Limitations Of The Complete Dependency Test Does not include: 1. Sequentially capacitation of the membership of the group; 2. Empowerment of the group's ability to complete conquests via funds infusions; 3. Development of intelligence and tactical planning skills which function as key scaffolding in the perpetuation of the group's Success; 4. Impact of administrative support in keeping the group viable. Suggestions - Reinterpretation of the tests of effective control and complete dependence to factor in indirect forms of control; - Create a lex specialist for articles 4 and 8; - Vary the tests of attribution to overall control or high dependence.