State Responsibility and Failure to Prevent Trans-border Attacks
By: Gerald F. Witherspoon, Sr. 20150122
As stated by Vincent-Joel Proulx in Babysitting Terrorists, “Given the current state of modern warfare and ideology-motivated violence, it appears that the simple days are long over” (Silverburg 2011, 406). Globalization has provided technological possibilities that allow terrorist structures and activities to elude the historically simplistic “tic for tac” approach to reprisal. The notions of state responsibility, and the standards for the determination thereof, has evolved since the days of the 1968 Beirut raid and beyond the Nicaragua decision (1986) and Tadic judgment (1999) (Silverburg 2011).
Rewind to 1986 when the U.S. was accurately accused of funding and training the contra rebels in the Nicaragua- El Salvador conflict. The International Court of Justice (ICJ) examined the U.S.’s responsibility directly in purview of whether it had “effective control” over the military or paramilitary operations (Silverburg 2011, 408). Without such proof, the ICJ refused to hold the U.S. legally responsible for the contras actions. That is, state responsibility did not exist because the contras were not considered agents of the U.S.. Comically, the following precedent equated direct involvement with state responsibility.
Fast forward to the Tadic case, administered by the International Criminal Tribunal for the former Yugoslavia (ICTY), clarification occurred deriving from a need to differentiate between an individual and an organized group (which could more logically be under the overall control of the state) (Silverburg 2011). Then groups were further categorized into militarily organized or non-militarily organized. The following precedent equated group organizational structure and relationship to host state with state responsibility. Thus, state responsibility had expanded from being measured by an effective control test to being measured by an overall control test. Then, in 2001, the International Law Commission (ILC) codified in Article 2 of the Draft Articles that every act or omission of international responsibility equates to state responsibility. Combined, the state would be responsible if a terrorist group acted as a state agent or the state was complicit through approval. At this juncture, analysis was geared toward achieving the imposition of direct state responsibility (Silverburg 2011).
Nevertheless, state responsibility is both direct and indirect. It is here, that I turn your attention to where we may find the most pronounced complications in holding states liable for failing to prevent trans-border attacks. As Proulx stated, “…it is difficult to impute liability for an attack to a state when the state has no knowledge of or ties to terrorist activities arising from within its borders” (2011, 409). The former logic assumed a direct link to a host state with control. However, there are terrorist organizations who exist in the same geographical and politically- delineated areas as states that have no knowledge or control over their existence. Nevertheless, attempts are made to hold the host state responsible. That is, indirect state responsibility can be imputed for failing to prevent the attack from occurring whether the host state was knowledgeable or in control of the organized group or not.
A prudent example is the inability to provide hard evidence that Afghanistan was responsible for the 9/11 attacks as Al Qaeda proved autonomous from the Taliban. Nevertheless, after the attacks, the Taliban was accused of harboring and supporting Al Qaeda and therefore, Afghanistan was held responsible. And whereas the U.S. gained support from the UN Security Council and NATO, other states attempting to achieve the same support after being attacked, such as Rwanda and Israel, have failed. So then, another complication in holding states liable for failing to prevent trans-border attacks stems from the “…pursuit of egregious and blind self-interests” and “…abuse from economically stronger states” (Silverburg 2011, 427). It may be that the most economically powerful states may utilize state responsibility regimes to ensure that terrorist attacks launched from third party host states do not go unanswered, while simultaneously ensuring competing powers or weaker states remain vulnerable to weakening attacks.
Silverburg, Sanford R. 2011. International Law : Contemporary Issues and Future Developments. Boulder [Colo.]: Westview Press, 2011. eBook Collection (EBSCOhost), EBSCOhost (accessed January 21, 2015).