It is axiomatic in international law that all sovereign states enjoy rights and perform and observe their duties towards other states. In the case of Germany v. Poland, the Permanent Court of International Justice ruled that any violation of the rights resulting to injury shall create an obligation to recompense the injured state in damages (PCIJ 1928, 4 p. 29). Today, there is a proliferation of private groups and organizations which continue to threaten international and domestic peace and stability. These private groups launch armed attacks which are considered terrorist attacks on states.
The most difficult obstacle in addressing this problem is the fact that these armed private groups exists and is located within a territory of states. Consequently, the injured state may as an act of self defense attack the terrorist group but this cannot be done without attacking the state in which they are situated and operating. For an attack to fall within the purview of lawful self defense, rules are devised to govern the necessary requisites and those covering state responsibility (Vark 2006, pp. 184-193).
The rules on state responsibility are embodied in the Draft Articles on Responsibility of States for Internationally Wrongful Acts which was adopted in a General Assembly Resolution on 28 January 2001 (General Assembly Resolution 56/83). Articles 1 and 2 of the Draft Articles provide that “every internationally wrongful act of a State entails the international responsibility of that State” and for responsibility to arise, the act or omission should be one which may be attributed to the state under customary international law and that it is deemed a violation of the obligation of the state (Draft Articles Article 1 and 2).
There is breach of its international obligation when the state fails to act in accordance with what is required of it. The standard used in the determination of the intentional wrongful act is international law and not municipal law. All these requisites must be present so that legal responsibility can attach (Vark 2006, pp. 184-193). State responsibility is rooted in the concept of agency, i. e. the state can only act through its agents. Clearly, entities and public officials conduct when exercising public functions are the state’s responsibility.
Using the traditional rule in international law, it is generally not the liability of the state when the act or omission is committed by private persons (Jennings and Watts 1996, pp. 502–503). This rule however, has evolved into making the state responsible for private terrorist acts or private persons and entities when the state has failed to observe and comply with its duties of preventing harm or from abstaining from giving support to it (Becker 2006, p. 3).
Under Article 8 of the Draft Articles the imputability to a state of responsibility is recognized when the actor is in fact, carrying out the instructions of the state or is “under the direction or control of the state. ” The International Court of Justice (ICJ) laid down the ‘effective control’ test in the case of Nicaragua where it ruled that notwithstanding preponderance of evidence that the United States was financing, supporting, training the proxy army in Nicaragua, it was not enough to hold U. S. responsible considering that these were not enough.
There must be sufficient proof of effective control of the military operations (ICJ Reports 1986, p. 14). This ruling was contradicted by the Appeal Chamber of International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic case (Townsend 1997 (14), pp. 643–644). It ruled that effective control test does not require proof of orders or instructions issued, it is sufficient that the state has an ‘overall control’ (Townsend 1997 (14), pp. 643–644).
Another instance whereby the state may be held liable for the acts of private individuals is embodied in Article 9 of the Draft Articles. The state is responsible in cases where private individuals discharge governmental authority in the absence of government authorities. This refers to a situation when the state authorities are inoperative such as in the case of a revolution. A group of terrorists who takes control of the state and launches terrorist attacks shall render the state liable for the injury it causes to other states.
Another instance is provided under Article 11 such as when the conduct is “nevertheless be considered an act of that state under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own. ” This means that there is a clear and unequivocal adoption or approval by the state of the conduct (Becker 2006, p. 72). Finally, another situation whereby a state can be held responsible for the terrorist acts of private individuals is when it supports and harbors terrorists as this may be considered a violation of international law and Security Council Resolutions.
The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States provides, “every state has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to involve a threat or use of force”. Moreover, Security Council Resolution No.
1373 requires that states “deny safe haven to those who finance, plan, support, or commit terrorist acts” (Security Council Resolution 1373 2001, paragraph 2 (c)). Thus, clearly it makes the obligation of the state to prevent the attack and warn the other states of possible attacks. The Security Council Resolution No. 1373 has declared that states should “refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts” and “take the necessary steps to prevent the commission of terrorist acts” Security Council Resolution 1373 2001, paragraph 2 (a)(b)).
Being a part of the international community, all states are expected to comply and observe the mandates and decisions of the Security Council.
Becker, T 2006 Terrorism and the State: Rethinking the Rules of State Responsibility, Oxford Hart Publishing, p. 3. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXV), 24. 10. 1970