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The paper critically evaluates the concept of attributability of the conduct of non-state actors on the issue of terrorism; the essay seeks to apply what I have learnt in the course “state responsibility” borrowing a lot from the draft of the responsibility of states for internationally wrongful acts to this topic. The work addresses such questions as how should a state respond to terrorist acts committed by non-state actors, the circumstances in which a victim state lawfully respond with armed force to the incidence of terrorism. The paper further elaborate what is meant by the term attributability of non-state actors when committing terrorist attacks? Generally, the paper critically analyzes the concept of state responsibility and attributability. In dealing with this topic, it looks at the time the state is responsible and all the cases of action taken in order to keep the duty of state of international responsibility. The problems arisen by the situation stated in the title: concept of attributability and how this can be assessed by using the draft on State responsibility in case a terrorist act is committed by a non-state actor.
The term terrorism according to Cassese (2001) can be defined as the violence that is politically motivated perpetrated against the targets that are noncombatant by the sub national teams or agents that are clandestine. The present definitions have one common element which is the behaviors that are politically motivated although religious motivations are also coming into play. The complicating mater is that nations and organizations have never agreed on the definition of the term terrorism. This is because the term terrorist means the person who fights for the freedom of the other. To deal with this issue nations have enacted policies that criminalize the some acts like detonating bombs among others. The definition that is majorly accepted by the majority is the one that defines by making it to be a crime of collecting or providing funds with the intention of killing or injuring the public with the purpose of intimidating the population or coercing the government.
Cassese (2001) explains that the issue of terrorism at the international level has in the long time been seen as the foreign and domestic threat of security. The modern trend in terrorism is towards the insecurely organized, trans-boarder networks that are self-financed. The other trend moves to the motivation of ideology, the other trend is the expansion trans-national links among terrorist teams. It comprises military training, financing, and transfer of technology and the political advice. According to the book by Fleck, (1995), the loom in the whole issue of terrorism is the drift to proliferation of mass destruction weapons.
The indication is that of Al Qaeda attempting to get chemical, biological nuclear and the radioactive weapons. As the consequence, the parties against international terrorism are on the rise while the error margins for the selection of proper policies to counter terrorist attacks are diminishing. Terrorism is a world wide fact, now the main challenge to the policy constructors is how to maximize and support internationally with no compromise on the U.S. national security interests and on how the economic and civil liberty expenses of a better security. To combat terrorism the activities that are sponsored by states also worries the policy makers, as concluded by Cassese (2001).
Attributability of Non-State Actors
According toSveinbjornsson, (2009) the society internationally has been in conditions that states take direct action against the non-state actors hence affecting the sovereignty of foreign states. The legitimacy issue of such actions taken against the non-state actors is highly debated.
The threads that historically were from interstate to the international peace and security are nowadays coming from within the states but planned. Financed and executed by the non-state actors. As a result the victim state to act in a manner that it protects itself and its citizens.
According to National Intelligence Council, non state actors are no-sovereign entities that practice substantial political, social, economic influencing national as well as international arena. They include terrorist groups such as Al-Qaida and Al Shabaab, paramilitary groups, private businesses, multinational corporations, Non-governmental organizations, sub-national governments, tribal organizations and criminal organizations. Attribution is just another name for armed attack.
In his study, Cassese (2005) says that the new threats to the trans-boarder peace and security are the non-state actors. They can be in the form of terrorist, rebel and even pirates groups. The actors are not per se new but the level of threat. The domestic measures against non-state actors, needs some measures to be fulfilled for the state to take actions to defend non-state attacker. These needs establish the victim state classification which permits the state to either use the forceful or the non-forceful actions under the international laws.
Geir (2003) explains that in most cases the first measures resorted to are the non-forceful according to the international basic rules of maintaining peace and security globally and prohibition of force. Since the actions of non-state actors influence peace to a victim state as peaceful measures are always time consuming. Then the legitimacy of measures that are forceful becomes crucial against non-state actors. The international law give room for the forceful measures under some conditions when is justified by the self defense and when authorized by the U.N council of security. Greenwood, (2002) explains that the authorization by the U.N Security Council primarily depends on if the actor pose threats to the international peace and security, while the issue self-defense is very complicated. The condition of self-defense comprises the issue that the armed attack has happened. This distinction needs to identify the happenings of the armed attack and that of successful practices of self-defense. The armed attack does not need attribution or relation to a state and can be fully executed by non-state actor. There is no practice of self-defense on he non-state actor in the territories that are foreign unless some conditions are fulfilled, for instance the relation between the actor and the state in which he operates or the incapability of that state to protect its territory against being used as the base to plan or execute an armed attack alongside a “victim state.”
The use of Force against Non-State Actors
Awol (2010) explains that the Charter of the U.N. outlaws the use of force among the sovereign states for the purpose of maintain security and peace. The first exception occurs to the right of individual and collective self-defense found under article 51 of the Charter. The second exception occurs under the order of the Security Council when responding to threats to peace, breach of peace, and a deed of aggression Chapter VII of the Charter. As an effect Ethiopia’s military intervention in Somalia was justified as an exercise that is lawful of its inherent right of self-defense. Also some scholars say that customary international law give room for the right of defensive measures in an anticipation of an armed attack that didn’t occur for example the use of force by Ethiopia under the customary international law.
Although there are extreme positions on the need of self-defense when a non-state actor attacks, from the one that demands the full state attribution and the other one that needs no attribution. The law recognizes armed attack by non-state actor and the position in the middle of the two extremes. On the identification of the armed attack and the link between non-state actor and the state, whether is support, harboring, or abetting and aiding, then there is a resort to defensive measures under article 51 if these deeds fulfill the necessity needs of self-defense. Hence the violation of sovereignty of the host state is justified under international law when there is an effect to breach international law resulting to a threat to peace and security in the international society. In case the state is unable to prevent its territory, to be used by non-state actors the same reasoning of as to the need and emphasize on necessity. So, if it’s necessary the host state might not object to the proportionate and actions that are necessary to be taken by the victim state within the territory of state hosting. These deeds need to be in accordance with the requirements of proportionality and necessity strictly and can only directed against the non-state actor under these conditions. If the needs are un-followed it’s the victim’s state responsibility to remedy the wrong like through the reparations.
Zimmermann (2007) sates that the use of military force by Israel on Lebanon brings about three questions, one if whether the use of military force by Lebanon had reached the necessity intensity and whether actions can be attributed to the Lebanon state and lastly what conditions that non-sate actors’ attacks can be attributed to the states.
Sveinbjornsson, (2009) stated that generally if the threats originate from outside, the whole jurisdictions the normal needs of self-defense are applicable to the similar extent as they would apply if the threat originates within the jurisdiction of another state. What is significant is that there is no need for attribution or relation between the non-state actor and the state for the self-defense to be carried out.
Kattan (2007) explains that the Nicaragua case confirms the customary character of the requirements of necessity and proportionality. For necessity to apply all other non-forceful means have to be exhausted and proved futile. Another issue is that undue time-lag should not be there between the attack and the action of self defense. However the requirement of immediacy seem to already have been more widely construed in exercise in the terrorist attack ages which are mostly over and done with before the state that is the victim be in a stand to opt for military force; it is argued that this sensible delays allow the gathering of evidence of the identity of the attacker and the intelligence collection and the organization of the military force so the strike can be in a manner that is targeted as Human Rights Watch (2005) argues.
Another requirement as demanded by the Human Rights Watch (2005) is that the response to the self-defense has to be proportionate. The action of military in self-defense has to be proportionate to the purpose of its defense. That is no more than is necessary to the repel attack. Te aim of self defense should not be retribution, form of punishment, deterrence that is general or other motives. In this case the response intensity may end up being disproportionate to the initial attacker’s intensity provided that it is not meant for any thing other than what is necessary so that the legitimate purpose to provide protection of the territory integrity is achieved or any other important rights of protecting the state. when the context of terrorism is considered, the legitimate objective of self-defense may extend to the point of detain the individuals who are allegedly claimed to be responsible for the terrorist attack and the destruction of the legitimate military aims, which may include things like the infrastructures, basses that are used for training, and other similar facility that are being in use by the terrorists.
State Response to A Terrorist Act Committed By Non-State Actors
There are many ways through which the state can respond to a terrorist attack that has been committed to by the non-state actors. They include;
Diplomacy or Constructive Engagement
Cassese (2005) explains that the diplomacy use assists in the creation of global anti-terror coalition as it was used by President Bush when responding to the event of September 11. This method might not be efficient against terrorists that are determined or the countries that support them. But in many cases it the measures of diplomacy are considered least probable to broaden the conflicts hence are mostly tried first.
When responding to the events of terrorism by substantial teams, constructive engagement is too complex by the absence of channels and mutual rules that are acceptable between the entities of government and the groups in target. At times the legislation may not permit the physical conduct with the terrorist group or its member. While for groups that can be described to be well-entrenched in the political fabric and the culture of the nation, the group engagement may be preferably attempting to exterminate it, for example Colombia peace process with the FARC.
The powerful force according to Human Rights Watch (2005) remains to be the media in the process of confronting the terrorists and the state, as the influence on the opinion of the public may not only impact the actions of the state but also of these terrorist groups. From the perspective of terrorists the coverage of media is a significant measure in the success of the terrorist deeds. In the incidences of hostages where the media provides independent modes a terrorist has to identify the chain of actions set in motion as the rescue process can be complicated by the coverage. The diplomacy of the public and the media may be used in mobilizing the opinions of the public in some countries to pressurize the state to take actions against the terrorist actions; for example mobilizing the tourist industry, to give pressure to the state to participate in the sanctions against terrorist actions (United Nations, 2001).
The initiatives to counter terrorism may include the inputs that change the economic and social situations that encourage breeding platforms of terrorism. Fleck, (1995) states that it has been noticed that, in the whole world terrorists are unemployed or these who are underemployed with virtually nonexistent prospects for the advancement economically. Other analysts have believes that programs that are targeted to reduce poverty and ignorance to result to a difference in the lifestyle and attitude and reduce the appeal of the groups that are at the extreme. Another issue that is put forward is the projection of a better image of the state in the lands that are prone to terrorism. Though the critics say that severe economic situations are not the sole or the main motivational issues that drive the emergence of terrorism, but the resentments against a certain state or political state and fanaticism of religion are also significant motivations. For instance Osama, s huge personal fortunes and far flung businesses contradicts the economic derivations as an explanation of his terrorism. A so ambient economic situation partially explains some forms of terrorist deeds in a particular condition but the political factors have an important role as well as the book by Geir (2003) indicates.
According to the book by Fleck, (1995) the gathering of intelligence, terrorist group infiltrations and the operations of military involves several clandestine. It may involve a nature that is passive monitoring that determines the strategic intents, capabilities and vulnerability of terrorist groups. it seeks to exploit the vulnerability of terrorist groups for example encouraging defections. Other nations have at intervals resorted to methods that are unconventional beyond their boundaries with the objective of neutralizing individual terrorists. Most of these actions under Article 15 of the U.N Charter are described as primitive self defense. The experts warn that taking a person to the state justice by means other than extradition or agreeing with the host country complicates the foreign relations.
Attribution and International Courts
Sveinbjornsson, (2009) stated that attribution is an old legal way of settling disputes in international laws, however other ways include international courts lie ICJ. The procedure behind attribution and other courts is time consuming, complicated and expensive. This limits the practical application of these methods for the resolution of disputes of non-state actors’ threats since they normally call for immediate actions. Though courts like ICC are in existence, they normally deal with incidences that are prior so that proper justice is administered to these individuals who have committed illegal acts. Hence they are not solutions to persons who need to defend themselves (Sveinbjornsson, 2009). After argument is valid that many cases presented to the ICJ are cases which have cases presented after the fact, judgment pleading on legitimacy of particular deeds, as the result impractical solutions of non-state actors’ threat conditions, apart from in the aftermath ensuring individuals brought to justice.
Dinstein (2001) proposes that this can have substantial clout if wielded by a superpower, due to the military’s unique skill and the equipments that are specialized. The successful use of military for the preemptive strikes presupposes the capability of identifying terrorist perpetrators or the state that sponsors as well as the exact location of the organization. In most cases, terrorists have the physical facilities that enable few high-value military strikes targets. Human Rights Watch (2005) argued that this operation may lead to civilian casualties as well as the damage to the economic installations in the target state, further more it inflates terrorist’ sense of significance and facilitate their efforts of recruitment. It also destroys the image of the state. Other risks may include counter-retaliation and escalation by the groups of terrorists or their sponsor states. Lastly the costs that are incurred during the operation are too high as explained in the book by Cassese (2005)
Concept of State Responsibility
In giving the meaning of the state responsibility Human Rights Watch (2005), defines it as an aged principle of international law that was developed to provide protection of the aliens’ rights. It usually comes into play when one state commits an international offense against the other state. The rule has been elevated not to only refer to as the general principle to the status of the international law but also greater conception of law that involves an obligation for the reparation for any breach of an engagement. This state responsibility according to the article is incurred when two essentials are proved. Zimmermann (2007) sates that the first element is that there has to be a conduct that consists of an act or omission that is attributed to the state in the international law The second element explains that the conduct constitutes a breach of an international state’s obligation. So the state responsibility relays on the on the connection between state and wrongful deed, as the result the action of a non-state actor has to qualify as an action of a state.
State Responsibility for Non-State Actors’ Acts or Omissions
Cassese (2005) starts by explaining that whether the state is liable to the violation of international law by a non-state actor lies in the definition of an ‘an act of a state’. Dinstein (2001) adds by indicating that according to the draft part3 covers the characterization of the states’ act as an offense internationally. In the draft there are rules that can articulate the condition that the state responsibility can be imputed. Some of these rules expressly envisage the liability of the state for the offensive deeds of a non-state actor.
First, part 5 states that the action of an entity or a person that isn’t the states organ that the law of the state empowers them to undertake the actions of the authority of the government can result to the state responsibility given that the individual was acting in that capacity in a particular condition in the issue. There are bodies that are not state organs under this rule but the state empowers them to undertake actions under the authority of the government. Such organ’s activities may be attributed to the state.
Greenwood (2002) says that in the draft article part 8, the conduct of an individual or group of individuals under instructions of a state, a state can be attributed to the state under discussion. Fleck, (1995) explain that where the state authorizes the conduct the liability is incurred regardless if the person authorized is given a private individual, it also doesn’t matter the conduct involves public or the activates of the government. Whatever that is needed is the proof of the state authorization. As results the action of private actors will result to the state responsibility if proved that the actors were under the instructions the state. if the conduct was incidental to the operation or exceeded the state’s authority it will not be the state responsibility. In such cases the conduct was directed by the state and the action complained of was integral part of that operation. For the reasons of imputing the criminal responsibilities on the state powers for the actions of the armed forces, the needed level of control goes beyond financing and equipping. It can be thought that wrongs of private actor may not be attributed to state under the standards of lesser of the control of the state. Unless the state owned enterprise does the elements of the state their actions cant be attributed to the state, but the state will incur the liability of such an enterprise when the veil of the enterprise is used as the engine of the fraud or shown that it was under the power of the public or used by the state to fulfill a given objective.
Part 9 explains that the conduct of non-state actor acting on the authority of the government in the absence of official authorities and the situation to call for the action of the authority can be attributed to the state. The conduct has to relate to the action of the public or the authorities of the government have to be absence of the authority and the situation has to justify the action of these authorities. The conditions may include revolution, and armed conflicts.
According to Geir (2003), the Article 10(1) states that the conducts of an insurrectional movement that emerges to be the state’s new government, will be considered an action of the state under the law internationally. Also, the conduct of a movement which establishes a new state, in part of the territory of a state that has existed, under its new administration is attributed to the new state. This section envisages the responsibility of the state for actions of private actors. If the rebellion succeeds all the offenses committed, by the members is attributed to the new state. When the rebellion fails, the state will not be liable for the violations of the international law by the members. In such cases the state is liable on the grounds of lack of faith and negligence.