The matter of the responsibility of States for internationally wrongful acts is primarily governed by the International Law Commission (ILA)’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). I have attempted to pose a question in this article rather than answer one. Is there a hierarchy within the ARSIWA? I argue that this is explored principally with regard to the subject of ‘attribution of responsibility’.
As early as in 1905, Lassa Oppenheim, renowned jurist and former Whewell Professor of International Law at University of Cambridge, had stated that “every neglect of an international legal duty constitutes an international delinquency.” Drafted by the ILA and commended to states by the General Assembly in 2001, the Draft Articles codified this principle, in a considerably elaborate manner. A prominent provision with regard to this responsibility is found in Article 2 of the ILC’s Articles which states that there is such an act when conduct consisting of an action or omission: (a) is attributable to the State under International Law; and (b) constitutes a breach of an international obligation of the State.
These elements of an internationally wrongful act, affirmed in the judgements of the Permanent Court of International Justice (Phosphates in Morocco case, Italy v. France) and the International Court of Justice (Diplomatic and Consular Staff in Tehran case, USA v Iran), form the basis for the determination of state responsibility. Attribution is the process by which international law establishes whether the conduct of a natural person or any other such intermediary can be considered an ‘act of state’, and thus be capable of giving rise to state responsibility (Crawford, 2013). The primary aspect with regard to attribution that is addressed here, is that of ‘control’, using the events that occurred in Iraq in January 2020, as a case study.
II. Airstrike attributable to a State
On January 3, 2020, the United States carried out an airstrike in Baghdad to kill General Qassem Soleimani of Iran, the head of the Quds Force of the Iranian Revolutionary Guard Corps. While Soleimani was viewed by few as an influential figure in the defeat of the Islamic State, the USA viewed Soleimani as a threat to US interests in the region. With regard to the strike, the United States argued that it acted on the justification of “defense”, as is evident in the official Department of Defense statement. There have been arguments from both sides in international scholarship for the illegality of not only US action but also Iranian retaliation – the former can be found here and the latter, here. However, this skirmish between USA and Iran, which was predicated on the actions of one state (Iran) in another state (Iraq) against a third state (USA), was largely related to the actions of a group of persons (Popular Mobilization Forces or “PMF”) against that third state. How does this affect the question of attribution of responsibility for the actions of the PMF? This question is explored in light of Articles 4 and 8 of the ARSIWA.
The PMF, a varied mix of militias brought under one umbrella to fight ISIS, were integrated with Iraqi state militia, for Iraq to keep them in check. In 2016, the government passed a legislation – Law of Popular Mobilization (PM) Authority, 2016, under which “the PM is an independent organization with corporate personality, is a part of the Iraqi armed forces, and reports directly to the general commander of the armed forces” (Article 1.1). Furthermore, according to Article 1.2.1, “the PM is subject to all military laws in effect except those related to age and education requirements.”
Therefore, as per Article 4 of the ARSIWA, the PMF is an entity that has the status of an organ “in accordance with the internal law of the State”. This rule has a customary character, as was asserted by the ICJ in the Difference Related to Immunities case. The interpretation of this article by the ILC is broad. It commented that the language of the article allowed for the fact that the principle of separation of powers is not followed in a uniform way and moreover, the term is one of extension, not limitation as is made clear by the words “or any other functions” (See Para 6 under A4). Under the ‘overall control’ test laid down in the Tadic case by the International Criminal Tribunal for the Former Yugoslavia (ICTY), which albeit was acting outside its scope as noted by the ICJ in the Genocide case, it serves to further the argument that the Iraqi government, by virtue of the 2016 Law, exercises control over the PMF as a “group of persons”. The ICTY had noted inter alia that: “Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group. Consequently, for the attribution to a State of acts of these groups it is sufficient to require that the group as a whole be under the overall control of the State”. (See Para. 120). This jurisprudence establishes that the actions of the PMF are attributable to the State of Iraq, supplementing the interpretation in the commentary.
At this point, we turn to the role of Qassem Soleimani in Iraq, which was so fiercely discussed following the airstrike. It seems to have been established that General Soleimani, the head of the Quds Force of Iran- an organ of Iran as per ARSIWA Article 4, played an influential role in guiding the conduct of the PMF. Few of the several militias which form the PMF such as the Kataib Hezbollah, are aligned with and are loyal to Iran in their actions, and receive support and training from the State. The Iran Cables, released jointly by the Intercept and the New York Times, reveal a lot in this regard. The Jurf al-Sakhar operation conducted by militias sponsored by the Iranian Quds Force, while clearing the area of ISIS militants, was termed as a “massacre” in these leaks. Regardless of the veracity of these files, if one were to work on the assumption that such operations were conducted under the instruction of Qassem Soleimani or any other Quds official, then responsibility is largely attributed to Iran.
III. Effective control
In turn, in Article 8 of the ARSIWA, the ILC seems to have affirmed the ‘effective control’ test laid down by the ICJ in Nicaragua and further in Genocide. It noted in its commentary to Article 8 (Para 3) that “conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation.”
In the case of Tadic, Justice Shahabuddeen differed from the ICTY’s Trial Chamber’s interpretation of the Nicaragua judgement. He cited Judges Stephen and Vohra who had held that the term ‘effective control’ meant ‘command and control’. He termed this to be “too high a threshold to insist on proof of command and control for the purpose of determining whether a state was using force through a foreign military entity” and while admitting that there was room for reviewing the Nicaragua case, he stated that “although I appreciate the general tendency of the judgement of the Appeals Chamber, I would respectfully reserve my position on the new test proposed” (See Paragraphs 15 and 21 in the Judge’s Separate Opinion). Therefore, if one assumes that the Iranian Quds Force had ‘effective control’ over the PMF in their operations in Iraq -such as those directed against US assets-, then their conduct becomes attributable to the State of Iran in light of Article 8 of the ARSIWA and the ICJ jurisprudence. In paragraph 292(3) of the Nicaragua judgement, the ICJ decided that the US “by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State”. Hence, if the state of Iran has acted in a similar manner, to whatever degree, in the case of the PMF, then it is indubitably responsible for the latter’s actions.
Therefore, as per Article 4, the PMF is clearly an organ of the Iraqi State and responsibility falls on Iraq. However, if ‘control’ under Article 8 is proved, then Iran is responsible for the PMF actions. The ARSIWA and the Commentary by the ILC on both Article 4 and 8 are silent on which one takes precedence if there is a conflict between the two.
The Articles on State Responsibility were passed by the UNGA in 2001. By 2019, there surely would have existed enough state practice for the ILC to consider reworking on certain aspects of State responsibility pertaining to attribution. However, the question related to State responsibility discussed in the 71st session of the ILC, was one of state succession. While Special Rapporteur Sturma’s work on this topic is immensely commendable, the ILC should at some point in time, return to the question of attribution in light of the developments in the international community.