Abstract:

The principle of state responsibility for violations of international humanitarian law (IHL) by its organs is well-established in international law, both in its customary and textual manifestations. Violations of international humanitarian law by an organ of the state attract attribution of the actions to the state itself and trigger the application of the law relating to international armed conflicts (IAC). It is only when an armed non-state actor is engaged in an armed conflict with the active support of another state, does the law begin to get murky in its application. This is because the degree of control that is required to trigger a state’s responsibility is ill-defined in international law. The existing jurisprudence of attribution through ‘control’ is contained in Article 8 of the ILC Articles and judicial decisions which have competed with each other to posit the most appropriate standard of state control for actions of non-state actors, doing so at the cost of certainty and clarity of the law. Analyzing this becomes important because a state’s involvement in the armed conflict can potentially convert the non-international armed conflict (NIAC) to an IAC between two states. This article begins by analyzing the reasons for the modern-day distinction that IHL draws between armed conflicts and its utility in the face of customary international law. In Part II, the article distils the law relating to attribution of a nonstate actor to the state supporting it, unravelling the multiple interpretations that important judicial decisions have lent to ‘control’ under Article 8 of the ILC Articles. In Part III, the article argues for a distinct application of the ‘effective control’ test and ‘overall control’ test with the latter more suited for converting a NIAC to IAC.