State Responsibility for Support of Armed Groups in the Commission of International Crimes

Criminal Law

State Responsibility for Support of Armed Groups in the Commission of International Crimes

By Narissa Ramsundar
Brill Nijhoff May 2020

Specifications

ISBN-13
9789004408432
Publisher
Brill Nijhoff
Publication
May 2020
Format
Hardback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

State Responsibility for the Support of Armed Groups in the Commission of International Crimes examines the law on attribution of conduct of individuals to states. Under established principles of international law, State responsibility only arises where armed groups act under the direction or control of the State, or are completely dependent on the State. These tests are under inclusive as they do not consider the different ways states can exert control over armed groups in the commission of international crimes. Ramsundar presents an interesting examination into the possibility of liberalization of the rules of State responsibility. The examination considers subtle ways states can exert control over armed groups in the commission of international crimes. Her proposal presents a compelling argument for widening the scope of responsibility to states through useful modifications to interpretation of the tests of control and dependence.

Table of Contents

Preface
Abbreviations and Acronyms
Table of Cases
Table of Legislation and Treaties
1. Introduction
1.1 A Proposal for a More Considered Approach Towards Attribution of Individual Conduct to States
1.2 Challenges Involved in Modification of the Tests of Attribution of Conduct of Individuals to States
1.3 Modifying the Tests for Attribution of Conduct of Individuals to States Through a Less Literal More Purposive Interpretation of “direction,” “control” and “complete dependence”
1.4 Use of Terms
1.5 A Word on Methodology
1.6 Overview of Structure
2. The Coordination of State and Individual Responsibility for International Crime
2.1 Rationale for Coordination between the Two Regimes
2.2 Limitations of the Regimes of Individual Responsibility
2.3 Potentials and Limitations of the Regime of State Responsibility
2.4 Existing Proposals for the Interaction between the State and Individual Regimes of Responsibility
2.4.1  The Systemic Nature of International Crimes – the Röling Thesis
2.4.2  Development of the Röling Thesis among Contemporary Commentators
2.5 The Major Categories of Interaction between State and Individual Regimes of Responsibility in Addressing Support of Armed Groups
2.5.1  The State and the Armed Groups as a Common Criminal Organisation
2.5.2  Concurrent Assignment of Responsibility to States and Individuals
2.5.3  Increased use of Joint Criminal Enterprise and Command Responsibility to Charge High-level Individuals
2.5.4  Further Considerations of Concurrent Assignment of Responsibility
2.5.5  Modifying the Test of Attribution of Conduct of Individuals to States
2.6 Alternatives to Modifying the Test of Attribution of Conduct of Individuals to States
2.7 Situation of this Work within the Existing Literature
3. Attribution of Conduct of Non-State Armed Groups to States under the Current Regime of State Responsibility
3.1 The Key Role of Attribution in the State Responsibility Regime and the Early Debate on Attribution
3.1.1  The Early Debates on Attribution
3.2 Attribution in the Work of the ILC
3.3 The ICJ ’s Approach to Attribution to a State of the Conduct of Non-State Armed Groups
3.3.1  Nicaragua
3.3.2  Armed Activities on the Territory of the Congo
3.3.3  Bosnian Genocide
3.3.4  Dissenting Views in Bosnian Genocide
3.4 Limitations of the Current ICJ Approach
4. The Tests of Attribution of Conduct of Individuals Applied in International Human Rights Court
4.1 Circumstances in Which Other International Courts and Tribunals have Attributed the Conduct of Individuals Affiliated to Non-State Armed Groups to States
4.2 The Approach of the European Court of Human Rights to Questions of “jurisdiction” for the Purpose of Application of ECHR Obligations
4.2.1 Ilaşcu v Moldova
4.2.2 Cases brought a gainst Turkey
4.2.3 Suggestions from these Case Studies
4.3 The Approach of the Inter-American Court of Human Rights to Questions of “jurisdiction” for the Purpose of Application of ACHR Obligations
4.3.1 Paniagua Morales
4.3.2 Pueblo Massacre
4.3.3 Mapiripan Massacre
4.3.4 Suggestions from these Case Studies
4.4 Discussion
5 The Tests for Assigning Criminal Responsibility in the International Criminal Courts and Tribunals
5.1 Individual Responsibility for Participation in Crimes of a Collective Nature
5.2 Challenges Posed by the Prosecution of International Crimes
5.3 Conspiracy
5.4 Joint Criminal Enterprise
5.4.1  JCE 1 – “Shared intention”
5.4.2  JCE 2 – Inference of Intention from Knowledge of the Common Plan
5.4.3  JCE 3 – Inference of Intention where Crimes are Foreseeable
5.5 Perpetration
5.5.1 Co-perpetration
5.5.2 Indirect Perpetration
5.6 Discussion
6. The Case for Variation of the Tests of Attribution of Criminal Conduct to States
6.1 Responsibility Arising Out of Support Armed Groups in the Commission of International Crimes during Conflict
6.2 Rationale Behind the Law for the Current Approach Towards Attribution Under the Law of State Responsibility
6.3 Limitations of the Current Approach in International Accountability
6.4 Current Solutions to Mitigating Against these Limitations that Arise from the Current Tests Attribution of Conduct from the Academic Literature
6.5 Current Solutions to Mitigating Against These Limitations that Arise from the Current Tests Attribution of Conduct from Jurists
6.6 Variation of the Tests of Attribution of Conduct of Armed Groups to States
6.6.1 Joint Criminal Enterprise Model
6.6.2 Co-perpetration Model
6.6.3 Indirect Perpetration Model
6.6.4 Human Rights Model
6.7 Variation of the Tests of Attribution of Conduct
6.8 Challenges Posed by these Suggested Solutions
6.9 Scope for Further Research in this Area

Bibliography
Articles
Memoranda
Books and Chapters in Books
Other Secondary Materials
Index
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