State Responsibility for the Acts of Private Armed Groups
![handle is hein.journals/cjil4 and id is 89 raw text is: State Responsibility for the Acts of
Private Armed Groups
Derek Jinks*
Under what circumstances should international law impute to states the
acts of private armed groups? Although states as a general rule are not liable for
the conduct of nonstate actors, it is now well settled that the acts of de facto
state agents are attributable to the state. That is, the conduct of ostensibly
private actors may be sufficiently connected with the exercise of public power
that otherwise private acts may be deemed state action. Of course, the
question remains how best to distinguish de facto state action from purely
private conduct. The attacks of September 11, and the international political
firestorm that followed, underscore the importance of this issue. Indeed, the
legal justification for Operation Enduring Freedom was predicated on the claim
that the Taliban regime in Afghanistan was, as a formal matter, responsible for
the acts of al Qaeda. The legal response to the terrorist attacks (and other recent
developments) strongly suggests that the scope of state liability for private
conduct has expanded. Moreover, this expansion of liability was achieved not by
refashioning any primary rules defining the content of state obligations, but
rather by relaxing the secondary rules defining state responsibility for breaches
of any such obligation.'
This type of strategy, though not uncommon in international law, is
potentially problematic. In this Article, I argue that (1) the response to the
September 11 attacks may signal an important shift in the law of state
Assistant Professor of Law, Saint Louis University School of Law; Visiting Professor of Law,
University of Chicago Law School, 2003-2004. Thanks to Allison Danner, Ryan Goodman,
and David Sloss for helpful comments.
The primary rules of international law define the content of the legal obligations-that is,
primary rules establish particular standards of conduct (for example, do not take property
without adequate compensation). In contrast, the secondary rules of state responsibility
define the general conditions under which states are to be considered responsible for
internationally wrongful actions or omissions. As the International Law Commission has
noted, Mt is one thing to define a rule and the content of the obligation it imposes, and
another to determine whether that obligation has been violated and what should be the
consequences of the violation. Roberto Ago, Second Report on State Responsibilio, [1970] 2 YB
Int L Commn 271,306, UN Doc No A/CN.4/SER.A/1970/Add.1 (1970).](ViewImageLocal?handle=hein.journals/cjil4&div=10&collection=journals&method=preview&ext=.png&size=3)
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State Responsibility for the Acts of Private Armed Groups
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