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An Economic Analysis of State and Individual Responsibility under International Law

An Economic Analysis of State and Individual Responsibility under International Law

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The Law SchoolThe University of ChicagoJohn M. Olin Law & Economics Working Paper No. 279(2
nd
Series)-and-Stanford UniversityLaw SchoolJohn M. Olin Program in Law & Economics Paper No. 318
An Economic Analysis of State and IndividualResponsibility under International Law
Eric A. Posner University of Chicago Law SchoolAlan O. SykesUniversity of Chicago Law School
This paper can be downloaded without charge from theSocial Science Research Network Electronic Paper Collection:http://ssrn.com/abstract=885197 
 
 An Economic Analysis of State and Individual Responsibility under International LawEric A. Posner & Alan O. Sykes
1
 February 1, 2006
Abstract 
. The international law of state responsibility determines when states areliable for international law violations. States are generally liable when they havecontrol over the actions of wrongdoers; thus, the actions of state officials canimplicate state responsibility whereas the acts of private citizens usually do not.We argue that the rules of state responsibility have an economic logic similar tothat of vicarious liability in domestic law: the law in both cases provides thirdparties with incentives to control the behavior of wrongdoers whom they canmonitor and influence. We also discuss international legal remedies andindividual liability under international criminal law.
Many of the most basic and fundamental doctrines of international law have yet toreceive attention from economically-oriented scholars. In this paper, we employ aneconomic perspective to explore a heretofore neglected yet central set of questions—for what types of actions are states and individuals responsible under international law? Inparticular, what types of actions by state officials trigger state responsibility? What typesof actions by private citizens trigger state responsibility? When does international lawimpose personal responsibility on individuals (usually criminal responsibility)? Weconsider these issues at a high level of generality rather than with reference to anyparticular body of international law, and view our contribution as having both positiveand normative elements.Recent events have brought these issues to the headlines. A number of recentincidents, for example, raise questions regarding the responsibility of states under international law for the acts of private individuals and groups. Consider:—Many of the abuses that occurred at Abu Ghraib were caused by interrogators andlinguists employed by private contractors hired by the U.S. army. In its assessment of thecauses of the abuse at Abu Ghraib, the army found that many contractor employees were
1University of Chicago Law School. Thanks to Michelle Ognibene for helpful research assistance.
 
 inadequately trained, not appropriately monitored by army officials, not given clear guidance, and not subject to clear lines of authority.
2
 —Jonathan Idema and two other Americans were recently convicted by an Afghan courtfor operating a private jail and torturing prisoners in Afghanistan. The facts are murky,but apparently they were trying to capture al Qaeda fugitives—either at the behest of theU.S. government (their claim) or as bounty hunters who sought rewards offered by theU.S. army.
3
 —Executive Outcomes, a South African mercenary organization, was hired by thegovernment of Sierra Leone to crush an insurgency, which it did. The American securitycompanies, Triple Canopy and Blackwater USA, provided security for the CoalitionProvisional Authority in Iraq. The U.S. military also hired DynCorp to provide securityfor Afghan President Hamid Karzai, and the British company Global Risk Strategies toprotect Jay Garner in Iraq.
4
Many people worry that mercenaries like ExecutiveOutcomes, which used napalm against rebels in Sierra Leone, can commit war crimeswithout being held liable because they are not states.—Aid workers hired by NGOs operating on behalf of the United Nations engaged insexual exploitation of women and children in refugee camps in West Africa.
5
 —In 1990, Mexican nationals hired by the U.S. Drug Enforcement Agency kidnappedHumberto Alvarez-Machain, a doctor whom the DEA believed had assisted in thetorture-murder of an American agent, and brought him to the United States for trial.
6
 Each of these cases raise delicate questions about state responsibility.
7
Although itis clear that states are responsible for international law violations committed by stateofficials, it is not clear what happens when states contract out traditional state functionsto private firms or organizations, which then engage in actions that would be consideredviolations of international law if the people involved had been state officials. Someauthorities argue that the actions of private citizens cannot implicate state responsibility
2AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade,MG George R. Fay 47–52 [hereinafter Fay Report], available athttp://news.findlaw.com/hdocs/docs/dod/fay82504rpt.pdf.3See Carlotta Gall, Mercenaries in Afghan Case Get 8 to 10 Years in Prison, N.Y. Times, Sept. 16, 2004,at A12.4See Daniel Berger, The Other Army, N.Y. Times, Aug. 14, 2005, § 6 (Magazine), at 29.5Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law, 47 Wm. & Mary L. Rev. 135, 157-58 (2005).6See Gregory Townsend, State Responsibility for Acts of de Facto Agents, 14 Ariz. J. Int’l & Comp. L.635, 672-73 (1977).7For other examples and discussions, see Dickinson, supra; Townsend, supra; Juan Carlos Zarate, TheEmergence of a New Dog of War: Private International Security Companies, International Law, and theNew World Disorder, 34 Stan. J. Int’l L. 75 (1998).

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