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For whose actions is the state responsible?

May a state be held responsible if its soldiers during wartime commit rape or other sexual assaults
even when they are off duty? When may a state be responsible for terrorist groups operating from
its territory? May a state be responsible for violations committed by private security firms?

Not all acts of individuals engage the responsibility of a state. In order for a state to be held responsible,
the violation which has been committed must be attributable (connected) to that state. In other words, the
state must be answerable for the person who committed the violation. If this criterion fails, only individual
criminal responsibility is at stake.

Acts of state organs

The acts of state organs - organizations or institutions belonging to the state - are clearly attributable to the
state no matter whether the organ exercises legislative, executive, judicial or any other functions
(parliament, police, court etc.).

Acts of armed forces

The acts of the armed forces, and persons who accompany them, are directly linked to the state, and
therefore the state is responsible for their actions no matter whether they operate in the home country or
abroad.

Acts of persons that have some government authority

Likewise, the acts of persons or entities exercising elements of governmental authority are attributable to
the state. This rule would, for example, cover private corporations, which are authorised by the state to
exercise certain public functions in prisons, checkpoints etc.

Acting in private capacity?

In general, a violation is only attributable to the state if the organ or person, from the categories above, act
in his or her formal public capacity. However, attribution can be made even if the person or organ exceeds
its authority or does not follow instructions.

According to international humanitarian law (IHL), a party to the conflict “shall be responsible for all acts by
persons forming part of its armed forces” (article 3 Hague Regulation IV, article 91 IAP). This clearly
indicates that the state is responsible also for private actions of armed forces. In other words, during war
time, members of the armed forces are always on duty and can never act in private capacity. For example,
sexual crimes of a certain gravity committed by a soldier during leave will therefore, result in a violation of
his or her state's international obligations (in parallel to individual criminal responsibility).

To ICRC and Article 3 Hague Regulations

To ICRC and Article 91 IAP

The state retroactively adopts the act

A violation which is not attributable to a state shall nevertheless be considered an act of that State if the
State acknowledges, and adopts the conduct in question as its own. A clear example of this would be if the
state publicly praise, and gives approval to a violation of IHL, committed by a person or group, which did
not initially act under state orders.
Does a State exercise control over private groups?

The conduct of a person, or group of persons, shall be considered an act of a state if she or he is in fact
acting on the instructions of, or under the direction or control of another state when carrying out a violation.
This is an important area of law when it comes to the actions of, for example, terrorist groups, which many
times are considered to be attached, through funding and equipment, to states.
The rationale behind the rules on control is to prevent states from consciously avoiding responsibility by
referring illegal tasks to individuals or other actors, which are not officially working for the state.

The test of "control"

The key requirement for a state to be responsible for non-state actors is that it controls the person or group
who committed the violation. What acts or assistance by the state amount to “control”? Is it enough to have
overall general control over the group, or does the state have to have effective control over each and every
specific action done? There is no clear legal answer to this question, and therefore it will has to be decided
on a case by case basis whether the state is responsible or not.

Due diligence to ensure that violations do not take place

States may also be held responsible for failing to take due diligence to ensure that violations do not take
place. To take due diligence means that the state has to take appropriate actions to prevent violations, and
to punish the perpetrators.
If the state knew or ought to have known, that there is a real risk that a violation will take place under its
control, and did not prevent the violation, it violates its international responsibility.
When there is close institutional relationship amounting to consent or turning a blind eye by the state to
acts of private persons, the state can also be held responsible. The principle of due diligence is however
applicable also when private actors acts independently from the state - a state can be held responsible
even if the identity of the perpetrators is not known to it.

Due diligence and IHL

The duty to take due diligence may be seen as falling under the obligation in Common article 1 of the
Geneva Conventions to “ensure respect” of the Conventions.
For example, the occupying power is responsible to act with vigilance, and take appropriate steps to prevent
violations of human rights, and IHL by other actors present in the occupied territory, including by rebel
groups or private military firms acting independently.