Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors

This Article explores the ways in which states work with non-state actors to accomplish their military and political objectives, with particular concern for states who use non-state actors as a proxy to violate international law. The authors recognize that existing international law doctrines on state responsibility for such behavior leaves an accountability gap, fails to correct the perverse incentive to use non-state actors as proxies for illegal acts, and creates a second perverse incentive: “states with good intentions might avoid training non-state actors in international law compliance to avoid crossing the ‘bright line’ for attribution.” This Article proposes a fix to these problems, building on an interpretation of the Geneva Conventions released by the International Committee of the Red Cross (ICRC) in March 2016. It argues that the duty “to ensure respect” in Common Article 1 can fill the legal gap. In addition, it argues that Common Article 1 will be more widely embraced, and therefore more effective, if states that have exercised due diligence to prevent violations are allowed an affirmative defense against liability for any ultra vires violations. The Article concludes with recommendations for states that wish to fulfill their Common Article 1 obligations in good faith while working with non-state actors.