State Responsibility for the Acts of Private Armed Groups

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.1 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 responsibility; and that (2) this shift is likely to prove ineffective and counterproductive. The thrust of my policy argument is that the revision of trans-substantive secondary rules is a clumsy, and typically ineffective, device for vindicating specific policy objectives. Through an analysis of the role of state responsibility in global antiterrorism efforts, I illustrate several perverse collateral consequences of amending the secondary rules of attribution. My claim is that the formal characterization of terrorist acts as a specie of "state action" risks overapplication and underapplication of the relevant primary rules. The most effective strategy to restrain and deter state support for, or toleration of, terrorism is to define more clearly the primary obligations of states and the consequences for noncompliance with those obligations. I. STATE RESPONSIBILITY AND THE GLOBAL RESPONSE TO TERRORISM In the aftermath of the September 11 terrorist attacks, the United States formally invoked its right to use force in self-defense against another sovereign state. The US self-defense claim was predicated on two related propositions. First, the United States characterized the September 11 attacks as an "armed attack" within the meaning of the United Nations ("UN") Charter.2 Second, the United States maintained that international law permitted military action against the Taliban regime in Afghanistan because this "armed attack" was made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation. Despite every effort by the United States and the international community, the Taliban regime has refused to change its policy. From the territory of Afghanistan, the Al-Qaeda organization continues to train and support agents of terror who attack innocent people throughout the world and target United States nationals and interests in the United States and abroad.3 That is, the United States sought to justify military action against Afghanistan on the grounds that the hostile acts of al Qaeda should be attributed to the Taliban regime. In an important address following the initiation of air strikes in Afghanistan, President George W. Bush directly implicated the Afghan government in the September 11 attacks, maintaining that the Taliban regime had itself committed murder by supporting and harboring the terrorists.4 The US Congress subsequently authorized the President to use force against those responsible for the September 11 attacks, including any states aiding or harboring the primary perpetrators. …