By Professor Vincent-Joel Proulx, National University of Singapore (NUS) - Faculty of Law. Full tittle: International Civil Individual Responsibility and the Security Council: Building the Foundations of a General Regime.
This Article articulates the foundations of a general regime to govern individual civil responsibility in international law, covering all manner of non-state actors. It aims to palliate the normative and enforcement gaps created by the U.S. courts’ narrowing interpretation of the Alien Tort Claims Act and the European Court of Human Rights’ recent rejection of universal civil jurisdiction. Drawing from state responsibility logic and the broader framework of international responsibility, I advocate a limited role for the UN Security Council in implementing and developing individual responsibility for non-state actors’ wrongful conduct. I critically analyze that organ’s promulgation of relevant substantive norms, primarily but not exclusively in the counter terrorism area, and its attribution of illegal conduct and responsibility to individuals and non-state entities. Indeed, invoking international responsibility’s primary-secondary mechanics provides the Council with the powerful language (and notions) of attribution, responsibility, cessation, reparation, and return to legality. Moreover, it bolsters its findings of illegality with sanctions in appropriate cases, which can become robust and complementary implementation mechanisms, should the Council’s formulated obligations of cessation and non-repetition fail to generate the desired compliance pull. The Article espouses a transnational approach geared towards better understanding international individual responsibility regimes, exploring relevant regime interaction between international human rights, humanitarian law, international criminal law, state-to-state dispute settlement, international sanctions, domestic civil liability schemes, and transnational human rights litigation. This approach highlights the networks of multi-leveled relationships of responsibility and the multi-actor processes that might serve as incubators for actuating individual responsibility in international law.
Keywords: United Nations, Security Council, sanctions, universal civil jurisdiction, Alien Torts Claims Act, remedies, civil responsibility, transnational human rights litigation, human rights, individual civil responsibility, counterterrorism, nonstate actors and individuals, international responsibility.
Existing literature and jurisprudence pay little attention to individual responsibility in international law beyond criminal liability. This is partly due to the fact that, traditionally, international individual responsibility has predominantly been associated with criminal liability as opposed to focusing on civil responsibility for wrongdoing. Consequently, the resulting distinction between “individual” and “criminal” responsibility signals that the former concept “concerns a target of responsibility” whereas the latter concept “addresses the nature of the responsibility.”1 However, there is no compelling reason why the discourse of international individual responsibility cannot be transposed away from the criminal paradigm (2) to the civil dimension, presumably with requisite adjustments.
This Article focuses on a few tools at the disposal of the United Nations Security Council (“UNSC”) to enhance individual (read: civil) responsibility concerning nonstate terrorist actors with a view to opening other avenues of inquiry regarding other subversive nonstate actors (“NSAs”), for instance in the areas of transnational torts, human rights (“HR”) violations, and environmental damage caused by business entities. (3) As discussed in Part V, recent developments surrounding the application of the Alien Tort Claims Act (“ATCA”)(4) in the United States and the prospect of establishing a basis for universal civil jurisdiction further signal that no such solid basis exists in customary international law (or treaty law, for that matter) to hold corporations and individuals accountable for HR abuses, in large part because states are not willing to accept it. Therefore, these developments have created implementation and enforcement gaps in different areas related to civil recovery for violations of international law, of which terrorism-related wrongs form an important part.
Arguably, these developments have also engendered normative gaps given that both the relevant primary and secondary norms are not always clearly defined. In addressing these regulatory and enforcement gaps, I advocate turning to international institutions, particularly the UNSC, which can play an important role in advancing or implementing individual responsibility in some circumstances. While acknowledging the relevance of other domestic and transnational legal regimes geared toward the implementation of civil liability (however limited), this Article’s overarching purpose is to explore ways in which NSAs’ wrongful acts can be attributed to them and their international civil individual responsibility (“ICIR”) invoked strictly on the international plane, with a focus on the UNSC’s role in this framework.
While the other dimensions of this broader framework (for example, regional HR tribunals, domestic legislation and courts, and transnational legal regimes) remain important, this account focuses primarily on the international legal framework. That said, these other dimensions will need to be addressed in a broader inquiry about the contents and contours of ICIR, be it in future scholarly projects or policy-based studies.(5) By way of example, certain international instruments delegate an obligation upon municipal legal systems to ensure civil liability for individuals’ violations of international law, including UN peacekeepers for sexual exploitation.(6) Therefore, such accountability models are grounded on the notion of holding individuals to account through their home states.(7) The UNSC has also emphasized the importance that “all troop- and police-contributing countries . . . take appropriate steps to hold accountable those personnel responsible for sexual exploitation and abuse and to report to the United Nations fully and promptly on actions undertaken . . . .”(8)
Under the heading of ICIR, I intend to capture any conduct carried out by NSAs or individuals that violates international law—using anti-terrorism obligations as the principal but not exclusive case study—to identify applicable secondary norms of liability and legal consequences flowing from such breaches outside the criminal paradigm. Indeed, international law has long recognized that the commission of an internationally wrongful act triggers the wrongdoing party’s international responsibility and corresponding duty to repair the harm. While this classical doctrine was traditionally applied to sovereign states, I argue that it is valid to extend it to NSAs and individuals through ICIR, both on descriptive and prescriptive grounds. In some ways, therefore, this account attempts to reclaim the doctrine of international responsibility back from the fragmentation of international legal personality. In other words, international lawyers tend to fragment the legal personality of nonstate entities and individuals depending on what type of legal person they are dealing with, presumably to determine the scope and extent of that person’s rights and obligations.
In contrast, this Article argues that it is important to conceive of the meta-category of “nonstate actors” more broadly before nose-diving into more discrete aspects of the overarching problem. Thus, in this Article, I use the term “individual responsibility” in international law as a default category to capture responsibility concerning all manner of NSAs (for example, armed opposition groups, terrorist networks, and corporations) and individuals (for example, individual terrorists, State officials, and leaders of armed groups). As a corollary, I also use the term “nonstate actors” as a default category to encompass all these actors and others that could fall under this rubric. Otherwise put, it would be methodologically imprudent to focus solely on individuals (that is, natural persons) or nonstate entities (that is, legal persons) in the analysis, as the elucidation of ICIR requires acknowledging that both categories are intertwined. This is especially true when considering how the law of state responsibility (“SR”) has been artificially stretched to address the subversive acts of nonstate groups.(9)
Vincent-Joël Proulx, International Civil Individual Responsibility and the Security Council: Building the Foundations of a General Regime, 40 Mich. J. Int’l L. 215 (2019).