The Future of Violence by Benjamin Wittes

Author:Benjamin Wittes [Wittes, Benjamin; Blum, Gabriella]
Language: eng
Format: epub
ISBN: 9780465056705
Publisher: Basic Books

DIVISION OF LABOR—STATE RESPONSIBILITY FOR PRIVATE VIOLENCE

So maybe, some commentators have argued, the answer to gaps in and competition over jurisdictional power lies in state accountability for private individuals’ acts of violence. If OxOmar, de Guzman, and other private actors—liable for their conduct under the domestic laws of the several states that fell victim to their actions—cannot be held to account under the laws of those states, perhaps Mexico and the Philippines should ultimately be regarded as the responsible parties. Might it be possible to attribute the acts of individual international criminals or terrorists to states as a way of overcoming the accountability gap? Would it be desirable to make more privately perpetrated harms into state-to-state matters?19

The anarchic nature of the international system does not mean that states owe no obligations to one another. Just as some social contract theorists have held that even in the state of nature, relationships among people ought to be governed by natural law—the basic moral tenets that can be easily deduced from reason alone—so do states’ obligations toward each other exist, as a matter of international law, regardless of whether there is any global government to enforce them. These international obligations may be grounded in treaties, customary law, or merely general principles of the international system. When states breach these obligations, they incur the legal duty to make reparations, in the form of diplomatic gestures, monetary compensation, or required actions or inactions. Because there is often no mechanism to resolve disputes over violations or to enforce the obligation to make reparations, international law permits injured states to engage in countermeasures—reciprocal violations or other unilateral sanctions—as a means of self-help. Where the initial violation is of a particularly grave nature (such as genocide or some other international crime), the entire international community is instructed to use all lawful means at its disposal to stop the breach and bring the delinquent state into compliance.20

To think about state conduct, however, is an exercise in anthropomorphism. States do not act; humans do. Where humans serve in some official capacity—as political leaders, judges, military or police officers, local government personnel, or authorized contractors—their conduct is imputed to the state itself. Things become more complicated when individuals or groups that are neither part of the state apparatus nor have any contractual ties to it commit acts that implicate international law. Such cases include both criminals and armed groups whose violence impacts other states or foreign citizens; it also includes factories that pollute the environment or dump hazardous material in transboundary watercourses, as well as, these days, patriotic hackers who attack their country’s enemies without the overt sanction of their government. Traditionally, such acts can be attributed to the state only if it can be shown that the state has exerted a significant enough degree of control over these nonstate actors and their conduct to incur responsibility for them. In other words, the liability of the state depends on the nonstate actor’s acting as a de facto agent of the state.

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