Ensuring state responsibility in proxy warfare : the concept of state complicity in violations of international humanitarian law by non-state armed groups

Abstract

Proxy warfare in the form of State support to non-State armed groups is a recurrent feature of armed conflicts. While States have long recognized the strategic advantages of this form of indirect conflict intervention, several studies have linked proxy warfare to a protraction of conflicts and an increased probability of violations of international humanitarian law. However, instances of States being held responsible for facilitating such violations by non-State armed groups have remained rare. This article contends that this responsibility gap is caused by the requirement of State control over acts of non-State armed groups under the current State responsibility framework. It argues that in view of the collusive nature of proxy warfare, the concept of State complicity in wrongful acts is best suited to close the identified responsibility gap. Amidst different normative propositions, the article concludes that complicity should be incorporated into Common Article 1 of the Geneva Conventions as part of the external dimension of the duty ‘to ensure respect’ for international humanitarian law. According to this approach, States would be under a continual obligation to neither encourage nor aid or assist as well as to prevent and stop violations of international humanitarian law by proxy non-State armed groups.