| by Dr. Ruwantissa Abeyratne

( April 5, 2014, Montreal, Sri Lanka Guardian) One of the greatest dilemmas faced by the modern State is to determine the way in which it could distance itself from terrorist activity that is perceived to be condoned or even supported by the State. This principle is even extended to instances where the State is seemingly negligent in preventing a terrorist act. One example is the underwear show bomber - a 23 year old Nigerian who hid explosives in his underwear on a Northwest-Delta flight in December 2009. Fortunately the explosives failed to work and no one was hurt. The bomber had boarded the aircraft when American intelligence failed to detect him although they knew or ought to have known that he was a potential terrorist. President Obama called the lapse on the part of US intelligence totally unacceptable and ordered an investigation.

The terrorist of today is highly sophisticated in the art of confusing the public and the international community, which often results in fingers being pointed at a sovereign State in terms of responsibility for private acts of terrorism. It therefore becomes necessary to inquire into the principles that identify liability in this area with a view to determining true reprehensibility of perpetrators who often make themselves indistinguishable from both the government and the civilian population within which they function.

The issue of State responsibility for private acts of terrorism was not a contentious issue until the paradigm shift of 11 September 2001, when terrorists engaged in hijacking aircraft with a view to using them as weapons of mass destruction, causing damage to civilians on the ground.

The fundamental issue in the context of State responsibility for the purposes of this article is to consider whether a State should be considered responsible for its own failure or non-feasance to prevent a private act of terrorism or whether the conduct of the State itself can be impugned by identifying a nexus between the perpetrator’s conduct and the State. One view is that an agency paradigm, which may in some circumstances impute to a state reprehensibility on the ground that a principal-agent relationship between the State and the perpetrator existed, can obfuscate the issue and preclude one from conducting a meaningful legal study of the State’s conduct.

At the core of the principal-agent dilemma is the theory of complicity, which attributes liability to a State that was complicit in a private act. This theory attributes liability to a State that was complicit in a private act. Hugo Grotius (1583-1645), founder of the modern natural law theory, first formulated this theory based on State responsibility that was not absolute. Grotius’ theory was that although a State did not have absolute responsibility for a private offence, it could be considered complicit through the notion of patienta or receptus. While the concept of patienta refers to a State’s inability to prevent a wrongdoing, receptus pertains to the refusal to punish the offender.

The emergence of the Condonation Theory was almost concurrent with the Jane case decided in 1925 which emerged through the opinions of scholars who belonged to a school of thought that believed that States became responsible for private acts of violence not through complicity as such but more so because their refusal or failure to bring offenders to justice, which was tantamount to ratification of the acts in question or their condonation.

The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the financing of terrorist acts. The United Nations General Assembly, on 9 December 1999, adopted the International Convention for the Suppression of the Financing of Terrorism, aimed at enhancing international co-operation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.

Another method of determining State responsibility lies in the determination whether a State had actual or presumed knowledge of acts of its instrumentalities, agents or private parties which could have alerted the State to take preventive action. International responsibility of a State cannot be denied merely on the strength of the claim of that State to sovereignty.

The above discussion leads one to conclude that the responsibility of a State for private terrorist acts of individuals is determined by the quantum of proof available that could establish intent or negligence of the State, which in turn would establish complicity or condonation on the part of the State concerned. One way to determine complicity or condonation is to establish the extent to which the State adhered to the obligation imposed upon it by international law and whether it breached its duty to others. In order to exculpate itself, the State concerned will have to demonstrate that either it did not tolerate the offence or that it ensured the punishment of the offender. One view is that proof of such breach would lie in the causal connection between the private offender and the State. In this context, the act or omission on the part of a State is a critical determinant particularly if there is no specific intent. Generally, it is not the intent of the offender that is the determinant but the failure of a State to perform its legal duty in either preventing the offence (if such was within the purview of the State) or in taking necessary action with regard to punitive action or redress.

Finally, there are a few principles that have to be taken into account when determining State responsibility for private terrorist acts of individuals. Firstly, there has to be either intent on the part of the State towards complicit or negligence reflected by act or omission. Secondly, where condonation is concerned, there has to be evidence of inaction on the part of the State in prosecuting the offender . Thirdly, since the State as an abstract entity cannot perform an act in itself, the imputability or attribution of State responsibility for acts of its agents has to be established through a causal nexus that points the finger at the State as being responsible. For example, The International Law Commission, in Article 4 of its Articles of State Responsibility states that the conduct of any State organ which exercises judicial, legislative or executive functions could be considered an act of State and as such the acts of such organ or instrumentality can be construed as being imputable to the State. This principle was endorsed in 1999 by the ICJ which said that according to well established principles of international law, the conduct of any organ of a state must be regarded as an act of State.

The idea that States have a responsibility to ensure that victims of crime are compensated is not confined to Europe. The US Department of Justice has long had an Office for Victims of Crime [OVC] which oversees the schemes in individual States and in collaboration with the State Department, has compiled and updated a Directory of schemes in 35 countries principally for the information of US citizens who travel or reside overseas.

The law of State responsibility for private acts of individuals has evolved through the years, from being a straightforward determination of liability of the State and its agents to a rapidly widening gap between the State and non State parties. In today’s world private entities and persons could wield power similar to that of a State, bringing to bear the compelling significance and modern relevance of the agency nexus between the State and such parties. This must indeed make States more aware of their own susceptibility.