International Humanitarian Law

Israeli soldiers, Hebron, occupied Palestinian territory, October 2002. Photo: Aida Alibegovic, Diakonia.

What are the responsibilities of a state under international law?

By looking at the world today, it becomes clear that a large number of states are repeatedly violating their international obligations. Since there is no international police, states at times act as if they are above the law. Under what legal principles can a state be held responsible for breaching international law, and what are the consequences for failing to live up to its responsibility?

The basic principle of “state responsibility” in international law provides that any state who violates its international obligations must be held accountable for its acts. More concretely, the notion of state responsibility means that states, which do not respect their international duties, are responsible to immediately stop their illegal actions, and make reparations to the injured.

This is a fundamental principle, which forms part of international customary law, and is binding upon all states.

The rules on "state responsibility" do not specify the content of a state's obligations under international law, for example that torture is forbidden, or that a state must provide medical services to the civilian population. These obligations are specified in numerous international law treaties and in international customary law. The rules on state responsibility merely identifies when a state can be held responsible for violating those obligations, and what are the consequences if it fails to fulfill its responsibility.

When does a state violate international law?

A state violates international law when it commits an “internationally wrongful act", which breaches an international obligation that the state was bound by at the time when the act took place. A state is bound to act according to international treaties it signed.

Towards whom is a state responsible?

States have legal responsibilities both towards states and individuals according to different sources of international law.

For whose actions is a state responsible?

May a state be held responsible if its soldiers during wartime commit rape or other sexual assaults even when they are off duty? When may a state be responsible for terrorist groups operating from its territory? May a state be responsible for violations committed by private security firms?

What should a state do if it violates international law?

If a state violates international law it is responsible to immediately cease the unlawful conduct, and offer appropriate guarantees that it will not repeat the illegal actions in the future. The state also has a responsibility to make full reparations for the injury caused, including both material and moral damages.

A state's responsibilities under IHL

Article 1 of all four Geneva Conventions is a key provision when it comes to a state’s responsibilities under international humanitarian law (IHL). It provides that states are responsible to “respect and ensure respect” for the Conventions in all circumstances.

“To respect” means that all state institutions, and all other individuals or bodies under their authority, must follow the rules of the Geneva Conventions.

The responsibility of third states

The general principle of state responsibility does not only refer to what the violating state has to do, but also includes rules on the responsibility of third states - the international community - to react and not assist a violating state. This section covers only the responsibility of the primary violating state.

ILC Draft Articles on State Responsibility

One of the major legal instruments referred to in the context of state responsibility is the International Law Commission’s (ILC) Draft Articles on State Responsibility for Internationally Wrongful Acts (2001). The Draft Articles answers the questions when does a state violate international law, and what is its responsibility if it does so?

Easy Guide to International Humanitarian Law in the Occupied Palestinian Territory (oPt)