Why Are Wrongful Acts Committed by Rebels during a Civil War Attributable to the State When They Are Successful? – A Critical Analysis of Theory and Practice

Based on an analysis of State practice and case law, this article examines the theoretical justifications which have been put forward by scholars, the ILC and international tribunals to explain why, under Article 10 of the ILC Articles on State responsibility, the wrongful acts committed by rebels during an insurrection or a civil war are attributable to the State once they are victorious and have replaced the government. It will show that while the ILC ultimately relied on the existence of a ‘continuity’ between the insurgents and the new government, the vast majority of awards have referred instead to a number of other (less convincing) justifications, such as the fact that insurgents were during the rebellion exercising their authority as a ‘de facto government’ or that their victory represented the ‘national will’ of the people. The theoretical rationale behind the well-established principle under Article 10 is therefore not as solid as one would have thought. These findings are relevant to investment tribunals having to address in an increasing number of cases questions of State responsibility and attribution arising from rebels’ conduct in situations of civil wars.