State Outsourcing of Information Operations: From Attribution to Aspiration – Part II

[Richard Mackenzie-Gray Scott is the author of State Responsibility for Non-State Actors: Past, Present and Prospects for the Future (Oxford: Hart | Bloomsbury, 2022, re-issued in paperback 2024)]

This is the second part of a two-part post; see Part I here.

But wait! How silly of me. Apologies for jumping the gun. There are other attribution tests under the ILC Articles and beyond. One of them, surely, can have its attribution threshold satisfied should a state commission or sponsor a non-state actor to undertake information operations that result in wrongdoing? What about the ‘complete dependence’ test invented by the ICJ? Doubtful. Anyone wanting to play with the latent ambiguity of its language is welcome to do so, but the important takeaway is, don’t worry if you have no idea what ‘complete dependence’ means, because no one else does either. You can have a bash at elaborating, of course. For example, it could be submitted that complete dependence is when a non-state actor would not be able to function but for the support of a state. Anyway, this test could become less clearer the more it is applied in practice or speculated on in commentary. So here’s to leaving it be in the pile of invented terms that facilitate the avoidance of international rules.

Turning to Article 11 of the ILC Articles. Maybe this provision can make up for the impotence of its predecessors? It reads:

Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

State acknowledgment and adoption of non-state actor conduct can be both explicit and implicit. Each strand is worth explaining in turn. Turning first to implicit forms of state acknowledgment and adoption of non-state actor conduct, the ruling in the Tehran Hostages case provides some helpful insights. Here, the ICJ indicated that communications from a state approving of wrongful conduct do not amount to the state itself becoming the legal author of that conduct:

Again, congratulations after the event, such as those reportedly telephoned to the militants by the Ayatollah Khomeini on the actual evening of the attack, and other subsequent statements of official approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the militants’ attack on the Embassy (paragraph 59).

But the judgment does not end here. Whether conduct can be attributed to states based on their acknowledgment and adoption of it depends on circumstances changing over time, meaning initial wrongful conduct of a non-state actor may not be attributable to a state, but should that wrongdoing continue, then depending on how the state in question does or does not respond to it, including with respect to conduct that is separate from the issuance of communications, then that state could be considered the legal author of that conduct. The ICJ in this case also ruled:

The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States Government was complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated the continuing occupation of the Embassy and detention of the hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible. On 6 May 1980, the Minister for Foreign Affairs, Mr. Ghotbzadeh, is reported to have said in a television interview that the occupation of the United States Embassy had been ‘done by our nation’. Moreover, in the prevailing circumstances, the situation of the hostages was aggravated by the fact that their detention by the militants did not even offer the normal guarantees which might have been afforded by police and security forces subject to the discipline and the control of official superiors (paragraph 74).

This part of the judgment, when read with others (in particular paragraphs 56-75 and 87-91), shows that non-state actor conduct may not initially transform into state conduct through attribution, but can do so when scrutinising state conduct in light of its cumulative effects.

A non-state actor may be the actor solely responsible for initial wrongdoing, but should a state issue communications that are supportive of such conduct, when combined with the state facilitating that wrongdoing through its own acts or omissions, a stronger argument exists for the wrongful conduct to be attributed to the state on the basis of it implicitly acknowledging and adopting it. The dynamic between the two actors can change over time, as can attribution considerations grounded on this basis. Non-state actor conduct can remain its own, and need not engage state responsibility, but that conduct can also become that of a state, depending on how the state behaves.

Whether a state facilitates the continuance of non-state actor wrongdoing helps determine if attribution should occur if a state has been simultaneously expressing support for that conduct (in addition to pages 123-136 of my book, I wrote about this matter in further detail here). A more recent insight from Moritz Rhades also shows that attribution may occur ‘if there was an illegal omission in the first place and subsequent approval and endorsement consolidate the prior acts’. The acceptance and welcoming of non-state actor wrongdoing by a state, in that the state issues communications of approval towards that conduct, coupled with the state helping it to continue, may suffice for attributability. In light of these considerations, perhaps attribution by way of Article 11 is a feasible route towards establishing state responsibility for wrongdoing as a result of information operations undertaken by non-state actors, so long as states publicly express support for them and aid their occurrence. But there is another feature of this provision that makes it appealing, not just in cases of information operations, but for international relations more generally, and especially when considering cybersecurity, which requires international cooperation.

Demanding More of States that Commission or Sponsor Information Operations

There is a component of Article 11 that speaks to the importance of moral aspirations guiding the practice of international relations – not the inverse. There is considerable value in this provision beyond its potential utility as an attribution test. While the provision has the same role as any other attribution test when applied to assess instances of possible state responsibility for non-state actor wrongdoing, it also speaks to what the law governing state-to-non-state actor relationships could be. The ILC left open the possibility that a state could explicitly acknowledge and adopt non-state actor wrongdoing as its own. But why would it do so?

The ILC provides an important answer: in order to accept‘responsibility for conduct of which it did not approve, which it had sought to prevent and which it deeply regretted’ (ILC Commentaries, page 53). This approach to state responsibility for involvement in non-state actor wrongdoings is aspirational. By formulating attribution as a concept that can also be based on state choice, the ILC offered some semblance of hope that states might initiate processes to do right by those that have been wronged. By explicitly accepting conduct as its own, a state creates openings to account for its involvement in past wrongs, demonstrating contrition, and indicating a willingness to make amends. Article 11, its commentary, and its preparatory work provide the language and touchstone to cultivate such behaviour.

The true value of this product of the ILC, in my view, lies less in its application as an attribution test to be applied in legal practice, and more as a moral ideal to guide and be called upon by states to take ownership for their involvement in wrongdoing; a component of state decision-making that forms part of a more honest approach to international relations. One that promotes answerability and pushes back against practices that misuse the law in attempts to disown involvement in wrongdoing. Enough of the latter already occurs. Yet the ‘unacknowledged interference’ in the affairs of others need not be common. Imagine if states were to take it upon themselves to instil a process of internalising self-judgment for past wrongdoings and acting on it transparently. Openness is a powerful practice, one that is capable of influencing behaviour, including with respect to fostering the cooperation that is necessary for cybersecurity. States can thus lead by example. As I put it in my book:

In taking a step of putting itself in a position where it becomes legitimately answerable for wrongful conduct, a state is offering the promise that ownership of wrongdoing can become a principle more readily realised in everyday affairs, with truth and transparency laying the foundations of paths towards trust. Truth is also a constituent element of justice. A measure of justice will thus be found in states being honest about their involvement in wrongdoing and willing to receive the outcomes arising therefrom (page 244).

I am more than comfortable if this vision does not accord with current state practice, especially practice that falls below a threshold of immorality comprehended only by those who seem to revel in enjoying or exploiting the darkest parts of the human condition. Those attempting to address problems involving state responsibility for non-state actor wrongdoing should not let dispiriting examples of what states do, set the standard for what states should do. Aspirations need to guide practice, not be limited by it.

States are, for better or worse, and for the time being at least, mostly managed by humans. It is these humans, and those engaging with them, who can help international law and practice align more closely with justice. Or they can continue pretending that work in this area should be limited to creating and applying the law in ‘objective’ and ‘pragmatic’ ways. In which case a familiar status quo continues: where states do what they please, while on occasion bothering to try and justify it, sometimes by relying on legalese to do what it does best (obfuscate), and onlookers are fuelled with further damage and misery to assess, to fill yet more pages of commentary declaring that this, that and the next thing is oh so very bad and sad, but apparently not quite bad and sad enough to deviate from the mantra that the law and practice is what it is, the rest is ‘just politics’, and the bad and sad probably cannot be made better by applying the very laws and practices that some might insist are good, even when seemingly incapable of producing anything close to it. The law governing international responsibility needs a vision setting out where practice should go, and that vision must extend beyond the ‘political realities’ corrupting and distorting international law and relations.

While the current state of international law makes pursuing legal accountability for information operations intractable at best, and international politics will continue to produce accusations from states against their adversaries for undertaking these operations, those who ultimately decide what states do or refrain from doing, can take it upon themselves to come clean about state involvement in information operations. If anything else, the likelihood of such occurrences may be similar to those where international law becomes relevant to information operations, because the wrongful conduct at issue is attributable to a state.