Joint and several liability for the Halabja attack: Dutch businessman to pay compensation for delivery of mustard gas to Saddam Hussein

 Posted by: Nollkaemper André

On 24 April, the District Court of the Hague in the Netherlands ordered Frans van Anraat, a Dutch national, to pay compensation to 17 victims of chemical weapon attacks by the regime of Saddam Hussein in 1988. The judgment raises interesting questions from a shared responsibility perspective, as Van Anraat obviously only was one of many contributors to the eventual injuries.

The case was brought by 17 survivors of the 1988 attack on the Kurdish city of Halabja in Iraq, in which an estimated 5,600 civilians were killed. Saddam Hussein ordered the Halabja attack as part of a crackdown on a Kurdish rebellion in the north, during the final months of the war with Iraq.

In the 2007 judgment in the criminal trial, the Court had found that Van Anraat was Iraq’s sole supplier of a chemical substance used in the production of mustard gas. He had claimed that he believed the chemical was to be used in the Iraqi textile industry. The Court rejected that argument in the criminal trial, saying that he knew the chemicals might well be used for war crimes. Van Anraat is now serving a prison sentence in the Netherlands.

In the present judgment, the Court dealt with the separate question of liability. It found on the basis of the applicable law of Iraq that Van Anraat had acted wrongfully vis-à-vis the plaintiffs. It rejected, also on the basis of Iraqi law, the defense based on the statute of limitations, and ordered Van Anraat to pay each survivor €25,000.

The practical impact of the judgment may be limited, as Van Anraat is believed to be out of funds. But the holding that a person who contributed to international crimes is potentially not only criminally liable, but can also be sued for damages, may be an important precedent for future cases.

The facts of the case raise fascinating questions of shared responsibility. For whatever may be proven in terms of knowledge and conduct of Van Anraat, it is clear that there was a multiplicity of actors who contributed to, or committed, the attack in Halabja. These actors include the state of Iraq, Saddam Hussein himself, and other persons part of his regime. This argument that Van Anraat’s role was marginal compared to these others was indeed raised by the defense.

The Court rejected this, and found Van Anraat to be jointly and severally liable. It relied on an expert report by Haider Hamoudi (University of Pittsburgh). Hamoudi informed the Court that under Iraqi law, compensation for any intentional, wrongful act was due if three elements were established: fault, harm and a causal link between the fault and the harm. The key question for the Court concerned the third element, the causal link ‘in particular in cases where there are two or more potential wrongdoers who have caused the fault’. On this point, Hamoudi wrote that ‘the general rule is one of joint and several liability in the case of two or more causes of fault’, only subject to an exception when the causal link between fault and harm is broken because of the act of a third party. Hamoudi concluded on the facts that ‘Iraqi law would regard the defendant in this case jointly and severally responsible for damages owed to the Iraqi victims.’

The Court followed this analysis. In response to Van Anraat’s argument that he did not commit a wrong since it was not him who had produced the mustard gas, the Court held that Van Anraat knew, when delivering the chemicals to the Hussein regime, that the weapons would be produced and used. And, crucially, that his delivery was an essential part in the causal chain. That being so, the exception to the rule of joint and several liability (that is: the situation when the causal link as between fault and harm is broken because of the act of a third party) did not apply, and there was sufficient basis to hold Van Anraat liable.

The judgment raises many prospects and questions. What is the relationship between joint and several liability and the eventual determination of the amount of compensation? Would Van Anraat have, under Iraqi law, recourse to other wrongdoers (the state of Iraq?). And what impact would the award of damages may have in a (perhaps hypothetical) future case where other contributors are brought to court – whether at the international or national level. These questions call for further consideration. But as it is, the judgment is a fascinating example of the power of joint and several liability in cases of multiple wrongdoers.

Cyber warfare: some questions of shared responsibility

 Posted by: Plakokefalos Ilias

During the past weeks several reports have emerged revealing details on one of the gravest cyber-attacks that have taken place, the Flame malware. It has been suggested that Flame has been co-sponsored by the same State or States that had launched Stuxnet, even though the head of the International Telecommunications Union (ITU) of the UN has stated that this is mere speculation, Stuxnet being the virus that had targeted the Iranian nuclear programme. Flame has been used to attack computers and network systems across the Middle East. The malware exploited a flaw in the Windows operating system in order to map and monitor the targeted computers. The situation provoked a reaction by the ITU, which stressed the need for co-operation among states in addressing the problems arising out of the growing use of networks to infiltrate and cause damage to systems across the world.

The suggestion that Flame was launched by more than one State raises a number of questions concerning the apportionment of responsibility among the actors that have participated in the cyber-attack. Matters become even more complicated if one takes into account that in some instances non-state actors are also involved in the cyber-attacks.

First of all, it must be noted that identifying the source of a cyber-attack is notoriously problematic. The structure of the Internet poses hurdles both as to the accuracy and as to the immediacy of the identification of the source. It is only evident that it would be even more difficult to point to the source in the case of multiple responsible actors.

A second problem is that the conceptualization, in terms of international law, of the nature of cyber warfare is also fraught with difficulties. The analogies employed usually, and naturally, point to the direction of the law of armed conflict. This approach is, for the time being, problematic. A direct analogy does not sit comfortably with the way the traditional means of using force or conducting an armed attack are conceived predominantly because they are of a remarkably different nature.

Nevertheless, for the purposes of this post we can assume that the analogy is accurate. The literature, by and large, accepts a model according to which cyber-attacks may be seen in the same way as classic cases of use of force or armed attack. The cyber-attack will therefore fall into one of the categories already developed under the international law of armed conflict such as use of force or armed attack, using as a criterion its consequences. The categorization is extremely important because it will carry with it consequences for both the wrongdoing State and the victim State. For example, if a cyber-attack is categorized as use of force then the victim State may take countermeasures. On the other hand if a cyber-attack falls indeed under the category of armed attack, the victim state will be in a position where it can respond invoking self-defence.

The question that has not received enough attention is what happens in the case where the consequences of an attack do not fall neatly within any of the pre-existing categories envisaged in the law of armed conflict. In other words, what happens when the consequences of the cyber-attack are not grave enough so as to warrant a categorization as use of force, armed attack or aggression?

A possible ground for establishing wrongfulness in this scenario is that in this case the State from whose territory the attack is launched is under an obligation not to allow its territory knowingly to be used in such a way so as to cause harm to another state. The application of this standard, established by the International Court of Justice in Corfu Channel, is not without problems. First, it is not clear which is the primary rule breached in this case. An extension of the ‘no harm’ rule established in international environmental law could be a solution, yet the main difference is that in international environmental law there are specific obligations that bind states (notification, exchange of information, procedures of licensing potentially harmful activities) and cumulate to the ‘no harm’ rule. Unless something similar can be established in the sphere of controlling the cyberspace there is little use even for this analogy. Another possible ground would be the principle of non-intervention. Second, there is no presumption of knowledge. When non-state actors are involved in launching the attack, establishing knowledge on the part of the source State might be equally hard, given the difficulty in obtaining accurate evidence, as it is to establish that a State exercised effective or overall control over the cyber-attack. In other words, the theoretical advantage of having to establish ‘knowledge’ instead of ‘control’ (variations of which may be employed if the cyber attack is classified as armed attack etc.) might not translate into a practical advantage.

If multiple actors are involved in launching the attack a number of further problems arise. The most important is that the victim State will not be able to direct its response — be it countermeasures or self defence — accurately: it has already been made clear that the identification of the source of the attack is a difficult endeavour. Also, when the multiplicity of actors is understood as including both state and non-state actors, the tests of attributing the conduct of the latter to the former (effective, overall control etc.) will be even more difficult to apply in the cyber warfare context.

In any case, it is true that the fact that a number of States (such as the Flame case seems to be) or States and non-state actors are involved in launching cyber-attacks does complicate the issues that have to be dealt with in the law of responsibility as well.

First, the victim State(s) will not be in a position to accurately point to the role of each responsible party. As it has already been stated above, this will be problematic since the victim State will have to be in a position to show – at least – knowledge of the operation and to be able to distinguish between the components of the operation that were stemming from each State. More difficult issues of attributing responsibility among multiple states might arise if the consequences are so grave that it will have to establish which source State had control over which entities that launched the attack. The connection between the entities actually designing and launching the cyber-attack with the State from which they operate will not be easy to establish because of the difficulties in presenting tangible evidence.

Second, according to the Article 47 of the ILC Articles on State Responsibility the criterion for attributing responsibility to multiple actors is that they breach the same obligation. In the case of cyber-attacks it may well be that each state has contributed through different means towards the realization of the attack and might easily have breached a different obligation. Therefore a more appropriate criterion could be to establish the responsibility of multiple actors on the occurrence of a single harmful outcome.

Third, the causal link connecting the same harmful outcome or damage caused with each actor will be difficult to establish. This is a problem that will be faced even in a single wrongdoing actor situation but the existence of multiple actors will effectively exacerbate the difficulties. A way out of this situation would be to apply a principle of joint and several liability, allowing thus the victim State the option against whom it might bring a claim. Accordingly, the victim State could bring a claim against the actor that is easier to tie to the specific attack, both in terms of attribution and in terms of causation and then claim full reparation. It would be then up to the respondent State to turn against other responsible States in order to recover. Nevertheless it is not clear whether the principle of joint and several liability, despite its obvious appeal in this type of situations, is part of general international law and the criteria under which it would be applied are not established (See: C. Ahlborn, ‘A Comment on Bruno Simma’s SHARES Lecture’, SHARES blog, 13 June 2012).

In conclusion it must be noted that the state of international law in relation to cyber-attacks has not reached a point where it can address all the issues that arise adequately. Especially when there are multiple actors involved, the problems do become more complex and difficult to address. Therefore it is clear that in order to have a more comprehensive picture of the legal aspects of cyber-attacks two things must happen: first, the practical difficulties that arise in relation to issues like the production of concrete evidence and the accurate determination of the facts must be overcome and second, the legal conceptualization of the issues must become more rigorous.

The Seabed Disputes Chamber clarified the meaning of joint and several liability (but also raised new questions)

 Posted by: Nollkaemper André

The principle of joint liability in undeveloped in international law. Though some treaties refer to it, and several scholarly articles that have recognized its importance for situations where multiple actors cause injury, the scope and contents of the principle remain uncertain. It is therefore of some importance that the Advisory Opinion of the Seabed Disputes Chamber of ITLOS on Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area (1 February 2011) discussed the principle. In his presentation at the SHARES Seminar on Shared Responsibility in Environmental Law, held at ACIL on 7 November 2011, Judge Treves provided further insight into these, until now somewhat neglected, aspects of the Opinion.

The question of liability for activities on the deep seabed is bound to become of increasing significance. Last July, the Seabed Council approved the plans of work for exploration for polymetallic nodules and polymetallic sulphides in the international deep seabed Area submitted by four entities (see: Press release). In all cases of exploration, more than one actor will be involved (the Authority, the entity carrying out the exploration and the sponsoring state). Liability in case of damage thus also may involve multiple actors.

The Law of the Sea Convention does envisage the possibility of joint and several responsibility in this context. Article 139 stipulates that ‘damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability; States Parties or international organizations acting together shall bear joint and several liability’.

The Opinion clarifies a few aspects of joint and several liability, while at the same time raising new questions. Three particularly noteworthy issues relate to 1) the requirement of ‘common damage’, 2) the requirement of concerted action, and 3) the possibility of joint liability between states and private parties.

As to the first point, the Seabed Chamber stated that ‘joint and several liability’ arises when the actors involved contribute to the same damage. It said that joint and several liability arises ‘where different entities have contributed to the same damage so that full reparation can be claimed from all or any of them.’ (para 201).

Is it not immediately clear what the source of this definition is. Neither the Law of the Sea Convention nor subsequent instruments adopted by the Seabed Authority expressly include the requirement of ‘common damage’. But, also given the type of activities on which Article 139 sees, it indeed seems to be implicit in Article 139 that when more actors are involved, they only will be jointly liable if they have contributed to a common damage.

The definition of joint liability in terms of common damage conforms to the meaning of the term ‘joint and several liability’ in the domestic law of many states and also otherwise rests on good grounds. It is precisely the fact that two or more actors contribute to a single damage (or injury), and that it cannot be determined who contributed what part, that leads to the need to allow third parties to bring a claim for relief against all responsible actors, and thus to the need for joint responsibility.

It is noteworthy that this definition differs from the International Law Commission’s concept of plurality of responsible states, which is based on the same wrongful act, not on the same damage (cf. Article 47 ILC Draft Articles on Responsibility of States). Even though a wrongful act will involve injury, and even though injury will be the starting point of analysis for any question of reparation, there is a fundamental difference between the approaches. Common damage need not necessarily involve a single wrongful act and, moreover, it is not clear that the very problem that justifies resort to joint liability (impossibility to apportion contribution to damage) applies to the same extent in case of contribution to the same wrongful act. Indeed, Article 47 raises many questions that need to be further explored.

A second point to highlight is that the Law of the Sea Convention envisaged joint liability if states and international organizations are ‘acting together’. It is not immediately clear what this means. Does this require concerted acts (leading, as we phrased it in the SHARES Concept Paper, ‘cooperative responsibility’), or can it also refer to two states or organizations acting independently from each other (leading to what we called ‘cumulative responsibility’)? On the basis of the normal meaning of the words used, the former seems the more plausible interpretation . Yet , the Chamber apparently accepted the possibility that two sponsoring states can be jointly and severally liable, even when they were not involved in a concerted action. The Chamber said that ‘article 139, paragraph 2, of the Convention and related instruments dealing with sponsorship do not differentiate between single and multiple sponsorship. It should be recalled that in principle the liability of a sponsoring state is based on a failure to take all necessary and appropriate measures to secure effective compliance by persons whom they have sponsored. Accordingly, the Chamber takes the position that, in the event of multiple sponsorship, each of these sponsoring states can be liable for failure to take all necessary and appropriate measures. If so, the liability is joint and several unless otherwise provided in the Regulations issued by the Authority.’ (para 192).

From the perspective of protection of victims, this broad approach (joint responsibility also in case of states not acting in concert) may make sense. But it is not immediately clear what the basis of such a principle is. One possibility is to read the words ‘acting together’ in Article 139 broadly, and include cases of non-concerted action. Such interpretation could also be inspired by the use of the term in domestic law (and given the dominant meaning of the term in domestic law, perhaps even as the ordinary meaning of the term). Another possibility is that this meaning of joint liability would reflect a more general principle of (international law), operating outside the express terms of Article 139. This was indeed suggested by Judge Simma in his Separate Opinion in the Oil Platforms Case, who suggested that where two or more states are subjected to identical obligations and cause a common damage, they are jointly and severally liable. However, this latter interpretation would be far reaching, in particular when large numbers of actors are subject to, and fail to comply with, identical obligations. It certainly is not a settled issue that as a matter of general international law if such states fail to comply with such obligations, and contribute to a common damage, joint and several liability is triggered. International law remains based on the principle that states are responsible only for damage caused by their own wrongful acts and omissions. It may be that the specific situation of sponsorship is sui generis and that it is this specific situation that brought the Chamber to its conclusion. But the text of the Advisory Opinion may have opened a door and it requires further thought whether that door should be left open.

A third issue raised by the Advisory Opinion is the possibility of joint liability between states and contractors. Even though (sponsoring) states can be liable (jointly or not), the actual damage will be caused by contractors, not states. The Convention (in Article 22 of Annex 3) does recognize that not only states, or the Authority, but also contractors can be liable ‘for any damage arising out of wrongful acts in the conduct of its operations’. The question is whether the liability of contractors and states can be joint. This is a matter of broader significance for international environmental law. The SHARES seminar on international environmental law made clear that most cases actual damage will be caused not by states but by private actors, and the question how liability of both actors is linked becomes relevant.

The Chamber said that Article 139 of the Convention does not provide for joint and several liability between the sponsoring state and the contractor. It reasoned that ‘the liability of the sponsoring State arises from its own failure to carry out its responsibilities, whereas the contractor’s liability arises from its own non-compliance. Both forms of liability exist in parallel’ and that while ‘the liability of the sponsoring State depends on the occurrence of damage resulting from the failure of the sponsored contractor, […] this does not make the sponsoring State responsible for the damage caused by the sponsored contractor’ (para 204).

While this construction is not surprising and probably in line with the intention of the drafters, it might be argued that if joint and several liability of two sponsoring states can be based on two independent failures to take appropriate measures, that could also not apply to independent wrongdoing by states and private actors. It is true that the Convention does not provide for this, but neither does it expressly provide for joint and several liability of independently acting multiple sponsoring states (unless we adopt a broad interpretation of ‘acting together’). The interpretative room assumed by the Chamber in interpreting Article 139 may not need to stop there.

The main argument against accepting joint and several liability of sponsoring states and the contractor is that the liability is governed by different legal orders – the liability of the contractor being relegated (as normally is done with international provisions on liability of private actors) to the domestic level. But the situation is not at all clear-cut here.

However, the Convention (in Article 22 of Annex 3) does recognize that not only states, or the Authority, but also contractors can be liable  ‘for any damage arising out of wrongful acts in the conduct of its operations’. This does not appear to refer to liability under national, but under international law. Moreover, under certain conditions the Seabed Disputes Chamber can have jurisdiction over disputes involving private parties (Article 187). There thus might well be room to consider further the possibility and desirability of joint liability between states and contractors who contribute to the same damage.

A report of the SHARES seminar on Shared Responsibility in International Environmental Law, including a summary of the discussion on the presentation by Judge Treves, will be published on this site shortly.