State Responsibility for the Conduct of Rebels in Situations of Unsuccessful Civil Wars: A Critical Analysis of the Cengiz v Libya Case

Abstract

Based on an analysis of State practice and case law, this article examines one basic principle embodied in Article 10 of the International Law Commission Articles (ILC) on State responsibility: the wrongful acts committed by rebels during an insurrection or a civil war are not attributable to the State once the government defeats the insurgency. The article examines how investment tribunals can use Article 10 in the context of investor–State arbitration proceedings involving rebellions and civil wars. I will critically analyse the recent Cengiz v. Libya award rendered in the context of Libya’s civil war. I will show that the Tribunal failed to correctly applied Articles 4 and 10 of the ILC Articles. I will explain how the Tribunal could have made better use of the principles embodied in Article 10 to solve matters of State responsibility and attribution it was facing.