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.