Hague Convention (IV)
Article 3 of the 1907 Hague Convention (IV) provides: “A belligerent Party which violates the provisions of the [1907 Hague Regulations] shall … be responsible for all acts committed by persons forming part of its armed forces.”
Geneva Conventions (1949)
Article 51 of the 1949 Geneva Convention I, Article 52 of the 1949 Geneva Convention II, Article 131 of the 1949 Geneva Convention III and Article 148 of the 1949 Geneva Convention IV provide:
No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of [grave breaches of these Conventions].
Additional Protocol I
Article 91 of the 1977 Additional Protocol I provides: “A Party to the conflict which violates the provisions of the Conventions or of this Protocol … shall be responsible for all acts committed by persons forming part of its armed forces.”
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 38 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides: “No provision in this Protocol relating to individual criminal responsibility shall affect the responsibility of States under international law, including the duty to provide reparation.”
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 5 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Responsibility of States”, provides: “Prosecution of an individual for a crime against the peace and security of mankind does not relieve a State of any responsibility under international law for an act or omission attributable to it.”
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 4 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Responsibility of States”, provides: “The fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of States under international law.”
ILC Draft Articles on State Responsibility (2001)
Article 1 of the 2001 ILC Draft Articles on State Responsibility, entitled “Responsibility of a State for its internationally wrongful acts”, provides: “Every internationally wrongful act of a State entails the international responsibility of that State.”
ILC Draft Articles on State Responsibility (2001)
Article 2 of the 2001 ILC Draft Articles on State Responsibility, entitled “Elements of an internationally wrongful act of a State”, provides:
There is an internationally wrongful act of a State when conduct consisting of an act or omission:
a) Is attributable to the State under international law; and
b) Constitutes a breach of an international obligation of the State.
This “wrongful act of a State” can be the consequence of the conduct of any State organ (Article 4). The conduct is attributed to the State even if the organ is acting in exceeding its authority or contravening instructions (Article 7). Furthermore, attribution to the State can also be made in the case of the conduct of other entities empowered to exercise elements of the government authority (Article 5), of persons acting in fact under the instructions or, in case of absence or default of the official authorities, on behalf of the State (Articles 8 and 9), of organs placed at its disposal by another State (Article 6), or of the act of an insurrectional movement which becomes the new government of a State or which results in the formation of a new State (Article 10). Moreover, conduct which is not attributable to a State “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” (Article 11).
Argentina’s Law of War Manual (1989), referring to Article 51 of the 1949 Geneva Convention I, Article 52 of the 1949 Geneva Convention II, Article 131 of the 1949 Geneva Convention III and Article 148 of the 1949 Geneva Convention IV, provides: “The contracting States cannot absolve themselves nor absolve any other contracting party of the liabilities incurred with respect to [grave breaches in the meaning of the 1949 Geneva Conventions]”.
Referring to Article 91 of the 1977 Additional Protocol I, the manual further provides: “The party which violates the [1949 Geneva] Conventions or [the 1977 Additional] Protocol I shall … be responsible for all acts committed by the members of its armed forces.”
Australia’s LOAC Manual (2006) states: “A violation of the LOAC by the armed forces of a nation involves the international responsibility of that nation.”
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada’s LOAC Manual (1999) provides: “Parties to the conflict are responsible for all acts committed by persons forming part of its armed forces.”
The manual further states: “No state is allowed to absolve itself of any liability in respect to the Geneva Conventions.”
Canada’s LOAC Manual (2001) states in its chapter entitled “Communications and contact between opposing forces”:
Any agreement made by belligerent commanders must be adhered to, and any breach of its conditions would involve international responsibility if ordered by a government, and personal liability, (which might amount to a war crime) if committed by an individual on his or her own authority.
In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual states:
1. Parties to the conflict are responsible for all acts committed by persons forming part of its armed forces. [A] state which violates the LOAC shall, if the case demands, be liable to pay compensation.
2. No state is allowed to absolve itself of any liability in respect to the Geneva Conventions.
Colombia’s Basic Military Manual (1995) states:
As subjects of international law, the States answer to the international community for the violations or failures to act of their agents or civil servants when they have impunity. They are also subject to the political, economic and legal sanctions imposed on them by the international community.
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
III.1. Collective responsibility
Collective responsibility of a belligerent party for a violation of the law of armed conflicts takes several forms.
- The third type of collective responsibility lies in the financial responsibility of States for damages caused by their illegal acts. In 1907, this form of responsibility of the State was formally included in Hague Convention (IV) respecting the Laws and Customs of War on Land. According to Article 3, a belligerent party which has committed a violation of the provisions of the Regulations “shall, if the case demands, be liable to pay compensation”. The article specifies further that that party “shall be responsible for all acts committed by persons forming part of its armed forces”.
III.4. Mechanisms to engage the responsibility of the State
Breaches of international humanitarian law by members of the armed forces engage the international responsibility of the State concerned. Consequently, a State will have to answer for the consequences of every act contrary to the law committed by every soldier vis-à-vis the State that suffered the breach. It must restore the situation and, if need be, is bound to indemnify the State which has suffered the breach.
Germany’s Military Manual (1992), referring to Article 91 of the 1977 Additional Protocol I and Article 3 of the 1907 Hague Convention (IV), provides: “A party to a conflict which does not comply with the provisions of international humanitarian law … shall be responsible for all acts committed by persons forming part of its armed forces.”
Mexico’s Army and Air Force Manual (2009) states that “article 3 of the  Hague Convention [IV] provides that parties to the conflict are responsible for all unlawful acts committed by persons forming part of their armed forces.”
The Military Manual (1993) of the Netherlands refers to Article 91 of the 1977 Additional Protocol I and states:
A party to the conflict is responsible for all acts committed by persons who are members of their armed forces. The responsibility applies not only towards those who have suffered damage and towards other parties to the conflict, but also towards the public opinion. This responsibility can result in pressure to respect the accepted rules of humanitarian law of war.
New Zealand’s Military Manual (1992), referring to Article 51 of the 1949 Geneva Convention I, Article 52 of the 1949 Geneva Convention II, Article 131 of the 1949 Geneva Convention III and Article 148 of the 1949 Geneva Convention IV, states: “Insofar as the liability of the State is concerned, it is important to note that the Geneva Conventions provide that no Contracting Party is able to absolve itself of liability for any grave breach of those Conventions.”
Nigeria’s Manual on the Laws of War provides: “Belligerent states are responsible for all acts committed by persons forming part of their armed forces.”
The Russian Federation’s Military Manual (1990) notes: “IHL lays down: … the responsibility of States … as regards violations of the rules of IHL.”
Spain’s LOAC Manual (1996), referring to Article 91 of the 1977 Additional Protocol I, provides: “The State is responsible for all acts committed by persons who are part of its Armed Forces.”
In another provision, referring to Article 3 of the 1907 Hague Convention (IV) and Article 91 of the 1977 Additional Protocol I, the manual states that a belligerent party “will be held responsible for the acts committed by persons who are part of its armed forces”.
Spain’s LOAC Manual (2007) states that “the State is responsible for all acts committed by the members of its armed forces”.
Switzerland’s Basic Military Manual (1987) provides: “Violations of the laws and customs of war, commonly called war crimes, engage … the responsibility of the State to which the authors of the violation belong.”
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) reproduces Article 3 of the 1907 Hague Convention (IV).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “A violation of the law of armed conflict by the armed forces of a state involves the international responsibility of that state.”
United States of America
The US Field Manual (1958) refers to Article 51 of the 1949 Geneva Convention I, Article 52 of the 1949 Geneva Convention II, Article 131 of the 1949 Geneva Convention III and Article 148 of the 1949 Geneva Convention IV and states:
No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article [war crimes].
United States of America
The US Air Force Pamphlet (1976), in a provision stating the obligation of States to pay compensation for violations of IHL, states:
However, as a general rule, in the absence of some cause for fault such as inadequate supervision or training, no obligation for compensation arises on the part of a state for other violations of the law of armed conflict committed by individual members outside their general area of responsibility.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) establishes the responsibility of parties to conflicts for violations of the law of war regardless of whether the violations were carried out on instructions or with the knowledge of the government or supreme command.
Peru’s Military and Police Criminal Code (2010) states:
Article 80. – State Responsibility
Nothing in the present Title [which addresses crimes committed in states of emergency and in violation of international humanitarian law] concerning criminal responsibility of natural persons shall affect the responsibility which the State may incur under international law.
Uruguay’s Law on Reparations (2009) states:
RECOGNITION BY THE STATE
Article 1º. – The breach of the rule of law which prevented individuals from exercising their fundamental rights, in violation of human rights or international humanitarian law, between 27 June 1973 and 28 February 1985 shall be recognized.
– The State shall promote material or symbolic actions of moral reparation in order to restore the dignity of the victims and to establish its responsibility. Such actions shall tend to honour the historical memory of the victims of terrorism and the illegitimate use of State power exercised during the period indicated in articles 1 and 2 of the present Law.
In 2010, in the Habib case, the Full Court of Australia’s Federal Court unanimously held that the “act of state doctrine” did not bar a claim for damages based on the alleged complicity of Australian officials in the alleged acts of torture committed on the applicant by officials of the governments of the United States, Egypt and Pakistan. Jagot J, with whom her co-judges, Black CJ and Perram J agreed, stated:
 The act of state doctrine has been described as “a common law principle of uncertain application which prevents the [forum] court from examining the legality of certain acts performed in the exercise of sovereign authority within a foreign country or, occasionally, outside it”: R v Bow St Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte  1 AC 61 at 106;  4 All ER 897 at 937 (Pinochet (No 1)).
 … As submitted for Mr Habib, if proved, his allegations would constitute grave violations of international human rights law. The weight of authority discussed above does not support the protection of such conduct from judicial scrutiny other than in the face of a valid claim for sovereign immunity.
 Mr Habib’s claim is against the Commonwealth. He alleges that the Commonwealth is liable for acts committed by its own officers, albeit in aiding and abetting agents of foreign states. The Commonwealth has no claim for sovereign immunity in respect of a claim brought against it in an Australian court. …
 … The cases on which the Commonwealth relied do not support a conclusion that the act of state doctrine prevents an Australian court from scrutinising the alleged acts of Australian officials overseas in breach of peremptory norms of international law to which effect has been given by Australian laws having extra-territorial application. The case law indicates to the contrary.
 … Australia’s “national nerves”, as the Commonwealth intimated, might be attuned to the sensibilities of its coalition partners but this has to be weighed in a context where the prohibition on torture forms part of customary international law and those partners themselves are signatories to an international treaty denouncing torture. Moreover, the claim is by an Australian citizen against the Commonwealth of Australia. Findings will be necessary as facts along the way but no declaration with respect to the conduct of foreign officials is required. Those officials will not be subject to the jurisdiction of an Australian court (or, for that matter, any international court by reason of this proceeding). It is the Commonwealth alone which is the respondent to this proceeding. In so far as the Commonwealth suggested some unfairness to the (unidentified) foreign officials in question by reason of the foreign states not being parties to the proceeding, it is common ground that those states would have a valid claim for sovereign immunity if sued in an Australian court. Such unfairness as might arise, in any event, is a matter for the trial, not the reserved question. …
 … The case involves an Australian court considering and determining whether, as alleged, officials of its own government aided, abetted and counselled foreign officials to inflict torture upon an Australian citizen in circumstances where the acts of those foreign officials, if proved as alleged, would themselves be unlawful under Australian laws having extra-territorial effect. …
 Ultimately, the central submission for Mr Habib is compelling. If accepted, the Commonwealth’s submissions would exclude judicial scrutiny of the conduct of Australian officials alleged to have involved serious breaches of the inviolable human rights of an Australian citizen in an overseas jurisdiction, even though the alleged conduct, if proved, would contravene Australian law at the time and in the place where the conduct is said to have been committed. …
 From this analysis it follows that this court has both the power, and indeed the constitutional obligation, to determine Mr Habib’s claim.
 Neither of the considerations upon which the Commonwealth relied – the development of the common law jurisprudence and the factors informing the content of the act of state doctrine (international comity and the separation of powers) – support the conclusion that an Australian court may not determine Mr Habib’s claim in so far as that claim alleges that the Commonwealth is liable for the acts of its officials constituting the torts of misfeasance in public office or the action of intentional but indirect infliction of harm by the aiding, abetting and counselling of agents of foreign states to subject Mr Habib to torture while he was detained in Pakistan, Egypt, Afghanistan and Guantánamo Bay.
 To the contrary the development of Anglo-American jurisprudence indicates that the act of state doctrine does not exclude judicial determination of Mr Habib’s claim as it involves alleged acts of torture constituting grave breaches of human rights, serious violations of international law and conduct made illegal by Australian laws having extra-territorial effect.
Democratic Republic of the Congo
In March 2006, in the Bongi Massaba case, a case against a captain of the armed forces of the Democratic Republic of the Congo, the Military Garrison Court of Ituri at Bunia held:
Whereas, in the present case, the three conditions of civil liability are fulfilled, inasmuch as the defendant has committed a fault by causing, by bullet, the death of the following persons …
Whereas, therefore, the civil liability of the defendant, as perpetrator of the act, is fully engaged.
Whereas, furthermore, the conditions of article 260, paragraph 3 [of the Congolese Civil Code], according to which masters and principals are liable for the damage caused by their servants and agents in the functions for which they were employed must equally be examined;
Whereas, in fact, four conditions are required for the application of that article, namely: the existence of a link between the principal and the agent; proof that the damage was caused by the fault; occurrence of the damage in the exercise of the functions for which the agent was last employed; the damage was caused to a third person.
1. Existence of a link between the principal and the agent: There is a link between the principal to the agent if a person has authority over the other who is his subordinate and acts under the orders or instructions of the first.
2. The victim must prove that the damage was caused by the fault of the agent: In other words, there is the possibility of exoneration in case of acts not committed by the agent.
3. The damage must be caused to a third person: A third means generally any person other than the principal or the agent …
4. Finally, the agent or the servant must have caused the damage in the exercise of the functions for which he is employed.
Case law decides that it is sufficient that the fault has been committed by the agent in the course of the service, even if he has overstepped a prohibition by the principal (Tribunal Haut Lomami, 20 May 1948, RJCB, 1949, p. 57). That prohibition, in the present case, is the general instruction, known to all soldiers of the FARDC, that persons not directly participating in hostilities (civilians, prisoners of war, etc.) must not be killed.
Whereas, in the present case, the four conditions mentioned above are fulfilled, inasmuch as:
- there is an agent, namely the defendant Blaise Bongi Massaba, who worked under the authority and the orders of the principal who happens to be the Congolese State (Democratic Republic of the Congo), through the army, the FARDC;
- the death of the five persons cited above was caused by the defendant, captain Blaise Bongi Massaba, agent of the Congolese State, who, with the help of a war weapon, shot at the five victims;
- these victims, cited above, were third persons in the sense of the law …
[-] the defendant, captain Blaise Bongi Massaba, agent of the army, the FARDC, committed the act which caused injury to the victims while being in service;
Whereas, in view of the above, the civil liability of the principal, namely the Congolese State (the Democratic Republic of the Congo), through its army (the FARDC), remains fully engaged;
The Military Garrison Tribunal of Ituri, finding on the civil action,
After proceedings in which both sides were heard, and by the majority of the votes of its members, by secret vote,
Consequently orders Mr Blaise Bongi Massaba jointly with the Democratic Republic of the Congo to pay each of the four families of the victims the equivalent in Congolese Francs of the sum of 75,000 US Dollars (seventy-five-thousand US Dollars) as damages and interest, covering all injuries, or the equivalent in Congolese Francs of the total sum of 300,000 US Dollars (three-hundred-thousand US Dollars).
In November 2006, on the defendant’s appeal, the Military Court of the Eastern Province held:
Whereas the charges of the war crimes of pillage and violence to life and person are sufficiently established as required by the law;
Whereas these breaches caused damages and harm for which the civilian parties demand reparation and indemnification on the basis of articles 258 and 260 of the third book of the Congolese civil code;
Whereas the civil liability of the authors of breaches that have caused harm to the parties is based on article 258 of the third book of the Congolese civil code, according to which: “any act whatsoever which causes damage to another, obligates the person by whose fault that damage has occurred to repair it”.
What about the civil responsibility of the State?
Whereas that responsibility follows from the presumption of the fault the administration or the State can commit in the choice and supervision of its agents;
Whereas [as] the beneficiary of the act accomplished by its agents on its account, it is only logical and follows from the elementary principle of fairness that the State is called on to repair the wrong resulting from the service from which it profits as master; …
Whereas the State, just like the principal, must answer for the damage caused by its agents in the exercise of their function, not because it has committed a fault, created a risk or broken the equality of burdens between citizens, but because it is obligated to guarantee the safety of individuals against damaging acts by those who exercise an activity in its name and on its account;
Whereas, in fact, when an organ of the State acts, it is the State itself that acts, and, consequently, when an agent commits a fault in the exercise of his functions, that fault engages the whole State …;
Whereas the abuse of the function is no obstacle to the responsibility of the master;
Whereas the defendant Blaise Bongi Massaba, in his capacity as soldier of the FARDC, is an agent of the Congolese State, thus that soldier engages the responsibility of the State, since it is admitted that the abuse of functions is not an obstacle to the responsibility of the principal, namely the Democratic Republic of the Congo;
Whereas the Military Court of the Eastern Province therefore judges that the responsibility of the Democratic Republic of the Congo is engaged as regards the assassination of the five pupils from Tchekele by the soldiers of the third company under the command of the defendant Blaise Bongi Massaba;
Whereas the same applies to the other acts of attacks on property in which not only the soldiers are implicated but in which also and in particular the Congolese State has failed its mission to keep individuals safe;
Whereas that responsibility for acts of third persons finds its basis in article 260 of the third book of the Congolese civil code which provides:
- one is responsible not only for the damage one causes by one’s own act, but also for that which is caused by the act of persons for whom one is responsible or things which one has under one’s care;
Whereas the Democratic Republic of the Congo in its capacity as principal described above, has the civil liability for the reparation or indemnification of damages and harm caused to third persons by the act of its agents, who are the soldiers of the FARDC, of the third company of the first battalion in the sixth brigade.
The Military Court of the Eastern Province, finding on the civil action, after proceedings in which both sides were heard, and by the majority of the votes of its members.
1. Declares admissible and founded on the merits the action for reparation and indemnification for harms introduced by Madame …
The courts orders the defendant Blaise Bongi Massaba, jointly with the Democratic Republic of the Congo, to pay as compensation for damage suffered:
To Madame …
- mother of … and aunt of…
- the equivalent in Congolese Francs of 100,000 US Dollars as damages and interest,
- the equivalent in Congolese Francs of 15,000 US Dollars as the counter value of her destroyed house …,
- the restitution of the objects described above or their counter value …
2. As regards the civil party …, father of … and …,
The Military Court of the Eastern Province orders the defendant Blaise Bongi Massaba, jointly with the Democratic Republic of the Congo, to pay …
- the equivalent in Congolese Francs of 100,000 US Dollars as damages and interest.
3. As regards the civil party …, father of …,
The Military Court of the Eastern Province orders the defendant Blaise Bongi Massaba, jointly with the Democratic Republic of the Congo, to pay…
- the equivalent in Congolese Francs of 50,000 US Dollars as damages and interest.
In its judgment in the Reparation Payments case
in 1963 relating to claims for compensation for slave labour during the Second World War, Germany’s Federal Supreme Court held that no decision could be reached on the merits of the claim until there was a final reparations agreement between the plaintiff’s government and Germany, as it found that the London Agreement on German External Debts of 27 February 1953 had postponed the question of indemnification of individuals to when the issue of reparations more generally had been settled.
In the Distomo case
in 2003, Germany’s Federal Court of Justice stated that the responsibility of States for internationally wrongful acts committed during hostilities “comprises liability for the acts of all persons belonging to the armed forces, and this not only in case these persons commit acts falling within their sphere of competence, but also in case they act without or against orders”.
In the Distomo case in 2006, Germany’s Federal Constitutional Court held:
The constitutional complaint is not accepted for decision.
The constitutional complaint concerns the question of the liability of the Federal Republic of Germany to pay damages and compensate for “reprisals” taken by members of the German armed forces during the occupation of Greece in World War II.
1. The complainants are Greek nationals. On 10 June 1944, their parents were shot in the course of a “reprisal action” against the inhabitants of the Greek locality Distomo by members of an SS unit incorporated in the German occupation forces, after previously an armed confrontation with partisans had taken place. The soldiers in total killed between 200 and 300 of the approximately 1800 inhabitants – not involved in the partisan fightings – of the village. Among the victims were mainly elderly persons, women, children and infants. The village was burnt down. The complainants, minors at the time, survived only due to the fortunate circumstance that a German soldier had signalled them to hide …
2. In September 1995, the complainants brought an action before the Regional Court. They sought the declaration that the Federal Republic of Germany was under the obligation to compensate them for the material damage they had suffered as a result of the operation of the SS unit in Distomo on 10 June 1944. The Regional Court, like the Higher Regional Court seized as court of appeal, dismissed the action. The complainants’ appeal on points of law [Revision] before the Federal Court of Justice, allowed by the Higher Regional Court, was also unsuccessful. By contrast, in parallel proceedings in Greece, in which, amongst others, the complainants participated, the competent Regional Court Levadeia had decided in October 1997 that the compensation claims based on the same facts were well founded.
2. The constitutional complaint has no prospect of success on the merits. The challenged decisions do not violate the claimants’ Basic Rights.
There are no objections under constitutional law to the Federal Court of Justice’s refusal to be bound by the judgement of the Greek Regional Court Livadeia of 30 October 1997. According to applicable international law, a State can demand exemption from another State’s jurisdiction if and to the extent that the assessment of its sovereign acts – so called acta iure imperii
– is concerned … Since the SS unit involved in the events in Distomo was incorporated into the armed forces of the German Reich, the assaults are to be classified as sovereign acts, irrespective of the question of their unlawfulness under international law. The Federal Court of Justice therefore correctly held that it was not bound by the judgement of the Greek Regional Court.
In 2004, in the East German Expropriation case, Germany’s Federal Constitutional Court held:
The state governed by the Basic Law has a duty to guarantee on its territory the integrity of the elementary principles of public international law, and, in the case of violations of public international law, to create a situation that is closer to the requirements of public international law in accordance with its responsibility and within the scope of its possibilities of action. However, this does not create a duty to return the property that was seized without compensation outside the state’s sphere of responsibility in the period between 1945 and 1949.
1. a) The German state bodies, under Article 20.3 of the Basic Law, are bound by public international law, which claims domestic validity as the law of international agreements under Article 59.2 of the Basic Law, and with its general rules, in particular as customary international law, under Article 25.1 of the Basic Law.
b) This duty to respect public international law, a duty that arises from the fact that the Basic Law is open to public international law, has three elements: firstly, the German state bodies have a duty to follow the provisions of public international law that bind the Federal Republic of Germany, and, if possible, to refrain from violating them. … Secondly, the legislature must guarantee for the German legal system that violations of public international law committed by its own state bodies can be corrected. Thirdly, the German state bodies – subject to conditions which will not be set out in more detail here – may also have a duty to assert public international law in their own area of responsibility if other states violate it.
2. In the cases to be decided, there is no violation of this duty of respect by German state bodies. The expropriations were the responsibility of the Soviet occupying power (a). On German unification, the Federal Republic of Germany attained the sovereign competence to decide on the reversal of the measures on the basis of sovereign acts by occupying powers. Public international law does not require the Federal Republic of Germany to make restitution. Nor did it have a duty to attach the legal consequence of voidness to the expropriations. The Federal Republic of Germany had merely a duty of cooperation with regard to the consequences (b). It fulfilled this duty by bringing about German unification peacefully by way of negotiations. Only by doing this did it achieve the de facto possibility to correct the situation, which was determined by history. The Federal Republic of Germany was allowed to come to the conclusion that dealing cooperatively with German unification would be incompatible with treating the expropriations as void (c).
(a) The expropriations on the territory of the Soviet occupation zone of Germany in the years 1945 to 1949, irrespective of whether they were occasioned directly by the Soviet occupying power or whether the German authorities installed by this occupying power had their own scope for decision in this respect, cannot be attributed to the sphere of responsibility of the state power of the Federal Republic of Germany, bound by the Basic Law (see BVerfGE 84, 90 (122–123)). Admittedly, since its foundation, the Federal Republic of Germany has seen itself as responsible for the whole of Germany in the meaning of the Preamble to the Basic Law (see BVerfGE 36, 1 (16); 77, 137 (149 ff.)). However, its state power was restricted not only in fact, but also under constitutional law, to the then territory of the Federal Republic of Germany (Article 23 sentence 1 of the Basic Law, original version). Under this Article, there was no responsibility of the Federal Republic of Germany in the sense of bearing responsibility for any measures it regarded as unlawful or unconstitutional in the Soviet-occupied zone, any more than with regard to measures taken by foreign state powers.
Instead, the Soviet occupying power, which carried out the expropriations on the basis of sovereign acts or was responsible for them by reason of the factual circumstances of control, claimed special authorisation, in order to restructure the property system in its occupation zone as planned.
There is more than one reason to suggest that the competence to structure the occupation regime is restricted by the minimum requirements of humanity laid down in the Hague Land Warfare Convention (on the application of the Land Warfare Convention as customary public international law as early as in the course of the Second World War, see International Military Court (Internationaler Militärgerichtshof), Prozess gegen die Hauptkriegsverbrecher, 14. November 1945 bis 1. October 1946, judgment, pp. 260 ff., 267 ff.; Greenwood, in: Fleck (ed.), Handbuch des humanitären Völkerrechts, 1994, no. 120). Under Articles 42 et seq. of the Land Warfare Convention, armed occupation creates a legal relationship between the occupying and the occupied state. The occupier has particular rights and duties in the occupied territory. It is true that the victorious powers, in the legal foundation documents for the exercise of government power with regard to Germany, agreed that it should be possible for the victorious power in question to intervene significantly in the political and economic life of Germany. They regarded it as their duty “to fundamentally restructure the political system, the basis of the constitution, indeed, the education system and the whole economic and social structure of Germany” (see Part III.a § 3, 7, 9 and 11 et seq. of the Potsdam Agreement …)
However, the humanitarian core of the Land Warfare Convention, which consists of the principles of humanity in the meaning of the Martens clause of the Preamble to the Hague Land Warfare Convention … was binding even at the time of the occupation. The Martens clause was confirmed as follows in Article 1.2 of Protocol I Additional to the Geneva Conventions:
In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
It cannot be excluded that – as the complainants believe – acts of the Soviet occupying power were inconsistent with elementary principles of law, because, without differentiation as to individual responsibility, they were directed against a group of persons called the “class enemy” and aimed at its economical or even physical destruction.
However, it is not necessary to decide here the precise position of the boundaries of competence to structure the occupation regime and whether in this specific case they were exceeded.
b) On German unification, the Federal Republic of Germany attained the sovereign competence to decide on the continuation of the measures on the basis of sovereign acts by occupying powers (aa). Public international law did not impose on the Federal Republic of Germany a duty to make restitution (bb). The Federal Republic of Germany was subject only to a duty of cooperation with regard to the consequences, in order to achieve a situation closer to public international law (cc).
aa) After the end of an armed occupation of its territory or of a part of its territory, the returning sovereign power may decide freely on the continuation of measures on the basis of sovereign acts by occupying powers and may in particular treat expropriations as void … In the case of the expropriations on the basis of sovereign acts by occupying powers in the Soviet occupation zone, this sovereign is the Federal Republic of Germany.
A measure undertaken before 7 October 1949 – the date of foundation of the German Democratic Republic – on the basis of sovereign acts by occupying powers did not lose its character as the result of an official or judicial confirmation that occurred after this date (see the official parliamentary background materials to the annexes to the Unification Treaty of 31 August 1990, Bundestag document 11/7831, pp. 3–4). The fact that the German Democratic Republic in turn accepted the expropriations as its own will does not alter this. On the foundation of the German Democratic Republic, another sovereign in the meaning of public international law had moved into the territory of the German Reich (legally) vacated by the Soviet occupying power (see BVerfGE 92, 277 (320)). From the point of view of public international law, the German Democratic Republic, as a third-party state, on the basis of its territorial sovereignty and under its contractual obligations, reverse measures of the occupying power, but it waived the right to do so. After the end of the German Democratic Republic, the Federal Republic of Germany as the following sovereign over this territory was able to make such a correction.
bb) The Federal Republic of Germany is subject to no duty derived from public international law to make restitution to the persons affected by the expropriations. In connection with the Two-Plus-Four Talks, it impliedly and admissibly waived the right to any claims it had to damages under public international law (1). There are no rules of mandatory public international law preventing this (2).
(1) Between the German Reich and the Soviet Union, the states that were succeeded by the Federal Republic of Germany and the Russian Federation, there was a state of war under international law … The Hague Land Warfare Convention may give rise to claims on an international level, that is, between the occupying power and the returning sovereign. A party to a conflict that does not observe the provisions of Hague law is, by Article 3 of the Land Warfare Convention (see Article 91 of Protocol I Additional to the Geneva Conventions, of 1977) obliged to pay damages. This provision corresponds to the principle under customary international law that the violation of its duties under public international law makes a state responsible (see too Article 1 of the ILC [A]rticle[s] on the [R]esponsibility of [S]tates). This right to damages under secondary law, however, exists only in the public-international-law relationship between the states involved and is subject to their disposition. In this respect, the claim to damages differs from the claim under primary law of the persons involved that the prohibitions of humanitarian public international law are observed; this claim exists in the public-international-law relationship between the state occupying a territory and the population living in this territory.
In the Two-Plus-Four Talks, the Federal Republic of Germany impliedly waived any claims under the Hague Land Warfare Convention. By the wording of the Land Warfare Convention and the practice of the states, the Federal Republic of Germany was not obliged to assert such claims towards the former occupying power.
It is not in contradiction to this that each of the four Geneva Conventions of the year 1949 contains a provision depriving the states that are parties the right to release themselves or another from the responsibility for “serious violations” of public international law (Article 51 of the First Geneva Convention, Article 52 of the Second Geneva Convention, Article 131 of the Third Geneva Convention and Article 148 of the Fourth Geneva Convention). When these provisions were created, the creators believed that they had found in them an efficient means of enforcing the Hague law. In the practice of the law of war, however, this principle has not yet succeeded in establishing itself. Instead, as a rule the victor demands the payment of compensation from the conquered (reparations), although there was no unambiguous agreement to base this on violations of the law of war, and above all without the victor paying damages for the violations of law committed by itself. It cannot be concluded from the provisions of the Geneva Convention that the states are forbidden to waive claims under the Hague Land Warfare Convention in connection with entering into a peace treaty.
Any claims of the individuals protected by the Land Warfare Convention are burdened in advance by this authorisation of the occupying power and the sovereign to legislate and to waive, and they are also restricted by it.
cc) Modern public international law is characterised by a continuous increase in the severity of the legal consequences which it attaches to the violation of particular central norms; the states are increasingly subjected to a duty to terminate and remove grave violations of peremptory international law.
The ILC Articles contain a Chapter III, dealing separately with a duty to act on the part of third-party states (Articles 40 et seq.), but this treats only serious violations of peremptory international law. A breach is serious if it is gross or systematic in nature (Article 40.2). The states must cooperate in order to bring an end to any such breach (Article 41.1). In addition, no state may recognise as lawful a situation created by such a breach or render aid or assistance in maintaining it (Article 41.2).
However, these provisions do not give rise to the legal consequence that the expropriations on the basis of sovereign acts by occupying powers – assuming they violated mandatory international law – are to be treated as void. Instead, the legal consequence of voidness is laid down only to the extent that duties under treaties are directed precisely to performance that is prohibited by a peremptory norm. Apart from this, however, and all the more so if a factually established situation and differing political interests are involved, the states have merely a duty to cooperate with regard to the consequences. Behind this duty of cooperation is the consideration that it is urgently necessary to create a situation that, while safeguarding the interests on both sides, does actually mitigate the breach of peremptory law as far as possible.
c) The Federal Republic of Germany satisfied this duty to cooperate with regard to the consequences by bringing about reunification by way of peaceful negotiations. Only in this way did it create the de facto possibility, if not of undoing the situation created from 1945 to 1949, yet of substantially correcting it, and at all events of softening its actual effects. In this connection, the Federal Government was permitted to come to the conclusion that managing reunification cooperatively would be incompatible with treating the expropriations as void.
The interpretation of the law expressed in the decisions challenged with regard to the dual nationality of the predecessor in title of the second complainant is unobjectionable from the point of view of constitutional law. In particular, there can be no objection, with regard to Article 3 of the Basic Law, to the opinion that the prohibition on expropriation of foreign assets pronounced by the Soviet occupying power does not apply to persons who had not only foreign but also German citizenship.
1. An expropriation on the basis of sovereign acts by occupying powers is a measure that was formally undertaken on the basis of statutes, delegated legislation and other acts of state by German agencies, but which was carried out at the suggestion or wish of the occupying power or with its consent. This applies above all to the expropriations in connection with the land reform and the expropriations carried out following SMAD Order no. 124 of 30 October 1945, which were expressly confirmed by SMAD Order no. 64 of 17 April 1948 – in which the highest chief of the SMAD ordered the termination of the sequestration proceedings in the Soviet Occupation Zone (see BVerfGE 84, 90 (113)).
It is not significant whether the expropriations were formally based on legal acts of the occupying power or of the German authorities established by that power. What is decisive, instead, is whether the measure was not merely accepted by the Soviet occupying power, but also coincided with its declared intention (see BVerfGE 84, 90 (114)), or whether the occupying power as a non-German state authority still had the highest sovereignty at the time of the expropriation (see BVerfGE 94, 12 (31)). In particular, expropriations in connection with the land reform are therefore to be regarded as being “on the basis of sovereign acts by occupying powers”. The only acts of expropriation that are to be regarded as German orders are those which lacked the decisive elements making them attributable to the occupying power, for example because the occupying power had expressly prohibited the expropriations by reason of their character or in the individual case. Only a distinction on this basis between Allied decisions – whether under occupation law or on the basis of sovereign acts by occupying powers – and German orders does justice to the legal reality in the Soviet occupation zone (see BVerfGE 94, 12 (32)).
2. This conclusion is also unobjectionable from the point of view of public international law. In the law of state responsibility, it is recognised that acts of the bodies of a state give rise to the responsibility of another state if they can be attributed to the latter (see Article 18 of the ILC Articles on [S]tate [R]esponsibility, loc. cit.). Accordingly there are no objections to attributing the expropriations under public international law to the Soviet Union, in view of its overall responsibility as occupying power and its formative influence on the events.
In the Eichmann case in 1961, Israel’s District Court of Jerusalem stated:
It is true that under international law Germany bears not only moral, but also legal, responsibility for all the crimes that were committed as its own ‘acts of State’, including the crimes attributed to the accused.
In its judgment in the Priebke case
(Trial of First Instance) in 1996, Italy’s Military Tribunal of Rome held that Italy had been responsible for an attack in 1944 perpetrated against German soldiers by Italian partisans. It stated that although the partisans were not legitimate combatants, Italy had encouraged their actions during the war and had officially recognized them after the conflict. Accordingly, the Tribunal concluded, their actions could be ascribed to the State which was thus internationally responsible for the attack.
In its judgment in the J.T. case
in 1949 in which an individual had sued the State for repayment of money taken by the police during the arrest of the claimant during the occupation of the Netherlands by the German army, the District Court of The Hague held that the State of the Netherlands must repay the money to the plaintiff. It held that it was true that the State was not liable for all acts committed by the resistance movement (Binnenlandse Strijdkrachten
) which had been organized with the consent of the government in exile during the Second World War, but since it was definitely established that the money had come into the hands of the police, restitution had to be made.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
United Kingdom of Great Britain and Northern Ireland
In the Al-Jedda case in 2007, the UK House of Lords were called upon to decide the appeal of Mr Al-Jedda, a national both of the United Kingdom and Iraq, against his detention by UK forces in Iraq.
In judgments in 2005 and 2006 respectively, the England and Wales High Court of Justice (R. (on the application of Al-Jedda) v. Secretary of State for Defence,  EWHC 1809 (Admin), Judgment of 12 August 2005) and the England and Wales Court of Appeal (R. (on the application of Al-Jedda) v. Secretary of State for Defence,  EWCA Civ 327, Judgment of 29 March 2006) had dismissed the claims brought by Mr Al-Jedda.
The issues before the House of Lords were, first:
“whether, by reason of the provisions of UNSCR [UN Security Council Resolution] 1511 (2003) and/or UNSCR 1546 (2004), and/or UNSCR 1637 (2005) and/or UNSCR 1723 (2006) and/or (so far as it may be relevant) UNSCR 1483 (2003), the detention of the appellant is attributable to the United Nations and thus outside the scope of the [1950 European Convention on Human Rights]”,
whether the provisions of article 5(1) of the Convention are qualified by the legal regime established pursuant to United Nations Security Council Resolution (“UNSCR”) 1546 (and subsequent resolutions) by reason of the operation of articles 25 and 103 of the UN Charter, such that the detention of the appellant has not been in violation of article 5(1),
whether English common law or Iraqi law applies to the appellant’s detention and, if the former, whether there is any legal basis for his detention.
The first issue arose only before the House of Lords.
The House of Lords unanimously dismissed the claimant’s appeal, holding that the appellant’s detention was attributable to the United Kingdom and not the United Nations and thus not outside the scope of the 1950 European Convention on Human Rights, but further holding that, in view of Articles 25 and 103 of the UN Charter and UN Security Council Resolution 1546 and successive resolutions, the appellant’s rights under Article 5(1) of the 1950 European Convention on Human Rights were not violated, and that the third issue, dealing with torts, fell under Iraqi law. With regard to the first issue, Lord Rodger entered a dissenting opinion, and Lord Brown was undecided. Lord Bingham gave the leading opinion:
1. Since October 2004 the appellant, who is a national of both this country and Iraq, has been held in custody by British troops at detention facilities in Iraq. He complains that his detention infringes his rights under article 5(1) of the European Convention on Human Rights, a Convention right protected by the Human Rights Act 1998, and also founds a good claim in this country under the English common law. These claims were rejected by the Queen’s Bench Divisional Court (Moses and Richards JJ:  EWHC 1809 (Admin), HRLR 1355) and also by the Court of Appeal (Brooke, May and Rix LJJ:  EWCA Civ 327,  QB 621. Both courts below delivered lengthy and careful judgments, commensurate with the importance and difficulty of the issues then raised, but a new issue has (by agreement) been raised and argued before the House, as explained below.
2. The appellant has not been charged with any offence, and no charge or trial is in prospect. He was arrested and has since been detained on the ground that his internment is necessary for imperative reasons of security in Iraq. He was suspected of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He was believed by the British authorities to have been personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against coalition forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech detonation equipment into Iraq for use in attacks against coalition forces. These allegations are roundly denied by the appellant, and they have not been tested in any proceedings. Nor is their correctness an issue in these proceedings. The House must therefore resolve the legal issues falling for decision on the assumption that the allegations are true, without forming any judgment whether they are or not.
3. In the courts below the appellant’s Human Rights Act argument was directed to a single question, turning essentially on the relationship between article 5(1) of the European Convention on the one hand and the United Nations Charter, and certain resolutions of the UN Security Council, on the other. More specifically, this question is agreed to be whether the provisions of article 5(1) of the Convention are qualified by the legal regime established pursuant to United Nations Security Council Resolution (“UNSCR”) 1546 (and subsequent resolutions) by reason of the operation of articles 25 and 103 of the UN Charter, such that the detention of the appellant has not been in violation of article 5(1). This is the issue which the courts below decided against the appellant, and it remains an issue dividing the parties. But it is now the second issue. For the Secretary of State, prompted (it seems) by the admissibility decision of the Grand Chamber of the European Court of Human Rights in
Behrami v France, Saramati v France, Germany and Norway (Application Nos 71412/01 and 78166/01 (unreported), 2 May 2007) has raised an entirely new issue, not ventilated in the courts below, directed to the attributability in international law of the conduct of which the appellant complains. As agreed, the issue is “whether, by reason of the provisions of UNSCR 1511 (2003) and/or UNSCR 1546 (2004), and/or UNSCR 1637 (2005) and/or UNSCR 1723 (2006) and/or (so far as it may be relevant) UNSCR 1483 (2003), the detention of the appellant is attributable to the United Nations and thus outside the scope of the [1950 European Convention on Human Rights]”. The Secretary of State, relying strongly on Behrami and Saramati, contends that the appellant’s detention is attributable to the UN, a contention which (if correct) defeats his claim under article 5. This has been treated as the first issue in this appeal.
The first issue
5. It was common ground between the parties that the governing principle is that expressed by the International Law Commission [ILC] in article 5 of its draft articles on the Responsibility of International Organizations (adopted in May 2004 and cited by the European Court in Behrami and Saramati , para 30):
“Conduct of organs or agents placed at the disposal of an international organization by a state or another international organization
The conduct of an organ of a state or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”
The European Court also quoted (para 31) from paras 1 and 6−7 of the ILC’s authoritative commentary on this article (General Assembly Official Records 59th Session, Supp No 10 (A/59/10)):
“1. When an organ of a state is placed at the disposal of an international organization, the organ may be fully seconded to that organization. In this case the organ’s conduct would clearly be attributable only to the receiving organization … Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending state or as organ or agent of the lending organization. This occurs for instance in the case of military contingents that a state placed at the disposal of the [UN] for a peacekeeping operation, since the state retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organization or to the lending state or organization …
6. Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing state retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct …
Attribution of conduct to the contributing state is clearly linked with the retention of some powers by that state over its national contingent and thus on the control that the state possesses in the relevant respect.
7. As has been held by several scholars, when an organ or agent is placed at the disposal of an international organization, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question.”
6. Invited by the ILC to comment on the attribution of the conduct of peacekeeping forces to the UN or to contributing states, the UN Secretariat responded (A/CN.4/545, 25 June 2004, pp 17−18):
“The question of attribution of the conduct of a peacekeeping force to the United Nations or to contributing states is determined by the legal status of the force, the agreements between the United Nations and contributing states and their opposability to third states.
A United Nations peacekeeping force established by the Security Council or the General Assembly is a subsidiary organ of the United Nations. Members of the military personnel placed by member states under United Nations command although remaining in their national service are, for the duration of their assignment to the force, considered international personnel under the authority of the United Nations and subject to the instructions of the force commander. The functions of the force are exclusively international and members of the force are bound to discharge their functions with the interest of the United Nations only in view. The peacekeeping operation as a whole is subject to the executive direction and control of the Secretary-General, under the overall direction of the Security Council or the General Assembly as the case may be.
As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation. The fact that any such act may have been performed by members of a national military contingent forming part of the peacekeeping operation does not affect the international responsibility of the United Nations vis-à-vis third states or individuals.
Agreements concluded between the United Nations and states contributing troops to the Organization contain a standard clause on third-party liability delineating the respective responsibilities of the Organization and contributing states for loss, damage, injury or death caused by the personnel or equipment of the contributing state. Article 9 of the Model Memorandum of Understanding between the United Nations and [participating state] contributing resources to [The United Nations Peacekeeping Operation] provides in this regard:
‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this memorandum. However if the loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government, the Government will be liable for such claims’
While the agreements between the United Nations and contributing states divide the responsibility in the relationship between them, they are not opposable to third states. Vis-à-vis third states and individuals, therefore, where the international responsibility of the Organization is engaged, liability in compensation is, in the first place, entailed for the United Nations, which may then revert to the contributing state concerned and seek recovery on the basis of the agreement between them.
The principle of attribution of the conduct of a peacekeeping force to the United Nations is premised on the assumption that the operation in question is conducted under United Nations command and control, and thus has the legal status of a United Nations subsidiary organ. In authorized chapter VII operations conducted under national command and control, the conduct of the operation is imputable to the state or states conducting the operation. In joint operations, namely, those conducted by a United Nations peacekeeping operation and an operation conducted under national or regional command and control, international responsibility lies where effective command and control is vested and practically exercised (see paras 17–18 of the Secretary-General’s report A/51/389).”
The cited paragraphs in the Secretary-General’s report A/51/389 (20 September 1996) read:
“17. The international responsibility of the United Nations for combat-related activities of the United Nations forces is premised on the assumption that the operation in question is under the exclusive command and control of the United Nations. Where a Chapter VII-authorized operation is conducted under national command and control, international responsibility for the activities of the force is vested in the state or states conducting the operation. The determination of responsibility becomes particularly difficult, however, in cases where a state or states provide the United Nations with forces in support of a United Nations operation but not necessarily as an integral part thereof, and where operational command and control is unified or coordinated. This was the case in Somalia where the Quick Reaction Force and the US Rangers were provided in support of the United Nations Operation in Somalia (UNOSOM II), and this was also the case in the former Yugoslavia where the Rapid Reaction Force was provided in support of the United Nations Protection Force (UNPROFOR).
18. In joint operations, international responsibility for the conduct of the troops lies where operational command and control is vested according to the arrangements establishing the modalities of cooperation between the state or states providing the troops and the United Nations. In the absence of formal arrangements between the United Nations and the state or states providing troops, responsibility would be determined in each and every case according to the degree of effective control exercised by either party in the conduct of the operation.”
The UN Secretariat was further invited by the ILC to address the following question (see A/CN.4/556, 12 May 2005, p 4):
“In the event that a certain conduct, which a member state takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that state and of that organization, would the organization also be regarded as responsible under international law? Would the answer be the same if the state’s wrongful conduct was not requested, but only authorized by the organization?
The Secretariat’s answer was (ibid, p 46):
“As for the third question raised by the commission, we are not aware of any situation where the Organization was held jointly or residually responsible for an unlawful act by a state in the conduct of an activity or operation carried out at the request of the Organization or under its authorization. In the practice of the Organization, however, a measure of accountability was nonetheless introduced in the relationship between the Security Council and member states conducting an operation under Security Council authorization, in the form of periodic reports to the Council on the conduct of the operation. While the submission of these reports provides the Council with an important ‘oversight tool’, the Council itself or the United Nations as a whole cannot be held responsible for an unlawful act by the state conducting the operation, for the ultimate test of responsibility remains ‘effective command and control’.”
7. It is necessary to identify the main events occurring between March 2003 and the present before considering the application of these principles to the present case.
8. On 20 March 2003 coalition forces invaded Iraq. It is, as Brooke LJ observed in paragraph 15 of his judgment, “well known that the Coalition Forces invaded Iraq in the spring of 2003 after the abandonment of the efforts to obtain a further Security Council resolution which would give immediate backing to what the coalition states wished to do if Saddam Hussein did not comply with the Council’s demands”. On 16 April 2003 General Franks, a US general, issued a “freedom message” in which he announced the creation of the Coalition Provisional Authority (“the CPA”), a civilian administration which would exercise powers of government in Iraq for the time being. Major combat operations were declared to be complete on 1 May 2003, although hostilities did not end on that date in all parts of the country. As from that date the US and the UK became occupying powers, within the meaning of Section III of the Hague Regulations on the Laws and Customs of War on land (1907) and the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War (1949) in the areas which they respectively occupied.
9. On 8 May 2003 the Permanent Representatives of the UK and the US at the UN addressed a joint letter to the President of the Security Council. In it they said that the states participating in the coalition would strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the Iraqi people; that the US, the UK and their coalition partners, acting under existing command and control arrangements through the commander of coalition forces, had created the CPA; that the US, the UK and their coalition partners, working through the CPA, should among other things provide for security in and for the provisional administration of Iraq; that they would facilitate the efforts of the Iraqi people to take the first steps towards forming a representative government based on the rule of law; and that the UN had a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq and in helping in the formation of an Iraqi interim authority. On 13 May 2003 the US Secretary for Defence, Mr Donald Rumsfeld, appointed Mr Paul Bremer to be administrator of the CPA, which was divided into regions, that in the south being under British control. The CPA promptly set about the business of government. By CPA Regulation No 1, dated 16 May 2003, the CPA assumed “all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war”. Iraqi laws, unless suspended or replaced by the CPA, were to continue to apply insofar as they did not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with regulations or orders issued by the CPA. CPA Memorandum No 3 (CPA/MEM/27 June 2004/03) addressed issues of criminal procedure. In section 6(4) it referred to standards “in accordance with … the Fourth Geneva Convention”, which were to apply to all persons who were detained by coalition forces when necessary for imperative reasons of security, providing a right of appeal by an internee to a competent body.
10. Resolution 1483 was adopted by the Security Council on 22 May 2003. The resolution opened, as is usual, with a number of recitals, one of which referred to the US and UK Permanent Representatives’ letter of 8 May “recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (‘the Authority’)”. Then, acting under Chapter VII of the UN Charter, the Council called on the Authority, consistently with the UN Charter and other relevant international law, to promote the welfare of the Iraqi people and work towards the restoration of conditions of stability and security. The Council called upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907. The Council further requested the Secretary General to appoint a Special Representative in Iraq: he was to report regularly to the Council on his activities under the resolution, which were to co-ordinate the activities of the UN and other international agencies engaged in post-conflict processes and humanitarian assistance, in a number of specified ways including the protection of human rights. The Council decided, as it did consistently thereafter, to remain seised of the matter. In July 2003 an Iraqi Governing Council (“IGC”) was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq.
11. Pursuant to UNSCR 1483 the Secretary General established a United Nations Assistance Mission for Iraq (UNAMI), a step welcomed by the Council in Resolution 1500 of 14 August 2003. This development was foreshadowed by the Secretary General in a report dated 17 July, in which he announced the appointment of Mr de Mello as his Special Representative and outlined the tasks which UNAMI was to undertake.
12. On 16 October 2003 the Security Council adopted Resolution 1511. Acting under Chapter VII of the UN Charter, the Council looked forward to the assumption of governmental powers by the people of Iraq and resolved that the UN, through the Secretary General, his Special Representative and UNAMI “should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government”. The Secretary General was to report to the Security Council on his responsibilities under the resolution. In a new departure, the Council determined
“that the provision of security and stability is essential to the successful completion of the political process … and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force [“MNF”] under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of [UNAMI], the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure”.
Member states were urged to contribute assistance under this UN mandate, including military forces, to the multinational force referred to. The US, on behalf of the multinational force, was requested to report to the Council on the efforts and progress of this force.
13. On 8 March 2004 the IGC promulgated a transitional administrative law, paving the way towards an interim and then an elected Iraqi government. Reporting to the Security Council on 16 April 2004, the US Permanent Representative said that the multinational force had conducted “the full spectrum of military operations, which range from the provision of humanitarian assistance, civil affairs and relief and reconstruction activities to the detention of those who are threats to security×” In a submission made by the CPA to the UN High Commissioner for Human Rights on 28 May 2004 it was stated that the US and UK military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody. This was a matter of some significance, since by this time the abuses perpetrated by US military personnel at the Abu Ghraib prison had become public knowledge.
14. Chronologically, the next events to be noted are two letters, each dated 5 June 2004 and written to the President of the Security Council by the Prime Minister of the Interim Government of Iraq (Dr Allawi) and the US Secretary of State (Mr Powell). Dr Allawi looked forward to the establishment of a free and democratic Iraq, but stressed that security and stability continued to be essential to the country’s political transition, and asked for the support of the Security Council and the international community until Iraq could provide its own security. He sought a new resolution on the multinational force mandate to contribute to maintaining security in Iraq, “including through the tasks and arrangements set out in the letter” from Mr Powell to the President of the Council. Mr Powell in his letter recognised the request of Dr Allawi’s government for the continued presence of the multinational force in Iraq and confirmed that the force, under unified command, was prepared to continue to contribute to the maintenance of security in Iraq. He continued, using language plainly drawn from article 78 of the Fourth Geneva Convention (although the period of occupation was about to end):
“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection.
These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. A further objective will be to train and equip Iraqi security forces that will increasingly take responsibility for maintaining Iraq’s security. The MNF also stands ready as needed to participate in the provision of humanitarian assistance, civil affairs support, and relief and reconstruction assistance requested by the Iraqi Interim Government and in line with previous Security Council Resolutions.”
He regarded the existing framework governing responsibility for exercise of jurisdiction by contributing states over their military personnel as sufficient, and assured the President that “the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions”.
15. These letters were the immediate prelude to Resolution 1546, adopted by the Security Council on 8 June 2004. Little turns on the opening recitals, save that the Council welcomed the assurances in Mr Powell’s letter and determined that the situation in Iraq continued to constitute a threat to international peace and security. Acting under Chapter VII of the UN Charter, the Council described the role of UNAMI, reaffirmed its authorisation under UNSCR 1511 (2003) for the multinational force under unified command, having regard to the annexed letters of Dr Allawi and Mr Powell, and decided
“that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; …”
The Council further decided that the mandate for the multinational force should be reviewed at the request of the Government of Iraq or 12 months from the date of the resolution and that the mandate should end on completion of the political process described earlier in the resolution, but the Council undertook to terminate the mandate earlier if requested by the Government of Iraq. The US, on behalf of the multinational force, was again requested to report at stated intervals.
16. On 27 June 2004 the CPA issued a revised order giving members of the multinational force and the CPA general immunity from Iraqi process, and providing that they should be subject to the exclusive jurisdiction of their sending states. On the following day power was formally transferred to the Iraqi interim government, the CPA was dissolved and the occupation of Iraq by coalition forces came to an end. Such was the position when the appellant was taken into British custody in October 2004.
17. After this date there were two further resolutions of the Security Council (Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006), to which, however, little significance was, rightly, attached. Their effect was to maintain the status quo. The appellant drew attention to reports made by the Secretary General to the Security Council which expressed concern about persons detained by units of the multinational force in a manner inconsistent, it was said, with any suggestion that this was, in international law, the responsibility of the UN. Thus, for instance, on 7 June 2005 (S/2005/373, para 72) the Secretary General reported that 6000 detainees were in the custody of the multinational force and despite the release of some detainees numbers continued to grow. He commented: “Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency”. Such observations were echoed in reports by UNAMI which, in its report on the period 1 July–31 August 2005, para 12, expressed concern about the high number of persons detained, observing that “Internees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”. In its next report (1 September–31 October 2005) it repeated this expression of concern (para 6), and advised “There is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight”. The appellant pointed out that, according to an answer given by the armed forces minister in the House of Commons on 10 November 2004, UK forces in Iraq were operating under UNSCR 1546 and were not engaged on UN operations: Hansard (HC Debates), 10 November 2004, col 720W. A similar view, it was suggested, was taken by the Working Group of the UN’s Human Rights Council (A/HRC/4/40/Add.1) which considered the position of Mr Tariq Aziz and, in paragraph 25 of its opinion on the case, stated:
“The Working Group concludes that until 1 July 2004, Mr Tariq Aziz had been detained under the sole responsibility of the Coalition members as occupying powers or, to be more precise, under the responsibility of the United States Government. Since then and as the Iraqi Criminal Tribunal is a court of the sovereign State of Iraq, the pre-trial detention of a person charged before the tribunal is within the responsibility of Iraq. In the light of the fact that Mr Aziz is in the physical custody of the United States authorities, any possible conclusion as to the arbitrary nature of his deprivation of liberty may involve the international responsibility of the United States Government.”
18. As already indicated, the Secretary of State founds his non-attributability argument on the judgment of the European Court, sitting as a Grand Chamber, in Behrami and Saramati, which related to events in Kosovo. The case concerned Resolution 1244, adopted by the Security Council on 10 June 1999. In the recitals to the resolution, the Council welcomed the statement of principles adopted to resolve the Kosovo crisis on 6 May 1999, which formed annex 1 to the resolution, and welcomed also the acceptance by the Federal Republic of Yugoslavia of the first nine points in a statement of principles which formed annex 2 to the resolution. Annex 1 provided, among other things, for the “Deployment in Kosovo of effective international civil and security presences, endorsed and adopted by the United Nations, capable of guaranteeing the achievement of the common objectives.” Annex 2 provided for the “Deployment in Kosovo under United Nations auspices of effective international civil and security presences, acting as may be decided under Chapter VII of the Charter, capable of guaranteeing the achievement of common objectives”. The international security presence with substantial NATO participation was to be deployed under unified command and control. The international civil presence was to include an interim administration. Having determined that the situation in the region continued to constitute a threat to international peace and security, and acting under Chapter VII of the UN Charter, the Council determined on “the deployment in Kosovo, under United Nations auspices, of international civil and security presences …” A Special Representative appointed by the Secretary General was to control the implementation of the international civil presence and coordinate its activities with those of the international security presence. Member states and relevant international organisations were authorised to establish the international security presence whose responsibilities were to include, among other things, supervising de-mining until the international civil presence could, as appropriate, take over responsibility for this task. The responsibilities of the international civil presence were to include a wide range of tasks of a civilian administrative nature. Both these presences were to continue for an initial period of twelve months, and thereafter unless the Security Council decided otherwise. Both presences were duly established, the international security presence being known as KFOR and the international civil presence as UNMIK.
19. The applicants’ claims in Strasbourg were not the same. The Behramis complained of death and injury caused to two children by the explosion of an undetonated cluster bomb unit, previously dropped by NATO. They blamed KFOR for failing to clear these dangerous mines. Mr Saramati complained of his extra-judicial detention by officers acting on the orders of KFOR between 13 July 2001 and 26 January 2002.
20. The Grand Chamber gave a lengthy judgment, rehearsing various articles of the UN Charter to which I refer below in the context of the second issue, and citing the ILC article and commentary referred to at para 5 above. Reference was made (para 36) to a Military Technical Agreement made between KFOR and the governments of Yugoslavia and Serbia providing for the withdrawal of Yugoslav forces and the deployment in Kosovo “under United Nations auspices of effective international civil and security presences”. UNSCR 1244 (1999) was quoted at some length. The court noted (para 69) that the Yugoslav Government did not control Kosovo, which was under the effective control (para 70) of the international presences which exercised the public powers normally exercised by that government. The court considered (para 71) that the question raised by the cases was less whether the respondent states had exercised extra-territorial jurisdiction in Kosovo but, far more centrally, whether the court was competent to examine under the Convention those states’ contribution to the civil and security presences which did exercise the relevant control of Kosovo.
21. The court summarised (paras 73−120) the submissions of the applicants, the respondent states, seven third party states and the UN. In its own assessment it held that the supervision of de-mining at the relevant time fell within UNMIK’s mandate and that for issuing detention orders within the mandate of KFOR (paras 123–127). In considering whether the inaction of UNMIK and the action of KFOR could be attributed to the UN, the court held (para 129) that the UN had in Resolution 1244 (1999) “delegated” powers to establish international security and civil presences, using “delegate” (as it had explained in para 43) to refer to the empowering by the Security Council of another entity to exercise its function as opposed to “authorising” an entity to carry out functions which it could not itself perform. It considered that the detention of Mr Saramati was in principle attributable to the UN (para 141). This was because (paras 133–134) the UN had retained ultimate authority and control and had delegated operational command only. This was borne out (para 134) by the facts that Chapter VII allowed the Security Council to delegate, the relevant power was a delegable power, the delegation was prior and explicit in Resolution 1244, the extent of the delegation was defined, and the leadership of the security and civil presences were required to report to the Security Council (as was the Secretary General). Thus (para 135) under Resolution 1244 the Security Council was to retain ultimate authority and control over the security mission and it delegated to NATO the power to establish KFOR. Since UNMIK was a subsidiary organ of the UN created under Chapter VII of the UN Charter its inaction was in principle attributable to the UN (paras 129, 142–143). Dealing finally with its competence ratione personae, the court said (para 149):
“In the present case, chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.”
The court accordingly concluded (para 151) that, since UNMIK was a subsidiary organ of the UN created under Chapter VII and KFOR was exercising powers lawfully delegated under Chapter VII by the Security Council, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective. The applicants’ complaints were accordingly incompatible ratione personae with the provisions of the Convention.
22. Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative.
23. The UN did not dispatch the coalition forces to Iraq. The CPA was established by the coalition states, notably the US, not the UN. When the coalition states became occupying powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House as one of those considered in R (Al-Skeini and others) v Secretary of State for Defence) (The Redress Trust intervening)  UKHL 26,  3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the multinational force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in para 43 of its judgment in Behrami and Saramati) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant.
24. The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so.
25. I would resolve this first issue in favour of the appellant and against the Secretary of State.
[emphasis in original]
In 1992, during a debate in the UN General Assembly, Argentina recommended that “belligerents engaged in an armed conflict, whether international or non-international, should … use those means which were least apt to cause damage to the environment, damage for which they would then be responsible”.
In 1991, during a debate in the UN General Assembly on the environmental impact of the Gulf War, Austria stated that “there could be no doubt as to the illegality of the acts committed by Iraq, entailing international responsibility of that State”.
Bosnia and Herzegovina
In its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2006, Bosnia and Herzegovina stated regarding the relation between State responsibility and individual criminal responsibility:
6. As has been said often enough by the various Special Rapporteurs on State responsibility, successors to Roberto Ago at the International Law Commission, the responsibility of States in international law is neither civil nor criminal – it is simply international. In reality, it borrows from both major “techniques”. It is similar to civil responsibility in that, traditionally, it is focused on an obligation of redress; this is why it has often been analysed (in my opinion, mistakenly) as equivalent to civil responsibility and this is still largely the approach. However, Roberto Ago’s immense intellectual contribution was to have highlighted the aspects which, in certain respects, assimilate it to criminal responsibility: the obligation to cease the internationally wrongful act and, in certain cases, to provide undertakings that it will not be repeated; the possibility for the victim State of recourse to countermeasures (under strict conditions) and, in the case of the most serious violations, which concern the international community as a whole, of additional consequences (some, but not all of which, are mentioned in Article 41 of the ILC Articles [on State Responsibility]). That said, this certainly does not mean that the responsibility of States in international law can be regarded as a criminal responsibility; as the ICTY’s Appeals Chamber quite rightly pointed out in the Blaškić case: “Under present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.”
7. The fact remains that such responsibility, which is neither civil nor criminal, but simply international, is that of the State to which an internationally wrongful act can be attributed.
8. Of course, in one of the most impressive breakthroughs for contemporary international law, in certain cases individuals who have conceived or committed acts of international wrongdoing which engage the responsibility of the State can be tried at international level, regardless of their official capacity. And this is true of the crimes perpetrated in the former Yugoslavia, since the International Criminal Tribunal established under Security Council resolutions 808 and 827 of 1993 has jurisdiction “for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”, including genocide. But the Tribunal can only prosecute individuals and not States; and that undeniably criminal responsibility leaves unaffected that of the States concerned, which, as I have just explained, is of an entirely different character. Who, for instance, would claim that the (criminal) prosecution of the leading Nazi war criminals at the Nuremberg Tribunal after the Second World War exonerated Germany from its (international) responsibility for the same acts?
9. Indeed, Article 25 of the Rome Statute establishing the International Criminal Court is careful to state quite specifically that none of the Statute’s provisions “relating to the individual criminal responsibility shall affect the responsibility of States under international law.” Conversely, Article 58 of the International Law Commission’s Articles on State Responsibility points out that they “are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State”.
[emphasis in original]
Bosnia and Herzegovina stated further on State responsibility:
1. … Bosnia and Herzegovina has shown, beyond all doubt, that the crimes perpetrated upon the non-Serb populations of Bosnia and Herzegovina constituted genocide, within the meaning of Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. This is quite clearly a “breach of an international obligation”. That, however, is insufficient to engage the responsibility of the Respondent. For this to be the case, the acts or omissions that compose this extremely serious internationally wrongful act would have to be attributable to it in accordance with international law, as we are reminded by Article 2 of the International Law Commission Articles appended to General Assembly resolution 56/83 of 12 December 2001.
50. … Chapter II of the ILC Articles on State Responsibility for Internationally Wrongful Acts sums up this complex issue by listing the various ways in which State responsibility may be engaged. However, in our brief review of them it should always be borne in mind that attribution - what is often called the “subjective” element in the internationally wrongful act – is a (legal) operation of intellectual reconstruction which may be simple (such is the case when the author of the act of omission is an organ of the State according to its domestic law), or much more complex (when the link between the immediate perpetrator of the breach and the State responsible is concealed or denied) …
51. Taking as our basis the ILC Articles in the 2001 version, we find that [in the present case] attribution may be founded on at least three of the eight Articles that the Commission devoted to the issue, explaining that “[t]hese rules are cumulative”:
- Article 4 on conduct of organs of a State;
- Article 5 on conduct of persons or entities exercising elements of governmental authority; and
- Article 8 on “Conduct directed or controlled by a State”.
52. Article 4 of the ILC Articles, which was adopted by the Commission with some difficulty in 1998, is no more than an imperfect reflection of the overall complexity in this situation, which is simple on the surface only. However, paragraph 2 of this important provision refers us to what might be called the “reality” of the law: after paragraph 1 has stated the fundamental rule of attribution to the State of the conduct of its organs, paragraph 2 provides: “An organ includes … any person or entity which has that status in accordance with the internal law of the State.” It follows a contrario that the conduct of a person or an entity which does not have this status according to the national law may also engage the responsibility of the State. As the Commission writes in its commentary on this provision: “reference exclusively to internal law would be misleading”, adding that “a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law”.
53. It is clear that internal law can establish status as an organ of the State concerned in international law. This is obviously true of the armed forces, as the Court reminded us in its Judgment last year on (Uganda’s) Armed Activities on the Territory of the Congo: “responsibility [of a State] is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations” of international law attributable to its organs. This is the direct result of the categorical rule laid down in Article 4, paragraph 1, of the 2001 Articles, a rule which the Court had already stated very clearly in 1999 in its Advisory Opinion in the Cumaraswamy case: “the conduct of an organ of the State shall be considered as an act of that State”. It follows that actions by the JNA or the interior ministries (MUP) of Yugoslavia and the Republic of Serbia are unquestionably attributable to the Respondent.
54. It often happens that an internationally wrongful act is committed (or omitted) by entities which are not defined as organs by the law of the State concerned. In such cases the actual links that join the State to these entities which apparently lie outside its official hierarchy must be taken into account. As one writer has put it, the contrary would leave no room “for a supplementary role of international law in cases where the internal law of a State did not denote a particular entity to constitute an organ”. In other words, the organ through which the State acts may be de jure or de facto; what matters is that it conducts itself as such and acts on behalf of the State; that the persons or groups of persons concerned can be assimilated “to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions)”.
55. This clarification correctly added by the ICTY Trial Chamber in the Tadic case is not without importance. It is of little consequence that these organs have exceeded their jurisdiction or contravened their instructions: the relevant rule in Article 7 of the 2001 ILC Articles is well established by consistent jurisprudence and practice and not open to discussion. Moreover, in the present case the de jure and de facto organs of the respondent State do not appear to have acted ultra vires; they have simply zealously executed their instructions.
60. It goes without saying, Madam President, that the responsibility incurred by Serbia and Montenegro for acts (and omissions) by its organs, de jure or de facto, in no way precludes the possibility of that country’s responsibility also being may also be engaged under other heads, in particular for the conduct of persons or groups of persons in fact acting on the instructions of, or under the direction or control of, the authorities in Belgrade. All three of these eventualities are contemplated in Article 8 of the ILC Articles on State Responsibility, and these are alternative conditions: as the International Law Commission stated very clearly, “the three terms ‘instructions’, ‘direction’ and ‘control’ are disjunctive; it is sufficient to establish any one of them” … [A]ll three are present in our case.
62. … [E]ven in the absence of express instructions, the international responsibility of the State is engaged if the persons or groups of persons in question have acted under its direction (a less rigorous term that “instructions”) or
under its control.
[emphasis in original]
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated that “the Government of Sudan is responsible for the lack of protection afforded to civilians and for many … serious violations of human rights and international humanitarian law amounting to crimes”.
In 1983, during a debate in the Sixth Committee of the UN General Assembly on the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind, the representative of China stated:
In his delegation’s view, such crimes could be committed by both individuals and States and the responsibility of either would vary only as to its character or extent. The 1954 draft Code did not exclude the responsibility of States … In addition, that type of crime could not be prevented unless the responsibility of States was established. The argument that it would be repetitive to attribute responsibility to States in the draft Code was not valid, because the Code dealt exclusively with offences against the peace and security of mankind and should be complete on that score.
The Report on the Practice of Indonesia, referring to an interview with a senior officer of the armed forces, states: “In case of violations of international humanitarian law incurred by the State or by individuals compatible with the State, the Government of Indonesia will take over such responsibility.”
Islamic Republic of Iran
In 1991, during a debate in the UN General Assembly on the environmental impact of the Gulf War, the Islamic Republic of Iran stated: “There were well-established rules of both customary and treaty law which held a party to a conflict responsible for unnecessary damage to the environment.”
In 1997, during a debate concerning UNIFIL in the Fifth Committee of the UN General Assembly, Israel stated that “Israel’s action in providing medical assistance to injured members of UNIFIL had been a purely humanitarian gesture which should under no circumstances be interpreted as an admission of any responsibility” for Israel’s attack on a UNIFIL compound at Qana and the costs resulting therefrom.
According to the Report on the Practice of Israel: “Israel acknowledges and supports the view that States bear a responsibility under international law, for all violations of the laws of war perpetrated by them or by individuals under their responsibility.”
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated: “Under international law, the responsibility to investigate and prosecute alleged violations of the Law of Armed Conflict by a state’s military forces falls first and foremost to that state.”
[footnote in original omitted]
At the CDDH, Mexico stated: “The State was responsible for all acts committed by its bodies and not only for acts committed by persons forming part of its armed forces.”
In 2000, during a debate in the UN Security Council on the protection of UN personnel, associated personnel and humanitarian personnel in conflict areas, Norway stated: “States need to hold States … accountable for their attacks on humanitarian workers operating in territory under their control.”
In 1993, in a debate in the UN Security Council on draft Resolution 824 on Bosnia and Herzegovina, Pakistan stated:
We believe that the Security Council must take immediate appropriate measures, including the authorization of the use of force under Chapter VII of the United Nations Charter, to ensure: … the institution of appropriate measures for reparations for the Government of Bosnia and Herzegovina by Serbia and Montenegro; that Serbia and Montenegro is liable, under international law, for any direct loss or damage, including environmental damage, or injury to foreign Governments, nationals and corporations as a result of its aggression against the Republic of Bosnia and Herzegovina.
At the First Review Conference of the Convention on Certain Conventional Weapons in 1995, the observer for Peru, with respect to certain conventional weapons including anti-personnel landmines, stated that “provisions were needed to determine the responsibility of States for injuries suffered by non-combatant victims and for environmental damage”.
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case
in 1995, commenting on the UN Security Council’s finding that Iraq was internationally responsible for environmental damage as a result of its invasion of Kuwait, Solomon Islands observed that this finding “can only have been based on general international law, as it has evolved following the adoption” of the 1977 Additional Protocols, being as Iraq was not a party to the 1976 ENMOD Convention or to the 1977 Additional Protocol I.
The Report on the Practice of Spain refers to a number of bilateral treaties concluded in the second part of the 19th century between Spain and South American republics which include clauses concerning responsibility in armed conflict. The report states:
All these treaties allow either Government of the States Parties to invoke the other Government’s responsibility for damages suffered in the territory of the latter and caused by rebels in the case of insurrection, civil war, or sedition or by savage tribes or hordes, if the authorities of the country can be shown … to have been at fault or negligence.
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
Nonfeasance in international law or activities running counter to international law which can be ascribed to states raises the question of their so-called state responsibility. Important rules regarding state responsibility are contained in the  “Draft Articles on Responsibility of States for Internationally Wrongful Acts” of the “International Law Commission” of the United Nations (ILC), a document reflecting international customary law.
A state can be held responsible for acts carried out by its authorities who contravene international law. Conduct running counter to international law of an individual, a group of individuals, or a corporate body which are not state bodies can also be ascribed to a state if the named actors are empowered on the basis of the laws of this state to carry out sovereign activities, or if in their activities they in fact act under the instructions or under the direction or control of this state. In addition, the conduct of an individual or group of individuals, according to international law, is considered to be an act of the state if the individual or group of individuals, in the absence or default of the official authorities actually assume sovereign functions, and conditions are such that the exercise of such sovereign functions are required (Art. 5, 8 and 9 of the ILC Draft Articles).
The consequence of this state responsibility is the obligation to provide full reparation in the form of restitution, compensation and satisfaction to the wronged state or if necessary to the international community (Part 2 of the ILC Draft Articles).
Thus the conduct of private security companies mandated by states can potentially be ascribed to a state under international law.
[footnote in original omitted; emphasis in original]
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated that “questions of State responsibility also arise with regard to private military and security companies. In fact, the  Geneva Conventions require that the High Contracting Parties commit to respecting and ensuring respect for international humanitarian law”.
(footnotes in original omitted)
In France and Others v. Turkey before the European Commission of Human Rights in 1983, Turkey argued that:
For a State to be liable, a violation must … continue to exist after the exhaustion of domestic remedies, and so become an act of the State itself. If the State has set up effective machinery to prosecute offences committed by its officials, these offences cannot be imputed to it. It is not correct that incidents which do not amount to administrative practices should be imputed to the Turkish Government. The persons committing such acts are personally responsible.
United Kingdom of Great Britain and Northern Ireland
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United Kingdom stated, with respect to the treatment of British prisoners of war by Iraq, that “the Iraqi Ambassador was reminded of the responsibility of his Government … for any grave breach of the [1949 Geneva] Conventions”.
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated:
[T]he MOD seeks to draw out the primary and overwhelming role which the brutality and inhumanity shown to Baha Mousa and the detainees had in their fate. Before doing so it is right to emphasise that the MOD does not seek thereby to shirk its corporate responsibility. It fully accepts that deplorable acts were carried out by British soldiers on duty, for whose actions it is ultimately responsible.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense referred to Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV and stated: “In a separate article common to the four 1949 Geneva Conventions, no nation has the authority to absolve itself or any other nation party to those treaties of any liability incurred by the commission of a Grave Breach.”
The report also noted:
On 15 October , the [US] President warned Iraq of its liability for war crimes. The United States was successful in incorporating into [UN Security Council] Resolution 674 … language regarding Iraq’s accountability for its war crimes, in particular its potential liability for Grave Breaches of the [1949 Geneva Conventions], and inviting States to collect relevant information regarding Iraqi Grave Breaches and provide it to the Security Council.
United States of America
According to the Report on US Practice, it is the opinio juris
of the United States that “in principle, a state is responsible for any unlawful act of its armed forces in the course of an armed conflict, but not for private acts of members of its armed forces”.
Yugoslavia, Socialist Federal Republic of
In 1993, in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), the Federal Republic of Yugoslavia, in its Request for the Indication of Provisional Measures and Written Observations on the Request by Bosnia and Herzegovina for the Indication of Provisional Measures:
rejects responsibility for … genocide for which it is accused by the “Republic of Bosnia and Herzegovina” and requests the Court to establish the responsibility of the authorities [of Bosnia-Herzegovina] for acts of genocide against the Serb people in the “Republic of Bosnia-Herzegovina”.
In its counter-memorial submitted to the ICJ in 1997, the Federal Republic of Yugoslavia stated:
184.108.40.206. The responsibility of a State cannot be established without ascertaining that an act has been committed in breach of an international obligation and without attributing that act to a State …
220.127.116.11. The only applicable rules in this instance are the general customary rules on the attribution of acts to a State in the field of the responsibility of a State for international unlawful acts, as they have been developed in the practice of States and confirmed in the practice of the International Court of Justice and arbitration tribunals.
18.104.22.168. Acts of a State are understood to mean, primarily, acts of State organs.
22.214.171.124. Members of Parliament are not considered a State organ. Acts of Parliament, as a State organ, are attributable to the State, but acts of members of Parliament are not.
126.96.36.199. If a State organ has been placed at the disposal of another State and if it acts under the instructions of that other State its acts are attributable to that other State.
188.8.131.52. If this rule is applicable to State organs then it is certainly applicable also in the case when a number of individuals who constituted a State organ, with a part of the equipment which belonged to that State organ, remain at the disposal of another authority and act under the orders of that other authority …
184.108.40.206. Acts of persons who are not State organs can also be considered acts of the State if they are committed under instructions from the State. This was applied in the case of the United States Diplomatic and Consular Staff in Tehran.
220.127.116.11. In the … Judgment [in that case], the Court stated the conditions under which the behaviour of individuals who are not state organs can be imputable to the state: a) individuals should act on behalf of the state in carrying out a specific act; b) individuals should be charged by a competent organ of the state to carry out a specific act. Their orders, or authority should be defined specifically and precisely, i.e. concern a clearly specified act.
18.104.22.168. The order of a State organ issued to an individual or a group of persons who are not a State organ must refer to a quite specific act for that act, once committed by that individual or group of persons, to be attributable to the State.
22.214.171.124. The Iran-United States Claims Tribunal applied the same rule, by invoking the quoted Judgment of the International Court in the case of Alfred L.W. Short.
126.96.36.199. The acts of individuals can also be considered acts of a State from the moment the state endorses them, i.e. from the moment a State itself considers them its acts.
188.8.131.52. Such endorsement must be explicit and must refer to specific acts.
184.108.40.206. The case of Military and Paramilitary Activities in and against Nicaragua is particularly important for the dispute at hand, being the only case in which the Court reviewed and applied rules on the attribution of acts of armed groups to a State.
220.127.116.11. The Court clearly noted that the general control by the Respondent over a force with a high degree of dependency on it was not sufficient condition for every and any act of that force to be attributed to that State.
18.104.22.168. For a specific act in such a situation to be attributed to a State it would have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.
22.214.171.124. Not only did the Federal Republic of Yugoslavia not have effective control of military or paramilitary forces at the time of the operations in the course of which the alleged violations were committed, but it publicly and consistently condemned the inhumane and unlawful acts of al1 the three sides, i.e. also those of the Serb side.
126.96.36.199. Likewise, not only did the Federal Republic of Yugoslavia not have effective control of military or paramilitary forces at the time of the operations during which the alleged violations were committed, but it had no general control over those forces.
In its oral pleadings before the ICJ in 2006, Serbia and Montenegro reiterated with regard to state responsibility:
94. The leading authority is the Military and Paramilitary Activities case, in which the Court, in a majority Judgment of 14 judges, applied the test of effective control …
95. … [T]here is no reason to doubt that the Nicaragua Judgment represents the orthodox and unexceptionable application of general international law. When the International Law Commission completed its work on State responsibility neither the Special Rapporteur nor the Commission as a whole questioned the approach of the Court.
96. The relevant provision in the Commission’s Articles on State Responsibility is Article 8 as follows:
“Conduct directed or controlled by a State
The conduct of a person or group or persons shall be considered an act of a state under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”
IV. The decision of the Appeals Chamber in Prosecutor v. Tadić
100. The decision of the Appeals Chamber in Prosecutor v. Tadić was considered in the Commentary of the International Law Commission and was distinguished …
101. On … the Tadić case, the Commission makes the following assessment:
“The Appeals Chamber held that the requisite degree of control by the Yugoslavian authorities over these armed forces required by international law for considering the armed conflict to be international was ‘overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations’. In the course of their reasoning, the majority considered it necessary to disapprove the International Court’s approach in Military and Paramilitary Activities. But the legal issues and the factual situation in that case were different from those facing the International Court in Military and Paramilitary Activities. The Tribunal’s mandate is directed to issues of individual criminal responsibility, not State responsibility, and the question in that case concerned not responsibility, but the applicable rules of international humanitarian law. In any event it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it.”
That is the Commentary of the International Law Commission to Article 8 in paragraph 5.
110. In conclusion, it is necessary to revisit first principles. The test of effective control is to be applied as a mode of putting the principles of State responsibility into effect. The connection between the State concerned and the alleged de facto
organ or agency must be based on control. As this Court has spelled out clearly in the Nicaragua
Judgment, it must be proved that the respondent State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed
. The reference here is to paragraph 115 of the Judgment, in particular.
[emphasis in original]
Serbia and Montenegro further stated in its oral pleadings:
223. Assistance to a State or to irregular forces, such as the contras, is not sufficient for the attribution of acts committed by the State or by the irregular forces, unless there is effective control exercised by the assisting State. This is the principle formulated in the Judgment of this Court in the merits phase of the Nicaragua case.
224. … Madam President, let it be assumed for the sake of argument, that the FRY was involved to a certain extent in the financing, organizing, training, supplying and equipping of the army of the Republika Srpska. This would still not be sufficient for the purpose of attributing to the FRY the acts committed by the armed forces of the Republika Srpska.
226. I quote the key passage from the Nicaragua Judgment as follows:
“The Court has taken the view … that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras
, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras
in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras
without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.
” (I.C.J. Reports 1986
, pp. 64–65, para. 115 … )
[emphasis in original]
Serbia and Montenegro further stated in its oral pleadings:
1. With the Court’s permission I would like to return to the criteria of State responsibility and the issue of effective control, or as our opponents would put it, global control. The background is the use of paradigm cases in which the subject entity allegedly susceptible to control takes the form of a State, or a State in statu nascendi, or a guerrilla movement with a political leadership, like the contras. The adoption of this group of paradigm cases has almost certainly created a source of distortion in the application of the legal principles.
2. In the first place, it is necessary to recall the standard formulation of the legal criteria. The key statement in paragraph 115 of the Nicaragua Judgment is as follows: “For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” (I.C.J. Reports 1986, p. 65.)
3. This aspect of the legal criteria is brought into prominence in the Commentary of the International Law Commission on Article 8 of the Articles on State Responsibility. The wording of the Commentary in paragraph 7 is of considerable significance:
“It is clear then that a State may, either by specific directions or by exercising control over a group, in effect assume responsibility for their conduct. Each case will depend on its own facts, in particular those concerning the relationship between the instructions given or the directions or control exercised and the specific conduct complained of. In the text of article 8, the three terms ‘instructions’, ‘direction’, and ‘control’ are disjunctive; it is sufficient to establish any one of them. At the same time it is made clear that the instructions, direction or control must relate to the conduct which is said to have amounted to an internationally wrongful act.”
4. This element in the legal position has not attracted the attention of our distinguished opponents. No doubt this element indicates the operational inadequacy of the concept of “global control”.
UN Security Council
In a resolution adopted in 1990, the UN Security Council reminded Iraq that “under international law it is liable for any loss, damage, or injury arising in regard to Kuwait and third States and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq.”
UN Security Council
In a resolution adopted in March 1991, the UN Security Council, acting explicitly under Chapter VII of the UN Charter:
2. Demands that Iraq implement its acceptance of all twelve resolutions noted above and in particular that Iraq:
) Accept in principle its liability under international law for any loss, damage or injury arising in regard to Kuwait and third States and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq.
UN Security Council
In Resolution 687 adopted in April 1991, the UN Security Council:
that Iraq, without prejudice to its debts and obligations arising prior to 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage – including environmental damage and the depletion of natural resources – or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait.
UN General Assembly
In a resolution adopted in 1993 in the context of the conflict in the former Yugoslavia, the UN General Assembly reaffirmed that “States are to be held accountable for violations of human rights which their agents commit on their own territory or on the territory of another State”.
UN General Assembly
In 2001, the UN General Assembly adopted a resolution entitled “Responsibility of States for internationally wrongful acts”, to which the 2001 ILC Draft Articles on State Responsibility were annexed. In the resolution, the UN General Assembly noted that “the subject of responsibility of States for internationally wrongful acts is of major importance in the relations of States”. In the resolution, the General Assembly took note of the Draft Articles and commended them to the attention of governments “without prejudice to the question of their future adoption or other appropriate action”.
UN General Assembly
In a resolution adopted in 2004 on the responsibility of States for internationally wrongful acts, the UN General Assembly:
Recalling its resolution 56/83 of 12 December 2001, the annex to which contains the text of the articles on responsibility of States for internationally wrongful acts,
Noting that the subject of responsibility of States for internationally wrongful acts is of major importance in relations between States,
1. Commends once again the articles on responsibility of States for internationally wrongful acts to the attention of Governments, without prejudice to the question of their future adoption or other appropriate action;
2. Requests the Secretary-General to invite Governments to submit their written comments on any future action regarding the articles;
3. Also requests
the Secretary-General to prepare an initial compilation of decisions of international courts, tribunals and other bodies referring to the articles and to invite Governments to submit information on their practice in this regard, and further requests the Secretary-General to submit this material well in advance of its sixty-second session.
UN General Assembly
In a resolution adopted in 2007 on the responsibility of States for internationally wrongful acts, the UN General Assembly:
Recalling its resolution 56/83 of 12 December 2001, the annex to which contains the text of the articles on responsibility of States for internationally wrongful acts, and further recalling its resolution 59/35 of 2 December 2004 commending the articles to the attention of Governments,
Noting that the subject of responsibility of States for internationally wrongful acts is of major importance in relations between States,
Noting with appreciation the compilation of decisions of international courts, tribunals and other bodies referring to the articles, prepared by the Secretary-General,
1. Commends once again the articles on responsibility of States for internationally wrongful acts, to the attention of Governments, without prejudice to the question of their future adoption or other appropriate action;
2. Requests the Secretary-General to invite Governments to submit their written comments on any future action regarding the articles;
3. Also requests the Secretary-General to update the compilation of decisions of international courts, tribunals and other bodies referring to the articles and to invite Governments to submit information on their practice in this regard, and further requests the Secretary-General to submit this material well in advance of its sixty-fifth session;
to include in the provisional agenda of its sixty-fifth session the item entitled “Responsibility of States for internationally wrongful acts” and to further examine, within the framework of a working group of the Sixth Committee, the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action on the basis of the articles.
UN Commission on Human Rights
In a resolution adopted in 2003 on the situation of human rights in the Democratic Republic of the Congo, the UN Commission on Human Rights:
Noting that the Democratic Republic of the Congo is a party to several international and regional human rights instruments and to several instruments pertaining to international humanitarian law,
) The reprisals against the civilian population in the territories controlled by RCD-Goma [Rally for Congolese Democracy-Goma] and MLC [Movement for the Liberation of Congo], especially the operation “Effacer le tableau” (“Clean the blackboard”) at the end of 2002, in addition to the exactions committed by the Union of Congolese Patriots (UPC), and stresses that the foreign forces which support RCD-Goma, MLC and UPC should also be held responsible for the massacres and atrocities that have occurred.
In 2001, in a report on the protection of civilians in armed conflict, the UN Secretary-General noted:
Armed groups have a direct responsibility, according to Article 3 common to the four Geneva Conventions of 1949 and to customary international humanitarian law, to protect civilian populations in armed conflict. International instruments require not only Governments but also armed groups to behave responsibly in conflict situations, and to take measures to ensure the basic needs and protection of civilian populations. Where Governments do not have resources and capacities to do this unaided, it is incumbent on them to invoke the support of the international system.
The Secretary-General recommended that “in its resolutions the Security Council should emphasize the direct responsibility of armed groups under international humanitarian law”.
UN Commission on Human Rights (Special Rapporteur)
In 1995, in a report on the situation of human rights in the Sudan, the Special Rapporteur of the UN Commission on Human Rights, having described several cases of killing, abduction and looting committed by Sudan People’s Liberation Army (SPLA) soldiers, referred to a report of Operation Lifeline Sudan (OLS), noting: “Responsibility for the attack clearly lies with SPLA/M [Sudan People’s Liberation Army/Movement] and, as such, is a clear violation of the new ground rules.” In his conclusions and recommendations, the Special Rapporteur also noted:
Most of the reported gross violations and atrocities, especially killings and abduction of civilians, looting and hostage taking of relief workers, were committed during 1995 by dissident commanders, mainly those who had split from SSIA [Southern Sudan Independent Army] in previous years. SPLA bears responsibility for the violations and atrocities committed in 1995 by local commanders from its own ranks, although it has not been proved that they committed these actions on orders from the senior leadership, nor is it known whether they have been or will be pardoned by superiors.
UN Commission on Human Rights (Special Rapporteur)
In 1996, in a report on a mission to the Democratic People’s Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime, the Special Rapporteur of the UN Commission on Human Rights on Violence against Women, Its Causes and Consequences recommended, inter alia, that, at the national level:
The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the Second World War was a violation of its obligations under international law and accept legal responsibility for that violation.
UN Commission on the Truth for El Salvador
In its report in 1993, the UN Commission on the Truth for El Salvador stated:
The State of El Salvador, through the activities of members of the armed forces and/or civilian officials, is responsible for having taken part in, encouraged and tolerated the operations of the death squads which illegally attacked members of the civilian population.
International Law Commission
In its Commentary on Article 5 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, the International Law Commission stated:
The State may thus remain responsible and be unable to exonerate itself from responsibility by invoking the prosecution or punishment of the individuals who committed the crime. It could be obliged to make reparation for injury caused by its agents.
International Law Commission
Article 14(3) of the 1996 version of the ILC Draft Articles on State Responsibility, provisionally adopted on first reading, stated that the fact that the conduct of an organ of an insurrectional movement was not to be considered an act of State “is without prejudice to the attribution of the conduct of the organ of the insurrectional movement to that movement in any case in which such attribution may be made under international law”.
As to the subsequent deletion of this Article, the International Law Commission’s Special Rapporteur stated:
Turning to the substance of the rules stated in the two articles, the first point to note is that article 14, paragraph 3 deals with the international responsibility of liberation movements which are, ex hypothesi
, not States. It therefore falls outside the scope of the draft articles and should be omitted. The responsibility of such movements, for example, for breaches of international humanitarian law, can certainly be envisaged, but this can be dealt with in the commentary.
International Law Commission
In 2001, in its commentary on Article 7 of the Draft Articles on State Responsibility, the International Law Commission stated:
(7) The central issue to be addressed in determining the applicability of article 7 to unauthorized conduct of official bodies is whether the conduct was performed by the body in an official capacity or not. Cases where officials acted in their capacity as such, albeit unlawfully or contrary to instructions, must be distinguished from cases where the conduct is so removed from the scope of their official functions that it should be assimilated to that of private individuals, not attributable to the State. In the words of the Iran-United States Claims Tribunal, the question is whether the conduct has been “carried out by persons cloaked with governmental authority”.
(8) The problem of drawing the line between unauthorized but still “official” conduct, on the one hand, and “private” conduct on the other, may be avoided if the conduct complained of is systematic or recurrent, such that the State knew or ought to have known of it and should have taken steps to prevent it. However, the distinction between the two situations still needs to be made in some cases, for example when considering isolated instances of outrageous conduct on the part of persons who are officials. That distinction is reflected in the expression “if the organ, person or entity acts in that capacity” in article 7. This indicates that the conduct referred to comprises only the actions and omissions of organs purportedly or apparently carrying out their official functions, and not the private actions or omissions of individuals who happen to be organs or agents of the State. In short, the question is whether they were acting with apparent authority.
In its Commentary on Article 8, the International Law Commission further underlines:
In any event it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it.
Conference of High Contracting Parties to the Fourth Geneva Convention
The Conference of High Contracting Parties to the Fourth Geneva Convention in 2001 adopted a declaration stating:
The participating High Contracting Parties recall that according to art. 148 [of the 1949 Geneva Convention IV] no High Contracting Party shall be allowed to absolve itself of any liability incurred by itself in respect to grave breaches.
International Court of Justice
In the Nicaragua case (Merits) in 1986, the ICJ, with respect to a possible responsibility of the US for the activities of the contras, stated:
United States participation, even if preponderant and decisive, in the financing, organizing, training, supplying and equipping of the contras
, the selection of its military or paramilitary targets, and the planning of the whole of its operations, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras
in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras
without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.
The ICJ concluded that it did not consider that the assistance given by the United States to the contras
warranted the conclusion that these forces were subject to the United States to such an extent that the acts they committed were imputable to the latter.
International Court of Justice
In its judgment in the Armed Activities on the Territory of the Congo case (DRC v. Uganda) in 2005, the ICJ stated:
179. The Court, having concluded that Uganda was an occupying Power in Ituri at the relevant time, finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.
213. The Court turns now to the question as to whether acts and omissions of the UPDF [Uganda Peoples’ Defence Forces] and its officers and soldiers are attributable to Uganda. The conduct of the UPDF as a whole is clearly attributable to Uganda, being the conduct of a State organ. According to a well-established rule of international law, which is of customary character, “the conduct of any organ of a State must be regarded as an act of that State” (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), p. 87, para. 62). The conduct of individual soldiers and officers of the UPDF is to be considered as the conduct of a State organ. In the Court’s view, by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable to Uganda. The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit.
214. It is furthermore irrelevant for the attribution of their conduct to Uganda whether the UPDF personnel acted contrary to the instructions given or exceeded their authority. According to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.
220. The Court thus concludes that Uganda is internationally responsible for violations of international human rights law and international humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law and international humanitarian law in the occupied territory.
The Court subsequently found that Uganda had violated obligations owed to the Democratic Republic of the Congo under international law:
[T]he Republic of Uganda, by the conduct of its armed forces, which committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict and failed to take measures to put an end to such conflict; as well as by its failure, as an occupying Power, to take measures to respect and ensure respect for human rights and international humanitarian law in Ituri district.
International Court of Justice
In its judgment on the merits in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2007, the ICJ stated:
147. The jurisdiction of the Court in this case is based solely on Article IX of the [1948 Genocide] Convention. All the other grounds of jurisdiction invoked by the Applicant were rejected in the 1996 Judgment on jurisdiction … It follows that the Court may rule only on the disputes between the Parties to which [Article IX of the 1948 Genocide Convention] refers … It has no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict. That is so even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes.
148. As it has in other cases, the Court recalls the fundamental distinction between the existence and binding force of obligations arising under international law and the existence of a court or tribunal with jurisdiction to resolve disputes about compliance with those obligations. The fact that there is not such a court or tribunal does not mean that the obligations do not exist. They retain their validity and legal force. States are required to fulfil their obligations under international law, including international humanitarian law, and they remain responsible for acts contrary to international law which are attributable to them (e.g. case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment, I.C.J. Reports 2006
, pp. 52–53, para. 127).
On the relation between State responsibility and individual criminal responsibility, the ICJ stated:
171. [An] argument of the Respondent is that the nature of the [1948 Genocide] Convention is such as to exclude from its scope State responsibility for genocide and the other enumerated acts. The Convention, it is said, is a standard international criminal law convention focussed essentially on the criminal prosecution and punishment of individuals and not on the responsibility of States. The emphasis of the Convention on the obligations and responsibility of individuals excludes any possibility of States being liable and responsible in the event of breach of the obligations reflected in Article III. In particular, it is said, that possibility cannot stand in the face of the references, in Article III to punishment (of individuals), and in Article IV to individuals being punished, and the requirement, in Article V for legislation in particular for effective penalties for persons guilty of genocide, the provision in Article VI for the prosecution of persons charged with genocide, and requirement in Article VII for extradition.
172. The Court is mindful of the fact that the famous sentence in the Nuremberg Judgment that “[c]rimes against international law are committed by men, not by abstract entities …” (Judgment of the International Military Tribunal, Trial of the Major War Criminals, 1947, Official Documents, Vol. 1, p. 223) might be invoked in support of the proposition that only individuals can breach the obligations set out in Article III. But the Court notes that that Tribunal was answering the argument that “international law is concerned with the actions of sovereign States, and provides no punishment for individuals” (ibid., p. 222), and that thus States alone were responsible under international law. The Tribunal rejected that argument in the following terms: “[t]hat international law imposes duties and liabilities upon individuals as well as upon States has long been recognized” (ibid., p. 223; the phrase “as well as upon States” is missing in the French text of the Judgment).
173. The Court observes that that duality of responsibility continues to be a constant feature of international law. This feature is reflected in Article 25, paragraph 4, of the Rome Statute for the International Criminal Court, now accepted by 104 States: “No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.” The Court notes also that the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (Annex to General Assembly resolution 56/83, 12 December 2001), to be referred to hereinafter as “the ILC Articles on State Responsibility”, affirm in Article 58 the other side of the coin: “These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.” In its Commentary on this provision, the Commission said:
“Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. In certain cases, in particular aggression, the State will by definition be involved. Even so, the question of individual responsibility is in principle distinct from the question of State responsibility. The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out.” (ILC Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC Report A/56/10, 2001, Commentary on Article 58, para. 3.)
The Commission quoted Article 25, paragraph 4, of the Rome Statute, and concluded as follows:
“Article 58 … [makes] it clear that the Articles do not address the question of the individual responsibility under international law of any person acting on behalf of a State. The term ‘individual responsibility’ has acquired an accepted meaning in light of the Rome Statute and other instruments; it refers to the responsibility of individual persons, including State officials, under certain rules of international law for conduct such as genocide, war crimes and crimes against humanity.”
As regards the question whether the Respondent could be held responsible in connection with genocide committed at Srebrenica, the ICJ first gave the following overview:
… [T]he Court now must ascertain whether the international responsibility of the Respondent can have been incurred, on whatever basis, in connection with the massacres committed in the Srebrenica area during the period in question. For the reasons set out above, those massacres constituted the crime of genocide within the meaning of the Convention. For this purpose, the Court may be required to consider the following three issues in turn. First, it needs to be determined whether the acts of genocide could be attributed to the Respondent under the rules of customary international law of State responsibility; this means ascertaining whether the acts were committed by persons or organs whose conduct is attributable, specifically in the case of the events at Srebrenica, to the Respondent. Second, the Court will need to ascertain whether acts of the kind referred to in Article III of the Convention, other than genocide itself, were committed by persons or organs whose conduct is attributable to the Respondent under those same rules of State responsibility: that is to say, the acts referred to in Article III, paragraphs (b)
, one of these being complicity in genocide. Finally, it will be for the Court to rule on the issue as to whether the Respondent complied with its twofold obligation deriving from Article I of the Convention to prevent and punish genocide.
Accordingly, the ICJ first considered whether commission of genocide as such (Article III (a) of the 1948 Genocide Convention) could be attributed to the Respondent:
384. Having thus explained the interrelationship among the three issues set out above … , the Court will now proceed to consider the first of them. This is the question whether the massacres committed at Srebrenica during the period in question, which constitute the crime of genocide within the meaning of Articles II and III, paragraph (a), of the Convention, are attributable, in whole or in part, to the Respondent. This question has in fact two aspects, which the Court must consider separately. First, it should be ascertained whether the acts committed at Srebrenica were perpetrated by organs of the Respondent, i.e., by persons or entities whose conduct is necessarily attributable to it, because they are in fact the instruments of its action. Next, if the preceding question is answered in the negative, it should be ascertained whether the acts in question were committed by persons who, while not organs of the Respondent, did nevertheless act on the instructions of, or under the direction or control of, the Respondent.
(3) The question of attribution of the Srebrenica genocide to the Respondent on the basis of the conduct of its organs
385. The first of these two questions relates to the well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State. This rule, which is one of customary international law, is reflected in Article 4 of the ILC Articles on State Responsibility as follows:
Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.”
386. When applied to the present case, this rule first calls for a determination whether the acts of genocide committed in Srebrenica were perpetrated by “persons or entities” having the status of organs of the Federal Republic of Yugoslavia (as the Respondent was known at the time) under its internal law, as then in force. It must be said that there is nothing which could justify an affirmative response to this question. It has not been shown that the FRY army took part in the massacres, nor that the political leaders of the FRY had a hand in preparing, planning or in any way carrying out the massacres. It is true that there is much evidence of direct or indirect participation by the official army of the FRY, along with the Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in the years prior to the events at Srebrenica. That participation was repeatedly condemned by the political organs of the United Nations, which demanded that the FRY put an end to it (see, for example, Security Council resolutions 752 (1992), 757 (1992), 762 (1992), 819 (1993), 838 (1993)). It has however not been shown that there was any such participation in relation to the massacres committed at Srebrenica (see also paragraphs 278 to 297 above). Further, neither the Republika Srpska, nor the VRS [Republika Srpska army] were de jure organs of the FRY, since none of them had the status of organ of that State under its internal law.
387. The Applicant has however claimed that all officers in the VRS, including General Mladić, remained under FRY military administration, and that their salaries were paid from Belgrade right up to 2002, and accordingly contends that these officers “were de jure organs of [the FRY], intended by their superiors to serve in Bosnia and Herzegovina with the VRS”. On this basis it has been alleged by the Applicant that those officers, in addition to being officers of the VRS, remained officers of the VJ, and were thus de jure organs of the Respondent (paragraph 238 above). The Respondent however asserts that only some of the VRS officers were being “administered” by the 30th Personnel Centre in Belgrade, so that matters like their payment, promotion, pension, etc., were being handled from the FRY (paragraph 238 above); and that it has not been clearly established whether General Mladić was one of them. The Applicant has shown that the promotion of Mladić to the rank of Colonel General on 24 June 1994 was handled in Belgrade, but the Respondent emphasizes that this was merely a verification for administrative purposes of a promotion decided by the authorities of the Republika Srpska.
388. The Court notes first that no evidence has been presented that either General Mladić or any of the other officers whose affairs were handled by the 30th Personnel Centre were, according to the internal law of the Respondent, officers of the army of the Respondent – a de jure organ of the Respondent. Nor has it been conclusively established that General Mladić was one of those officers; and even on the basis that he might have been, the Court does not consider that he would, for that reason alone, have to be treated as an organ of the FRY for the purposes of the application of the rules of State responsibility. There is no doubt that the FRY was providing substantial support, inter alia, financial support, to the Republika Srpska (cf. paragraph 241 above), and that one of the forms that support took was payment of salaries and other benefits to some officers of the VRS, but this did not automatically make them organs of the FRY. Those officers were appointed to their commands by the President of the Republika Srpska, and were subordinated to the political leadership of the Republika Srpska. In the absence of evidence to the contrary, those officers must be taken to have received their orders from the Republika Srpska or the VRS, not from the FRY. The expression “State organ”, as used in customary international law and in Article 4 of the ILC Articles, applies to one or other of the individual or collective entities which make up the organization of the State and act on its behalf (cf. ILC Commentary to Art. 4, para. (1)). The functions of the VRS officers, including General Mladić, were however to act on behalf of the Bosnian Serb authorities, in particular the Republika Srpska, not on behalf of the FRY; they exercised elements of the public authority of the Republika Srpska. The particular situation of General Mladić, or of any other VRS officer present at Srebrenica who may have been being “administered” from Belgrade, is not therefore such as to lead the Court to modify the conclusion reached in the previous paragraph.
389. The issue also arises as to whether the Respondent might bear responsibility for the acts of the “Scorpions” in the Srebrenica area. In this connection, the Court will consider whether it has been proved that the Scorpions were a de jure organ of the Respondent. It is in dispute between the Parties as to when the “Scorpions” became incorporated into the forces of the Respondent. The Applicant has claimed that incorporation occurred by a decree of 1991 (which has not been produced as an Annex). The Respondent states that “these regulations [were] relevant exclusively for the war in Croatia in 1991” and that there is no evidence that they remained in force in 1992 in Bosnia and Herzegovina. The Court observes that, while the single State of Yugoslavia was disintegrating at that time, it is the status of the “Scorpions” in mid-1995 that is of relevance to the present case. In two of the intercepted documents presented by the Applicant (the authenticity of which was queried – see paragraph 289 above), there is reference to the “Scorpions” as “MUP of Serbia” and “a unit of Ministry of Interiors of Serbia”. The Respondent identified the senders of these communications, Ljubiša Borovčanin and Savo Cvjetinović, as being “officials of the police forces of Republika Srpska”. The Court observes that neither of these communications was addressed to Belgrade. Judging on the basis of these materials, the Court is unable to find that the “Scorpions” were, in mid-1995, de jure organs of the Respondent. Furthermore, the Court notes that in any event the act of an organ placed by a State at the disposal of another public authority shall not be considered an act of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed.
390. The argument of the Applicant however goes beyond mere contemplation of the status, under the Respondent’s internal law, of the persons who committed the acts of genocide; it argues that Republika Srpska and the VRS, as well as the paramilitary militias known as the “Scorpions”, the “Red Berets”, the “Tigers” and the “White Eagles” must be deemed, notwithstanding their apparent status, to have been “de facto organs” of the FRY, in particular at the time in question, so that all of their acts, and specifically the massacres at Srebrenica, must be considered attributable to the FRY, just as if they had been organs of that State under its internal law; reality must prevail over appearances. The Respondent rejects this contention, and maintains that these were not de facto organs of the FRY.
391. The first issue raised by this argument is whether it is possible in principle to attribute to a State conduct of persons – or groups of persons – who, while they do not have the legal status of State organs, in fact act under such strict control by the State that they must be treated as its organs for purposes of the necessary attribution leading to the State’s responsibility for an internationally wrongful act. The Court has in fact already addressed this question, and given an answer to it in principle, in its Judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 62-64). In paragraph 109 of that Judgment the Court stated that it had to
“determine … whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (p. 62).
Then, examining the facts in the light of the information in its possession, the Court observed that “there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf” (para. 109), and went on to conclude that “the evidence available to the Court … is insufficient to demonstrate [the contras’] complete dependence on United States aid”, so that the Court was “unable to determine that the contra force may be equated for legal purposes with the forces of the United States” (pp. 62–63, para. 110).
392. The passages quoted show that, according to the Court’s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in “complete dependence” on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious.
393. However, so to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of a particularly great degree of State control over them, a relationship which the Court’s Judgment quoted above expressly described as “complete dependence”. It remains to be determined in the present case whether, at the time in question, the persons or entities that committed the acts of genocide at Srebrenica had such ties with the FRY that they can be deemed to have been completely dependent on it; it is only if this condition is met that they can be equated with organs of the Respondent for the purposes of its international responsibility.
394. The Court can only answer this question in the negative. At the relevant time, July 1995, neither the Republika Srpska nor the VRS could be regarded as mere instruments through which the FRY was acting, and as lacking any real autonomy. While the political, military and logistical relations between the federal authorities in Belgrade and the authorities in Pale, between the Yugoslav army and the VRS, had been strong and close in previous years (see paragraph 238 above), and these ties undoubtedly remained powerful, they were, at least at the relevant time, not such that the Bosnian Serbs’ political and military organizations should be equated with organs of the FRY. It is even true that differences over strategic options emerged at the time between Yugoslav authorities and Bosnian Serb leaders; at the very least, these are evidence that the latter had some qualified, but real, margin of independence. Nor, notwithstanding the very important support given by the Respondent to the Republika Srpska, without which it could not have “conduct[ed] its crucial or most significant military and paramilitary activities” (
I.C.J. Reports 1986, p. 63, para. 111), did this signify a total dependence of the Republika Srpska upon the Respondent.
395. The Court now turns to the question whether the “Scorpions” were in fact acting in complete dependence on the Respondent. The Court has not been presented with materials to indicate this. The Court also notes that, in giving his evidence, General Dannatt, when asked under whose control or whose authority the paramilitary groups coming from Serbia were operating, replied, “they would have been under the command of Mladić and part of the chain of the command of the VRS”. The Parties referred the Court to the Stanišić and Simatović case (IT-03-69, pending); notwithstanding that the defendants are not charged with genocide in that case, it could have its relevance for illuminating the status of the “Scorpions” as Serbian MUP or otherwise. However, the Court cannot draw further conclusions as this case remains at the indictment stage. In this respect, the Court recalls that it can only form its opinion on the basis of the information which has been brought to its notice at the time when it gives its decision, and which emerges from the pleadings and documents in the case file, and the arguments of the Parties made during the oral exchanges. The Court therefore finds that the acts of genocide at Srebrenica cannot be attributed to the Respondent as having been committed by its organs or by persons or entities wholly dependent upon it, and thus do not on this basis entail the Respondent’s international responsibility.
(4) The question of attribution of the Srebrenica genocide to the Respondent on the basis of direction or control
396. As noted above (paragraph 384), the Court must now determine whether the massacres at Srebrenica were committed by persons who, though not having the status of organs of the Respondent, nevertheless acted on its instructions or under its direction or control, as the Applicant argues in the alternative; the Respondent denies that such was the case.
397. The Court must emphasize, at this stage in its reasoning, that the question just stated is not the same as those dealt with thus far. It is obvious that it is different from the question whether the persons who committed the acts of genocide had the status of organs of the Respondent under its internal law; nor however, and despite some appearance to the contrary, is it the same as the question whether those persons should be equated with State organs de facto, even though not enjoying that status under internal law. The answer to the latter question depends, as previously explained, on whether those persons were in a relationship of such complete dependence on the State that they cannot be considered otherwise than as organs of the State, so that all their actions performed in such capacity would be attributable to the State for purposes of international responsibility. Having answered that question in the negative, the Court now addresses a completely separate issue: whether, in the specific circumstances surrounding the events at Srebrenica the perpetrators of genocide were acting on the Respondent’s instructions, or under its direction or control. An affirmative answer to this question would in no way imply that the perpetrators should be characterized as organs of the FRY, or equated with such organs. It would merely mean that the FRY’s international responsibility would be incurred owing to the conduct of those of its own organs which gave the instructions or exercised the control resulting in the commission of acts in breach of its international obligations. In other words, it is no longer a question of ascertaining whether the persons who directly committed the genocide were acting as organs of the FRY, or could be equated with those organs – this question having already been answered in the negative. What must be determined is whether FRY organs – incontestably having that status under the FRY’s internal law – originated the genocide by issuing instructions to the perpetrators or exercising direction or control, and whether, as a result, the conduct of organs of the Respondent, having been the cause of the commission of acts in breach of its international obligations, constituted a violation of those obligations.
398. On this subject the applicable rule, which is one of customary law of international responsibility, is laid down in Article 8 of the ILC Articles on State Responsibility as follows:
Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”
399. This provision must be understood in the light of the Court’s jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) referred to above (paragraph 391). In that Judgment the Court, as noted above, after having rejected the argument that the contras were to be equated with organs of the United States because they were “completely dependent” on it, added that the responsibility of the Respondent could still arise if it were proved that it had itself “directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State” (I.C.J. Reports 1986, p. 64, para. 115); this led to the following significant conclusion:
“For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” (Ibid., p. 65.)
400. The test thus formulated differs in two respects from the test – described above – to determine whether a person or entity may be equated with a State organ even if not having that status under internal law. First, in this context it is not necessary to show that the persons who performed the acts alleged to have violated international law were in general in a relationship of “complete dependence” on the respondent State; it has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.
401. The Applicant has, it is true, contended that the crime of genocide has a particular nature, in that it may be composed of a considerable number of specific acts separate, to a greater or lesser extent, in time and space. According to the Applicant, this particular nature would justify, among other consequences, assessing the “effective control” of the State allegedly responsible, not in relation to each of these specific acts, but in relation to the whole body of operations carried out by the direct perpetrators of the genocide. The Court is however of the view that the particular characteristics of genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (see paragraph 399 above). The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis. Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ILC Articles on State Responsibility.
402. The Court notes however that the Applicant has further questioned the validity of applying, in the present case, the criterion adopted in the Military and Paramilitary Activities Judgment. It has drawn attention to the Judgment of the ICTY Appeals Chamber in the Tadić case (IT-94-1-A, Judgment, 15 July 1999). In that case the Chamber did not follow the jurisprudence of the Court in the Military and Paramilitary Activities case: it held that the appropriate criterion, applicable in its view both to the characterization of the armed conflict in Bosnia and Herzegovina as international, and to imputing the acts committed by Bosnian Serbs to the FRY under the law of State responsibility, was that of the “overall control” exercised over the Bosnian Serbs by the FRY; and further that that criterion was satisfied in the case (on this point, ibid., para. 145). In other words, the Appeals Chamber took the view that acts committed by Bosnian Serbs could give rise to international responsibility of the FRY on the basis of the overall control exercised by the FRY over the Republika Srpska and the VRS, without there being any need to prove that each operation during which acts were committed in breach of international law was carried out on the FRY’s instructions, or under its effective control.
403. The Court has given careful consideration to the Appeals Chamber’s reasoning in support of the foregoing conclusion, but finds itself unable to subscribe to the Chamber’s view. First, the Court observes that the ICTY was not called upon in the Tadić case, nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction is criminal and extends over persons only. Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise of its jurisdiction. As stated above, the Court attaches the utmost importance to the factual and legal findings made by the ICTY in ruling on the criminal liability of the accused before it and, in the present case, the Court takes fullest account of the ICTY’s trial and appellate judgments dealing with the events underlying the dispute. The situation is not the same for positions adopted by the ICTY on issues of general international law which do not lie within the specific purview of its jurisdiction and, moreover, the resolution of which is not always necessary for deciding the criminal cases before it.
404. This is the case of the doctrine laid down in the Tadić Judgment. Insofar as the “overall control” test is employed to determine whether or not an armed conflict is international, which was the sole question which the Appeals Chamber was called upon to decide, it may well be that the test is applicable and suitable; the Court does not however think it appropriate to take a position on the point in the present case, as there is no need to resolve it for purposes of the present Judgment. On the other hand, the ICTY presented the “overall control” test as equally applicable under the law of State responsibility for the purpose of determining – as the Court is required to do in the present case – when a State is responsible for acts committed by paramilitary units, armed forces which are not among its official organs. In this context, the argument in favour of that test is unpersuasive.
405. It should first be observed that logic does not require the same test to be adopted in resolving the two issues, which are very different in nature: the degree and nature of a State’s involvement in an armed conflict on another State’s territory which is required for the conflict to be characterized as international, can very well, and without logical inconsistency, differ from the degree and nature of involvement required to give rise to that State’s responsibility for a specific act committed in the course of the conflict.
406. It must next be noted that the “overall control” test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with State organs because they are in a relationship of complete dependence on the State. Apart from these cases, a State’s responsibility can be incurred for acts committed by persons or groups of persons – neither State organs nor to be equated with such organs – only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 cited above (paragraph 398). This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed. In this regard the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.
407. Thus it is on the basis of its settled jurisprudence that the Court will determine whether the Respondent has incurred responsibility under the rule of customary international law set out in Article 8 of the ILC Articles on State Responsibility.
408. The Respondent has emphasized that in the final judgments of the Chambers of the ICTY relating to genocide in Srebrenica, none of its leaders have been found to have been implicated. The Applicant does not challenge that reading, but makes the point that that issue has not been before the ICTY for decision. The Court observes that the ICTY has indeed not up to the present been directly concerned in final judgments with the question whether those leaders might bear responsibility in that respect. The Court notes the fact that the report of the United Nations Secretary-General does not establish any direct involvement by President Milošević with the massacre. The Court has already recorded the contacts between Milošević and the United Nations on 10 and 11 July … On 14 July, as recorded in the Secretary-General’s Report,
“the European Union negotiator, Mr. Bildt, travelled to Belgrade to meet with President Milošević. The meeting took place at Dobanovci, the hunting lodge outside Belgrade, where Mr. Bildt had met President and General Mladić one week earlier. According to Mr. Bildt’s public account of that second meeting, he pressed the President to arrange immediate access for UNHCR to assist the people of Srebrenica, and for ICRC to start to register those who were being treated by the BSA as prisoners of war. He also insisted that the Netherlands soldiers be allowed to leave at will. Mr. Bildt added that the international community would not tolerate an attack on Goražde, and that a ‘green light’ would have to be secured for free and unimpeded access to the enclaves. He also demanded that the road between Kiseljak and Sarajevo (‘Route Swan’) be opened to all non-military transport. President Milošević apparently acceded to the various demands, but also claimed that he did not have control over the matter. Milošević had also apparently explained, earlier in the meeting, that the whole incident had been provoked by escalating Muslim attacks from the enclave, in violation of the 1993 demilitarization agreement.
A few hours into the meeting, General Mladić arrived at Dobanovci. Mr. Bildt noted that General Mladić readily agreed to most of the demands on Srebrenica, but remained opposed to some of the arrangements pertaining to the other enclaves, Sarajevo in particular. Eventually, with President Milošević’s intervention, it appeared that an agreement in principle had been reached. It was decided that another meeting would be held the next day in order to confirm the arrangements. Mr. Bildt had already arranged with Mr. Stoltenberg and Mr. Akashi [the Special Representative of the Secretary-General] that they would join him in Belgrade. He also requested that the UNPROFOR Commander also come to Belgrade in order to finalize some of the military details with Mladić.” (A/54/549, paras. 372–373.)
409. By 19 July, on the basis of the Belgrade meeting, Mr. Akashi was hopeful that both President Milošević and General Mladić might show some flexibility. The UNPROFOR Commander met with Mladić on 19 July and throughout the meeting kept in touch with Mr. Bildt who was holding parallel negotiations with President Milošević in Belgrade. Mladić gave his version of the events of the preceding days (his troops had “‘finished [it] in a correct way’”; some “‘unfortunate small incidents’ had occurred”). The UNPROFOR Commander and Mladić then signed an agreement which provided for
“ICRC access to all ‘reception centres’ where the men and boys of Srebrenica were being held, by the next day;
UNHCR and humanitarian aid convoys to be given access to Srebrenica;
The evacuation of wounded from Potočari, as well as the hospital in Bratunac;
The return of Dutchbat weapons and equipment taken by the BSA;
The transfer of Dutchbat out of the enclave commencing on the afternoon of 21 July, following the evacuation of the remaining women, children and elderly who wished to leave.
Subsequent to the signing of this agreement, the Special Representative wrote to President Milošević, reminding him of the agreement, that had not yet been honoured, to allow ICRC access to Srebrenica. The Special Representative later also telephoned President Milošević to reiterate the same point.” (Ibid., para. 392.)
410. The Court was referred to other evidence supporting or denying the Respondent’s effective control over, participation in, involvement in, or influence over the events in and around Srebrenica in July 1995. The Respondent quotes two substantial reports prepared seven years after the events, both of which are in the public domain, and readily accessible. The first, Srebrenica – a “safe” area, published in 2002 by the Netherlands Institute for War Documentation was prepared over a lengthy period by an expert team. The Respondent has drawn attention to the fact that this report contains no suggestion that the FRY leadership was involved in planning the attack or inciting the killing of non-Serbs; nor any hard evidence of assistance by the Yugoslav army to the armed forces of the Republika Srpska before the attack; nor any suggestion that the Belgrade Government had advance knowledge of the attack. The Respondent also quotes this passage from point 10 of the Epilogue to the Report relating to the “mass slaughter” and “the executions” following the fall of Srebrenica: “There is no evidence to suggest any political or military liaison with Belgrade, and in the case of this mass murder such a liaison is highly improbable.” The Respondent further observes that the Applicant’s only response to this submission is to point out that “the report, by its own admission, is not exhaustive”, and that this Court has been referred to evidence not used by the authors.
411. The Court observes, in respect of the Respondent’s submissions, that the authors of the Report do conclude that Belgrade was aware of the intended attack on Srebrenica. They record that the Dutch Military Intelligence Service and another Western intelligence service concluded that the July 1995 operations were co-ordinated with Belgrade (Part III, Chap. 7, Sect. 7). More significantly for present purposes, however, the authors state that “there is no evidence to suggest participation in the preparations for executions on the part of Yugoslav military personnel or the security agency (RDB). In fact there is some evidence to support the opposite view …” (Part IV, Chap. 2, Sect. 20). That supports the passage from point 10 of the Epilogue quoted by the Respondent, which was preceded by the following sentence: “Everything points to a central decision by the General Staff of the VRS.”
412. The second report is Balkan Battlegrounds, prepared by the United States Central Intelligence Agency, also published in 2002. The first volume under the heading “The Possibility of Yugoslav involvement” arrives at the following conclusion:
“No basis has been established to implicate Belgrade’s military or security forces in the post-Srebrenica atrocities. While there are indications that the VJ or RDB [the Serbian State Security Department] may have contributed elements to the Srebrenica battle, there is no similar evidence that Belgrade-directed forces were involved in any of the subsequent massacres. Eyewitness accounts by survivors may be imperfect recollections of events, and details may have been overlooked. Narrations and other available evidence suggest that only Bosnian Serb troops were employed in the atrocities and executions that followed the military conquest of Srebrenica.” (Balkan Battlegrounds, p. 353.)
The response of the Applicant was to quote an earlier passage which refers to reports which “suggest” that VJ troops and possibly elements of the Serbian State Security Department may have been engaged in the battle in Srebrenica – as indeed the second sentence of the passage quoted by the Respondent indicates. It is a cautious passage, and significantly gives no indication of any involvement by the Respondent in the post-conflict atrocities which are the subject of genocide-related convictions. Counsel for the Respondent also quoted from the evidence of the Deputy Commander of Dutchbat, given in the Milošević trial, in which the accused put to the officer the point quoted earlier from the Epilogue to the Netherlands report. The officer responded:
“At least for me, I did not have any evidence that it was launched in co-operation with Belgrade. And again, I read all kinds of reports and opinions and papers where all kinds of scenarios were analysed, and so forth. Again, I do not have any proof that the action, being the attack on the enclave, was launched in co-operation with Belgrade.”
The other evidence on which the Applicant relied relates to the influence, rather than the control, that President Milošević had or did not have over the authorities in Pale. It mainly consists of the evidence given at the Milošević trial by Lord Owen and General Wesley Clark and also Lord Owen’s publications. It does not establish a factual basis for finding the Respondent responsible on a basis of direction or control.
(5) Conclusion as to responsibility for events at Srebrenica under Article III, paragraph (a), of the Genocide Convention
413. In the light of the information available to it, the Court finds, as indicated above, that it has not been established that the massacres at Srebrenica were committed by persons or entities ranking as organs of the Respondent (see paragraph 395 above). It finds also that it has not been established that those massacres were committed on the instructions, or under the direction of organs of the Respondent State, nor that the Respondent exercised effective control over the operations in the course of which those massacres, which, as indicated in paragraph 297 above, constituted the crime of genocide, were perpetrated …
414. Finally, the Court observes that none of the situations, other than those referred to in Articles 4 and 8 of the ILC’s Articles on State Responsibility, in which specific conduct may be attributed to a State, matches the circumstances of the present case in regard to the possibility of attributing the genocide at Srebrenica to the Respondent. The Court does not see itself required to decide at this stage whether the ILC’s Articles dealing with attribution, apart from Articles 4 and 8, express present customary international law, it being clear that none of them apply in this case. The acts constituting genocide were not committed by persons or entities which, while not being organs of the FRY, were empowered by it to exercise elements of the governmental authority (Art. 5), nor by organs placed at the Respondent’s disposal by another State (Art. 6), nor by persons in fact exercising elements of the governmental authority in the absence or default of the official authorities of the Respondent (Art. 9); finally, the Respondent has not acknowledged and adopted the conduct of the perpetrators of the acts of genocide as its own (Art. 11).
415. The Court concludes from the foregoing that the acts of those who committed genocide at Srebrenica cannot be attributed to the Respondent under the rules of international law of State responsibility: thus, the international responsibility of the Respondent is not engaged on this basis.
Having thus found that the Respondent could not be held responsible for the commission of genocide in Srebrenica as such, the ICJ went on to consider whether Serbia could be held responsible for one of the acts other than commission of genocide that are contained in Article III of the 1948 Genocide Convention (conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; complicity in genocide):
416. The Court now comes to the second of the questions set out in paragraph 379 above, namely, that relating to the Respondent’s possible responsibility on the ground of one of the acts related to genocide enumerated in Article III of the Convention. These are: conspiracy to commit genocide (Art. III, para. (b)), direct and public incitement to commit genocide (Art. III, para. (c)), attempt to commit genocide (Art. III, para. (d)) – though no claim is made under this head in the Applicant’s final submissions in the present case – and complicity in genocide (Art. III, para. (e)). For the reasons already stated … , the Court must make a finding on this matter inasmuch as it has replied in the negative to the previous question, that of the Respondent’s responsibility in the commission of the genocide itself.
417. It is clear from an examination of the facts of the case that subparagraphs (b) and (c) of Article III are irrelevant in the present case. It has not been proved that organs of the FRY, or persons acting on the instructions or under the effective control of that State, committed acts that could be characterized as “[c]onspiracy to commit genocide”(Art. III, para. (b)), or as “[d]irect and public incitement to commit genocide” (Art. III, para. (c)), if one considers, as is appropriate, only the events in Srebrenica. As regards paragraph (b), what was said above regarding the attribution to the Respondent of acts of genocide, namely that the massacres were perpetrated by persons and groups of persons (the VRS in particular) who did not have the character of organs of the Respondent, and did not act on the instructions or under the effective control of the Respondent, is sufficient to exclude the latter’s responsibility in this regard. As regards subparagraph (c), none of the information brought to the attention of the Court is sufficient to establish that organs of the Respondent, or persons acting on its instructions or under its effective control, directly and publicly incited the commission of the genocide in Srebrenica; nor is it proven, for that matter, that such organs or persons incited the commission of acts of genocide anywhere else on the territory of Bosnia and Herzegovina. In this respect, the Court must only accept precise and incontrovertible evidence, of which there is clearly none.
418. A more delicate question is whether it can be accepted that acts which could be characterized as “complicity in genocide”, within the meaning of Article III, paragraph (e), can be attributed to organs of the Respondent or to persons acting under its instructions or under its effective control. This question calls for some preliminary comment.
419. First, the question of “complicity” is to be distinguished from the question, already considered and answered in the negative, whether the perpetrators of the acts of genocide committed in Srebrenica acted on the instructions of or under the direction or effective control of the organs of the FRY. It is true that in certain national systems of criminal law, giving instructions or orders to persons to commit a criminal act is considered as the mark of complicity in the commission of that act. However, in the particular context of the application of the law of international responsibility in the domain of genocide, if it were established that a genocidal act had been committed on the instructions or under the direction of a State, the necessary conclusion would be that the genocide was attributable to the State, which would be directly responsible for it, pursuant to the rule referred to above (paragraph 398), and no question of complicity would arise. But, as already stated, that is not the situation in the present case. However there is no doubt that “complicity”, in the sense of Article III, paragraph (e), of the Convention, includes the provision of means to enable or facilitate the commission of the crime; it is thus on this aspect that the Court must focus. In this respect, it is noteworthy that, although “complicity”, as such, is not a notion which exists in the current terminology of the law of international responsibility, it is similar to a category found among the customary rules constituting the law of State responsibility, that of the “aid or assistance” furnished by one State for the commission of a wrongful act by another State.
420. In this connection, reference should be made to Article 16 of the ILC’s Articles on State Responsibility, reflecting a customary rule, which reads as follows:
Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and
(b) The act would be internationally wrongful if committed by that State.”
Although this provision, because it concerns a situation characterized by a relationship between two States, is not directly relevant to the present case, it nevertheless merits consideration. The Court sees no reason to make any distinction of substance between “complicity in genocide”, within the meaning of Article III, paragraph (e), of the Convention, and the “aid or assistance” of a State in the commission of a wrongful act by another State within the meaning of the aforementioned Article 16 – setting aside the hypothesis of the issue of instructions or directions or the exercise of effective control, the effects of which, in the law of international responsibility, extend beyond complicity. In other words, to ascertain whether the Respondent is responsible for “complicity in genocide” within the meaning of Article III, paragraph (e), which is what the Court now has to do, it must examine whether organs of the respondent State, or persons acting on its instructions or under its direction or effective control, furnished “aid or assistance” in the commission of the genocide in Srebrenica, in a sense not significantly different from that of those concepts in the general law of international responsibility.
421. Before the Court turns to an examination of the facts, one further comment is required. It concerns the link between the specific intent (dolus specialis) which characterizes the crime of genocide and the motives which inspire the actions of an accomplice (meaning a person providing aid or assistance to the direct perpetrators of the crime): the question arises whether complicity presupposes that the accomplice shares the specific intent (dolus specialis) of the principal perpetrator. But whatever the reply to this question, there is no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator. If that condition is not fulfilled, that is sufficient to exclude categorization as complicity. The Court will thus first consider whether this latter condition is met in the present case. It is only if it replies to that question of fact in the affirmative that it will need to determine the legal point referred to above.
422. The Court is not convinced by the evidence furnished by the Applicant that the above conditions were met. Undoubtedly, the quite substantial aid of a political, military and financial nature provided by the FRY to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued during those events. There is thus little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators of those acts possessed as a result of the general policy of aid and assistance pursued towards them by the FRY. However, the sole task of the Court is to establish the legal responsibility of the Respondent, a responsibility which is subject to very specific conditions. One of those conditions is not fulfilled, because it is not established beyond any doubt in the argument between the Parties whether the authorities of the FRY supplied – and continued to supply – the VRS leaders who decided upon and carried out those acts of genocide with their aid and assistance, at a time when those authorities were clearly aware that genocide was about to take place or was under way; in other words that not only were massacres about to be carried out or already under way, but that their perpetrators had the specific intent characterizing genocide, namely, the intent to destroy, in whole or in part, a human group, as such.
423. A point which is clearly decisive in this connection is that it was not conclusively shown that the decision to eliminate physically the adult male population of the Muslim community from Srebrenica was brought to the attention of the Belgrade authorities when it was taken; the Court has found (paragraph 295 above) that that decision was taken shortly before it was actually carried out, a process which took a very short time (essentially between 13 and 16 July 1995), despite the exceptionally high number of victims. It has therefore not been conclusively established that, at the crucial time, the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide.
424. The Court concludes from the above that the international responsibility of the Respondent is not engaged for acts of complicity in genocide mentioned in Article III, paragraph (e)
, of the Convention. In the light of this finding, and of the findings above relating to the other paragraphs of Article III, the international responsibility of the Respondent is not engaged under Article III as a whole.
Having thus found that the Respondent could not be held responsible for genocide as such or for any of the other acts related to genocide prohibited under Article III of the 1948 Genocide Convention, the ICJ turned to the question whether the Respondent could be held responsible for a violation of the obligations under Article I of the 1948 Genocide Convention to “prevent and punish” genocide:
425. The Court now turns to the third and last of the questions set out in paragraph 379 above: has the respondent State complied with its obligations to prevent and punish genocide under Article I of the Convention? Despite the clear links between the duty to prevent genocide and the duty to punish its perpetrators, these are, in the view of the Court, two distinct yet connected obligations, each of which must be considered in turn.
426. It is true that, simply by its wording, Article I of the Convention brings out the close link between prevention and punishment: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” It is also true that one of the most effective ways of preventing criminal acts, in general, is to provide penalties for persons committing such acts, and to impose those penalties effectively on those who commit the acts one is trying to prevent. Lastly, it is true that, although in the subsequent Articles, the Convention includes fairly detailed provisions concerning the duty to punish (Articles III to VII), it reverts to the obligation of prevention, stated as a principle in Article I, only in Article VIII:
“Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.”
427. However, it is not the case that the obligation to prevent has no separate legal existence of its own; that it is, as it were, absorbed by the obligation to punish, which is therefore the only duty the performance of which may be subject to review by the Court. The obligation on each contracting State to prevent genocide is both normative and compelling. It is not merged in the duty to punish, nor can it be regarded as simply a component of that duty. It has its own scope, which extends beyond the particular case envisaged in Article VIII, namely reference to the competent organs of the United Nations, for them to take such action as they deem appropriate. Even if and when these organs have been called upon, this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs. This is the reason why the Court will first consider the manner in which the Respondent has performed its obligation to prevent before examining the situation as regards the obligation to punish.
(1) The obligation to prevent genocide
428. As regards the obligation to prevent genocide, the Court thinks it necessary to begin with the following introductory remarks and clarifications, amplifying the observations already made above.
429. First, the Genocide Convention is not the only international instrument providing for an obligation on the States parties to it to take certain steps to prevent the acts it seeks to prohibit. Many other instruments include a similar obligation, in various forms: see, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (Article 2); the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 14 December 1973 (Art. 4); the Convention on the Safety of United Nations and Associated Personnel of 9 December 1994 (Art. 11); the International Convention on the Suppression of Terrorist Bombings of 15 December 1997 (Art. 15). The content of the duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the acts to be prevented. The decision of the Court does not, in this case, purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts. Still less does the decision of the Court purport to find whether, apart from the texts applicable to specific fields, there is a general obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law. The Court will therefore confine itself to determining the specific scope of the duty to prevent in the Genocide Convention, and to the extent that such a determination is necessary to the decision to be given on the dispute before it. This will, of course, not absolve it of the need to refer, if need be, to the rules of law whose scope extends beyond the specific field covered by the Convention.
430. Secondly, it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result – averting the commission of genocide – which the efforts of only one State were insufficient to produce.
431. Thirdly, a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. In this respect, the Court refers to a general rule of the law of State responsibility, stated by the ILC in Article 14, paragraph 3, of its Articles on State Responsibility:
“… … … … … … … … … … … … … … … … … … … … …
3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.”
This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent. In consequence, in the present case the Court will have to consider the Respondent’s conduct, in the light of its duty to prevent, solely in connection with the massacres at Srebrenica, because these are the only acts in respect of which the Court has concluded in this case that genocide was committed.
432. Fourth and finally, the Court believes it especially important to lay stress on the differences between the requirements to be met before a State can be held to have violated the obligation to prevent genocide – within the meaning of Article I of the Convention – and those to be satisfied in order for a State to be held responsible for “complicity in genocide” – within the meaning of Article III, paragraph (e) – as previously discussed. There are two main differences; they are so significant as to make it impossible to treat the two types of violation in the same way. In the first place, as noted above, complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commission, violation of the obligation to prevent results from omission; this is merely the reflection of the notion that the ban on genocide and the other acts listed in Article III, including complicity, places States under a negative obligation, the obligation not to commit the prohibited acts, while the duty to prevent places States under positive obligations, to do their best to ensure that such acts do not occur. In the second place, as also noted above, there cannot be a finding of complicity against a State unless at the least its organs were aware that genocide was about to be committed or was under way, and if the aid and assistance supplied, from the moment they became so aware onwards, to the perpetrators of the criminal acts or to those who were on the point of committing them, enabled or facilitated the commission of the acts. In other words, an accomplice must have given support in perpetrating the genocide with full knowledge of the facts. By contrast, a State may be found to have violated its obligation to prevent even though it had no certainty, at the time when it should have acted, but failed to do so, that genocide was about to be committed or was under way; for it to incur responsibility on this basis it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed. As will be seen below, this latter difference could prove decisive in the present case in determining the responsibility incurred by the Respondent.
433. In light of the foregoing, the Court will now consider the facts of the case. For the reasons stated above (paragraph 431), it will confine itself to the FRY’s conduct vis-à-vis the Srebrenica massacres.
434. The Court would first note that, during the period under consideration, the FRY was in a position of influence, over the Bosnian Serbs who devised and implemented the genocide in Srebrenica, unlike that of any of the other States parties to the Genocide Convention owing to the strength of the political, military and financial links between the FRY on the one hand and the Republika Srpska and the VRS on the other, which, though somewhat weaker than in the preceding period, nonetheless remained very close.
435. Secondly, the Court cannot but note that, on the relevant date, the FRY was bound by very specific obligations by virtue of the two Orders indicating provisional measures delivered by the Court in 1993. In particular, in its Order of 8 April 1993, the Court stated, inter alia, that although not able, at that early stage in the proceedings, to make “definitive findings of fact or of imputability” (I.C.J. Reports 1993, p. 22, para. 44) the FRY was required to ensure:
“that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide …” (ibid., p. 24, para. 52 A.(2)).
The Court’s use, in the above passage, of the term “influence” is particularly revealing of the fact that the Order concerned not only the persons or entities whose conduct was attributable to the FRY, but also all those with whom the Respondent maintained close links and on which it could exert a certain influence. Although in principle the two issues are separate, and the second will be examined below, it is not possible, when considering the way the Respondent discharged its obligation of prevention under the Convention, to fail to take account of the obligation incumbent upon it, albeit on a different basis, to implement the provisional measures indicated by the Court.
436. Thirdly, the Court recalls that although it has not found that the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent (which is why complicity in genocide was not upheld above: paragraph 424), they could hardly have been unaware of the serious risk of it once the VRS forces had decided to occupy the Srebrenica enclave …
438. In view of their undeniable influence and of the information, voicing serious concern, in their possession, the Yugoslav federal authorities should, in the view of the Court, have made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might at least have been surmised. The FRY leadership, and President Milošević above all, were fully aware of the climate of deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region. As the Court has noted in paragraph 423 above, it has not been shown that the decision to eliminate physically the whole of the adult male population of the Muslim community of Srebrenica was brought to the attention of the Belgrade authorities. Nevertheless, given all the international concern about what looked likely to happen at Srebrenica, given Milošević’s own observations to Mladić, which made it clear that the dangers were known and that these dangers seemed to be of an order that could suggest intent to commit genocide, unless brought under control, it must have been clear that there was a serious risk of genocide in Srebrenica. Yet the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed. It must therefore be concluded that the organs of the Respondent did nothing to prevent the Srebrenica massacres, claiming that they were powerless to do so, which hardly tallies with their known influence over the VRS. As indicated above, for a State to be held responsible for breaching its obligation of prevention, it does not need to be proven that the State concerned definitely had the power to prevent the genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them. Such is the case here. In view of the foregoing, the Court concludes that the Respondent violated its obligation to prevent the Srebrenica genocide in such a manner as to engage its international responsibility.
(2) The obligation to punish genocide
439. The Court now turns to the question of the Respondent’s compliance with its obligation to punish the crime of genocide stemming from Article I and the other relevant provisions of the Convention.
440. In its fifth final submission, Bosnia and Herzegovina requests the Court to adjudge and declare:
“5. That Serbia and Montenegro has violated and is violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide for having failed and for failing to punish acts of genocide or any other act prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide, and for having failed and for failing to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal.”
441. This submission implicitly refers to Article VI of the Convention, according to which:
“Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
442. The Court would first recall that the genocide in Srebrenica, the commission of which it has established above, was not carried out in the Respondent’s territory. It concludes from this that the Respondent cannot be charged with not having tried before its own courts those accused of having participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of having committed one of the other acts mentioned in Article III of the Convention in connection with the Srebrenica genocide. Even if Serbian domestic law granted jurisdiction to its criminal courts to try those accused, and even supposing such proceedings were compatible with Serbia’s other international obligations, inter alia its obligation to co-operate with the ICTY, to which the Court will revert below, an obligation to try the perpetrators of the Srebrenica massacre in Serbia’s domestic courts cannot be deduced from Article VI. Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so.
443. It is thus to the obligation for States parties to co-operate with the “international penal tribunal” mentioned in the above provision that the Court must now turn its attention. For it is certain that once such a court has been established, Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory – even if the crime of which they are accused was committed outside it – and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal.
444. In order to determine whether the Respondent has fulfilled its obligations in this respect, the Court must first answer two preliminary questions: does the ICTY constitute an “international penal tribunal” within the meaning of Article VI? And must the Respondent be regarded as having “accepted the jurisdiction” of the tribunal within the meaning of that provision?
445. As regards the first question, the Court considers that the reply must definitely be in the affirmative. The notion of an “international penal tribunal” within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Convention (at which date no such court existed) of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III. The nature of the legal instrument by which such a court is established is without importance in this respect. When drafting the Genocide Convention, its authors probably thought that such a court would be created by treaty: a clear pointer to this lies in the reference to “those Contracting Parties which shall have accepted [the] jurisdiction” of the international penal tribunal. Yet, it would be contrary to the object of the provision to interpret the notion of “international penal tribunal” restrictively in order to exclude from it a court which, as in the case of the ICTY, was created pursuant to a United Nations Security Council resolution adopted under Chapter VII of the Charter. The Court has found nothing to suggest that such a possibility was considered by the authors of the Convention, but no intention of seeking to exclude it can be imputed to them.
446. The question whether the Respondent must be regarded as having “accepted the jurisdiction” of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law? If so, it would have to be concluded that, for the Respondent, co-operation with the ICTY constitutes both an obligation stemming from the resolution concerned and from the United Nations Charter, or from another norm of international law obliging the Respondent to co-operate, and an obligation arising from its status as a party to the Genocide Convention, this last clearly being the only one of direct relevance in the present case.
447. For the purposes of the present case, the Court only has to determine whether the FRY was under an obligation to co-operate with the ICTY, and if so, on what basis, from when the Srebrenica genocide was committed in July 1995. To that end, suffice it to note that the FRY was under an obligation to co-operate with the ICTY from 14 December 1995 at the latest, the date of the signing and entry into force of the Dayton Agreement between Bosnia and Herzegovina, Croatia and the FRY. Annex 1A of that treaty, made binding on the parties by virtue of its Article II, provides that they must fully co-operate, notably with the ICTY. Thus, from 14 December 1995 at the latest, and at least on the basis of the Dayton Agreement, the FRY must be regarded as having “accepted [the] jurisdiction” of the ICTY within the meaning of Article VI of the Convention. This fact is sufficient for the Court in its consideration of the present case, since its task is to rule upon the Respondent’s compliance with the obligation resulting from Article VI of the Convention in relation to the Srebrenica genocide, from when it was perpetrated to the present day, and since the Applicant has not invoked any failure to respect the obligation to co-operate alleged to have occurred specifically between July and December 1995. Similarly, the Court is not required to decide whether, between 1995 and 2000, the FRY’s obligation to co-operate had any legal basis besides the Dayton Agreement. Needless to say, the admission of the FRY to the United Nations in 2000 provided a further basis for its obligation to co-operate: but while the legal basis concerned was thereby confirmed, that did not change the scope of the obligation. There is therefore no need, for the purposes of assessing how the Respondent has complied with its obligation under Article VI of the Convention, to distinguish between the period before and the period after its admission as a Member of the United Nations, at any event from 14 December 1995 onwards.
448. Turning now to the facts of the case, the question the Court must answer is whether the Respondent has fully co-operated with the ICTY, in particular by arresting and handing over to the Tribunal any persons accused of genocide as a result of the Srebrenica genocide and finding themselves on its territory. In this connection, the Court would first observe that, during the oral proceedings, the Respondent asserted that the duty to co-operate had been complied with following the régime change in Belgrade in the year 2000, thus implicitly admitting that such had not been the case during the preceding period. The conduct of the organs of the FRY before the regime change however engages the Respondent’s international responsibility just as much as it does that of its State authorities from that date. Further, the Court cannot but attach a certain weight to the plentiful, and mutually corroborative, information suggesting that General Mladić, indicted by the ICTY for genocide, as one of those principally responsible for the Srebrenica massacres, was on the territory of the Respondent at least on several occasions and for substantial periods during the last few years and is still there now, without the Serb authorities doing what they could and can reasonably do to ascertain exactly where he is living and arrest him. In particular, counsel for the Applicant referred during the hearings to recent statements made by the Respondent’s Minister for Foreign Affairs, reproduced in the national press in April 2006, and according to which the intelligence services of that State knew where Mladić was living in Serbia, but refrained from informing the authorities competent to order his arrest because certain members of those services had allegedly remained loyal to the fugitive. The authenticity and accuracy of those statements has not been disputed by the Respondent at any time.
449. It therefore appears to the Court sufficiently established that the Respondent failed in its duty to co-operate fully with the ICTY. This failure constitutes a violation by the Respondent of its duties as a party to the Dayton Agreement, and as a Member of the United Nations, and accordingly a violation of its obligations under Article VI of the Genocide Convention. The Court is of course without jurisdiction in the present case to declare that the Respondent has breached any obligations other than those under the Convention. But as the Court has jurisdiction to declare a breach of Article VI insofar as it obliges States to co-operate with the “international penal tribunal”, the Court may find for that purpose that the requirements for the existence of such a breach have been met. One of those requirements is that the State whose responsibility is in issue must have “accepted [the] jurisdiction” of that “international penal tribunal”; the Court thus finds that the Respondent was under a duty to co-operate with the tribunal concerned pursuant to international instruments other than the Convention, and failed in that duty. On this point, the Applicant’s submissions relating to the violation by the Respondent of Articles I and VI of the Convention must therefore be upheld.
450. It follows from the foregoing considerations that the Respondent failed to comply both with its obligation to prevent and its obligation to punish genocide deriving from the Convention, and that its international responsibility is thereby engaged.
In conclusion, the ICJ therefore:
(2) by thirteen votes to two,
Finds that Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;
(3) by thirteen votes to two,
Finds that Serbia has not conspired to commit genocide, nor incited the commission of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;
(4) by eleven votes to four,
Finds that Serbia has not been complicit in genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;
(5) by twelve votes to three,
Finds that Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995;
(6) by fourteen votes to one,
Finds that Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal;
(8) by fourteen votes to one,
that Serbia shall immediately take effective steps to ensure full compliance with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Furundžija case in 1998, the ICTY Trial Chamber held:
Under current international humanitarian law, in addition to individual criminal liability, State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers. If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly grave wrongful act generating State responsibility.
International Criminal Tribunal for the former Yugoslavia
In its judgment on appeal in the Tadić case in 1999, the ICTY Appeals Chamber discussed the issue of State responsibility for the actions of irregular troops in great detail, not in order to reach any conclusion concerning the actual responsibility of any State, but in order to determine whether the conflict in Bosnia and Herzegovina was international and, therefore, whether the 1949 Geneva Convention IV applied. During its discussion on the topic, the Appeals Chamber had to determine the type of relationship that had to exist between the irregular troops and the State in question for the latter to be considered responsible for the acts of the former. The Appeals Chamber was of the view that:
137. … international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question; alternatively, it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue. By contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.
138. Of course, if, as in Nicaragua, the controlling State is not the territorial State where the armed clashes occur or where at any rate the armed units perform their acts, more extensive and compelling evidence is required to show that the State is genuinely in control of the units or groups not merely by financing and equipping them, but also by generally directing or helping plan their actions.
139. The same substantial evidence is required when, although the State in question is the territorial State where armed clashes occur, the general situation is one of turmoil, civil strife and weakened State authority.
140. Where the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold.
141. It should be added that international law does not provide only for a test of overall control applying to armed groups and that of specific instructions (or subsequent public approval), applying to single individuals or militarily unorganised groups. The Appeals Chamber holds the view that international law also embraces a third test. This test is the assimilation of individuals to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions) …
145. In the light of the above discussion, the following conclusion may be safely reached. In the case at issue, given that the Bosnian Serb armed forces constituted a “military organization”, the control of the FRY authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. By contrast, international rules do not require that such control should extend to the issuance of specific orders or instructions relating to single military actions, whether or not such actions were contrary to international humanitarian law.
[emphasis in original]
Applying this test to the facts before it, the Appeals Chamber concluded that in 1992 the Yugoslav People’s Army (YPA) exercised the requisite measure of control over the Bosnian Serb army. Such control manifested itself not only by financial, logistical and other assistance and support, but also, and more importantly, in terms of participation in the general direction, coordination and supervision of the activities of the army of the Republika Srpska (“VRS”).
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blaškić case in 2000, the ICTY Trial Chamber, referring to the Tadić case (Judgment on Appeal), stated:
95. Aside from the direct intervention by HV [Army of the Republic of Croatia] forces, the Trial Chamber observes that Croatia exercised indirect control over the HVO [Croatian Defence Council, Bosnia and Herzegovina] and HZHB [Croatian Community of Bosnia and Herzegovina].
96. … Some degree of control exercised by a Party to a conflict over the perpetrators of the breaches is needed for them to be held criminally responsible on the basis of Article 2 of the Statute. The question of determining the degree of control required then arises.
99. The Appeals Chamber clearly laid out the three control criteria which allow the acts of individuals or groups to be ascribed to a foreign State, circumstances which transform what at first sight is an internal armed conflict into an international one …
100. The matter is one of possibly imputing the acts of the HVO to the Republic of Croatia which would then confer an international nature upon the conflict played out in the Lasva Valley. It is the third criterion which applies in this instance. This criterion allows the degree of State control required by international law to be determined in order to be able to ascribe to a foreign State the acts of armed forces, militia and paramilitary units (hereinafter “organised groups”). The Appeals Chamber characterised it as a criterion of overall control …
101. … The factors which permit the existence of overall control to be proved may vary depending on the circumstances.
102. In this instance, the direct intervention of the HV in Bosnia and in the CBOZ [Central Bosnia Operative Zone] has already been demonstrated above. Mention may be made of several other indications of Croatia’s involvement in the conflict which rebut the Defence argument that the HV did indeed direct HVO operations, but only between March and June 1992 before the HVO became organised and prior to the outbreak of the conflict in central Bosnia between the Croatian and Muslim forces. The Trial Chamber concurs that the involvement of the HV and Croatia may appear more clear-cut at the start of the period under consideration but deems that it persisted throughout the conflict.
103. This involvement does not seem to be the result only of the particular circumstances prevailing at the time …
112. Croatia was … directly involved in the control of the HVO forces which were created on 8 April by the HZHB presidency …
114. The Defence furthermore did not challenge the fact that the HVO shared personnel, often from BH [Bosnia and Herzegovina], with the HV …
118. The Bosnian Croat leaders followed the directions given by Zagreb or, at least, co-ordinated their decisions with the Croatian government. Co-ordination was manifest at various levels …
119. … The evidence demonstrates that there were regular meetings with President Tudjman and that the Bosnian Croat leaders, appointed by Croatia or with its consent, continued to direct the HZHB and the HVO well after June 1992.
120. Apart from providing manpower, Croatia also lent substantial material assistance to the HVO in the form of financial and logistical support … Croatia supplied the HVO with large quantities of arms and materiel in 1992, 1993 and 1994 … Equipment was also supplied to the ABiH [Army of Bosnia and Herzegovina] but this ceased in 1993 during the conflict between the HVO and the ABiH. HVO troops were trained in Croatia.
122. In the light of all the foregoing and, in particular, the Croatian territorial ambitions in respect of Bosnia-Herzegovina detailed above, the Trial Chamber finds that Croatia, and more specifically former President Tudjman, was hoping to partition Bosnia and exercised such a degree of control over the Bosnian Croats and especially the HVO that it is justified to speak of overall control. Contrary to what the Defence asserted, the Trial Chamber concluded that the close ties between Croatia and the Bosnian Croats did not cease with the establishment of the HVO.
123. Croatia’s indirect intervention would therefore permit the conclusion that the conflict was international.
International Criminal Tribunal for the former Yugoslavia
In its judgment on appeal in the Aleksovski case in 2000, the ICTY Appeals Chamber, referring to the Tadić and Nicaragua cases, stated:
137. In the Aleksovski case, the question was whether the HVO [Croatian Defence Council, Bosnia and Herzegovina] forces, while not being official agents of the Croatian government, could be said to be acting as de facto agents of the Croatian State. In seeking to answer this question, the Majority Opinion made the following reference to the decision of the Appeals Chamber in the Tadić Jurisdiction Decision:
The Appeals Chamber in the Tadić Interlocutory Decision did not specify the requisite degree of intervention by a foreign State in the territory of another State to internationalise an armed conflict. However, it did provide some guidance on the matter by indicating that the clashes between the Government of Bosnia and Herzegovina and the Bosnian Serb forces should be considered as internal, unless a “direct involvement” of the JNA [Yugoslav People’s Army] could be proved, in which case the conflict should be considered to be an international one.
Further indication of the majority’s reasoning is garnered from the following paragraph:
A State can act in international law directly through governmental authorities and officials, or indirectly through individuals or organisations who, while not being official agents of the government, receive from it some power or assignment to perform acts on its behalf such that they become de facto agents.
138. The phrase “receive from it some power or assignment to perform acts on its behalf such that they become de facto agents,” does, in the opinion of the Appeals Chamber, indicate that the position of the majority was that some kind of instruction was required in order for the requisite relationship between the Bosnian Croats and the Croatian State to be established. This is what the Prosecution refers to as the “specific instructions” test.
139. The Majority Opinion then referred to the ICJ decision in Nicaragua in this way:
According to the International Court of Justice (“the ICJ”), where the relationship of a rebel force to a foreign State is one of such dependence on the one side and control on the other that it would be appropriate to equate the rebel force, for legal purposes, with an organ of that State, or as acting on behalf of that State, then in such a case the conflict can be seen to be an international one, even if it is prima facie internal and there is no direct involvement of the armed forces of the State.
It made further reference to the reliance placed by the majority Judgement of Judge Stephen and Judge Vohrah in the Tadić case (first instance), “on the high standard expounded by the ICJ in the Nicaragua case in the sense that the international responsibility of a State can arise only if control is exercised (“directed and enforced”) with respect to specific military or paramilitary operations.”
140. In dealing with the relationship between the HV [Army of the Republic of Croatia] and HVO forces, the majority commented on a particular aspect of the evidence of the expert witness:
The expert witness presented an order from the HVO (not the HV) – this distinction is very important – to their soldiers to remove the HV insignias (November–December 1992) because of potential problems to Croatia. While there is a document dated May 1993 which allowed the transfer/promotion of soldiers from the HVO to the HV, this does not in itself prove the dependency of the HVO on the HV.
141. The Appeals Chamber makes two observations about this paragraph. First, the fact that the Majority Opinion goes out of its way to mention that the order came from the HVO, and not the HV, and that the distinction was very important, highlights the weight the Trial Chamber attached to an order or instruction of the controlling State as a prerequisite for the attribution of acts of members of a military group to a State. Secondly, to the extent that the Majority Opinion uses dependency as a criterion, it is not consistent with the decision in the Tadić Judgement.
142. Significantly, the Majority Opinion concludes by finding that “the Prosecution failed to discharge its burden of proving that, during the time-period and in the place of the indictment, the HVO was in fact acting under the overall control of the HV in carrying out the armed conflict against Bosnia and Herzegovina.”
143. The Appeals Chamber finds that, notwithstanding the express reference to “overall control”, the Aleksovski Judgement did not in fact apply the test of overall control. Instead, the passages cited show that the majority gave prominence to the need for specific instructions or orders as a prerequisite for attributing the acts of the HVO to the State of Croatia, a showing that is not required under the test of overall control.
144. The test set forth in the Tadić Judgement of “overall control” and what is required to meet it constitutes a different standard from the “specific instructions” test employed by the majority in Aleksovski, or the reference to “direct involvement” in the Tadić Jurisdiction Decision.
145. The “overall control” test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control. Bearing in mind that the Appeals Chamber in the Tadić Judgement arrived at this test against the background of the “effective control” test set out by the decision of the ICJ in Nicaragua, and the “specific instructions” test used by the Trial Chamber in Tadić, the Appeals Chamber considers it appropriate to say that the standard established by the “overall control” test is not as rigorous as those tests.
146. To the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure “protection of civilians to the maximum extent possible.”
International Criminal Tribunal for the former Yugoslavia
In its judgment on appeal in the Mucić
case in 2001, the ICTY Appeals Chamber, referring to the Tadić, Aleksovski and Nicaragua cases, stated:
13. The Appeals Chamber saw the question of internationality as turning on the issue of whether the Bosnian Serb forces “could be considered as de iure or de facto organs of a foreign power, namely the FRY”. The important question was “what degree of authority or control must be wielded by a foreign State over armed forces fighting on its behalf in order to render international an armed conflict which is prima facie internal”. The Chamber considered, after a review of various cases including Nicaragua, that international law does not always require the same degree of control over armed groups or private individuals for the purpose of determining whether they can be regarded as a de facto organ of the State. The Appeals Chamber found that there were three different standards of control under which an entity could be considered a de facto organ of the State, each differing according to the nature of the entity. Using this framework, the Appeals Chamber determined that the situation with which it was concerned fell into the second category it identified, which was that of the acts of armed forces or militias or paramilitary units.
14. The Appeals Chamber determined that the legal test which applies to this category was the “overall control” test:
In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by co-ordinating or helping in the general planning of its military activity. […] However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.
15. Overall control was defined as consisting of more than “the mere provision of financial assistance or military equipment or training”. Further, the Appeals Chamber adopted a flexible definition of this test, which allows it to take into consideration the diversity of situations on the field in present-day conflicts:
This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.
16. The Appeals Chamber in Tadić considered Nicaragua in depth, and based on two grounds, held that the “effective control” test enunciated by the ICJ was not persuasive.
17. Firstly, the Appeals Chamber found that the Nicaragua “effective control” test did not seem to be consonant with the “very logic of the entire system of international law on State responsibility”, which is “not based on rigid and uniform criteria”. In the Appeals Chamber’s view, “the whole body of international law on State responsibility is based on a realistic concept of accountability, which disregards legal formalities”. Thus, regardless of whether or not specific instructions were issued, the international responsibility of the State may be engaged.
18. Secondly, the Appeals Chamber considered that the Nicaragua test is at variance with judicial and State practice. Relying on a number of cases from claims tribunals, national and international courts, and State practice, the Chamber found that, although the “effective control” test was upheld by the practice in relation to individuals or unorganised groups of individuals acting on behalf of States, it was not the case in respect of military or paramilitary groups.
19. The Appeals Chamber found that the armed forces of the Republika Srpska were to be regarded as acting under the overall control of, and on behalf of, the FRY, sharing the same objectives and strategy, thereby rendering the armed conflict international.
20. The Appeals Chamber, after considering in depth the merits of the Nicaragua test, thus rejected the “effective control” test, in favour of the less strict “overall control” test. This may be indicative of a trend simply to rely on the international law on the use of force, jus ad bellum, when characterising the conflict. The situation in which a State, the FRY, resorted to the indirect use of force against another State, Bosnia and Herzegovina, by supporting one of the parties involved in the conflict, the Bosnian Serb forces, may indeed be also characterised as a proxy war of an international character. In this context, the “overall control” test is utilised to ascertain the foreign intervention, and consequently, to conclude that a conflict which was prima facie internal is internationalised.
26. Applying the principle enunciated in the Aleksovski
Appeal Judgement, this Appeals Chamber is unable to conclude that the decision in the Tadić
was arrived at on the basis of the application of a wrong legal principle, or arrived at per incuriam
. After careful consideration of the arguments put forward by the appellants, this Appeals Chamber is unable to find cogent reasons in the interests of justice to depart from the law as identified in the Tadić
Appeal Judgement. The “overall control” test set forth in the Tadić
Appeal Judgement is thus the applicable criteria for determining the existence of an international armed conflict.
[emphasis in original]
African Commission for Human and Peoples’ Rights
In 1995, in Commission Nationale des Droits de l’Homme et des Libertés v. Chad, the African Commission for Human and Peoples’ Rights stated:
21. The African Charter, unlike other human rights instruments, does not allow for states parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter.
22. In the present case, Chad has failed to provide security and stability in the country, thereby allowing serious and massive violations of human rights. The national armed forces are participants in the civil war and there have been several instances in which the Government has failed to intervene to prevent the assassination and killing of specific individuals. Even where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders. Chad therefore is responsible for the violations of the African Charter.
European Commission of Human Rights
In 1993, in a decision concerning the imputability to Turkey of acts committed in the northern part of Cyprus, the European Commission of Human Rights, with respect to the arrest of the applicants, held:
96. As regards overall control of the arrest operation by Turkey, the Commission recalls that, in its decision on admissibility … it was held that the application of the [1950 European Convention on Human Rights] extends beyond national frontiers of the Contracting States and includes acts of State organs abroad. The term “jurisdiction” in Article 1 is not equivalent to or limited to the national territory … Authorized agents of a State, including armed forces, not only remain under its jurisdiction when abroad but also bring any other persons “within the jurisdiction” of that State to the extent that they exercise authority over such persons.
97. The Commission notes that the Turkish armed forces have entered Cyprus and that they operate under the direction of the Turkish Government and under established rules governing the structure and command of these armed forces. It follows that these armed forces are authorised agents of Turkey and that they bring any other persons in Cyprus “within the jurisdiction” of Turkey, in the sense of Article 1 of the [1950 European Convention on Human Rights], to the extent that they exercise control over such persons. Therefore, in so far as these armed forces, by their acts or omissions, affect such persons’ rights or freedoms under the Convention, the responsibility of Turkey is engaged.
However, in its decision as to the applicants’ detention and the proceedings against them after their arrest, the Commission stated:
169. The Commission considers that the factual situation is different as regards the subsequent detention of the applicants and the proceedings against them. The Commission has found no indication of control exercised by Turkish authorities over the prison administration or the administration of justice by Turkish Cypriot authorities in the applicants’ case …
170. The Commission, … finding no indication of direct involvement of Turkish authorities in the applicants’ detention, and the proceedings against them, after their arrest …, sees no basis under the Convention for imputing these acts to Turkey.
Inter-American Court of Human Rights
In 1988, in the Velásquez Rodríguez case, the Inter-American Court of Human Rights stated:
176. The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.
177. In certain circumstances, it may be difficult to investigate acts that violate an individual’s rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.
Inter-American Commission on Human Rights
In its decision in the Case of the Riofrío massacre (Colombia) in 2001, the Inter-American Commission on Human Rights stated:
48. … It must be ascertained whether the acts of the individuals implicated in the incident in violating such fundamental rights as the rights to life and humane treatment are attributable to the State of Colombia and therefore call into question its responsibility in accordance with international law. In this regard, the Inter-American Court has noted that it is sufficient to show that the infringement of the rights recognized in the Convention has been supported or tolerated by the government.
49. First, it should be said that, as noted by the [Inter-American Commission on Human Rights] in its Third Report on the Human Rights Situation in Colombia, the State has played a leading role in developing the paramilitary or self-defense groups, that it allowed them to act legitimately with the protection of the law during the 1970s and 1980s, and that it is generally responsible for their existence and for strengthening them.
50. These groups sponsored or accepted by branches of the armed forces were created mainly to combat armed groups of dissidents. As a result of their counterinsurgency purposes, the paramilitaries established links with the Colombian army that became stronger over a period of more than twenty years. Eventually, on May 25, 1989, the Supreme Court of Justice declared Decree 3398 unconstitutional, thereby removing all legal support for their ties to national defense. In the wake of this action, the State passed a number of laws to criminalize the activities of these groups and of those that supported them. Despite these measures, the State did little to dismantle the structure it had created and promoted, particularly in the case of groups that carried out counterinsurgency activities and, in fact, the ties remained in place at different levels, which in some instances requested or permitted paramilitary groups to carry out certain illegal acts on the understanding that they would not be investigated, prosecuted, or punished. The toleration of these groups by certain branches of the army has been denounced by agencies within the State itself.
51. As a result of this situation, the Commission has established, for the purposes of determining the international responsibility of the State in accordance with the American Convention, that in cases in which members of paramilitary groups and the army carry out joint operations with the knowledge of superior officers, the members of the paramilitary groups act as agents of the State.
52. In the present case, according to analysis of the facts mentioned above, there is evidence to show that agents of the State helped to coordinate the massacre, to carry it out, and, as discovered by domestic courts, to cover it up. Therefore, the only conclusion is that the State is liable for the violations of the American Convention resulting from the acts of commission or omission by its own agents and by private individuals involved in the execution of the victims.
The ICRC Commentary on the Additional Protocols notes that the responsibility of the State
can be imputed not only for acts committed by a person or persons who form part of the armed forces … but also for possible omissions. As regards damages which may be caused by private individuals, i.e., by persons who are not part of the armed forces (nor of any other organ of the State), legal writings and case-law show that the responsibility of the State is involved if it has not taken such preventive or repressive measures as could reasonably be expected to have been taken in the circumstances. In other words, responsibility is incurred if the Party to the conflict has not acted with due diligence to prevent such acts from taking place, or to ensure their repression once they have taken place.
In 1993, in a report submitted to the UN General Assembly on the protection of the environment in time of armed conflict, the ICRC stated:
The treaties of international humanitarian law provide various mechanisms … for implementing their substantive provisions. Among these mechanisms it is worth mentioning the following:
(a) the international responsibility of States …
Article 1, common to the four Geneva Conventions and to Protocol I, stipulates that the contracting States are under an obligation “to respect and ensure respect for” those instruments. Beyond that, and on a more general level, a State is responsible for every act or omission attributable to it and amounting to a breach of an international obligation incumbent on it, including in the field of the international protection of the environment. States affected by such a breach are entitled to insist on the implementation of such rules of State responsibility, including cessation of the unlawful conduct, restitution and reparation.
In a communication to the press issued in 1993 with respect to the conflict in Bosnia and Herzegovina, the ICRC reminded “all the parties to the conflict that they bear full responsibility for all abuses [of IHL] committed by the forces on the territory under their control”.
International Institute of Humanitarian Law
In 1995, in its comments submitted to the UN Secretary-General on the Turku Declaration of Minimum Humanitarian Standards, the International Institute of Humanitarian Law stated that “it would be important to underline the responsibility for acts which cause suffering”. It suggested that an article be inserted which could read: “Any de jure or de facto authority is responsible for the acts committed by their agents, including acts which adversely affect the basic human rights of any person in emergency situations.”