Yugoslavia, Socialist Federal Republic of
Practice Relating to Rule 149. Responsibility for Violations of International Humanitarian Law
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.
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:
18.104.22.168. 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 …
22.214.171.124. 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.
126.96.36.199. Acts of a State are understood to mean, primarily, acts of State organs.
188.8.131.52. 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.
184.108.40.206. 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.
220.127.116.11. 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 …
18.104.22.168. 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.
22.214.171.124. 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.
126.96.36.199. 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.
188.8.131.52. 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.
184.108.40.206. 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.
220.127.116.11. Such endorsement must be explicit and must refer to specific acts.
18.104.22.168. 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.
22.214.171.124. 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.
126.96.36.199. 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.
188.8.131.52. 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.
184.108.40.206. 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
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”.