CYIL vol. 11 (2020)

CYIL 11 (2020) THE CLASSIFICATION OF ARMED CONFLICTS – INTERNATIONALIZED, … 3. The internationalization of a non-international armed conflict by another State supporting the armed group(s) 3.1 Terminology Before going on to a discussion regarding the case law, it is necessary to establish terminology. Unfortunately, the various judgments (as well as doctrine) do not use a uniform terminology and thus the following text will use the one established here, despite it not necessarily being the same as in some of the judgments. What is now understood by Article 4 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) 22 , is clearly a de iure organ of a state . That means that it is an entity recognized by the domestic law of a state as its own organ. Unfortunately, the term of organ de facto of a state is not so straightforward. Some understand it to represent what Article 8 ARSIWA describes 23 but recent ICJ case law clearly does not. 24 In the Bosnian genocide judgment, the ICJ described the de facto organs of a state as those that are completely dependent on the state to which their activities are supposed to be attributed. It explains that de facto organs of a state are “ persons – or group of persons – who, while they do not have the legal status of State organs [de iure] , in fact act under such strict control by the State that they must be treated as its organs for purposes of the necessary attribution .” 25 While referring to the Nicaragua judgment, its reasoning hints that this strict control means that the de facto organ is one which is completely dependent on the parent state and distinguished from what Article 8 ARSIWA now represents. This level of dependence is in fact extremely high and can only be established under very limited circumstances. A margin of independence (as the ICJ refers to it), even when the support by a parent state is so important that its lack of would disrupt crucial operations, would cause the test to be missed. 26 Due to this high standard, we will call this category as assimilated organs . Article 8 ARSIWA is treated independently, i.e. not as defining assimilated organs of a state. The applicable mechanism consists of instructions, direction, or control. Despite the ICJ not actually calling this mechanism de facto organs , we will stick to it as it is widely understood as such in doctrine. The ICJ explained that complete dependence is not necessary for what we call here de facto organs. What is needed is to prove that the person(s) “ acted in accordance with the State’s instructions or under its ‘effective control’ .” 27 Interestingly, the term “direction” is avoided, though it is present in Article 8 ARSIWA, probably because it may fit under both instructions and control. 22 ILC, Articles on Responsibility of States for Internationally Wrongful Acts, 2001, available online on URL https://legal.un.org/ilc/texts/9_6.shtml. 23 Including the ICTY which used the term de facto state officials when it was in fact considering control under Article 8 ARSIWA. ICTY, Prosecutor v. Dusko Tadić , IT-94-1-A, ACh, judgment of 15 July 1999. 24 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, ICJ Reports 2007, p. 43, paras. 397. 25 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, ICJ Reports 2007, p. 43, paras. 391. 26 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, ICJ Reports 2007, p. 43, para. 394. 27 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, ICJ Reports 2007, p. 43, para. 400.

319