CYIL vol. 11 (2020)

MILAN LIPOVSKÝ CYIL 11 (2020) The difference between assimilated organs and organs de facto is that the assimilated organs may not do anything unless the parent state decides. The de facto organs may possibly do other things but only those that the parent state instructs or effectively controls, are attributable to it. 28 There has been considerable evolution as to the classification of an armed conflict based on the involvement of another state in a non-international armed conflict by supporting an armed group fighting in the conflict in the last three decades. Both the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia expressed their opinions that were often contradictory, and it is necessary to explain their positions before making any conclusions The differences between those two tribunals revolved particularly around two issues, both of them subissues of the need to establish whether a conflict is international or non- international – i) whether the same rules of international law apply to state responsibility and individual criminal responsibility, and ii) what level of control by the supporting state is necessary to be established in order to find the armed groups acting as organs of the state. 3.2 One or two tests for state and individual responsibility? The ICTY Appeals Chamber implicitly claimed in the Tadić case that there is a uniform set of rules applicable to both state responsibility and individual criminal responsibility, i.e. a rule establishing the conditions under which someone may become a de facto organ of a state (in this case it also includes what this article calls assimilated organs). 29 Thus, the same set of rules may answer two questions – whether the acts of an armed group are attributable to the supporting state as well as whether there is an international armed conflict or not. By doing so, the Appeals Chamber rejected the approach suggested by the Prosecutor who claimed the opposite. Interestingly though, not in such a precise and structured way as the ICTY. Later in the Bosnian genocide case, the ICJ adopted the Prosecutor’s approach when it confirmed that though, the test developed by the Appeals Chamber may very well be suitable for individual criminal responsibility, it is not for state responsibility issues. 30 There has been another controversy related to the test though. While in the Bosnian genocide case the ICJ refers to the Nicaragua judgment as confirming the existence of a category of assimilated organs as opposed to the de facto organs, one has to admit that the reasoning in the Nicaragua judgment is not very clear in this way and reading the Nicaragua judgment as hinting to the existence of such category, is more a wish than reality. In fact, in the Nicaragua judgment, the ICJ mixes complete dependency with other forms of attribution and does not distinguish between them properly. Its reasoning may be read as to hinting otherwise but only if one wishes to read it contrary to its contextual sense. One has to agree with the ICTY Appeals Chamber that refused the Prosecutor’s claim established exactly on this kind of “wish” on proving the existence of complete dependency based on the Nicaragua 28 The wording may be interpreted so in 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. 400. 29 ICTY, Prosecutor v. Dusko Tadić , IT-94-1-A, ACh, judgment of 15 July 1999, paras. 104-105. 30 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. 406.

320