CYIL vol. 11 (2020)

CYIL 11 (2020) THE CLASSIFICATION OF ARMED CONFLICTS – INTERNATIONALIZED, … judgment. 31 The ICTY tried to explain that what the ICJ did in Nicaragua by discussing the complete dependency test, was in fact only another way how to find out whether the entities in question were de iure organs of the USA. 32 It is thus quite confusing that the ICJ adopted an approach not explicitly mentioned in ARSIWA, not quite possibly readable into the Nicaragua judgment, and only proposed by the ICTY Prosecutor with whom it disagreed in other issues related to this whole matter. All in all, we can establish that the current trend (based on the newest case law of the ICJ regarding the matter) of interpretation confirms the existence of another way of attribution of violations of international law by a non-state entity to a state but only when the entity is completely dependent on the state in question. 3.3 The degree of control Another point of disagreement between the leading judgments was the level of control necessary for the “supporting” state to reach in order for the acts of the armed group to be attributed to it under the attribution test we now have present in Article 8 ARSIWA. In the Nicaragua judgement 33 , the ICJ clearly stated that the level of control needs to be effective . The ICTY famously diverted from the case law of the ICJ, when despite claiming that the degree of control needs to be found by researching the law of state responsibility, 34 then found a different standard than the ICJ for the same matter. The ICTY persuasively (and much more than the ICJ) argued that the law of state responsibility also contains other degrees of control (other than the effective test preferred by the ICJ). Though some of its examples sometimes seem to be different from establishing the control of a state over a non- state group, others it mentioned are much more fitting (e.g. the transformation of militants into organs of a state in the Hostages case 35 ). Consequently, the ICTY deduced that when it comes to the level of control necessary, the degree 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 [i.e. whether the state had an effective control over them]; 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) [i.e. the state must have had an overall control over them]. 36 31 ICTY, Prosecutor v. Dusko Tadić , IT-94-1-A, ACh, judgment of 15 July 1999, paras. 106-107. 32 ICTY, Prosecutor v. Dusko Tadić , IT-94-1-A, ACh, judgment of 15 July 1999, para. 113. 33 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment in merits, ICJ Reports 1986, p. 14. 34 ICTY, Prosecutor v. Dusko Tadić , IT-94-1-A, ACh, judgment of 15 July 1999, para. 98. 35 ICJ, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), judgment, ICJ Reports 1980, p. 3. 36 ICTY, Prosecutor v. Dusko Tadić , IT-94-1-A, ACh, judgment of 15 July 1999, para. 137.

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