CYIL vol. 12 (2021)
jan ondřej CYIL 12 (2021) paramilitary activities in and against Nicaragua. 6 The question was whether the behaviour of the Contras was attributable to the United States to be generally responsible for violations of international humanitarian law committed by the Contras. It was analysed in terms of the term control . On the one hand, the US was responsible for planning, managing, and supporting the Contras. However, Nicaragua’s broader claim that all behaviour of the Contras was attributable to the United States because of their control over them was rejected. 7 The International Court of Justice (ICJ) has ruled that US involvement in financing, organizing, training, supplying, and arming Contras, in selecting their military and paramilitary targets, or in planning their entire operations, even if they were large-scale or decisive, is in itself insufficient, so that, on the basis of the evidence available to the ICJ, to the United States can be attributable acts of the Contras committed during its military and paramilitary operations in Nicaragua. Such acts could well be committed by members of the Contras even without US control . “ 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 ” 8 . In order for such conduct to give rise to US legal responsibility, it would in principle be necessary to prove that the state had effective control over military and paramilitary operations in which the alleged violations took place. 9 The ICJ thus required the fulfilment of the requirement of truly effective control , general control of the state over the given behaviour would not be sufficient. The ICJ also expressed the requirement for effective control for attribution to the state’s behaviour in the case of Bosnia and Herzegovina v. Serbia and Montenegro 10 of 2007. The ICJ stated that it must be demonstrated that they acted in accordance with the state’s instructions or under its effective control. It must be demonstrated that effective control has been carried out or that instructions have been given in relation to each operation in which the alleged infringements have taken place, not least in relation to the overall conduct of the persons or groups who committed the infringements. 11 The Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia reached a different conclusion in the Tadic case. 12 In the Tadic case, the Senate emphasized that the requirement of international law for the attribution to states of the acts performed by private individuals, is that the state exercises control over individuals. The degree of control 6 Military and Paramilitary Activities in und against Nicaragua ( Nicaragua v. United States of America ). Merits, Judgment. I.C.J. Reports 1986, p. 14. 7 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, p. 47. 8 Military and Paramilitary Activities in und against Nicaragua ( Nicaragua v. United States of America ). Merits, Judgment. I.C.J. Reports 1986, para. 115. 9 Ibid. 10 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Yugoslavia ), ICJ Reports 2007, para. 391. 11 Ibid., para. 150. 12 Prosecutor v. Dusko Tadič , Decision on the Defence Motion for Intercutory Appeal on Jurisdiction, ICTY No. IT-94-1-AR 72 reprinted at 35 I.L.M 32, at 48(1996).
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