CYIL vol. 12 (2021)
CYIL 12 (2021) STATE RESPONSIBILITY AND THE ACTS OF NON-STATE ACTORS … may, however, vary according to the factual circumstances of each case. The Appeal Chamber failed to see who in each and every circumstance international law should require a high threshold for the test of control. In the Tadic case, the Appeal Chamber found that the 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 ”. 13 Furthermore, in the Tadic case, it was stated that the ICJ approach should not be approved in the Nicaragua case. However, the legal nature and factual situation in the case of Tadic was different from the cases that ICJ had dealt with. The International Criminal Tribunal in the Tadic case dealt with individual criminal responsibility, not the responsibility of the state, and the question in the Tadic case did not concern responsibility, but the question of the application of the rules of international humanitarian law. 14 As stated in the commentaries of the International Law Commission’s Draft Articles on Responsibility of States for International Wrongful Acts (ARSIWA), it is a matter of assessment in each specific case or not whether a particular conduct of the state was conducted under the control of the state to such an extent that the controlled conduct can be attributed to the state. 15 Furthermore, the Commission’s commentary states that the problem with the attribution of state behaviour concerned a number of cases, such as the Iran-United States Claims Tribunal, etc. 16 Article 11 of the Articles on Responsibility of States of 2001 is also related to the non- state actors. Under that provision, the conduct which is not attributable to the state under the preceding Articles is considered to be conduct by the state under international law to the extent that the state recognizes and accepts the conduct as its own . In a 2001 comment from the ARSIWA, regarding the case of Adolf Eichmann of 1960, when Eichmann was captured by a group of Israelis in Buenos Aires, was referred to as the adoption of private conduct. The commentary states that if those who captured Eichmann acted under the direction and control of Israel, the conduct would be attributable to the state under Article 8. In the given case, the subsequent adoption of the given behaviour by the state is decisive. 17 The commentary further notes the case of Diplomatic and Consular Staff in Tehran 18 as an example of Article 11. In this case, a group of about 3,000 students broke into the US embassy in 1979. Iranian police and security forces did nothing to prevent them from entering the embassy rooms and did not take any further action. The Iranian state was not responsible for the students’ behaviour in this first phase. The occupation of the embassy and later the occupation of the US consulates in Iran took a long time. Not only that the Iranian authorities did nothing, but they even approved the behaviour of the students through their spiritual leader, Ayatollah Khomeini. By approving these acts and deciding on their continuation, the authorities of the Iranian state acquired the continued occupation of the embassy and the continued hostage-taking of the state’s behaviour. According to the 13 Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, p. 48. 14 Ibid. 15 Ibid. 16 Ibid. 17 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, p. 53. 18 Case Concerning U.S. Diplomatic and Consular Staff in Teheran ( U.S v. Iran ) I.C.J. Reports 1980, p. 3.
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