PIL Week 3 Assignment
Assignment 1
(i) On 17 July 2014, rebel forces in Eastern Ukraine shot down the Malaysian Airlines
civilian aircraft (MH 17), thus killing 298 people. Familiarise yourself with the factual
circumstances of this tragic event (you may also wish to consult this page) and (i) explain
whether (and under which circumstances) the conduct is attributable under the law of
state responsibility to:
a. Ukraine:
Steps: international legal capacity/legal personality; IL obligation; attribution; breach; justification/excuse
As a State, Ukraine enjoys international legal capacity and thus has a duty of care/international minimum
standard (Corfu Channel Case). Should they have shut down the international airspace given the information
they had?
b. Russia:
Under the ILC on Responsibility of States for Internationally Wrongful Acts Art.4 concerns conduct of an organ
of a State, are the rebels to be considered an organ of Russia? Defacto organ – unlikely.
Art.8: concerns the conduct of a group of persons acting on the instructions of or under the control of that State.
Linked with the Nicaragua case, this means that there must be effective control (high threshold) in order for this
to apply. Do the rebels appear to be under the direct control of Russia?
Art.11: Conduct that has not been attributed to a State but the State acknowledges and adopts the conduct as its
own shall thus be attributed to the State. Russia has so far denied any responsibility for the shooting of the
plane.
It is thus, extremely difficult to argue that Russia is completely liable for the shooting of the plane since one of
these articles would have to be argued to be applicable.
c. the rebels?
They are pro-Russian since they are fighting for independence from Ukraine. They are using weapons that are
supplied by Russia. The rebels themselves cannot be liable for the attack since they do not have international
legal personality.
(ii) Regardless of what you concluded in (i), explain what happens if the conduct cannot
be attributed to any state. Is it still internationally wrongful?
The criteria of an internationally wrongful act are: international legal capacity/legal personality; IL obligation;
attribution; breach; justification/excuse.
Without these steps then there can be no internationally wrongful act. Hence, if there is no attribution then there
cannot be an internationally wrongful act which is punishable.
(iii) Would your reasoning in (i) change had the missile been fired from the territory of
Crimea?
Controlled and governed as part of the Russian Federation (except Ukrainian controlled part of Arabat Spit),
though internationally recognisedas part of Ukraine.
Assignment 2
i) Explain how the attribution test applied by the ICTY in Tadić differs from the
attribution test developed by the ICJ in Nicaragua.
, Attribution test in Tadic: In Tadi ć the International Criminal Tribunal’s Appeals Chamber was not
concerned with a question of state responsibility, as the ICJ rightly stressed in Bosnia v. Serbia . It only had to
establish whether the Prosecutor was right in challenging a Trial Chamber’s ruling (under such ruling Tadi ć
was not criminally liable under Article 2 of the ICTY Statute for committing grave breaches of the Fourth
Geneva Convention, because Article 2 only applies to international armed conflict whereas that in which Tadi ć
was involved was internal). The Appeals Chamber therefore had to determine whether the conflict was
international, as claimed by the Prosecution in its appeal, for the purpose of establishing whether the Trial
Chamber could exercise its jurisdiction over those alleged grave breaches. Since the conflict pitted Bosnian Serb
military and paramilitary units against Bosnian Muslims, it proved necessary in order to determine whether it
was in fact international in nature to establish whether those Bosnian Serb units were acting on behalf of the
Federal Republic of Serbia; in the affirmative, the conflict was to be classifi ed, as claimed by the Prosecution,
as international (between Bosnia-Herzegovina and the FRY), and consequently the ICTY Statute provisions on ‘
grave breaches ’ of the Geneva Conventions could apply.
Since the obvious requirement for imputability was control by the state to which acts were to be attributed, the
Chamber noted that the degree of control was not required to be rigidly the same for any relationship, but could
vary depending on circumstances. The Chamber thus, based on a careful investigation of judicial and state
practice, identifi ed two degrees of control :
(i) one for acts performed by private individuals engaged by a state to perform specifi c illegal acts in
the territory of another state (or for individuals commissioned to carry out legal actions, who act
however ultra vires breaching international law); for such actions specifi c instructions concerning
the performance of each action were required in order to attribute the action to the instructing state,
or else subsequent public approval of each specifi c action or conduct was required (paras 118 –
119, 141); this was clearly the ‘ effective control ’ test set out by the ICJ in Nicaragua . The
Appeals Chamber showed that this test was based on state practice, which however supported its
applicability solely in instances of single individuals acting on behalf of a state; 16
(ii) (ii) another degree of control over actions by organized and hierarchically structured groups , such
as military or paramilitary units; in this case overall control by the state over the group was suffi
cient, hence specifi c instructions were not required for each individual operation (para. 120). Such
‘ overall control ’ resided not only in equipping, fi nancing or training and providing operational
support to the group, but also in coordinating or helping in the general planning of its military or
paramilitary activity (paras 131, 137).
Attribution test in Nicaragua: In Nicaragua the Court distinguished between two classes of individuals
not having the status of de jure organs of a state but nevertheless acting on behalf of that state: (1) those totally
dependent on the foreign state – paid, equipped, generally supported by, and operating according to the ‘
planning and direction’ of organs of that state (these were the UCLAS in that case) 6 ; (2) persons who,
although paid, financed and equipped by a foreign state, nonetheless retained a degree of independence of that
state (these were the Nicaraguan rebels, or contras ). 7 The Court stated that acts performed by the fi rst class of
persons were to be clearly attributed to a foreign state (the US). As for acts of the contras , the Court took a
certain position when discussing acts of such rebels involving a violation of the obligations not to intervene in
the internal affairs of other states and to refrain from the use of force, whereas it took a different stand with
regard to acts performed by contras in breach of rules of international humanitarian law.
ii.) Do you agree with the ICJ’s reasoning in Bosnian Genocide (focus on paras 403- 407 of
the Bosnian Genocide case) and its reasons to reject the ICTY’s attribution test in Tadić?
403. The Court has given careful consideration to the Appeals Cham- ber’s reasoning in
support of the foregoing conclusion, but finds itself unable to subscrib55556665tg e to
the Chamber’s view. First, the Court observes that the ICTY was not called upon in the
Tadic ́ case, nor is it in general called upon, to rule on questions of State responsibility,
since its jurisdiction is criminal and extends over persons only. Thus, in that Judgment
the Tri- bunal addressed an issue which was not indispensable for the exercise of its
jurisdiction. As stated above, the Court attaches the utmost impor- tance to the factual
