I. INTRODUCTION
Over the last 25 years, several secessionist entities have been created and maintained with the assistance of outside powers. In 1983, the Turkish Cypriots established the Turkish Republic of Northern Cyprus in the northern part of the Republic of Cyprus occupied by Turkish troops. In the wake of the break-up of the former Yugoslavia in the early 1990s, the Serb community in Croatia, assisted by Serbia, proclaimed the Serbian Republic of Krajina, and the Serb and Croat population in Bosnia and Herzegovina founded the Republika Srpska and the Republic of Herceg-Bosna with the help, respectively, of Serbia and Croatia.Footnote 1 At the same time, the dismemberment of the Soviet Union led to the creation of various secessionist entities in the territories of the successor States: South Ossetia and Abkhazia separated from Georgia, and in Moldova the breakaway republic of Transdniestria was established, all with Russian assistance, while the region of Nagorno-Karabakh declared its independence from Azerbaijan with the help of Armenia. Five of these internationally unrecognized secessionist entities are still in existence today. The parent State from whose territory these secessionist entities have been carved out by military means or, depending on the circumstances, any other injured State or private individual may consider holding the outside power directly or indirectly sponsoring and supporting these entities responsible for conduct violating international law perpetrated by their authorities. Thus, on 12 August 2008 Georgia instituted proceedings against the Russian Federation before the International Court of Justice (ICJ) to establish its international responsibility for alleged acts of racial discrimination against the ethnic Georgian population in South Ossetia and Abkhazia by, inter alia, ‘the de facto South Ossetian and Abkhaz separatist authorities […] supported by the Russian Federation’.Footnote 2
In order to establish the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, it must be shown that the territorial scope of application of the outside power's international obligation extends beyond its own territory to that of the secessionist entity, ie that the international obligation in question can be applied extraterritorially,Footnote 3 and that the acts or omissions of the secessionist entity which violate that obligation are attributable to the outside power.Footnote 4 The relevant rules on attribution of a secessionist entity's conduct to an outside power for the purpose of determining its international responsibility are laid down in Articles 4 to 8 and 11 of the International Law Commission's Articles on Responsibility of States for International Wrongful Acts (ILC Articles on State Responsibility),Footnote 5 which are widely considered to reflect customary international law.Footnote 6
The secessionist entities' authorities will not usually qualify as ‘persons or entities’ which have the status of de jure organs of the outside power under its internal law.Footnote 7 They will not normally belong to the formal State apparatus of the outside power and will not act as such. Even the provision of substantial financial or logistical support, including the payment of salaries, pensions, and other benefits to some of its officials, does not automatically make the secessionist entity or its officials de jure organs of the outside power, since the officials will ordinarily receive their orders from, and will exercise elements of the public authority of, the secessionist entity and not that of the outside power.Footnote 8 In addition, the authorities of the secessionist entity will not, as a rule, be empowered by the law of the outside power to exercise elements of that power's governmental authority.Footnote 9
It will also be difficult to prove that State organs of the outside power directly took part in activities of the secessionist entity or that the political leaders of the outside power had a hand in preparing, planning or in any way carrying out a certain activity.Footnote 10 Even officials, military units or other de jure organs of the outside power transferred, or sent as ‘volunteers’ on temporary assignment, to the secessionist entity and operating in or from its territory need not necessarily incur the international responsibility of the outside power if it can be shown that they have been placed at the disposal of the secessionist entity.Footnote 11 As the ICJ pointed out in the Bosnian Genocide case, ‘the act of an organ placed by a State at the disposal of another public authority [which need not necessarily be another recognized State] shall not be considered an act of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed.’Footnote 12 It would have to be shown that the personnel seconded to the secessionist entity received orders from the outside power which circumvented or overrode the authority of the secessionist entity.Footnote 13 Conversely, it will be equally difficult to establish that officials or organs of the secessionist entity have been placed at the disposal of the outside power making them subject to the latter's exclusive direction and control.
Although the outside power may condone or even politically approve of the alleged international wrongful conduct of the secessionist entity, in practice it will be rather unusual for the outside power openly and clearly to ‘acknowledge and adopt the conduct in question as its own.’Footnote 14 On the contrary, the outside power will point to the secessionist entity's de facto independence or its status as an independent State responsible for its own acts and omissions.Footnote 15 Congratulatory or approving statements following the wrongful conduct will not be enough to engage the responsibility of the outside power.Footnote 16
When called upon to determine the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, international courts and tribunals usually examine whether the authorities of the secessionist entity were ‘controlled’ by the outside power when performing the internationally wrongful conduct.Footnote 17 The question of whether or not an act of a secessionist entity can be attributed to an outside power thus becomes a question of how one defines ‘control’. The test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of ‘the fragmentation of international law’.Footnote 18 The ICJ, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the European Court of Human Rights (ECtHR) have all developed and applied their own tests in order to establish whether a secessionist entity has been ‘controlled’ by an outside power. There is a lot of confusion about the various tests, usually referred to as the ‘effective control’, ‘overall control’ and ‘effective overall control’ tests. This article sets out the various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.
II. THE TWO CONTROL TESTS DEVELOPED BY THE INTERNATIONAL COURT OF JUSTICE
The literature and decisions of other international courts, with very few exceptions,Footnote 19 refer only to one test in connection with the ICJ—the ‘effective control’ test.Footnote 20 The ICJ, however, has in fact applied two different ‘tests […] of control’Footnote 21 in the two leading cases on the subject: the Nicaragua caseFootnote 22 and the recently decided Bosnian Genocide case,Footnote 23 with the latter shedding some light on the ruling in the former. While the first case concerned the responsibility of the United States of America for acts of the contras, an armed opposition group operating in and against Nicaragua, the second case dealt more squarely with the responsibility of Serbia and Montenegro for the activities of the Republika Srpska, a secessionist entity that had been created in 1992 with the assistance of the Federal Republic of Yugoslavia (FRY)Footnote 24 in the territory of Bosnia and Herzegovina and that ‘enjoyed some de facto independence’.Footnote 25
According to the ICJ, control results from dependence or, looking at it from the other side, dependence creates the potential for control.Footnote 26 Dependence and control are thus two sides of the same coin.Footnote 27 For the Court, the question of responsibility is a question of ‘degree’, namely the secessionist entity's ‘degree of dependency’ on the outside power, which, in turn, is indicative of the outside power's ‘degree of potential control’ over the secessionist entity, and the ‘degree of control’ the outside power actually exercises over the secessionist entity.Footnote 28 The ICJ distinguishes two degrees of control and dependency—strict control based on complete dependence and effective control in cases of partial dependence—which, in turn, give rise to two control tests which may be referred to as the ‘strict control’ and ‘effective control’ tests.Footnote 29
A. The ‘Strict Control’ Test
If called upon to decide whether an outside power is responsible for the internationally wrongful conduct of a secessionist entity, the ICJ will first determine whether or not the secessionist entity is ‘under such strict control’ by the outside power,Footnote 30 that is, whether the relationship of the secessionist entity to the outside power is ‘so much one of dependence on the one side and control on the other’ that it will be right to equate the authorities of the secessionist entity, for legal purposes, with a de facto organ of the outside power that acts on its behalf.Footnote 31 This raises the question of when the authorities of a secessionist entity are ‘under such strict control’ of the outside power that they may be equated with the authorities of the outside power. In the Nicaragua case, the ICJ identified three requirements of strict control:
(1) The secessionist entity must be completely dependent on the outside power.
(2) This complete dependence must extend to all fields of activity of the secessionist entity.
(3) The outside power must actually have made use of the potential for control inherent in that complete dependence, ie it must have actually exercised a particularly high degree of control.
For the secessionist entity to be equated with a de facto organ of the outside power according to the ‘strict control’ test, all three requirements must be fulfilled.
First, the secessionist entity must be ‘completely [totally or wholly] dependent’ on the outside power in order to create the potential for strict control which is inherent in complete dependence.Footnote 32 Complete dependence means that the secessionist entity is ‘lacking any real autonomy’ and is ‘merely an instrument’ or ‘agent’ of the outside power through which the latter is acting.Footnote 33 The use of the same currency or the fact that the leadership and large parts of the population of the secessionist entity have held, hold, or may claim the nationality or citizenship of the outside power, in and of themselves, is not sufficient to make the secessionist entity an ‘agent’ of the outside power. The same is true for the payment of salaries, pensions, and other benefits to the leaders of the secessionist entity. In general, close political, military, economic, ethnic or cultural relations between the outside power and the secessionist entity, and the provision of logistical support in the form of weapons, training and financial assistance do not, without further evidence, establish a relationship of complete dependence. This is so even if the secessionist entity and the outside power share largely complementary military or political objectives, or pursue the same end of ultimately incorporating the secessionist entity into the outside power. Common objectives may make the secessionist entity an ally, albeit a highly dependent ally, of the outside power, but not necessarily its organ.Footnote 34 In no case does the maintenance of some unspecified ‘ties’ or a ‘general level of coordination’ between the outside power and the secessionist entity, or the notion of ‘organic unity’ between the two, suffice.Footnote 35
In Nicaragua, the ICJ identified two factors from which ‘complete dependence’ may be inferred. The fact that the outside power conceived, created and organized the secessionist entity, or the armed opposition group that established the secessionist entity, seems to establish a strong presumption that the secessionist entity—as its creature—is completely dependent on the outside power and is nothing more than its instrument or agent.Footnote 36 However, it is not sufficient that the outside power merely took advantage of the existence of a secessionist movement and incorporated this fact into its policies vis-à-vis the parent State.Footnote 37 Complete dependence on the outside power is also demonstrated if the multifarious forms of assistance (financial assistance, logistic support, supply of intelligence) provided by it are crucial to the pursuit of the secessionist entity's activities. The secessionist entity is completely dependent upon the outside power if it cannot conduct its activities without the multi-faceted support of the outside power and if the cessation of aid results, or would result, in the end of these activities.Footnote 38 In the Nicaragua case, the ICJ distinguished between the initial and later years of United States assistance to the contras. It found that the contras were initially completely dependent on the United States, but that this was not the case later on, as contra activity continued despite the cessation of United States military aid.Footnote 39 Where the secessionist entity has some qualified, but real, margin of independence as evidenced, for example, by differences with the outside power over strategic options, a state of complete dependence cannot be assumed.Footnote 40 In addition to the two factors identified by the ICJ, the complete integration of the territory of the secessionist entity into the administrative, military, educational, transportation and communication systems of the outside power, leading to a de facto annexation of the secessionist entity, will also signify a state of complete dependence.
Secondly, this complete dependence must extend to ‘all fields’ of the secessionist entity's activity.Footnote 41 For this, it must be shown that ‘all or the great majority of […] activities’ of the secessionist entity received this multi-faceted support from the outside power.Footnote 42 Only in fields where assistance is provided by the outside power can there be complete dependence and thus potential for strict control, for example, by way of cessation of aid.Footnote 43 That the secessionist entity cannot ‘conduct its crucial or most significant […] activities’ without the assistance of the outside power is not enough to establish its total dependence on the outside power.Footnote 44 It is this complete dependence across the board that distinguishes a de facto organ from other persons and entities whose conduct may, on a case-by-case basis, be attributed to the outside power.
Thirdly, the outside power must actually have ‘made use of the potential for control inherent in that [complete] dependence’.Footnote 45 Dependence alone, even complete dependence, is not sufficient to hold the outside power responsible for the internationally wrongful conduct of the secessionist entity. A relationship of dependency establishes nothing more than the potential for control.Footnote 46 The outside power must have made use of that potential and actually exercised a particularly high degree of control over the secessionist entity. Coordination of activities and cooperation are not the same as control.Footnote 47 The outside power must have wholly devised the strategy and tactics of the secessionist entity.Footnote 48 For this to be established, it is not sufficient that the outside power provides advisers who participate in the planning of a number of military or paramilitary operations and the discussion of strategy or tactics, supplies the secessionist entity with intelligence and logistic support for its activities,Footnote 49 or provides funds coinciding with the launch of a new offensive or a certain activity.Footnote 50 However, it is not necessary that the outside power actually exercises strict control over the particular activity during which the internationally wrongful conduct occurs; what is important is that such control is exercised in general. This distinguishes the ‘strict control’ from the ‘effective control’ test.Footnote 51 In the case of the former, it is the general relationship of complete dependence on the one side and strict control on the other which allows the Court to equate the authorities of the secessionist entity, for legal purposes, with a de facto organ of the outside power.
The attribution of conduct of any State organ (either de jure or de facto) is governed by rules of customary international law which are reflected in Articles 4 and 7 of the ILC Articles on State Responsibility.Footnote 52 All acts committed by the authorities of the secessionist entity in their capacity as de facto organs of the outside power, even those ultra vires, are thus attributable to the outside power.Footnote 53 The likelihood of attributing the conduct of a secessionist entity to an outside power is thus much higher if the strict control test is satisfied. However, as the Court pointed out in the Bosnian Genocide case, ‘to equate persons or entities with State organs when they do not have that status under internal law must be exceptional’.Footnote 54 The required proof of ‘complete dependence’ of the secessionist entity on the one side and the ensuing ‘particularly high degree of control’ of the outside power on the other will, in most cases, be very difficult, if not impossible, to advance.Footnote 55 It is for this reason that discussion normally focuses on the second test developed by the ICJ—the ‘effective control’ test.
B. The ‘Effective Control’ Test
The ‘effective control’ test is, in effect, a subsidiary test.Footnote 56 The ICJ only resorts to it when it has found that the requirements of the ‘strict control’ test for the determination of an agency relationship cannot be proved.Footnote 57 The ICJ thus does not use the ‘effective control’ test to determine whether a person or group of persons qualifies as a de facto organ of a State.Footnote 58 The Court applies the ‘effective control’ test in cases where there is evidence of ‘partial dependency’ of the secessionist entity on the outside power. Such partial dependency may be inferred, inter alia, from the provision of financial assistance, logistic and military support, supply of intelligence, and the selection and payment of the leadership of the secessionist entity by the outside power.Footnote 59 Partial dependence also creates potential for control, albeit for a more limited degree of control than in situations of complete dependence. However, unlike complete dependence, partial dependence does not allow the Court to treat the authorities of the secessionist entity as a de facto organ of the outside power whose conduct as a whole can be considered acts of the outside power. Instead, responsibility for specific conduct has to be established on a case-by-case basis. Responsibility cannot be incurred simply owing to the conduct of the authorities of the secessionist entity but must be incurred owing to the conduct of the outside power's own de jure organs.Footnote 60 The relevant conduct to consider is the exercise of ‘effective control’ by the de jure organs of the outside power over the authorities of the secessionist entity. Furthermore, the object of control is no longer the secessionist entity but the activities or operations giving rise to the internationally wrongful act. Here the applicable rule, which is one of customary law of international responsibility, is laid down in Article 8 of the ILC Articles on State Responsibility as follows:
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.Footnote 61
In the relationship between the outside power and the secessionist entity, the focus shifts from the question of dependence to the question of control.Footnote 62 For the internationally wrongful conduct of the secessionist entity to be attributed to the outside power, it must be shown that organs of the outside power exercise ‘effective control’ of the particular operation or activity in the course of which the conduct has been committed.Footnote 63 Control must not be confused with ‘support’.Footnote 64 It requires that the outside power is involved in planning the operation, choosing targets, giving specific directives and instructions, and providing operational support.Footnote 65 It is argued that the outside power must be able to control the beginning of the operation, the way it is carried out, and its end. It does not suffice in itself that the outside power exercises ‘general control’ over the secessionist entity, even in cases of a ‘high degree of dependency’ of the secessionist entity on the outside power.Footnote 66 Similarly, unspecified claims of ‘involvement’ or ‘direct participation’ in certain of the secessionist entity's actions will not be enough to establish effective control over a particular activity or operation.Footnote 67 In the case of composite acts, which are committed through a series of actions or omissions, effective control must be exercised in relation to each action or omission constituting the wrongful act.Footnote 68
While the burden of proof for the ‘effective control’ test is lower than that for the ‘strict control’ test, in practice it is still extremely difficult to establish the exercise of effective control by the outside power over individual operations or activities of the secessionist entity. The ICTY Appeals Chamber and the European Court of Human Rights did not follow the jurisprudence of the ICJ largely for this reason, and instead developed different control tests, requiring ‘a lower degree of control’,Footnote 69 which allowed them to attribute the acts of secessionist entities to outside powers under the customary law of State responsibility.
III. THE ‘OVERALL CONTROL’ TEST OF THE ICTY APPEALS CHAMBER
Under Article 2 of its Statute, the ICTY has jurisdiction to prosecute, inter alia, persons committing or ordering to be committed ‘grave breaches’ of the Geneva Conventions of 12 August 1949.Footnote 70 For that power to be exercised, the armed conflict in which those grave breaches have been committed must be of an ‘international’ character.Footnote 71 In the Tadić case, the ICTY was called upon to decide whether the accused could be found guilty of grave breaches of the Geneva Conventions during the armed conflict in Bosnia and Herzegovina after 19 May 1992, the date of the formal withdrawal of the Yugoslav People's Army from the territory of Bosnia and Herzegovina. This depended, inter alia, on whether the acts of the armed forces of the Republika Srpska, a Bosnian Serb secessionist entity within the territory of Bosnia and Herzegovina fighting the recognized Government of that State, could be attributed to an outside power, that is the Federal Republic of Yugoslavia, thus making a prima facie internal armed conflict an international one. While the Trial Chamber, supposedly applying the ‘effective control’ test enunciated by the ICJ in the Nicaragua case,Footnote 72 found that the conduct of the armed forces of the Republika Srpska could not be attributed to the Federal Republic of Yugoslavia and that, for that reason, the armed conflict in Bosnia and Herzegovina was not of an international character, the Appeals Chamber reached the opposite conclusion. Both chambers based their ruling on the ‘general international rules on State responsibility which set out the legal criteria for attributing to a State acts performed by individuals not having the formal status of State officials.’Footnote 73 Although concerned with questions of individual criminal responsibility, the ICTY chambers thus framed the question as one of State responsibility, in particular whether the Federal Republic of Yugoslavia was responsible for the acts of the armed forces of the Republika Srpska.Footnote 74
The Appeals Chamber held that the conduct of the Bosnian Serb armed forces could be attributed to the Federal Republic of Yugoslavia, on the basis that these forces ‘as a whole’ were under the overall control of that State.Footnote 75 To reach this conclusion, the Appeals Chamber partly discarded the ICJ's ‘effective control’ test which it held ‘not […] to be persuasive’ in the case of organized groups,Footnote 76 and instead applied a test of ‘overall control’.Footnote 77 According to the Appeals Chamber, the ‘requirement of international law for the attribution to States of acts performed by private individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case.’Footnote 78 While the ‘effective control’ test may be applied with regard to ‘private individuals’ or ‘unorganized groups of individuals’,Footnote 79 in the case of ‘individuals making up an organized and hierarchically structured group’, ie a military unit or, in a case of civil strife, armed bands of irregulars or rebels, a military or paramilitary group, a military organization, or a secessionist or de facto State entity, the appropriate test for attributing the acts to a State was that of ‘overall control’ of the State over the group.Footnote 80 This alternative test was justified because the situation of an organized group was different from that of private individuals. The former normally had a structure, a chain of command, and a set of rules, as well as the outward symbols of authority, and was engaged in a series of activities. If an organized group was under the overall control of a State, so the Appeals Chamber, the group ‘must perforce engage the responsibility of that State for its activities’.Footnote 81 The Appeals Chamber thus openly went against the ICJ which had applied the ‘effective control’ test to the contras—an organized and hierarchically structured armed opposition group.
In order to attribute the conduct of a secessionist entity to an outside power by applying the ‘overall control’ test, it must be proved that the outside power wields overall control over the entity, not only by financing, training, equipping or providing operational support to it, but also by having a role in organizing, coordinating, planning or directing its military or other activities.Footnote 82 Essentially, there are two parts to the test:
(a) The provision of financial and training assistance, military equipment and operational support;
(b) Participation in the organisation, coordination or planning of military operations.Footnote 83
The provision of economic, military or other assistance, in and of itself, is not sufficient to establish overall control.Footnote 84 The same is true for a ‘strong connection’ between the secessionist entity and the outside power, as evidenced by the ease with which members of the secessionist entity can obtain passports and enjoy the nationality, or vote in elections, of the outside power.Footnote 85 On the other hand, it is not necessary that the outside power also plans or directs the particular operation or activity in the course of which the conduct has been committed, chooses the targets of military operations, or gives specific orders or instructions concerning the various activities of the secessionist entity.Footnote 86 The ‘overall control’ test can be fulfilled, even if the secessionist entity has autonomous choices of means and tactics while participating in a common strategy along with the outside power.Footnote 87 It is thus evidently ‘less strict’ than the ICJ's ‘effective control’ test.Footnote 88
Contrary to the ICJ's view expounded in the Bosnian Genocide case,Footnote 89 the ‘overall control’ test, however, was not intended to replace the Court's ‘effective control’ test in the context of Article 8 of the ILC Articles on State Responsibility but was, in fact, used in lieu of its much more stringent ‘strict control’ test to determine whether a secessionist entity qualified as a de facto State organ in the sense of Article 4 of the ILC Articles on State Responsibility.Footnote 90 The Appeals Chamber in the Tadić case held that, on the basis of the ‘overall control’ test, the Bosnian Serb forces could be regarded as ‘de facto organs’ of the Federal Republic of Yugoslavia.Footnote 91 As such, the Bosnian Serb armed forces engaged its responsibility for all their activities, including those ultra vires, without the need to prove any specific instructions or any other involvement in a particular activity.Footnote 92 In the Nicaragua case, however, only the ‘strict control’ test was concerned with the question of whether the contras could be equated, for legal purposes, with de facto organs of the United States whose conduct as a whole could be attributed to the United States.Footnote 93
The Appeals Chamber's approach was based on a misreading of the ICJ's Nicaragua judgment and a misinterpretation of the rules of customary international law governing State responsibility on which that judgment is grounded.Footnote 94 The Appeals Chamber did not subscribe to the interpretation that had correctly been put forward at the time by the Prosecution and by Judge McDonald in her dissent at the trial stage of the Tadić case, and which has now been confirmed by the ICJ in the Bosnian Genocide case, namely that in the Nicaragua case the Court applied two distinct tests: a ‘strict control’ and an ‘effective control’ test. Instead, the Appeals Chamber treated the ‘effective control’ test as setting out one of the requirements of ‘dependence and control’ which form part of the ‘strict control’ test.Footnote 95 It thereby, in effect, replaced the ‘strict control’ test with the ‘overall control’ test. By equating the authorities of a secessionist entity with the de facto State organs of the outside power simply on the basis of the latter's overall control over the secessionist entity, without establishing a relationship of complete dependence and control, the Appeals Chamber has stretched too far, almost to breaking point, the connection which must exist between the State and its organs, either de facto or de jure.Footnote 96 However, this did not prevent the European Court of Human Rights (ECtHR) from taking matters one step further.
IV. THE ‘EFFECTIVE OVERALL CONTROL’ TEST OF THE EUROPEAN COURT OF HUMAN RIGHTS
The ECtHR has jurisdiction to examine alleged breaches of the rights set forth in the European Convention on Human Rights (ECHR) and the protocols thereto.Footnote 97 Any finding of a breach of the Convention has a twofold requirement: first, that the conduct complained of is that of a High Contracting Party and, secondly, that the victim of the breach has been within its ‘jurisdiction’ in the sense of Article 1 of the Convention.Footnote 98 In case of breach of the ECHR by the authorities of a secessionist entity, the conduct constituting the breach must be attributable to a High Contracting Party and the High Contracting Party must exercise extraterritorial ‘jurisdiction’ over persons within the territory of the secessionist entity.Footnote 99 For example, in the leading case of Loizidou v Turkey, the ECtHR was concerned with two distinct questions: (a) whether, as a result of the presence of a large number of Turkish troops in northern Cyprus, that part of the Republic of Cyprus was within the extraterritorial ‘jurisdiction’ of Turkey, a High Contracting Party of the ECHR, and (b) whether acts and omissions of the authorities of the Turkish Republic of Northern Cyprus (TRNC), an unrecognized secessionist entity established in the Turkish occupied area of northern Cyprus, was ‘imputable to Turkey’ and thus entailed her responsibility under the ECHR.Footnote 100 These two questions, however, are not always clearly kept apart as the Court seizes on the element of ‘control’ to establish both extraterritorial ‘jurisdiction’ and imputability and seems to derive the one from the other.Footnote 101 In the Loizidou case, the ‘imputability issue’ was to be decided ‘in conformity with the relevant principles of international law governing State responsibility’.Footnote 102 The ECtHR held that the conduct of the authorities of the TRNC could be imputed or attributed to Turkey on the basis that her army exercised ‘effective overall control’ over northern Cyprus. ‘Such control, according to the relevant test and in the circumstances of the case, entail[ed] her responsibility for the policies and actions of the “TRNC”.’Footnote 103
In the Ilaşcu case, which concerned the responsibility of the Russian Federation for violations of the ECHR in the Moldovan breakaway region of Transdniestria and may thus, at first blush, seem to be relevant here, the ECtHR did not deal with the question of attribution of the conduct of the Transdniestrian authorities to the Russian Federation. The Court rather seized on the acts committed by agents of the Russian Government, including the applicants' arrest and detention and their transfer into the hands of the Transdniestrian police and regime where they were ill-treated. In light of the acts the applicants were accused of, the agents of the Russian Government knew, or at least should have known, the fate which awaited them.Footnote 104 The Russian Federation was held responsible not for the acts of ill-treatment by the Transdniestrian police itself but because, despite having effective authority or at the very least decisive influence over the Transdniestrian authorities, it made no attempt to put an end to the applicants' situation brought about by its agents, and did not act to prevent the violations of the ECHR committed.Footnote 105
Without making any reference to the tests applied by the ICJ and the ICTY, and without giving any further explanation,Footnote 106 in the Loizidou case the ECtHR developed its own ‘relevant test’ for what it termed a ‘subordinate local administration’,Footnote 107 a secessionist entity which is under ‘the effective authority, or at the very least under the decisive influence, of’ an outside power, and ‘in any event survives by virtue of the military, economic, financial and political support given to it’ by the outside power.Footnote 108 For the ECtHR to attribute the conduct of such an entity to the outside power, the test is that of ‘effective overall control’ of the outside power over the territory of the secessionist entity.Footnote 109 Such control may be a consequence of military action or presence by the outside power, either lawful or unlawful.Footnote 110 It can be established on the basis of the outside power's ‘large number of troops’ engaged in active duties in the territory of the secessionist entity.Footnote 111 The ECtHR placed particular emphasis on the duration of the presence of the troops, their deployment across the whole territory of the secessionist entity, and the fact that they ‘constantly patrolled’ and had ‘checkpoints on all main lines of communication’.Footnote 112 According to Judge Kovler ‘active duty’ of troops in the territory of the secessionist entity ‘presupposes control of roads and railways, surveillance of strategic points (telegraph/telephone posts), and control of stations, airports, frontiers, etc.’Footnote 113 In order to attribute the acts of a secessionist entity to the outside power it is thus not necessary that it ‘actually exercises detailed control over the policies and actions’ of the authorities of the secessionist entity.Footnote 114
The ECtHR's ‘effective overall control’ test differs from the ICTY's ‘overall control’ test.Footnote 115 Like the latter, the ECtHR's test is not used in lieu of the ICJ's ‘effective control’ test but replaces its ‘strict control’ test. The effective overall control of the outside power is used as a basis for equating the authorities of the secessionist entity with de facto State organs or ‘agents’ of the outside power for whose acts it may generally be held responsible.Footnote 116 Thus, in its Report in Cyprus v Turkey, the European Commission of Human Rights held on the basis of the Court's Loizidou judgment that ‘Turkish responsibility extends to all acts of the “TRNC”, being a subordinate local administration of Turkey in northern Cyprus.’Footnote 117
Effective overall control is a less stringent standard than any of the other tests.Footnote 118 The requirement that the secessionist entity only ‘survives by virtue of the military, economic, financial and political support given to it’ by the outside power is reminiscent of the requirement of ‘complete dependence’ in ‘all fields’ under the ‘strict control’ test. However, complete dependence, according to the ICJ, means that the secessionist entity is ‘lacking any real autonomy’ and is ‘merely an instrument’ or ‘agent’ of the outside power. Being merely under the ‘decisive influence’ of the outside power, meaning that the outside power has a strong say in, as well as an impact on, the planning and execution of the secessionist entity's activities, is thus not sufficient. Under the ICJ's ‘strict control’ test, the outside power must actually have made use of the potential for control inherent in complete dependence and exercised a ‘particularly high degree of control’ over the secessionist entity. Exercising effective overall control over the secessionist entity's territory, however, is not the same as exercising a particularly high degree of control over the secessionist entity itself. This is also shown by the fact that military occupation of territory as such does not automatically lead to a blanket attribution of the conduct of actors exercising authority in the occupied territory.Footnote 119 Actual control over the secessionist entity's authorities or their activities is also a requirement of the ‘overall’ and ‘effective control’ tests. Both tests require different levels of participation from the outside power in the organisation, coordination or planning of the secessionist entity's operations—an element which is totally absent from the ‘effective overall control’ test.
If the ICTY Appeals Chamber has already stretched the connection which must exist between the State and its organs almost to breaking point, the ECtHR, by attributing all the acts of a secessionist entity to an outside power simply on the basis of the latter's effective overall control of the secessionist entity's territory, has gone one step beyond.Footnote 120
V. CONCLUSIONS
The application of different control tests by the various courts raises the questions of whether there is a need for differing tests for attributing the internationally wrongful conduct of a secessionist entity to an outside power; whether, in principle, there can be different tests of attribution in the general international law rules of State responsibility; and, if not, which of the various tests is the correct one.
The two control tests of the ICTY Appeals Chamber and the ECtHR must be seen against the background of the cases in which they were applied. The ‘overall control’ test was employed to determine that an armed conflict was of an international character and thus allow for the prosecution of grave breaches of the Geneva Conventions, while the ‘effective overall control’ test was used to avoid what the ECtHR called a ‘regrettable vacuum in the system of human rights protection in the territory in question’.Footnote 121 In both cases, the choice of test may have been influenced by a belief that, due to a lack of evidence of ‘complete dependence’ or ‘effective control’ over specific activities, the application of the ICJ's exacting control tests would have resulted in the court having to deny, at least in part, its jurisdiction. However, this was not an inevitable result.
In the Loizidou case, Turkey could not have been held responsible for violations of the ECHR by the TRNC authorities as there was insufficient basis under the ‘strict’ and ‘effective control’ tests for attributing the wrongful conduct of the TRNC authorities to Turkey. However, Turkey could have been held responsible for the conduct—acts or omissions—of its own organs in northern Cyprus, including conduct related to the acts of the TRNC.Footnote 122 As an occupying power in northern Cyprus,Footnote 123 Turkey is under an obligation ‘to secure respect for the applicable rules of international human rights law and international humanitarian law’ in the occupied territory.Footnote 124 It must make every effort, and take every appropriate step, to prevent, bring to an end, and punish violations of its human rights obligations by other actors present in the occupied territory. Turkey's responsibility could thus have been engaged not for the acts of the TRNC authorities but for a breach of its own due diligence obligations, ie the failure on the part of its own organs present in northern Cyprus to prevent violations of the ECHR by the TRNC authorities.Footnote 125 A separate control test was thus not necessary in order to hold Turkey responsible for violations of the ECHR in northern Cyprus.
In the Tadić case, what was at issue was not a question of State responsibility but whether the armed conflict in Bosnia and Herzegovina was of an international character. The ICTY Appeals Chamber held that the answer to the question might be found in international humanitarian law and examined whether the Bosnian Serb forces fighting in the territory of Bosnia and Herzegovina could be said to belong to an outside ‘Party to the conflict’ within the meaning of Article 4(A)(2) of the Third Geneva Convention.Footnote 126 For the Appeals Chamber, the requirement of ‘belonging to a Party to the conflict’ implicitly referred to a test of control.Footnote 127 As international humanitarian law did not specify the degree of control necessary for holding that the armed forces of a secessionist entity belonged to an outside power, the Appeals Chamber resorted to the general international rules on State responsibility which set out a control test for attributing to a State acts performed by individuals who do not have the formal status of State officials. Belonging to a Party to the conflict was interpreted as being under the same degree of control required to treat individuals as de facto State officials.Footnote 128 However, as the ICJ in the Bosnian Genocide case observed:
[L]ogic does not require the same test to be adopted in resolving the two issues, which are very different. The degree and nature of a State's involvement in an armed conflict on another State's territory which is required for the conflict to be characterized as international, can very well, and without logical inconsistency, differ from the degree and nature of the involvement required to give rise to that State's responsibility for a specific act in the course of the conflict.Footnote 129
It is suggested that there are at least two alternative tests, independent of the question of attribution and the general international law of State responsibility, to establish whether a prima facie internal armed conflict is of an international character. In the Jorgić case, the Oberlandesgericht [Higher Regional Court of Appeal] of Düsseldorf found that, after 19 May 1992, the conflict in Bosnia and Herzegovina was an ‘international armed conflict’ for the purposes of Article 2 of the Fourth Geneva Convention on the basis of the ‘close personal, organisational and logistical interconnection [Verflechtung] of the Bosnian Serb army, para-military groups and the army of the Federal Republic of Yugoslavia’.Footnote 130 The Court relied on the following circumstances as indications of an international armed conflict:
[T]he participation of organs of a State in a conflict on the territory of another State, eg the participation of army officers in the hostilities, or the financing and provision of technical equipment to a party to the conflict by the outside State; the latter at least when there exists the aforementioned interconnection between personnel.Footnote 131
The Court of Appeal nowhere referred to any ‘control’ test or examined whether the acts of the Bosnian Serb army could be attributed to the Federal Republic of Yugoslavia. Similarly, in an earlier decision in the Tadić case, another ICTY Appeals Chamber held that an internal conflict may ‘become internationalized because of external support’ without making any reference to the question of attribution.Footnote 132 A test to determine whether an armed conflict can be characterized as international may thus simply look at the interconnection of the secessionist entity and the outside power (or the scope of the outside power's intervention in the armed conflict) rather than the degree of control exercised by the outside power over the secessionist entity or its activities.
Another alternative is to disentangle the artificial nexus between the nature of an armed conflict and attribution of conduct in the law of State responsibility and to apply a separate and independent ‘control’ test to determine whether a prima facie internal conflict can be characterized as international.Footnote 133 This approach seems to have been favoured in the Delalić case, where another ICTY Appeals Chamber held:
The Appeals Chamber [in the Tadić case], after considering in depth the merits of the Nicaragua test, thus rejected the ‘effective control’ test, in favour of the less strict ‘overall control’ test. This may be indicative of a trend simply to rely on the international law on the use of force, jus ad bellum, when characterising the conflict. The situation in which a State, the FRY, resorted to the indirect use of force against another State, Bosnia and Herzegovina, by supporting one of the parties involved in the conflict, the Bosnian Serb forces, may indeed be also characterised as a proxy war of an international character. In this context, the ‘overall control’ test is utilised to ascertain the foreign intervention, and consequently, to conclude that a conflict which was prima facie internal is internationalised.Footnote 134
An international armed conflict, by definition, involves the use of force by one State against another State.Footnote 135 Force may be used by a State either directly, through the military action of its own armed forces, or in the indirect form of support for the activities of armed groups fighting in and against another State. The UN General Assembly's Friendly Relations Declaration equates organizing, instigating, assisting or participating in acts of civil strife in another State with the use of force when such acts themselves involve a threat or use of force.Footnote 136 Similarly, Article 3(g) of the UN General Assembly's Declaration on the Definition of Aggression, which is reflective of customary international law, provides that the ‘substantial involvement’ of a State in acts of armed force carried out by armed groups in another State constitutes an act of aggression which is considered to be ‘the most serious and dangerous form of the illegal use of force’.Footnote 137 Drawing on formulations in these documents, the ICJ found in the Nicaragua case that assistance to armed opposition groups in another State in the form of the provision of weapons or logistical or other support constitutes a use of force by the assisting State, when the acts committed by the armed opposition groups in the other State involve a threat or use of force.Footnote 138 The mere supply of funds to the rebels, on the other hand, does not in itself amount to a use of force by the assisting State.Footnote 139 The test of ‘overall control’ may thus be employed to determine whether the degree of outside power ‘involvement’ in the acts of armed force carried out by a secessionist entity in another State is sufficiently ‘substantial’ that the outside power can be regarded as having used force against that other State through the intermediary of the armed forces of the secessionist entity.Footnote 140 In this case, the indirect use of force by the outside power against the other State makes the prima facie internal conflict an international one.Footnote 141 To the extent that the outside power is using force ‘through’ the secessionist entity, the armed conflict cannot be divided into two armed conflicts, an internal armed conflict between the secessionist entity and the parent State and an international one between the parent State and the outside power.Footnote 142 Such an artificial distinction would lead to ‘a crazy quilt of norms that would be applicable in the same conflict’ with inconsistent standards of protection for individuals and unequal treatment of the accused.Footnote 143 If the outside power exercises overall control over the secessionist entity there is but one single international(ized) armed conflict.Footnote 144 There was thus no need to challenge the ICJ's control tests in order to find that there was an international armed conflict in Bosnia and Herzegovina after 19 May 1992.
The question of whether in the cases mentioned above there was a need for different control tests must be distinguished from the more principled question of whether there can be several differing control tests for the attribution of conduct to a State in the law of State responsibility. It has been suggested that the degree of control may vary according to the factual and legal circumstances of the case with the following allowing for a lower threshold of control: a common aim, especially if the aim is the commission of international crimes; ethnic or ideological identity of the secessionist entity and the outside power; the outside power is an adjacent State with territorial ambitions; and the nature of the internationally wrongful act in question.Footnote 145 This view, however, fails to appreciate that attribution is a concept of a common currency in international law. As the ICJ pointed out in the Bosnian Genocide case: ‘The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis.’Footnote 146 This view is also adopted by the International Law Commission which in the commentary on its Articles on State Responsibility never made any distinction with regard to the rules of attribution.Footnote 147
Precisely what kind and degree of control are then required for the attribution of conduct to a State? It is suggested that both the ‘overall control’ and the ‘effective overall control’ tests are unsuitable for determining the question of whether a secessionist entity's conduct as a whole may be attributed to an outside power: these tests broaden the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility, which provides that a State is responsible only for its own conduct; that is to say the conduct of persons acting, on whatever basis, on its behalf.Footnote 148 In order to equate the authorities of a secessionist entity with de facto organs of the outside power, the type and degree of control must qualitatively be the same as the control a State exercises over its own de jure organs,Footnote 149 a requirement fulfilled only by ICJ's ‘strict control’ test. In the case of authorities of secessionist entities not qualifying as de facto organs of the outside power, the degree of control must surely be effective control over the wrongful conduct in question, otherwise it is not control.Footnote 150 The question of attribution of conduct of the authorities of a secessionist entity to an outside power is thus to be decided on the basis of the two control tests enunciated by the ICJ in the Nicaragua case and, it is held, correctly confirmed in the Bosnian Genocide case.Footnote 151 In the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) currently pending before the ICJ, it is therefore for Georgia to prove either Russia's ‘strict control’ over the secessionist entities of Abkhazia and South Ossetia or, at least, her ‘effective control’ over relevant individual operations or activities in order to establish the international responsibility of the Russian Federation for their internationally wrongful conduct.
