Special Rules of Attribution of Conduct in International Law Marko Milanovic 96 INT’L L. STUD. 295 (2020) Volume 96 2020 Published by the Stockton Center for International Law ISSN 2375-2831 Special Rules of Attribution Vol. 96 Special Rules of Attribution of Conduct in International Law Marko Milanovic CONTENTS I. Introduction ......................................................................................................... 296 II. Scope of the Inquiry ............................................................................................ 299 A. The Distinction between Primary and Secondary Rules Revisited ....... 299 B. Special Rules of Attribution Defined ......................................................... 301 C. Positive and Negative Special Rules of Attribution ................................. 305 D. “Clearly Expressed” Lex Specialis ............................................................... 310 E. Actions and Omissions, Negative and Positive Obligations .................. 315 F. Conclusion ...................................................................................................... 316 III. International Humanitarian Law ....................................................................... 317 A. The “Overall Control” Test ........................................................................ 317 B. Belonging to a Party and Membership in its Armed Forces .................. 324 C. Conclusion on Special Rules of Attribution in IHL ................................ 329 IV. Jus ad Bellum, Non-State Actors and Terrorism .............................................. 331 A. Definition of Aggression ............................................................................. 331 B. Armed Attacks by Non-State Actors ......................................................... 335 C. Conclusion on Special Rules of Attribution in the Law on the Use of Force .......................................................................................................... 339 V. European Human Rights Law ........................................................................... 342 A. The European Court and the Law of State Responsibility .................... 342 B. Behrami, Al-Jedda, and a Negative Rule of Attribution ............................. 347 C. Survival of a Non-State Entity and Acquiescence or Connivance in the Act of a Third Party ............................................................................... 349 D. The ECHR and Public Enterprises ........................................................... 366 E. Overall Evaluation ........................................................................................ 382 VI. Should Special Rules of Attribution Exist? ..................................................... 385 VII. Conclusion ............................................................................................................ 388 Professor of Public International Law, University of Nottingham School of Law. I am grateful to Anne van Aaken, Jacob Cogan, Alexandra Huneeus, Miles Jackson, Greg Shaffer, Sandesh Sivakumaran, Edward Swaine, Christian Tams, and Ingrid Wuerth for their helpful comments. Email: [email protected]. The thoughts and opinions expressed are those of the author and not necessarily those of the U.S. government, the U.S. Department of the Navy, or the U.S. Naval War College. 295 International Law Studies 2020 I. INTRODUCTION A n abstract entity, such as the State, can only act through human beings. The terms “attribution” or “imputation” denote the operation whereby the conduct of some human beings, through commission or omission, is re- Tgarded in law as that of the State for the purpose of establishing its respon- sibility for an internationally wrongful act.1 The codification of the law of State responsibility by the International Law Commission (ILC) in its Arti- Acles on State Responsibility (ASR)2 led to the systematization of a widely accepted set of secondary attribution rules, which apply by default across the Odifferent specialized sub-branches of public international law.3 Together with the existence of a breach of a legal obligation, attribution is one of the constitutive elements of an internationally wrongful act of a State.4 WAre there are any special rules of attribution in international law? Are there, in other words, imputational rules that are not recognized as such in general international law, but are specific to particular branches of interna- Itional law? The ASR allow for the possibility of sector-specific rules of State 1. As a general matter, throughout the paper I will be referring to the attribution (or imputation) of conduct. It is however also possible to use the term “attribution” in referring to the attribution of responsibility. This is with regard to a situation in which State A commits an internationally wrongful act, the relevant conduct is not attributable to State B, but re- sponsibility for the internationally wrongful act may nonetheless be attributed to State B pursuant to some other rule, for example, because State B coerced State A. These are cases of indirect responsibility. In order to avoid any confusion, I will, again, not generally be referring to the attribution of responsibility, but solely to that of conduct. For background and general discussions of the distinction, see, for example, Francesco Messineo, Attribution of Conduct, in PRINCIPLES OF SHARED RESPONSIBILITY IN INTERNATIONAL LAW: AN AP- PRAISAL OF THE STATE OF THE ART 60 (André Nollkaemper & Ilias Plakokefalos eds., 2014); James D. Fry, Attribution of Responsibility, in id. at 98. This study is also confined solely to the attribution of conduct to States. For possible special attribution rules in the context of the responsibility of international organizations, see A. DELGADO CASTELEIRO, THE IN- TERNATIONAL RESPONSIBILITY OF THE EUROPEAN UNION: FROM COMPETENCE TO NOR- MATIVE CONTROL (2016) (arguing for a normative control attribution rule applying solely to the European Union). 2. International Law Commission, Report on the Work of Its Fifty-Third Session, U.N. Doc. A/56/10 (2001), reprinted in [2001] 2 YEARBOOK OF THE INTERNATIONAL LAW COM- MISSION 32, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles of State Responsibility]. 3. See id. arts. 4–11; see also JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART (2013). 4. See ILC Articles of State Responsibility, supra note 2, art. 2. 296 Special Rules of Attribution Vol. 96 responsibility. Article 55 ASR, entitled lex specialis, provides that the Articles “do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of inter- national law.”5 In referring to the “conditions for the existence of an inter- nationally wrongful act,” the ILC allowed for the possibility of special rules of attribution since attribution of conduct is one of the elements of an inter- nationally wrongful act, that is, a condition for its existence.6 The issue of special rules of attribution was briefly addressed by the In- ternational Court of Justice (ICJ) in the Bosnian Genocide case, in which the Court rejected the view that such a special rule existed for conduct consti- tuting genocide, while accepting in principle that special rules of attribution could exist in other areas of international law. The Applicant has, it is true, contended that the crime of genocide has a particular nature, in that it may be composed of a considerable number of specific acts separate, to a greater or lesser extent, in time and space. Ac- cording to the Applicant, this particular nature would justify, among other consequences, assessing the “effective control” of the State allegedly re- sponsible, not in relation to each of these specific acts, but in relation to the whole body of operations carried out by the direct perpetrators of the genocide. The Court is however of the view that the particular characteris- tics of genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua . The rules for attributing alleged inter- nationally 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. Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as re- flected in the ILC Articles on State Responsibility.7 5. Id. art 55. 6. See id. art. 55, cmt. ¶ 6 The principle stated in article 55 applies to the articles as a whole. This point is made clear by the use of language (‘the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State’) which re- flects the content of each of Parts One, Two and Three. 7. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. Rep. 43, ¶ 401 (Feb. 26) [hereinafter Bosnian Genocide]. 297 International Law Studies 2020 Is there any