The following is a guest post by Ananya Mukherjee, a graduate of the West Bengal National University of Juridical Sciences, Kolkata who currently works with the Indian Institute for Human Settlements on higher education policy in India. Ananya is also an incoming MPA candidate at Columbia University.

In 2016, and for the first time since its inception, the International Criminal Court (ICC) opened an investigation into activities involving non-African states. The ICC is investigating alleged crimes against humanity and war crimes committed in Georgia during an international armed conflict (IAC) between July and October 2008. In June 2022, the ICC issued three warrants of arrest for Russian-backed officials from South Ossetia on allegations of war crimes committed during the war. The 2008 Georgian War involved a combination of inter-state and intra-state conflicts. The current post deals with the conflict between the Georgian military, on one hand, and the South Ossetian and Abkhaz military units on the other.

The ICC’s mandate to prosecute and hold individuals responsible for gross humanitarian law violations may be triggered in case of war crimes committed during an IAC. For the conflict between the Georgian, and the Abkhaz and South Ossetian forces to be considered international, it is crucial to demonstrate Russian influence over such forces. Georgia contends that “Russia exercised sufficient control over the Abkhaz/South Ossetian forces”. Russia claims otherwise.

The challenge of attributing internationally wrongful acts committed by individuals to a ‘state’ is resolved through internationally recognized tests of control. This post analyses the two most widely accepted modes of attribution: theeffective control test and overall control test. In “The General Theory of Law and State”, Hans Kelsen remarked that the effective control test is conventionally adopted for determining state attribution and attracting the international legal responsibility of state(s). This stringent test was put forth by the International Court of Justice (ICJ) in the Nicaragua case. Finding it to be unpersuasive, the International Criminal Tribunal for the Former Yugoslavia (ICTY) developed the overall control test in the case of Tadic.

Distinguishing the Control Tests

The ICJ in Nicaragua examined the United States’ responsibility for acts of paramilitary groups or contras on Nicaraguan territory. To attract responsibility under this test, the state shall have, in addition to paying or financing the private actors and coordinating or supervising their activities, issued specific instructions to the individuals for the unlawful acts. The requirement of “specific instructions” for each “internationally wrongful act” is where this test often comes unstuck. For instance, the lack of evidence of America’s involvement in directing / instructing the contras led to it ultimately escaping international responsibility.

Conversely, the ICTY laid down a new method of attribution in Tadic. It relied on the case of Loizidou v Turkey, which related to Turkey’s supposed responsibility in denying a party access to private property located in Northern Cyprus, which was under Turkish rule at the time. The European Court of Human Rights (ECHR) held that it was not necessary for Turkish authorities to exercise “detailed control over specific policies and actions” over the Turkish Republic of Northern Cyrus to establish Turkey’s responsibility. In Tadic, the overall control test not only dealt with equipping, financing or training, and providing operational support to a group, but also coordinating or helping in the general planning of its military or paramilitary activities. The ICTY held that,“If it is under the overall control of a State, it must perforce engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State.”

While Tadic recognized both tests as valid tests of attribution, it made a simple yet clear distinction between state attributions in case of acts carried out by private individuals versus acts committed by organized or rank-based groups. In removing the requirement of state involvement in every group action or step and creating a presumption of state attribution for all acts committed within the relevant ‘control’ time frame, the overall control test significantly reduces the Prosecution’s evidentiary burden. The International Law Commission (ILC) also expressed concern on the devolution of different control tests leading to a fragmentation in international law. The effective control threshold, once established, shall naturally also meet the overall control test. However, the opposite is not true and the application of either of the two tests could produce vastly different results.

Applying the Overall Control Test

The rift between the tests was debated in the ICJ’s Genocide Judgment. The case considered whether genocidal acts committed by Bosnian Serbs at Srebrenica could be attributed to the Federal Republic of Yugoslavia (FRY). Opting for the effective control test, the ICJ arrived at a negative finding and iterated that the overall control test was inapplicable to the case. The ICJ considered Article 8 of the ILC Draft Articles on State Responsibility, which stipulates that a state may be found internationally responsible for wrongful acts committed by individuals or groups of individuals, if the acts in question are attributedto the state. It held that the Tadic testwas devised to appreciate whether a conflict was international in nature and was not central to questions of state responsibility.

Interestingly, the ICJ found that the overall control test was satisfied and that the acts of the Bosnian Serbs could be imputed to the FRY, to internationalise the conflict. Scholars often argue that “internationalising” a conflict is different from a determination of state responsibility. In the same vein, concerns of gravely adultering the “degree of control” precluded the overall control test’s applicability to ascertain state responsibility. Once again, the Prosecution was unable to satisfy the evidentiary burden of the effective control test, primarily that the massacres were committed following the instructions of the FRY. History has time and again demonstrated the design flaws in the effective control test.

Similar to Tadic, the control test in the Georgian conflict may be used to understand the true geographic scope of the conflict and determine the international responsibility of military leaders. Available information suggests that the South Ossetian and Abkhaz forces were highly organized in nature and had a clear nexus with Russia, with Russian influence on military coordination, training, operational and logistical support steadily growing over time.

While the ICC in Lubanga accepted overall control to be the appropriate metric for ascertaining whether a non-international armed conflict “may have become internationalised due to the involvement of armed forces acting on behalf of another State”, this judgment has been fraught with criticisms from the international community. Not only did the Lubanga opinion fail to discuss the Genocide Judgment, it also failed to clarify the confusion between the two tests. This fragmentation in international law continues to choke the system, with states – including Russia – regularly resorting to an effective control defense. Nonetheless, the objections raised against the overall control test ¾ such as its alleged incongruency with the regime of state responsibility or any proposed conflict with the effective control test are demonstrably extraneous to the Georgian War.

Conclusion

While the international community often homogenizes the two tests, it is apparent that each retains its own parameters. Accountability is an essential element of International Humanitarian Law, and it is imperative that states are found responsible for behavior for which they have a real nexus. Today, we are cognizant of the extensive support provided by states to organize armed groups engaged in warfare against their host state (in the form of rebel or secessionist groups) or fighting in foreign territory against other states. This is a dangerous phenomenon which seriously undermines international peace and security and, in its worst form, culminates in full-fledged international armed conflict. Addressing the fragmentation apparent in the control tests could go a long way in providing much-needed clarity and coherency to efforts aimed at holding states to account for their war crimes abroad.