Overall Control - The Case against Dusko Tadic and the Concept of Control in the ILC-Articles on State Responsibility

Abstract: In this text the author attempts to extract the criteria for establishing ''overall control'' as described by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the case against Dusko Tadic. This test was formulated by the ICTY Appeals Chamber in an effort to qualify the relationship between the Federal Republic of Yugoslavia and the army of the Serbian Republic in Bosnia. The legal question was whether this armed force could in fact be linked to the Federal Republic of Yugoslavia due to the high level of control the latter exercised over the group, thus making the conflict international and granting the civilians under its control the status as ''Protected Persons'' in the meaning of Geneva Convention IV, Article 3. The Appeals Chamber argued that the rules of attribution in International Law on State Responsibility must by necessity require the same standard of relationship for attribution of the acts of the armed force to the state, as International Humanitarian Law requires for finding that the participation of that force constitutes foreign involvement in an internal conflict. It thus sought guidance in the rules of attribution from International Law on State Responsibility and the Case Concerning Military and Paramilitary Activities in and against Nicaragua of the International Court of Justice. Rather than accepting the test devised in Nicaragua, often referred to as the ''effective control'' test, the Appeals Chamber found that it was not suitable for acts of ''organized groups'', where instead international law dictated the standard of ''overall control''. The author has examined all the criteria for establishing this standard of control and how it can be used to solve problems of control in International Law on State Responsibility. First, the criteria for concluding what qualifies a group as ''organized'' and which groups can come into question for use of the standard is investigated. The author examines the cases provided by the Appeals Chamber as illustrations of the use of the standard in international law, to extract the limits of these criteria. Second, the author evaluates the importance of support given to the group in the form of arms, training, funding and intelligence for establishing a potential to exercise control. Having done this the author continues to the level of direct control, exercised by the state over the group, and the standard required to qualify it as ''overall control''. Finally, the author uses the conclusions drawn to formulate a suggestion of how to phrase the ''overall control'' test for use in International Law on State Responsibility.