The relevant ILC section regulating attribution in fact states that “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.”185 There are currently two standards for interpreting this provision in international law – the doctrines of effective and operational control. The effective control doctrine, originating in the ICJ Nicaragua case, held that a country’s control over paramilitaries or other non-State actors can only be established if the actors in questions act in “complete dependence” on the State.186 In contrast, the operational control doctrine is illustrated in the International Criminal Tribunal for the Former Yugoslavia Tadic case. That case held that where a State has a role in organizing and coordinating, in addition to providing support for a group, it has sufficient overall control so that the group’s acts are attributable to the State.187
The distinction between the Nicaragua and Tadic standards is whether or not the State must be in direct control of operational planning. Dr. Marc Weller, Director of the European Centre for Minority Issues, argues that the Nicaragua standard relates to the specific case of the trigger point for self-defense, and attribution in relation to the use of force.188 The ICJ has consistently used the more restrictive Nicaragua standard in its jurisprudence. For example, in the Bosnian Genocide decision,189 the Court adopted Nicaragua in deciding that Serbia was ultimately not responsible for the genocide at
185 Draft ILC Articles, Art. 8.
186 Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) 1986 I.C.J. Rep. 392 (Jun. 27).
187 Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Oct. 2, 1995).
188 Telephone Interview with Marc Weller, Director of the European Centre for Minority Issues, in Kosovo (Mar. 14, 2008).
189 The Application of the Genocide Convention Case (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 140 (Feb. 26) (Hereinafter “the Bosnian Genocide case”).