The Shaping of the Notion of ‘Control’ in the Law on International Responsibility by Certain International and Regional Courts

Abstract

The notion of control plays an important role within the context of the law on international responsibility in terms of both ascertaining jurisdiction and attribution of responsibility for internationally wrongful acts, including for mass atrocity crimes committed in armed conflict situations. This chapter aims at analysing the use and the shaping of this notion through several landmark decisions issued by selected key international and regional courts. The international courts include the International Court of Justice, the two ad hoc international criminal tribunals, namely the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, and the International Criminal Court. From the three regional human rights courts, focus remains on the European Court of Human Rights. The aim is to find out how and to what extent this case law has shaped the notion of control in the law on international responsibility for States and individuals in the context of an armed conflict. Ultimately, this analysis will provide more clarity concerning standards of conduct and related legal obligations incumbent upon those involved in an armed conflict, especially civilian and military leaders, non-State armed groups, and State organs involved in planning and executing military operations.