'(Control) Tests,' the Nature of Conflict and Attribution of Responsibility for Mass Crimes and Genocide in Criminal and Civil Liability Cases: 'Overall' v. 'Effective' Control Test

Abstract

In this paper we analyze the “tests” used by national and international courts in criminal and civil liability cases in order to determine the nature of the conflict and assign responsibility to the state, international organization, non-state actor or individual for the commission and/or failure to prevent mass crimes and genocide. Cases in which the state, international organization and the individual jointly contribute to the overall damage inflicted by a mass crime are becoming more and more frequent. After reviewing important criminal and civil liability cases dealing with the mass crimes and genocide committed during the war in Bosnia and Herzegovina, it is argued that there are increasingly divergent approaches being used to reach attribution of responsibility; such a decision will depend upon whether the court has chosen to employ the ‘overall control’ or ‘effective control’ test. Applied in similar contexts, these tests may determine the nature of conflict both in cases of criminal responsibility and tort liability. After an extensive analysis of the case-law, it becomes clear that a new principle is being established: the overall control test is being applied to organized military groups and effective control is to non-military organizations. It follows from this that, the overall test must apply to criminal liability and effective control to civil liability. The analysis of the effective control test cases indicate that its de facto application has prescribed it to two types of tests: ‘positive effective control’ and ‘positive and negative effective control’. Further, it is claimed that the reasoning used in tort law liability is progressively exerting an influence on the determination of criminal law responsibility. and is exemplified in the case of the application of the ‘overall control’ test. Oddly enough, however, the application of effective control” in “pure” civil liability cases like the Genocide case and Nuhanović appears to be restricting liability in a way that is hardly acceptable given that the nature of trial is civil law liability; and the nature of the acts and overall damage.

Keywords: ICJ, genocide, war crimes, ICTY, international criminal law

JEL Classification: A00, K00, Z00