Where is R2P grounded in international law? Anne-Marie Judson A ...

planning and supervision of military operations”. 130 It is clear that there are three
distinct areas that the court will assess before making a decision on attribution; these
are firstly instructions that are given, secondly the directions and lastly the control of
the private individual, persons or company that is in question. 131 Each individual case
would be assessed on its own merits and the court would decide whether the control
was indicative of the breach in question.
WHAT HAPPENS WHEN THERE IS AN ABSENCE OF GOVERNMENTAL
CONTROL?
There are some instances where there is no government in control of the breach or of
the violations that have taken place. This may include revolutions, coups d’état, armed
conflict, an occupation or where the state is in between government authority and
control, including disintegration of government departments or suppression of
government or where a transitional government is taking place. This may mean that
there is an absence of regular forces including police and or military forces, including
but not limited to air force, ground patrols and/or navy. In these particular situations
the civilians may take up arms in self-defence: this is called an action of necessity.
Where civilians take up actions of governmental authority in the absence of
governmental control the state is still liable for attribution of the breaches in
international law. In the Yeager v. Islamic Republic of Iran case 132 it was held that the
guards acted as the governmental authority of the state. The Iran United States
Claims Tribunal at the time said that the actions “exercised elements of governmental
authority in the absence of official authorities, in operations of which the new
government must have knowledge and to which it did not specifically object”.
Article 9 of the ILC draft Articles (2001) describes the rules as being:
The conduct of a person or group of persons shall be considered an act of the
state under international law if the person or group of persons is in fact
exercising elements of the governmental authority in the absence or default of
130 ILM, Volume 38, no 6 (1999) page 1546, para 145
131 See ILC commentaries on the Draft Articles page 48
132 Yeager v. Islamic Republic of Iran (1987) 82 ILR 179, page 104, para 43
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