116Rome Statute of the International Criminal Court, Article 8.2 (b) (ii), (V) and (XX).
117Rome Statute of the International Criminal Court, Article 8.2 (b) (XXIV).
118The Island of Palmas Case (1928) 11 U.N.R. I.A.A. at 829.
119The Island of Palmas Case (1928) 11 U.N.R. I.A.A. at 829.
120Starke (1989, p. 3).
121(1949) I.C.J.R. 1, 22.
In the famous Corfu Channel case, the International Court of Justice applied the subjective test and applied the fault theory. The Court was of the view that:
It cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that the State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.122
The Court, however, pointed out that exclusive control of its territory by a State had a bearing upon the methods of proof available to establish the involvement or knowledge of that State as to the events in question.
Apart from the direct attribution of responsibility to a State, particularly in instances where a State might be guilty of a breach of treaty provisions, or violate the territorial sovereignty of another State, there are instances where an act could be imputed to a State.123
Imputability or attribution depends upon the link that exists between the State and the legal person or persons actually responsible for the act in question. The legal possibility of imposing liability upon a State wherever an of.cial could be linked to that State encourages a State to be more cautious of its responsibility in controlling those responsible for carrying out tasks for which the State could be ultimately held responsible. In the same context, the responsibility of placing mines was attributed to Albania in the Corfu Channel case since the court attributed to Albania the responsibility, since Albania was known to have know-ledge of the placement of mines although it did not know who exactly carried out the act. It is arguable that, in view of the responsibility imposed upon a State by the Chicago Convention on the provision of air navigation services, the principles of immutability in State responsibility could be applied to an instance of an act or omission of a public or private of.cial providing air navigation services.
The sense of international responsibility that the United Nations ascribed to itself had reached a heady stage at this point, where the role of international law in international human conduct was perceived to be primary and above the authority of States. In its Report to the General Assembly, the International Law Commission recommended a draft provision which required:
122The Corfu Channel Case, ICJ Reports, 1949, p. 4. 123There are some examples of imputability, for example the incident in 1955 when an Israeli civil aircraft belonging to the national carrier El Al was shot down by Bulgarian .ghter planes, and the consequent acceptance of liability by the USSR for death and injury caused which resulted in the payment of compensation to the victims and their families. See 91 ILR 287. Another example concerns the .nding of the International Court of Justice that responsibility could have been be imputed to the United States in the Nicaragua case, where mines were laid in Nicaraguan waters and attacks were perpetrated on Nicaraguan ports, oil installations and a naval base by persons identi.ed as agents of the United States. See Nicaragua v. the United States, ICJ Reports 1986, 14. Also, 76 ILR 349. There was also the instance when the Secretary General of the United Nations mediated a settlement in which a sum, inter alia of $7 million was awarded to New Zealand for the violation of its sovereignty when a New Zealand vessel was destroyed by French agents in New Zealand. See the Rainbow Warrior case, 81 AJIL, 1987 at 325. Also in 74 ILR at 241.
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