46 Report of the International Law Commission on the work of its fifty-third session of their apparent authority”.142 It is probable that the different formulations had essentially the same effect, since acts falling outside the scope of both real and apparent authority would not be performed “by virtue of … official capacity”. In any event, by the time of the 1930 Hague Conference, a majority of States responding to the Preparatory Committee’s request for information were clearly in favour of the broadest formulation of the rule, providing for attribution to the State in the case of “[a]cts of officials in the national territory in their public capacity (actes de fonction) but exceeding their authority”.143 The Basis of Discussion prepared by the Committee reflected this view. The Third Committee of the Conference adopted an article on first reading in the following terms: International responsibility is … incurred by a State if damage is sustained by a foreigner as a result of unauthorised acts of its officials performed under cover of their official character, if the acts contravene the international obligations of the State.144 (4) The modern rule is now firmly established in this sense by international jurisprudence, State practice and the writings of jurists.145 It is confirmed, for example, in article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), which provides that: “A Party to the conflict … shall be responsible for all acts committed by persons forming part of its armed forces”: this clearly covers acts committed contrary to orders or instructions. The commentary notes that article 91 was adopted by consensus and “correspond[s] to the general principles of law on international responsibility”.146 (5) A definitive formulation of the modern rule is found in the Caire case. The case concerned the murder of a French national by two Mexican officers who, after failing to extort money, took Caire to the local barracks and shot him. The Commission held: that the two officers, even if they are deemed to have acted outside their competence … and even if their superiors countermanded an order, have involved the responsibility of the State, since they acted under cover of their status as officers and used means placed at their disposal on account of that status.147 142 “American Bible Society” incident, statement of United States Secretary of State, 17 August 1885, Moore, Digest, vol. VI, p. 743; “Shine and Milligen”, G. H. Hackworth, Digest of International Law (Washington, D.C., United States Government Printing Office, 1943), vol. V, p. 575; and “Miller”, ibid., pp. 570–571. 143 League of Nations, Conference for the Codification of International Law, Bases of Discussion … (see footnote 88 above), point V, No. 2 (b), p. 74, and Supplement to Vol. III … (see footnote 104 above), pp. 3 and 17. 144 League of Nations, Conference for the Codification of International Law, Bases of Discussion ..., document C.351(c)M.145(c).1930. V (see footnote 88 above), p. 237. For a more detailed account of the evolution of the modern rule, see Yearbook … 1975, vol. II, pp. 61–70. 145 For example, the 1961 revised draft by the Special Rapporteur, Mr. García Amador, provided that “an act or omission shall likewise be imputable to the State if the organs or officials concerned exceeded their competence but purported to be acting in their official capacity” (Yearbook ... 1961, vol. II, p. 53). 146 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, Martinus Nijhoff, 1987), pp. 1053–1054. 147 Caire (see footnote 125 above). For other statements of the rule, see Maal, UNRIAA, vol. X (Sales No. 60.V.4), pp. 732–733 (1903); La Masica, ibid., vol. XI (Sales No. 61.V.4), p. 560 (1916); Youmans (footnote 117 above); Mallén, ibid.; Stephens, UNRIAA, (6) International human rights courts and tribunals have applied the same rule. For example, the InterAmerican Court of Human Rights in the Velásquez Rodríguez case said: This conclusion [of a breach of the Convention] is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.148 (7) The central issue to be addressed in determining the applicability of article 7 to unauthorized conduct of official bodies is whether the conduct was performed by the body in an official capacity or not. Cases where officials acted in their capacity as such, albeit unlawfully or contrary to instructions, must be distinguished from cases where the conduct is so removed from the scope of their official functions that it should be assimilated to that of private individuals, not attributable to the State. In the words of the Iran-United States Claims Tribunal, the question is whether the conduct has been “carried out by persons cloaked with governmental authority”.149 (8) The problem of drawing the line between unauthorized but still “official” conduct, on the one hand, and “private” conduct on the other, may be avoided if the conduct complained of is systematic or recurrent, such that the State knew or ought to have known of it and should have taken steps to prevent it. However, the distinction between the two situations still needs to be made in some cases, for example when considering isolated instances of outrageous conduct on the part of persons who are officials. That distinction is reflected in the expression “if the organ, person or entity acts in that capacity” in article 7. This indicates that the conduct referred to comprises only the actions and omissions of organs purportedly or apparently carrying out their official functions, and not the private actions or omissions of individuals who happen to be organs or agents of the State.150 In short, the question is whether they were acting with apparent authority. (9) As formulated, article 7 only applies to the conduct of an organ of a State or of an entity empowered to exercise elements of the governmental authority, i.e. vol. IV (Sales No. 1951.V.1), pp. 267–268 (1927); and Way (footnote 114 above), pp. 400–401. The decision of the United States Court of Claims in Royal Holland Lloyd v. United States, 73 Ct. Cl. 722 (1931) (Annual Digest of Public International Law Cases (London, Butterworth, 1938), vol. 6, p. 442) is also often cited. 148 Velásquez Rodríguez (see footnote 63 above); see also ILR, vol. 95, p. 232, at p. 296. 149 Petrolane, Inc. v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 27, p. 64, at p. 92 (1991). See also paragraph (13) of the commentary to article 4. 150 One form of ultra vires conduct covered by article 7 would be for a State official to accept a bribe to perform some act or conclude some transaction. The articles are not concerned with questions that would then arise as to the validity of the transaction (cf. the 1969 Vienna Convention, art. 50). So far as responsibility for the corrupt conduct is concerned, various situations could arise which it is not necessary to deal with expressly in the present articles. Where one State bribes an organ of another to perform some official act, the corrupting State would be responsible either under article 8 or article 17. The question of the responsibility of the State whose official had been bribed towards the corrupting State in such a case could hardly arise, but there could be issues of its responsibility towards a third party, which would be properly resolved under article 7.