50
individuals or groups of individuals must answer for their actions, even when they act
contrary to their directives. 140
122.
The same logic should apply to the situation under discussion. As noted above, the
situation of an organised group is different from that of a single private individual
performing a specific act on behalf of a State. In the case of an organised group, the group
normally engages in a series of activities. If it is under the overall control of a State, it must
perforce engage the responsibility of that State for its activities, whether or not each of them
was specifically imposed, requested or directed by the State. To a large extent the wise
words used by the United States-Mexico General Claims Commission in the Youmans case
with regard to State responsibility for acts of State military officials should hold true for
acts of organised groups over which a State exercises overall control. 141
123.
What has just been said should not, of course, blur the necessary distinction between
the various legal situations described. In the case envisaged by Article 10 of the Draft on
State Responsibility (as well as in the situation envisaged in Article 7 of the same Draft),
State responsibility objectively follows from the fact that the individuals who engage in
certain internationally wrongful acts possess, under the relevant legislation, the status of
State officials or of officials of a State’s public entity. In the case under discussion here,
that of organised groups, State responsibility is instead the objective corollary of the overall
control exercised by the State over the group. Despite these legal differences, the fact
140
This sort of “objective” State responsibility also arises in a different case. Under the relevant rules on State
responsibility as laid down in Article 7 of the International Law Commission Draft, a State incurs
responsibility for acts of organs of its territorial governmental entities (regions, Länder, provinces, member
States of Federal States, etc.) even if under the national Constitution these organs enjoy broad independence or
complete autonomy. (See footnote 130 above).
141
The United States claimed that Mexico was responsible for the killing of United States nationals at the
hands of a mob with the participation of Mexican soldiers. Mexico objected that, even if it were assumed that
the soldiers were guilty of such participation, Mexico should not be held responsible for the wrongful acts of
the soldiers, on the grounds that they had been ordered by the highest official in the locality to protect
American citizens. Instead of carrying out these orders, however, they had acted in violation of them, in
consequence of which the Americans had been killed. The Mexico/United States General Claims Commission
dismissed the Mexican objection and held Mexico responsible. It stated that if international law were not to
impute to a State wrongful acts committed by its officials outside their competence or contrary to instructions,
“it would follow that no wrongful acts committed by an official could be considered as acts for which his
Government could be held liable”. It then added that:
“[s]oldiers inflicting personal injuries or committing wanton destruction or looting always act in
disobedience of some rules laid down by superior authority. There could be no [international State]
liability whatever for such misdeeds if the view were taken that any acts committed by soldiers in
contravention of instructions must always be considered as personal acts” (Thomas H. Youmans
(U.S.A.) v. United Mexican States, Decision of 23 November 1926, Reports of International Arbitral
Awards, vol. IV, p. 116).
Case No.: -94-1-A
15 July 1999