international liabilities of the state. There is no general “immunity of a state”
from liability for acts of its officials if only it can be shown that the acts of the
official concerned were carried out either by way of exercising elements of
governmental authority (i.e., public or regulatory functions) or were acting
under the direction, instructions or control of the state.
There is also liability if by its conduct (e.g., public statements by government
officials directing, praising or endorsing certain acts) the state can be said to
have been complicit in the wrongful acts of its officials. State responsibility for
wrongful acts of its officials also crystalizes when the state fails in the exercise
of its due diligence obligation regarding the conduct of its officers. The due
diligence obligation requires the state to utilize its security and intelligence
resources to anticipate and prevent acts of officers that may breach the state’s
international obligations. If the wrongful acts of any state official were probably
spontaneous or caught the state unawares, there still exists for the state a
continuing due diligence obligation to mitigate the effect of the breach, correct
any anomalies created, find the implicated officials, punish them to the fullest
extent of the law and offer assurances of non-repetition to the injured persons,
as the circumstance may require. Consequently, what is otherwise a private and
isolated act of a state official may be translated into an “act of the state” for
which a Respondent State is liable irrespective of whether the state has adopted
the private or the isolated acts of the official concerned, especially where the
State failed to exercise its due diligence obligation.
In this instant case, since the Minister of Education was engaged in his official
duties at the time he published the statement, the liability of the Respondent
for the statement cannot be excluded under the rules of state responsibility. To
consider Sierra Leone not liable for the acts of its officer in this circumstance
requires a high degree of proof. There must be evidence that the Minister made
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