As the destabilizing activities of non-state armed groups (NSAGs) proliferate, it is becoming increasingly important to find new ways to hold states accountable for their support of these groups. This Note argues that the International Court of Justice (ICJ or the Court) has taken an overly restrictive approach to state responsibility for NSAGs with its “effective control” test, as promulgated in Nicaragua v. United States of America and Bosnia and Herzegovina v. Serbia and Montenegro. Instead of this effective control test, the ICJ should adopt the “overall control” test in situations of armed conflict, as first developed by the International Criminal Tribunal for the Former Yugoslavia in its Prosecutor v. Dusˇko Tadic´ appeal judgment. The difference in approach between the two tests can be explained partially by different perspectives on state responsibility and the structure of the ICJ compared with that of international tribunals. If the ICJ wants to better address the issues NSAGs pose and promote international peace and security, it should change its approach to state responsibility and adopt the overall control test.

Continue reading In Search of Lost Crime