Иванова Е.В. Об оптимизации использования специальных знаний эксперта в уголовном процессе

Аннотация: International Law Commission in the Articles on responsibility of States for internationally wrongful acts, the text of which is annexed to the resolution of the General Assembly 56/83 adopted on 12.12.2001, among the elements of internationally wrongful act indicate that such an act must be attributable to a State under international law. According to the general rule a State is responsible for the conduct of any State organ. Besides, the Commission indicates the special rules of attribution – the conduct of persons or entities exercising elements of governmental authority; the conduct of organs placed at the disposal of a State by another State; excess of authority or contravention of instructions; the conduct directed or controlled by a State; the conduct carried out in the absence or default of official authorities; the conduct of an insurrectional or other movement; the conduct acknowledged and adopted by a State as its own. The situations which generate a question about attribution to a State the conduct of a person or group of persons if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (article 8) are the most widespread and difficult in qualification cases. The International Court of Justice (ICJ) addressed these qustions frequently. The article considered concepts which have been developed by the International court thereupon in the cases concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America, Judgment of 27 June 1986), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, Judgment of 19 December 2005), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007). In the case concerning Military and Paramilitary Activities in and against Nicaragua the Court has already set fairly high threshold of participation of the state in actions of private persons that it was possible to consider that the given forces operate on behalf of the given state. According to the Court, it is not enough to exercise only general control over armed groups for attribution of their behavior to the State, it is necessary to prove actual management and the control over concrete actions. The Court declared that yet despite the heavy subsidies and other support provided to the contras by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in al1 fields as to justify treating the contras as acting on its behalf. To give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. The International Court of Justice does not reject the same approach in subsequent cases, including after well-known case IT-94-1 Prosecutor v. Tadic, (1999), Judgment of 15th July 1999, in which the International Criminal Tribunal on the Former Yugoslavia (ICTFY) concluded, that for the purposes of the treatment the armed conflict in Bosnia and Herzegovina as an international armed conflict it is enough to find that FRY had an “overall control” of Bosnian Serbs, which does not demand the edition of special orders or the instructions concerning separate military actions. In the case of application of the Convention on the Prevention and Punishment of the Crime of Genocide the Court rejected the arguments of ICTFY. Considering whether the conduct of bosnian serbs carried out the act of genocide in Srebrenica in 1995 is attributable to the FRY, the Court declares: “[I]t has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.” This approach was exposed to criticism. The criticism has especially increased after acts of terrorism on September, 11th, 2001 and the following US forces attacks against Afganistan where actual government allowed that the al- Kaide used its territory as bases for terrorists and for the organization and fulfillment of terrorist attacks, that was regarded as a change of standards of the concept of an armed attack in the sense of the article 51 of the Charter of the United Nations. In this connection it is necessary to conclude that under the influence of state practice, Security Council decisions and other international legal agencies activities set by the International Court of Justice strict criteria of attribution of conduct to a state in case of armed attack of terrorists, considering exclusiveness and an urgency of protection against such attacks, will be extended.

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Abstract: International Law Commission in the Articles on responsibility of States for internationally wrongful acts, the text of which is annexed to the resolution of the General Assembly 56/83 adopted on 12.12.2001, among the elements of internationally wrongful act indicate that such an act must be attributable to a State under international law. According to the general rule a State is responsible for the conduct of any State organ. Besides, the Commission indicates the special rules of attribution – the conduct of persons or entities exercising elements of governmental authority; the conduct of organs placed at the disposal of a State by another State; excess of authority or contravention of instructions; the conduct directed or controlled by a State; the conduct carried out in the absence or default of official authorities; the conduct of an insurrectional or other movement; the conduct acknowledged and adopted by a State as its own. The situations which generate a question about attribution to a State the conduct of a person or group of persons if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (article 8) are the most widespread and difficult in qualification cases. The International Court of Justice (ICJ) addressed these qustions frequently. The article considered concepts which have been developed by the International court thereupon in the cases concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America, Judgment of 27 June 1986), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, Judgment of 19 December 2005), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007). In the case concerning Military and Paramilitary Activities in and against Nicaragua the Court has already set fairly high threshold of participation of the state in actions of private persons that it was possible to consider that the given forces operate on behalf of the given state. According to the Court, it is not enough to exercise only general control over armed groups for attribution of their behavior to the State, it is necessary to prove actual management and the control over concrete actions. The Court declared that yet despite the heavy subsidies and other support provided to the contras by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in al1 fields as to justify treating the contras as acting on its behalf. To give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. The International Court of Justice does not reject the same approach in subsequent cases, including after well-known case IT-94-1 Prosecutor v. Tadic, (1999), Judgment of 15th July 1999, in which the International Criminal Tribunal on the Former Yugoslavia (ICTFY) concluded, that for the purposes of the treatment the armed conflict in Bosnia and Herzegovina as an international armed conflict it is enough to find that FRY had an “overall control” of Bosnian Serbs, which does not demand the edition of special orders or the instructions concerning separate military actions. In the case of application of the Convention on the Prevention and Punishment of the Crime of Genocide the Court rejected the arguments of ICTFY. Considering whether the conduct of bosnian serbs carried out the act of genocide in Srebrenica in 1995 is attributable to the FRY, the Court declares: “[I]t has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.” This approach was exposed to criticism. The criticism has especially increased after acts of terrorism on September, 11th, 2001 and the following US forces attacks against Afganistan where actual government allowed that the al- Kaide used its territory as bases for terrorists and for the organization and fulfillment of terrorist attacks, that was regarded as a change of standards of the concept of an armed attack in the sense of the article 51 of the Charter of the United Nations. In this connection it is necessary to conclude that under the influence of state practice, Security Council decisions and other international legal agencies activities set by the International Court of Justice strict criteria of attribution of conduct to a state in case of armed attack of terrorists, considering exclusiveness and an urgency of protection against such attacks, will be extended.

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