83
provides the general framework –the rules called secondary- that
indicate the components and consequences of the abridgment of a
primary rule;
iii.
since the American convention itself does not develop a theory of
the internationally unlawful act, and therefore does not include all
aspects involving the concept of international responsibility of the
States, said instrument does not constitute lex specialis regarding
this matter. Only Article 63 of the Convention refers to a concrete
aspect of responsibility, the obligation to provide reparations or
compensation; and
iv.
there are no provisions in the Convention that develop the topic of
attribution of conduct to the State. Therefore, to establish the
responsibility of the State for acts by individuals it is absolutely
necessary to take into account international standards regarding
the responsibility of the States, especially what has been codified
by the International Law Commission and existing customary
international law on this subject;
d) according to customary international law and legal scholarship, as well as the
Articles of the ILC, it is a general principle that the behavior of private
individuals is not attributable to the State, save for two specific situations
foreseen in Articles 8 and 9 of the ILC, which are conduct under the direction
or effective control of the State, and absence or default of public authorities.
The jurisprudence of the International Court of Justice (case regarding Military
and Paramilitary Activities in and against Nicaragua) and the International
Criminal Tribunal for the Former Yugoslavia (Tadic case) corroborates the
above. Another possibility of attributing conduct of private individuals to the
State is that foreseen in Article 11 of the Articles of the ILC. In that
hypothetical, it is necessary for there to be both acknowledgment and
adoption, and the expression of both must be sufficiently unequivocal; in
other words, rather than a general acknowledgment of the factual situation, it
is necessary for the State to identify the conduct and accept responsibility for
it;
e) in the case of the Mapiripán Massacre there were no instructions or effective
control by the State nor a delegation of public authority, and the State neither
acknowledges nor adopts the criminal acts of the self-defense groups in this
case or in any other. Instead, its policy was violated and its Law breached by
those groups and by some of its agents who collaborated, even if by
omission, in those facts. In this regard, it is necessary to take into account
that:
i.
the
self-defense
groups
are
completely
autonomous
organizationally and financially, they have their own command
structure and leaders whom their members recognize as the
“Authority of the Organization,” which entails complete disregard
for the legitimately established and constitutionally recognized
authorities, and places them outside the institutionality of the State
in their structure and funding. These illegal groups have clear
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