Summary of milanovic – plucken – Cassese (fuck me)

 Plucken submits that icj in bosnia case made 2 mistakes. First, it did not consider article 8 as
a rule of attribution. Second, de facto organ has to be interpreted within the article 8
meaning. He supports that the court said that the attribution under 8 resulted from organ’s
control. So, organs are responsible, so article 4!
 Milanovic, in response say that indeed article 8 is a rule of attribution and the court does
consider it this way. Examples of this at paragraphs 384,397 and 406 of bosnia genocide
(these paras, mainly 384, say that if the court is not satisfied with the attribution to the
Serbia as a de facto organ the serbenica, they will proceed and examine if they acted under
tha direction or control. So, clearly the icj consider art 8 as attribution rule.
 About the article 8 and de facto organ, Milanovic argue that “article 8 could not assign de
facto organ status to a non state actor whom the state did not control completely”. Also,
“organ” is not used in articles 8-11 or in other words, is only used on articles 4-5 mainly and
then 6-7. SO it was not intention of the ilc to put de facto organ under 8.
 Also, for de facto organ only the satisfaction that is a de facto organ is enough for
attribution. For article 8, there has to be something more, a specific link klp klp klp. Article 8
requires something more, so we could not put de facto organ into the article 8 meaning.
Article 8 requires actually to prove that link, says Milanovic.
 Finally, answering to plucken that the court said that “the attribution under 8 resulted from
organ’s control. So, organs are responsible, so article 4” (copy paste for point 1 of this
summary), Milanovic submits that this is the reason why the attribution is under article 8.
For example, Milanovic says, in article 11 acknowledgement is required. The wrongful act is
not the state’s acknowledgement, is just why the attribution rule is article 11.
 Cassesse submits that “the Court's basic assumption, that Article 8 of the ILC Articles reflects
customary law, is undemonstrated, being simply predicated on the authority of the Court
itself (the Nicaragua precedent), as well as the authority of the ILC”
 Cassese also submits that is a “fact that the Court in Nicaragua set out that test without
explaining or clarifying the grounds on which it wasbased. No reference is made by the Court
either to state practice or to other authorities. This is in keeping with a regrettable recent
tendency of the Court not to corroborate its pronouncements on international customary
rules”.