(b) the State itself or its agent(s) carried out the act, or omission, that comprised the violation.46 When these conditions are met, the State will be considered responsible for the violation and the investigative body can report that legal conclusion. At this point the investigation could also identify as responsible the individual(s) who took part in the violation, i.e., the State’s agents. To the extent that the investigative body has determined that non-State actors (NSAs) or de facto authorities have human rights obligations, these elements can be applied also to those entities and “agents” who took part in the violation. Example of information to identify alleged perpetrators An OHCHR field presence has collected credible information from multiple victims concerning torture in a State-run detention centre. The information includes the name, rank and physical description of one of the individuals directly torturing detainees. HROs have determined that the individual identified was a State agent (for example, the person was a member of the staff of the centre); the pain from the torture reached the “severe pain” threshold; and the pain was inflicted in an attempt to coerce confessions.47 Given the consistency and quality of the information, the office might conclude that the human rights violation of torture has been committed.48 That finding would implicate the State as duty bearer, but the office could also identify the individual perpetrating the torture. If generating a list or dossier of alleged perpetrators (see below, part 5), it might choose to include the individual.49 Where an entity or individual is involved, he/she/it must have been acting at the time as an agent of the State or with the consent or acquiescence of the State, such that he/she/it could attract the responsibility of the State under international law. The following can trigger State responsibility: - an individual employed by the State, or empowered to exercise elements of State authority, or otherwise in a position to invoke State responsibility; - one of the State’s organs (e.g., departments, ministries, units, etc.); - one of its armed forces (e.g., security services, air force, etc.); - persons or groups acting in fact on its instructions, or under its direction or control; - private persons or groups whose actions the State has acknowledged and adopted as its own conduct. See “Draft articles on Responsibility of States for Internationally Wrongful Acts”, adopted by the International Law Commission at its fifty-third session in 2001, reproduced in Yearbook of the International Law Commission, 2001, vol. II, part II (United Nations publication, Sales No. E.04.V.17 (part 2)), arts. 4-11. The elements in these draft articles are generally accepted as reflecting customary international law. 47 The substantive law could be, for example, ICCPR art. 7 and/or CAT arts. 1-2. 48 This finding could be made upon weighing the facts against the appropriate “standard of proof”. See part 3 B below. 49 This finding could result even in the absence of a specific determination of traditional (criminal) elements of individual responsibility, such as “mode of liability” or mens rea. This is not a criminal attribution, it is a human rights finding. 46 30 ATTRIBUTING INDIVIDUAL RESPONSIBILITY