PART 2.1 of State responsibility.113 In some situations, the attribution of legal responsibility can be a straightforward matter because the situation, or the act or omission that led to it, can be directly tied to a public official or institution. Actions (or the inaction) of courts, legislatures, executive bodies and public officials operating in their official capacity are all examples of conduct that are directly attributable to the State (art. 4). Whether the body/official is operating in an “official capacity” will be easily answered in the affirmative where “the conduct complained of is systematic or recurrent, such that the State knew or ought to have known of it and should have taken steps to prevent it” (art. 7, commentary, para. 8). The second part of the test – whether a situation, act or omission is a breach of an international law – is an objective question for the primary rules of international law. It requires consideration of the following questions: • Does the particular obligation exist through treaty law, custom or other recognized source? • If so, is the State in question bound by that obligation at the relevant time? The question of the existence of an obligation is purely a matter for international law: characterization of an act as lawful under national law is not relevant.114 Sometimes the question of State responsibility can be easily settled. The passing of a trafficking statute that discriminates against women in contravention of the international prohibition on The agreed articulation of those rules is contained in the International Law Commission’s draft articles on responsibility of States for internationally wrongful acts with commentaries, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10) [Hereinafter: Draft articles on State responsibility]. sex-based discrimination (found in both treaty law and customary international law) would be one example of direct attribution to the State of an act that violates its international legal obligations. The known, systematic and recurring involvement of law enforcement officials in trafficking operations provides another relatively clear-cut example of the direct attribution of conduct that is contrary to international law and therefore incurs the legal responsibility of the relevant State. Additional instances of acts or omissions that violate legal obligations and that can be directly attributed to the State are cited throughout this Commentary. Can the State be held responsible for the acts of others? Traffickers and their accomplices are, most often, private individuals, groups and networks. Certainly, public officials may facilitate this trade through their inaction, inertia and occasional active involvement. However, the harm of trafficking, in terms of both the process and the end result, is usually a direct consequence of actions taken by private entities rather than States, their institutions or their representatives. International law is clear that “as a general principle the conduct of private persons or entities is not attributable to the State under international law.”115 There are some exceptions. Under the rules on State responsibility, the conduct of private entities can be attributed to the State in situations where, for example, they are empowered by the State to exercise elements of governmental authority or are under the direction or control of the State.116 In the majority 113 Vienna Convention on the Law of Treaties, article 27; Draft articles on State responsibility, article 3. 114 76 Draft articles on State responsibility, article 8, commentary, para. 1. 115 The conduct of a person/entity empowered to “exercise elements of the governmental authority” (such as private companies that have been contracted to perform government services) can be attributed to the State if the person/entity was acting in that capacity at the time, and 116 RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING