PART 2.2 out the key points of the law of responsibility, confirming that a State will be responsible for acts or omissions that are: (i) attributable to the State; and (ii) a breach of its international legal obligation. These issues are considered further below with specific reference to public-sector complicity in trafficking. ATTRIBUTION OF RESPONSIBILITY FOR CONDUCT OF PUBLIC OFFICIALS International law is clear that the conduct of any organ of the State, such as a court, or the legislature, will always be regarded as an act of that State, for which the State is directly responsible (Draft articles on State responsibility, art. 4).239 Attribution for acts of officials who are part of a State organ (such as police, prosecutors, immigration officials) will depend on whether the individual concerned is acting in an apparently official capacity or under colour of authority. Importantly, “it is irrelevant for this purpose that the person concerned may have had ulterior or improper motives or may be abusing public power” (art. 4, para. 13). That the act in question was unauthorized or ultra vires is also irrelevant when determining whether or not it is to be characterized as an act of the State (art. 7).240 Both of these are important principles in the present context. States may defend themselves against allegations of public-sector involvement in trafficking by pointing out that such involvement is contrary to national law and policy. Under the rules of attribution, “conduct carried out by persons cloaked with governmental authority” will be attributed to the State as an act of that State.241 A national prohibition against trafficking would therefore be insufficient to enable the State to avoid its international legal responsibility for complicity in trafficking by its public officials.242 The task then becomes one of distinguishing between “official” conduct and “private” conduct. Some situations will be relatively straightforward. For example, a border official accepts money in exchange for turning a blind eye to groups of young women being escorted across the border in suspicious circumstances. This individual is undoubtedly acting contrary to internal law and thereby exceeding his or her lawful authority. However, it is the official position of that person which allows him or her to engage in this conduct. The attribution of that individual’s conduct to the State and a consequential finding of responsibility against the State should not, therefore, be particularly difficult. The question of attribution may be more complicated when the acts or omissions in question appear to be those of private individuals who also happen to be agents of the Petrolane Inc. v. Islamic Republic of Iran (1991) 27 Iran-U.S.C.T.R., 64, p. 92, cited in Draft articles on State responsibility, article 7, para. 7. See also Caire case v. UNRIAA (1929), pp. 516, 531, cited in Draft articles on State responsibility, article 7, para. 5. 241 The International Court of Justice has confirmed this principle to be a norm of customary international law: Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (1999) ICJ Reports 87, para. 62. 239 Note that this provision applies both to organs of the State and to “a person or entity empowered to exercise elements of the governmental authority”. The European Court of Human Rights has held that a State’s authorities “are strictly liable for the conduct of their subordinates; they are under a duty to impose their will and cannot shelter behind their inability to ensure that it is respected.” Ilascu and Others v. Moldova and Russia (48787/99) [2004] ECHR 318 (8 July 2004), para. 319. 240 120 In the Velásquez Rodríguez Case, for example, the Inter-American Court of Human Rights stated that a determination as to whether a breach of the American Convention on Human Rights had occurred did not depend on whether or not provisions of internal law had been contravened or authority exceeded: “Under international law, a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law” (para. 170). 242 RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING