Being bound by human rights obligations is one thing, determining the exact responsibility for the violation of such obligations by the IFIs as co-duty-bearers in the domain of international human rights law is something else entirely, and is the logical next step to be discussed. This chapter discusses three aspects of the attribution of responsibility for unlawful conduct: the attribution of unlawful conduct and responsibility to IFIs (subsection 4.1); what it means to be ‘in control’ (subsection 4.2); and primary, subsidiary and shared responsibility (subsection 4.3).

ATTRIBUTION AND RESPONSIBILITY

The circumstances under which international organisations may be held responsible for internationally wrongful acts have been laid down in the International Law Commission's Draft Articles on the Responsibility of International Organizations. The DARIO rules are used here as one of the possible lenses through which one can look at the (co-)responsibility of IFIs for the violation of human rights obligations. In light of Article 4 of DARIO, two conditions are required under international law for the responsibility of IFIs to be established: firstly, the breach of one of their international obligations, and, secondly, that the breach at issue is attributable to the IFI. As to the latter requirement, the conduct to be attributed will most of the time be the official conduct of the organs and agents of the IFIs acting within the overall framework of their functions, irrespective of the excess of authority or contravention of instructions (see also Article 2(c) and Article 8 DARIO).

The acts and omissions of IFIs may give rise to human rights violations where they aid or assist (Article 14), or direct and control (Article 15) a State (or another international organisation) in the commission of a wrongful act. The International Law Commission Commentary to the Draft Articles focuses especially on two conditions: the competence of the international organisation and the intention of the Member State. Article 61 of DARIO provides that the organisation must have competence in relation to the subject matter of the State's international obligation at hand before it can be held responsible, and the Commentary to the Article makes it clear that these situations are not limited to the transfer of a State's functions to an organisation.