A/HRC/41/CRP.1 The State cannot take refuge behind the notion that, according to the provisions of its internal law or to instructions which may have been given to its … agents, their actions or omissions ought not to have occurred or ought to have taken a different form. This is so even where the organ or entity in question has overtly committed unlawful acts under the cover of its official status or has manifestly exceeded its competence. It is so even if other organs of the State have disowned the conduct in question.176 This “rule evolved in response to the need for clarity and security in international relations”177 and is now “firmly established”.178 217. The “central issue to be addressed in determining the applicability of article 7 to unauthorized conduct of official bodies is whether the conduct was performed by the [agent] in an official capacity or not.”179 A distinction must be made between “[c]ases where officials acted in their capacity as such, albeit unlawfully or contrary to instructions” and “cases where the conduct is so removed from the scope of their official functions that it should be assimilated to that of private individuals, not attributable to the State.” 180 Applying this distinction, States have been found responsible, under international law, for murders and other acts committed by their officials, when those officials acted “under cover of their status as officers and used means placed at their disposal on account of that status.” 181 State have even been found responsible when officers used their governmental powers as “a mere pretext for taking private vengeance” 182 – the critical factor being that they used the government powers and means in taking those acts. Finally, a State organ acting ultra vires or in breach of the rules governing its operation has also been found to be acting in the name of the State.183 218. In sum, a State cannot evade responsibility for the acts of their officials by claiming that they acted “rogue.” Otherwise, “one would end by authorizing abuse, for in most cases there would be no practical way of proving that the agent had or had not acted on orders received.”184 The Responsibility of the Kingdom of Saudi Arabia for the commission of the execution 219. Various explanations and accusations have been offered on the circumstances of Mr. Khashoggi’s death, but none alters State responsibility. It is legally irrelevant to State responsibility which high level officials actually ordered Mr. Khashoggi’s death, or whether one or all of them ordered a kidnapping that was botched with an accidental killing, or whether the officers acted on their own initiative to render Mr. Khashoggi back to Saudi Arabia and killed him in the process, or whether the officers acted ultra vires (the so-called rogue state agents theory) and killed him intentionally. The above analysis of the facts of the killing has already well demonstrated State Responsibility. Some, although not all, of the evidence is summarized below. 176 177 178 179 180 181 182 183 184 Draft Articles on the Responsibility of States for Intentionally Wrongful Acts, Art. 7, Commentary, para. 2 Ibid., Art. 7, Commentary, para. 3. Ibid., para. 4. Ibid., para. 7. Ibid. Ibid., para. 5 (quoting the Caire case) Mallén (Mex.) v. United States, 4 R.I.A.A. 173, 177 (Gen. Cl. Comm’n 1927); Youmans (U.S.) v. United Mexican States, 4 R.I.A.A. 110, 116 (Gen. Cl. Comm’n 1926)(finding Mexico responsible for the acts of soldiers who fired on Americans rather than protecting them); Caire, 5 R.I.A.A. _ Mexico found responsible when soldiers executed French citizen when he would not pay bribe); see generally Chimène Keitner, “Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity,” 26 Duke J. Comp. & Int’l L. 451 (2016). ILC, para.13 Draft Articles on the Responsibility of States for Intentionally Wrongful Acts, Art. 7, Commentary, para. 3. 43