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The allocation of responsibility for internationally wrongful acts committed in the course of multinational operations

Published online by Cambridge University Press:  08 July 2014

Paolo Palchetti
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Abstract

The article aims to examine, in light of the codification work of the International Law Commission and of the most recent practice, some issues concerning the allocation of responsibility between an organisation and its troop-contributing states for the conduct taken in the course of a multinational operation (with a specific focus on UN operations). After explaining the general rule of attribution of conduct based on the status of the multinational force as an organ or an agent of the organisation, this article will examine the validity of special rules of attribution of conduct based on the notions of ‘effective control’ or ‘ultimate control’ over the acts of the multinational force. Finally, I will discuss the possibility of dual responsibility of both the organisation and the troop-contributing state concerned.

Keywords

responsibility for internationally wrongful actsmultinational operationsUnited NationsDraft Articles on the Responsibility of International Organisationspeacekeeping operations
Type
Research Article
Information
International Review of the Red Cross , Volume 95 , Issue 891-892: Multinational operations and the law , December 2013 , pp. 727 - 742
Copyright
Copyright © icrc 2014 

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References

1 For such criticism, see Alvarez, José E., ‘Revisiting the ILC's Draft Rules on International Organization Responsibility’, in American Society of International Law Proceedings, Vol. 105, 2011, p. 345Google Scholar; Hafner, Gerhard, ‘Is the Topic of Responsibility of International Organizations Ripe for Codification? Some Critical Remarks’, in Fastenrath, U. et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma, Oxford University Press, Oxford, 2011, pp. 700–701Google Scholar.

2 Letter from the United Nations Legal Counsel, Mr Hans Corell, to the Director of the Codification Division, Mr Václav Mikulka, 3 February 2004, reported by Giorgio Gaja in the Second Report on the Responsibility of International Organizations, UN Doc. A/CN.4/541, 2 April 2004, p. 16, n. 52.

3 On the characterisation of UN peacekeeping forces as subsidiary organs of the UN see, for instance, Article 15 of the Draft Model Status-of-Force Agreement between the United Nations and host countries, which provides that ‘[t]he United Nations peace-keeping operation, as a subsidiary organ of the United Nations, enjoys the status, privileges and immunities of the United Nations’. UN Doc. A/45/594, para. 15.

4 See for instance Seyersted, Finn, ‘United Nations Forces: Some Legal Problems’, in British Yearbook of International Law, Vol. 37, 1961, p. 429Google Scholar.

5 European Court of Human Rights (ECtHR), Behrami and Behrami v. France and Saramati v. France, Germany and Norway, Apps. No. 71412/01 and 78166/01, Decision (Grand Chamber), 2 May 2007, para. 143.

6 UN Doc. A/CN.4/637/Add.1, 17 February 2011, p. 13.

7 House of Lords, Attorney General v. Nissan, Judgment, 11 February 1969, All England Law Reports, 1969-I, p. 646. In the same vein, the Supreme Court of the Netherlands expressly rejected the argument submitted by the Dutch government, according to which, since peacekeeping forces are subsidiary organs of the UN, their conduct must be attributed exclusively to the organisation on the basis of the rule set forth in Article 6 of the Draft Articles on the Responsibility of International Organisations. See Supreme Court of the Netherlands, State of the Netherlands v. Nuhanović, 6 September 2013, para. 3.10.2.

8 Report of the International Law Commission on the work of its sixty-third session, UN Doc. A/66/10, 2011, pp. 87–88.

9 For an assessment of questions of attribution raised by the activity of PMCs, see White, Nigel D. and MacLeod, Sorcha, ‘EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility’, in The European Journal of International Law, Vol. 19, No. 5, 2008, pp. 965–988Google Scholar; Magi, Laura, ‘Sull'attribuzione ad una organizzazione internazionale dell'attività di società private che operano per suo conto’, in Rivista di Diritto Internazionale, Vol. 93, No. 3, 2010, pp. 753–801Google Scholar.

10 On this issue, see Antonios Tzanakoupolos, ‘Attribution of Conduct to International Organizations in Peacekeeping Operations’, EJIL: Talk! Blog of the European Journal of International Law, 10 March 2009, available at: www.ejiltalk.org/attribution-of-conduct-to-international-organizations-in-peacekeeping-operations/ (last visited in December 2013).

11 According to Article 8 of the Draft Articles on State Responsibility, ‘[s]hould persons or groups of persons act under the instructions, or the direction or control, of an international organisation, they would have to be regarded as agents according to the definition given in subparagraph (d) of article 2.’

12 Report of the International Law Commission, above note 8, para. 109.

13 For an analysis of the relevant practice, see ibid., pp. 88–91.

14 As is well known, an ‘effective control’ test was employed by the International Court of Justice (ICJ) in the Nicaragua and Genocide Convention cases in order to determine whether the conduct of groups of individuals who were not organs of a state, and who were connected to the state only on the basis of a de facto link, was to be attributed to that state. According to the ICJ, in order for the state to be legally responsible for the conduct of such individuals, it would have to be proved that the state had effective control over the operations during which the wrongful conduct occurred. See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, para. 115; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, paras. 399–400. For the view that, in providing the standard of effective control, the Draft Articles on the Responsibility of International Organisations ‘codified what was already a longstanding principle for the attribution of wrongdoing at international law’, as recognised, among others, by the International Court of Justice, see Dannenbaum, Tom, ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should Be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’, in Harvard International Law Review, Vol. 51, 2010, p. 141Google Scholar. See also Leck, Christopher, ‘International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct’, in Melbourne Journal of International Law, Vol. 10, 2009, pp. 348–349Google Scholar. On the relationship between the notion of effective control used by the ICJ and that employed in Article 7, see the observations of Francesco Messineo, Multiple Attribution of Conduct, SHARES Research Paper No. 2012–11, pp. 32–33.

15 Report of the International Law Commission, above note 8, p. 88.

16 This interpretation of the ILC Commentary finds support in the following observation of the ILC's Special Rapporteur, Giorgio Gaja: ‘In order to settle the issue of where the effective control lies, one needs to consider the “full factual circumstances and particular context in which international organizations and their members operated”, as was stressed by the UK in a statement. This implies that, with regard to a United Nations peacekeeping force, while in principle the conduct of the force should be attributed to the United Nations, effective control of a particular conduct may belong to the contributing State rather than to the United Nations’ (emphasis added). Giorgio Gaja, Eighth Report on the Responsibility of International Organisations, UN Doc. A/CN.4/640, p. 13.

17 Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects, Report of the Secretary-General, UN Doc. A/49/681, 21 November 1994, p. 3. This document defines the notion of ‘operational command’ as ‘the full authority to issue operational directives within the limits of (1) a specific mandate of the Security Council; (2) an agreed period of time, with the stipulation that an earlier withdrawal requires adequate prior notification; and (3) a specific geographical range (the mission area as a whole)’: ibid., p. 2.

18 This aspect was duly stressed by Nollkaemper, André, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’, in Journal of International Criminal Justice, Vol. 9, 2011, pp. 1143–1157CrossRefGoogle Scholar. See also the judgement of 6 September 2013, by which the Supreme Court of the Netherlands dismissed the appeal in cassation submitted by the State of the Netherlands and substantially confirmed the legal findings and conclusion of the Court of Appeal.

19 The Hague Court of Appeal, Nuhanović v. Netherlands, Appeal Judgment, 5 July 2011, ILDC 1742 (NL 2011), para. 5.9.

20 Ibid., para. 5.18.

21 Ibid.

22 Ibid., paras. 5.18–5.20. See also the judgment of the Court of First Instance of Brussels, where the conduct of the Belgian contingent taking part in the United Nations Assistance Mission for Rwanda peacekeeping force was considered to be attributable to Belgium since such conduct was taken at a time when the Belgian government had decided to withdraw from the peacekeeping operation: Court of First Instance of Brussels, Mukeshimana-Ngulinzira and others v. Belgium and others, RG No. 04/4807/A and 07/15547/A, Judgment, 8 December 2010, ILDC 1604 (BE 2010), para. 38.

23 Article 8 of the Draft Articles on the Responsibility of International Organisations provides that ‘[t]he conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions’. According to Article 7 of the Draft Articles on State Responsibility, ‘[t]he conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions’.

24 For a different view, see Tom Dannenbaum, above note 14, p. 159.

25 Behrami and Behrami v. France and Saramati v. France, Germany and Norway, above note 5, paras. 133–141.

26 Ibid., para. 134.

27 For critical remarks concerning the criterion of attribution applied by the ECtHR, see, among others, Klein, Pierre, ‘Responsabilité pour les faits commis dans le cadre d'opérations de paix et étendue du pouvoir de contrôle de la Cour européenne des droits de l'homme: quelques considerations critiques sur l'arrêt Behrami et Saramati’, in Annuaire Français de Droit International, Vol. 53, 2007, p. 55Google Scholar; Sicilianos, Linos-Alexander, ‘Entre multilatéralisme et unilatéralisme: l'autorisation par le Conseil de securité de recourir à la force’, in Recueil des Cours, Vol. 339, 2009, p. 376Google Scholar.

28 UN Doc. A/CN.4/637/Add.1, p. 12.

29 Report of the International Law Commission, above note 8, p. 89: ‘when applying the criterion of effective control, “operational” control would seem more significant than “ultimate” control, since the latter hardly implies a role in the act in question’.

30 ECtHR, Al Jedda v. United Kingdom, Application No. 27021/08, Judgment (Grand Chamber), 7 July 2011, para. 84.

31 It may be useful to note that in this judgment the Court also implied that dual attribution to the UN and the state is possible. See e.g. Milanovic, Marko, ‘Al Skeini and Al Jedda in Strasbourg’, in The European Journal of International Law, Vol. 23, No. 1, 2012, p. 136CrossRefGoogle Scholar.

32 ECtHR, Nada v. Switzerland, Application No. 10593/08, Judgment (Grand Chamber), 12 September 2012, para. 120.

33 Article 17(2) provides that ‘[a]n international organisation incurs international responsibility if it circumvents one of its international obligations by authorising member States or international organisations to commit an act that would be internationally wrongful if committed by the former organisation and the act in question is committed because of that authorisation’.

34 Report of the International Law Commission, above note 8, p. 42.

35 See Article 19 of the Draft Articles on the Responsibility of International Organisations.

36 UN Doc. A/CN.4/637/Add.1, p. 18.

37 See the views expressed on this issue by Condorelli, Luigi, ‘Le statut des forces de l'ONU et le droit international humanitaire’, in Rivista di Diritto Internazionale, Vol. 78, 1995, p. 893Google Scholar; and by Leck, Christopher, ‘International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct’, in Melbourne Journal of International Law, Vol. 10, 2009, p. 1Google Scholar.

38 UN Doc. A/CN.4/637/Add.1, p. 14.

39 See above note 31.

40 Report of the International Law Commission, above note 8, p. 81.

41 District Court of The Hague, HN v. Netherlands (Ministry of Defence and Ministry of Foreign Affairs), First Instance Judgment, 10 September 2008, ILDC 1092 (NL 2008), para. 4.14.1.

42 Ibid., para. 4.13.

43 Nuhanović v. Netherlands, above note 19, para. 5.9.

44 State of the Netherlands v. Nuhanović, above note 7, para. 3.11.2.

45 Ibid., para. 5.18.

46 One may refer, for instance, to the ECtHR's decision in the case Mothers of Srebrenica, where the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate’. See ECtHR, Stichting Mothers of Srebrenica and others v. the Netherlands, Application No. 65542/12, Decision of 11 June 2012, para. 169.