¹ ILC, Report of the International Law Commission, UN Doc A/66/10, 30 May 2011 (‘DARIO 2011’), Ch V ‘Reasonability of International Organizations’. An earlier version was adopted in the Report of International Law Commission Sixty-First Session, UN Doc A/64/10, 4 May–5 June and 6 July–7 August 2009, Ch IV ‘Responsibility of International Organizations’ (‘DARIO 2009’), with commentaries.

² Kanetake, Machiko, ‘Whose Zero Tolerance Counts? Reassessing a Zero Tolerance Policy against Sexual Exploitation and Abuse by UN Peacekeepers’ (2010) 17 International Peacekeeping 200CrossRefGoogle Scholar; Grady, Kate, ‘Sexual Exploitation and Abuse by UN Peacekeepers: a Threat to Impartiality’ (2010) 17 International Peacekeeping 215CrossRefGoogle Scholar.

³ Saramati v France, Germany and Norway (2007) 45 EHRR 85.

⁴ See, for example, in respect of the UN-authorised NATO operation in Libya: ‘NATO Acknowledges Civilian Casualties in Tripoli Strike’, 19 June 2011, available at http://www.nato.int/cps/en/natolive/news_75639.htm.

⁵ An interesting question is whether subsidiary organs such as UNMIK enjoy a legal personality that is separate from its founding bodies. If they do, wrongful acts may have to be attributed to the subsidiary organ instead of its founding body. The ECtHR in Behrami – a case which is discussed below – left this question in relation to UNMIK conspicuously open. For the Court, for responsibility purposes, it was not relevant whether or not UNMIK enjoyed legal personality. What was decisive was that ‘UNMIK was a subsidiary organ of the UN institutionally directly and fully answerable to the UNSC’: Behrami v France (2007) 45 EHRR 85 para 142 (‘Whether [UNMIK] was a subsidiary organ of the SG [Secretary-General] or of the UNSC, whether it had a legal personality separate to the UN, whether the delegation of power by the UNSC to the SG and/or UNMIK also respected the role of the UNSC for which Article 24 of the Charter provided, UNMIK was a subsidiary organ of the UN institutionally directly and fully answerable to the UNSC’).

⁶ cf Commentaries (2) and (3) to art 6, DARIO 2011 (n 1), citing Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ Rep 177 (‘The Court understands the word “agent” in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the organization with carrying out, or helping to carry out, one of its functions – in short, any person through whom it acts’), and Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion [1999] ICJ Rep, 62 [66] (‘[…] damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity … [t]he United Nations may be required to bear responsibility for the damage arising from such acts’).

⁷ As far as military operations authorised by the UN Security Council under Chapter VII of the UN Charter are concerned, it is pointed out that there is no standing UN army, as member states have never concluded the necessary agreements under art 43 of the UN Charter: Charter of the United Nations and the Statute of the International Court of Justice (entered into force 24 October 1945) 1 UNTS XVI.

⁸ On the preventative rationale, see also Larsen, Kjetil Mujezinovic, ‘Attribution of Conduct in Peace Operations: the “Ultimate Authority and Control” Test’ (2008) 19 European Journal of International Law 509CrossRefGoogle Scholar, 520 (noting, regarding the Behrami case before the ECtHR, that KFOR, and not the UN, exercised operational command and control, and that ‘[w]hen a human rights infringement occurs through KFOR actions, the Member States of NATO are undoubtedly in a position to prevent the violation or to respond to it, either through national orders – where the state has retained this authority – or through their involvement in NATO itself’). Behrami raises the specific issue of UN and NATO member states placing troops at the disposal of NATO's Kosovo Force (KFOR), a force which was subsequently placed at the disposal of the UN: see Behrami (n 5). The question then is to examine whether it was the UN, NATO, or the member states who exercised control over the troops and their actions. In fact, the text of art 7, DARIO 2011 (n 1) itself contemplates the placing at the disposal of an IO of organs or agents by another IO.

⁹ It is a well-established principle that states which exercise control over a territory – for example, as an occupying power – are responsible for violations of international law committed by their military forces (being state organs) there. cf Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment, 19 December 2005 [2005] ICJ Rep168, [179]. It is similarly well established that conduct gives rise to the legal responsibility of a state if that state had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. cf Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), Judgment, 27 June 1986 [1986] ICJ Rep 65; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007 [2007] ICJ Rep 43, [399].

¹⁰ Leck, Christopher, ‘International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct’ (2009) 10 Melbourne Journal of International Law 346Google Scholar, 359 (suggesting that ‘peacekeepers are not under the effective control of the UN, but are perhaps under the dual or joint control of both the UN and the TCC [troop-contributing country]. In such circumstances, the UN and the TCC could conceivably be deemed to be acting jointly and it would follow that the conduct of peacekeepers ought to be imputed to both the UN and the TCC’).

¹¹ 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’ (2010) 51 Harvard International Law Journal 114Google Scholar.

¹² See also Larsen (n 8) 523 (stating with respect to the Behrami case that ‘if the [troop-contributing nations] had interfered with NATO's operational control, they could have been held responsible for the actions on the basis of having acted outside of the scope of the delegation’); Sari, Aurel, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’ (2008) 8 Human Rights Law Review 151CrossRefGoogle Scholar, 166 (‘An act committed outside the scope of the international mandate of the operation or outside its chain of command is performed in a national capacity’).

¹³ Compare, in a criminal law context, art 28(a) of the Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (‘ICC Statute’) (‘A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces’).

¹⁴ Compare, in a criminal law context, art 33 of the ICC Statute, ibid (‘The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility’).

¹⁵ Dannenbaum (n 11) 158–83.

¹⁶ Seyersted, Finn, United Nations Forces in the Law of Peace and War (AW Sijthoff 1966) 411Google Scholar (arguing that ‘if a Force is under national command, the Organization has no legal responsibility for it and does not represent it internationally’). See also Shraga, Daphne, ‘The United Nations as an Actor Bound by International Humanitarian Law’ in Condorelli, Luigi and others (eds), The United Nations and International Humanitarian Law (Pedone 1996) 330Google Scholar (‘In enforcement actions carried out by States under the authorization of the Security Council … operational command and control is vested in the States conducting the operation, and so is international responsibility for the conduct of their troops’).

¹⁷ At least one author, however, has stated that it is not fully clear whether this provision truly reflects customary international law: see Larsen (n 8) 518, referring to the Report of the International Law Commission Fifty-sixth session, UN Doc A/59/10, 3 May–4 June and 5 July–6 August 2004, 99, Ch V ‘Responsibility of International Organizations’, draft art 5.

¹⁸ Commentary (4) to art 7, DARIO 2011 (n 1).

¹⁹ ibid Commentaries (8) and (9).

²⁰ ibid Commentary (4).

²¹ Cammaert, Patrick C and Klappe, Bert, ‘Authority, Command, and Control in United Nations Peace Operations’ in Gill, Terry D and Fleck, Dieter (eds), The Handbook of the International Law of Military Operations (OUP 2010), 159–60Google Scholar, para 6.16.

²² UNSC Res 1528(2004), UN Doc S/RES/1528 (2004), 27 February 2004, para 16 (‘Authorizes for a period of 12 months from 4 April 2004 the French forces to use all necessary means in order to support UNOCI in accordance with the agreement to be reached between UNOCI and the French authorities, and in particular to:

• –

  – contribute to the general security of the area of activity of the international forces,

• –

  – intervene at the request of UNOCI in support of its elements whose security may be threatened,

• –

  – intervene against belligerent actions, if the security conditions so require, outside the areas directly controlled by UNOCI,

• –

  – help to protect civilians, in the deployment areas of their units’).

See also UNSC Resolution 1975(2011), UN Doc S/RES/1975 (2011), 30 March 2011, para 6.

²³ Lansana Gberie and Prosper Addo, ‘Challenges of Peace Implementation in Côte d'Ivoire’, Report on an Expert Workshop by KAIPTC and ZIF, Institute for Security Studies (ISS), Pretoria, South Africa, 2004, 28.

²⁴ Breaches of international law may have occurred in 2011, when UNOCI and Licorne mounted a military operation to protect Ivorian civilians caught up in armed violence after a UN-certified presidential election. For example, it has been alleged by Thabo Mbeki, former President of South Africa and the former African Union mediator in Côte d'Ivoire, that UNOCI and ‘the French Licorne forces, as mandated by the United Nations, [failed to] act to protect civilians in the area of Duékoué, where … the most concentrated murder of civilians took place!’: Mbeki, Thabo, ‘What the World Got Wrong in Côte D'Ivoire’, Foreign Policy, 29 April 2011Google Scholar.

²⁵ In actual fact, the ILC states that it does not purport to formulate any criticism as regards the Court's criterion of whether ‘the United Nations Security Council retained ultimate authority and control so that operational command only was delegated’: Commentary (10) to art 7, DARIO 2011 (n 1). Yet, in the same paragraph, it observes pointedly: ‘One may note that, 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’: ibid. It also cites the fact that the United Nations Secretary-General distanced himself from the ECtHR's criterion, when he stated in his 2008 report on Kosovo: ‘It is understood that the international responsibility of the United Nations will be limited in the extent of its effective operational control’: ibid. cf Report of the Secretary-General on the UN Interim Administration Mission in Kosovo, UN Doc S/2008/354, 12 June 2008, para 16. See also ILC, Seventh Report on Responsibility of International Organizations, UN Doc A/CN.4/610, 27 March 2009, para 26.

²⁶ Behrami v France and Saramati v France, Germany and Norway (2007) 45 EHRR 85, para 135.

²⁷ In the law of state responsibility, the ‘effective control’ standard is used, in particular in the context of attributing acts of non-state armed groups to states: see ICJ Nicaragua v USA (n 9); ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts [2001] Yearbook of the International Law Commission, vol II pt 2, draft art 8. For the purposes of determining the nature of an armed conflict (international or non-international?), the ICTY has suggested an ‘overall’ control standard: ICTY Prosecutor v Dusan ‘Duško’ Tadić, IT-94-1-A, Appeals Chamber, 15 July 1999, [145]–[154].

²⁸ Commentaries (11) and (12) to art 7, DARIO 2011 (n 1) (agreeing with both R (on the application of Al Jedda) (FC) v Secretary of State for Defence [2007] UKHL 58 (‘Al Jedda (House of Lords)’), and Mothers of Srebrenica v United Nations, Case no 29524, LJN BD6795 and LJN BD 6796 (District Court of The Hague, 10 July 2008)(‘Mothers of Srebrenica (District Court, The Hague)’).

²⁹ Nuhanovic v The Netherlands, Case no 265615/HA ZA 06-1671 (District Court of The Hague, 10 September 2008) ILDC 1092 (ILDC 2008) (‘Nuhanovic (District Court, The Hague)’), paras 4.10–4.11.

³⁰ Mothers of Srebrenica (District Court, The Hague) (n 28). The latter case was upheld by the Court of Appeal: Mothers of Srebrenica v United Nations, Case no 200.022.151/01, LJN BL8979 (Appeal Court of The Hague, 30 March 2010) (‘Mothers of Srebrenica (Appeal Court, The Hague)’).

³¹ ‘Responsibility of International Organizations: Comments and Observations Received from International Organizations’ (‘Comments and Observations 2011’), UN Doc A/CN.4/637/Add.1, 17 February 2011, 13–14. Compare Letter of 3 February 2004 by the United Nations Legal Counsel to the Director of the Codification Division (‘Letter, UN Legal Counsel’), in ‘Responsibility of International Organizations: Comments and Observations Received from International Organizations’ (‘Comments and Observations 2004’), UN Doc A/CN.4/545, 25 June 2004, s II.G (‘As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation’).

³² It is all the more remarkable, then, that eventually the UN Secretariat ‘nevertheless supports the inclusion of [Article 7] in the draft Articles as a general guiding principle in the determination of responsibilities between the United Nations and its member states with respect to organs or agents placed at the disposal of the Organization’: Comments and Observations 2011, ibid, 16. It is not entirely clear what practical relevance the ‘effective control’ standard can still have in UN practice.

³³ ibid.

³⁴ cf Sari (n 12) 159–60; Dannenbaum (n 11) 142–51.

³⁵ Letter, UN Legal Counsel (n 31) s II.G, as cited in Commentary (6) to art 7, DARIO 2011 (n 1) (emphasis added).

³⁶ ‘Responsibility of International Organizations: Comments and Observations received from Governments and International Organizations’, UN Doc A/CN.4/556, 12 May 2005 (‘Comments and Observations 2005’) 46.

³⁷ Comments and Observations 2011 (n 31) 12.

³⁸ art 8, DARIO 2011 (n 1) (‘The 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’).

³⁹ Comments and Observations 2011 (n 31) 13.

⁴⁰ ibid 14.

⁴¹ DARIO 2011 (n 1) art 2(d).

⁴² UN comments in Comments and Observations 2011 (n 31) 9 (‘It is the view of the Secretariat that the broad definition adopted by the ILC could expose international organizations to unreasonable responsibility and should thus be revised’).

⁴³ ibid.

⁴⁴ Outside the context of peace operations, however, the UN appears at times to have refused to assume responsibility for acts of subsidiary bodies established by it. A notable example is the statement by senior UN personnel in New York working at the Department of Administration and Management and at the Office of Legal Affairs that ‘they did not bear responsibility for the effectiveness or functionality of the [International Criminal Tribunal for the former Yugoslavia]’. While the statement uses the word ‘they’, arguably, what is meant are the UN headquarters, and the UN as an organisation. Thus, the statement may relate to institutional rather than personal responsibility, or the lack thereof. See, for criticism of this stance, informed by the ‘independence’ of the tribunal: Karl Paschke, Head of the UN's Office of Internal Oversight Services, in ‘Financing of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994’, UN Doc A/51/789, 6 February 1997.

⁴⁵ Comments and Observations 2011 (n 31) 14.

⁴⁶ For a rare example, see the recently established Kosovo Human Rights Advisory Panel, which has jurisdiction over human rights violations attributable to UNMIK. The panel, however, is merely advisory in nature; information is available at http://www.unmikonline.org/human_rights/index.htm.

⁴⁷ Mothers of Srebrenica (Appeal Court, The Hague) (n 30) para 5.12 (‘The State cannot invoke immunity from prosecution before a Netherlands court of law, so that a Netherlands court will have to give a substantive assessment of the claim against the State anyway. This will be no different if in that case, as the Association et al. say they expect – and with some reason, cf. the statement in the interim proceedings at first instance instigated by the State under 3.4.8 – the State to argue that its actions in Srebrenica must strictly be imputed to the UN. Even if this defence is put forward (which the Association et al. contest in anticipation anyway, cf. the initiating writ of summons nos. 347 and ff.), a court of law will fully deal with the claim of the Association et al. anyway, so that the Association et al. do have access to an independent court of law’).

⁴⁸ UN Charter, art 43.

⁴⁹ Dannenbaum (n 11) 184–86.

⁵⁰ ibid.

⁵¹ As regards the Srebrenica decision, see Guido den Dekker, ‘Immunity of the United Nations before the Dutch Courts’, 28 July 2008, 9, available at http://www.haguejusticeportal.net/Docs/HJJ-JJH/Vol_3(2)/Journal%20-%20Den%20Dekker%20-%203.2%20-%20EN.pdf, observing that the Dutch decisions may have been informed by the concern that ‘a different outcome would constitute an impediment to the effective implementation of the duties of (future) international missions under UN responsibility’.

⁵² Still, they may not necessarily agree with the practical outcomes of the application of the effective control standard. The author was surprised to find out, at a meeting of the Belgian Foreign Office in early 2011, that the government was supportive of the principle laid down in DARIO 2011 (n 1) art 7 (which was translated into the Belgian comment to the provision, UN Doc A/CN.4/636, 14 February 2011, 13–14), while at the same time it took issue with, and appealed against, a Brussels court's very application of the Article 7 standard in Mukeshimana.

⁵³ UN General Assembly, 6^th Committee, statement by Denmark on behalf of all Nordic countries on ‘Responsibility of International Organizations’, 29 October 2007, available at http://www.missionfnnewyork.um.dk/en/menu/statements/UNGA626thCommitteeJointNordicStatement.htm (‘This does and must not mean that the UN should always be responsible for all acts performed during UN peacekeeping operations. In our view it is not clear to what extent the same result would be reached by the [European] Court of Human Rights with regard to acts performed during other peacekeeping operations under a chapter VII mandate. Decisive for the outcome would probably be the particular command and control structure and legal framework for each individual peacekeeping operation’); Poland in ‘Responsibility of International Organizations: Comments and Observations Received from Governments’, UN Doc A/CN.4/547, 6 August 2004 (‘Comments and Observations Received from Governments 2004’) 9 (‘The responsibility of member States cannot be absolutely excluded if the armed forces are acting on behalf of the sending States and/or are directly controlled by officers (commanders) from the respective States’).

⁵⁴ Leck (n 10) 355 (stating that ‘the UN seems to have tacitly accepted, resignedly, that TCCs will often impose such restrictions and micro-manage their contingents on the ground to safeguard their interests and protect their peacekeepers. At the same time, given the difficulties that such restrictions pose, the UN has declared that it cannot accept restrictions by TCCs that will compromise the mission; that unity of command is critical to the effective functioning of a PKO; and that TCCs should not provide, and NCCs [national contingent commanders] should not abide by, any national directions, in the hope that TCCs will minimize restrictions on the employment of their contingents’).

⁵⁵ ibid 352–57.

⁵⁶ Cammaert and Klappe (n 21).

⁵⁷ Leck (n 10) 364.

⁵⁸ Bell, Caitlin A, ‘Reassessing Multiple Attribution: the International Law Commission and the Behrami and Saramati Decision’ (2010) 42 New York University Journal of International Law and Politics 502Google Scholar, 548.

⁵⁹ ibid 544.

⁶⁰ This may be the ‘fundamental legal answer’ to the ‘fundamental principal question’ of how to apportion responsibility between the UN and the contributing states that my former colleague, Guido den Dekker, was looking for: den Dekker (n 51) 9.

⁶¹ Comments and Observations 2011 (n 31) 14, citing art 9 of the ‘Memorandum of Understanding’(between the United Nations and the [participating state] contributing resources to [the United Nations Peacekeeping Operation]), in ‘Administrative and Budgetary Aspects of the Financing of the United Nations Peacekeeping Operations’, UN Doc A/C.5/60/26, 11 January 2006 (‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this MOU. However, if the loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government, the Government will be liable for such claims’); Comments and Observations 2004 (n 31) 17–18.

⁶² Commentary (3) to art 7, DARIO 2011 (n 1).

⁶³ Absent an agreement, it would seem that the actors are expected to contribute on the basis of their respective roles in ordering or facilitating the wrongful conduct, ie, on the basis of the extent of their responsibility vis-à-vis the injured third party. Dannenbaum, however, has spoken out against a duty of contribution, which then logically implies that the responsible actor who is targeted first by the victim has to pay the entire amount of damages without the possibility of recovery: Dannenbaum (n 11) 59.

⁶⁴ On the accountability of international organisations, however, see International Law Association, ‘Report on the Accountability of International Organizations’, Berlin Conference 2004, available at http://www.ila-hq.org/en/committees/index.cfm/cid/9.

⁶⁵ This principle applies primarily in common law jurisdictions: see, for example, Multiple Claimants v MoD [2003] EWHC 1134, QB, Owen J; (2007) Lords Hansard, cols GC227–GC234 (UK Parliament discussing the Corporate Manslaughter and Corporate Homicide Bill). The principle may, however, lose its force in the face of human rights claims. See R (Al Skeini) v Secretary of State for Defence [2008] 1 AC 153, HL; Dijen Basu, ‘Challenging the Combat Immunity Principle’, 13 May 2008, available at http://www.devereuxchambers.co.uk/downloads/challenging-the-combat-immunity-principle---dijen-basu.pdf.

⁶⁶ For an excellent overview of the problems of giving extraterritorial application to human rights treaties, see Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (OUP 2011)CrossRefGoogle Scholar.

⁶⁷ Larsen (n 8) 531 (submitting that ‘the ECHR is in effect rendered irrelevant during international peace operations’); Sari (n 12) 166 (referring to the creation of a void).

⁶⁸ See at length on these boards: Schmalenbach, Kirsten, ‘Third Party Liability of International Organizations: A Study on Claim Settlement in the Course of Military Operations and International Administrations’ (2005) 10 International Peacekeeping 33Google Scholar (‘The settlement of disputes by the local claims review board has developed into a form of adjudication that does not allow the injured party to have any significant influence on the result’) 42, (‘it may be difficult to demonstrate a direct entitlement on the basis of internal liability rules’) 50, (‘In establishing its liability practice, the international organization acts as a unilateral legislator and can establish the legal position within the limits of its obligations under international law’) 51: Schmalenbach, Kirsten, Die Haftung Internationaler Organisationen im Rahmen von Militäreinsätzen und Territorialverwaltungen (Lang 2004)Google Scholar.

⁶⁹ Waite and Kennedy v Germany App no 26083/94 (ECtHR, 18 February 1999).

⁷⁰ The Appeal Court, for instance, took the view that the claimants could have brought a case before a court of law meeting the requirements of art 6 ECHR against other persons who could incur responsibility for the events in Srebrenica: the very perpetrators of the genocide (probably before a Bosnian civil court), and the Dutch state which contributed the troops to the UNPROFOR operation in Bosnia (before a Dutch court): Mothers of Srebrenica (Appeal Court, The Hague) (n 30), para 5.11. The availability of the cited alternatives seems to be beside the point, as they concern remedies against other persons (individuals, a state, as opposed to the UN as an international organisation) for other acts (genocide in respect of the perpetrators, as opposed to a failure to prevent genocide). Moreover, the availability of the identified mechanism appeared hypothetical and illusory. First, the court did not adduce any evidence of Bosnian courts being available to hear civil cases in relation to the Srebrenica genocide. Secondly, The Hague District Court had earlier held that the failure of UN troops to act in Srebrenica was attributable to the UN rather than to the Netherlands, and thus dismissed the case against the Dutch state.

⁷¹ Georg Nolte, ‘Preliminary Comments on the Possible Establishment of a Human Rights Supervisory Mechanism for Kosovo’, Human Commission for Democracy through Law (Venice Commission), Strasbourg, 10 June 2004, para 79 ; available at http://www.venice.coe.int/docs/2004/CDL-AD(2004)033-e.asp (‘KFOR, unlike UNMIK, is not a UN peacekeeping mission. Therefore, although KFOR derives its mandate from UN SC Resolution 1244, it is not a subsidiary organ of the United Nations. Its acts are not attributed in international law to the United Nations as an international legal person’). See also Milanovic, Marko and Papic, Tatiana, ‘As Bad as it Gets: the European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 International and Comparative Law Quarterly 267CrossRefGoogle Scholar, 286; Sari (n 12) 164–65; Larsen (n 8) 525 (deriving from Security Council Resolution 1244 (1999) and its Annex 2 that the UN would not have command and control).

⁷² Behrami (n 26) para 135 (emphasis added).

⁷³ ibid.

⁷⁴ Sari (n 12) 164; Milanovic and Papic (n 71) 275, 281.

⁷⁵ For example, Milanovic and Papic (n 71); Larsen (n 8); Breitegger, Alexander, ‘Sacrificing the Effectiveness of the European Convention on Human Rights on the Altar of the Effective Functioning of Peace Support Operations: a Critique of Behrami & Saramati and Al Jedda’ (2009) 11 International Community Law Review 155CrossRefGoogle Scholar; Krieger, Heike, ‘A Credibility Gap: the Behrami and Saramati Decision of the European Court of Human Rights’ (2009) 13 Journal of International Peacekeeping 159CrossRefGoogle Scholar.

⁷⁶ Comments and Observations 2011 (n 31) 13. It may, however, not be entirely accurate to view the relationship between KFOR and UNMIK as authorisation. KFOR supports UNMIK but it is not subordinate to it. The UN Security Council authorised the Secretary General to establish UNMIK as an international civilian presence (para 10) while member states and relevant international organisations are authorised to establish the international security presence in Kosovo (para 9): UNSC Res 1244(1999) UN Doc S/RES/1244 (1999), 10 June 1999. It is conspicuous that the resolution refers to KFOR, which was deployed two days after the adoption of the resolution, before it refers to UNMIK.

⁷⁷ This is not to suggest that the other cases were not confirmed: they did not reach international courts because the individuals won in the domestic courts, not only on the law but also on the facts. Only in Al Jedda did the individuals win on the law, while responsibility was denied on the facts – hence their appeal to the ECtHR.

⁷⁸ Nuhanovic n 29, para 4.14. The Court addressed the question whether the state ‘cut across the United Nations command structure’ as follows: ‘If Dutchbat was instructed by the Dutch authorities to ignore UN orders or to go against them, and Dutchbat behaved in accordance with this instruction from the Netherlands, this constitutes a violation of the factual basis on which the attribution to the UN rests. This then creates scope for attribution to the state. The same is true if Dutchbat to a greater or lesser extent backed out of the structure of UN command, with the agreement of those in charge in the Netherlands, and considered or shown themselves as exclusively under the command of the competent authorities of the Netherlands for that part. If, however, Dutchbat received parallel instructions from both the Dutch and UN authorities, there are insufficient grounds to deviate from the usual rule of attribution.’ (para 4.14.1). It eventually concluded: ‘There are insufficient grounds for the point of view that Dutchbat by assisting in the evacuation of the citizens of Srebrenica obeyed an order given by the state which should be considered as an infringement of the UN command structure, for even if Nicolai ordered the evacuation of the civilians this does not mean that he did so strictly or for the most part on the authority of the Netherlands … At most, parallel instructions were issued … On the basis of all this the court establishes that there can be no matter of any actions taken in contravention of UN policies initiated or approved by the state.’ (para 4.14.5).

⁷⁹ ibid para 4.14.

⁸⁰ That is to say, backing out of the chain of command is an exception, but it is not the only one, since we argue that, in general, the responsibility of the UN is not engaged to the extent that member states exercise control over the troops they contribute to UN peace operations. On backing out of the chain, see DARIO 2009 (n 1) 58, Commentary (5) (the ILC stating that ‘the articles do not say, but only imply, that conduct of military forces of States or international organizations is not attributable to the United Nations when the Security Council authorizes States or international organizations to take necessary measures outside a chain of command linking those forces to the United Nations’).

⁸¹ Court of Appeal of The Hague, Mustafic v the Netherlands, LJN: BR0132, 5 July 2011; Court of Appeal of The Hague, Nuhanovic v the Netherlands, LJN: BR0133, 5 July 2011, ILDC 1742 (NL 2011). Hereafter, reference is made to the relevant paragraphs in Nuhanovic. Mustafic has corresponding paragraphs.

⁸² Nuhanovic (n 81) paras 5.8–5.9 (‘In the international law doctrine and in the work of the ILC, it is generally accepted that if a state places troops at the disposal of the UN with a view to carrying out a peace mission, the question of to whom the specific conduct of such troops should be attributed depends on the question of who has “effective control” over the relevant conduct … This view is also expressed in [Article 7 of] the draft articles on the Responsibility of International Organizations of the ILC… Although, strictly speaking, this provision only refers to “effective control” in relation to attribution to the “borrowing” international organisation, it is accepted that the same criterion also governs the question whether the conduct of troops should be attributed to the state which places those troops at the disposal of the organisation. … The question whether the state had ‘effective control’ over the conduct of Dutchbat … is to be answered on the basis of the circumstances of the case. It is not only significant in this respect to answer the question whether that conduct constituted the execution of a specific instruction given by the UN or the state, but also the question whether, failing such a specific instruction, the UN or the state had the power to prevent the conduct’) (Author's own translation).

⁸³ Nuhanovic (n 81) para 5.18. The latter consideration refers to the Netherlands cutting across UN command lines, thereby engaging its own responsibility.

⁸⁴ ibid para 6.14 (stating that there is a causal link between the men's forced departure from the compound and their death); ibid para 6.20.

⁸⁵ See also André Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Removal of Individuals from the Compound of Dutchbat’, Comment A5 on Nuhanovic ILDC (n 81), 8 July 2011; available at http://www.sharesproject.nl/dual-attribution-liability-of-the-netherlands-for-removal-of-individuals-from-the-compound-of-dutchbat/#more-644.

⁸⁶ Section 2 above, text at n 15.

⁸⁷ Nuhanovic (n 81) para 5.9 (the Court stating that ‘it is generally accepted that it is possible that more than one party can have “effective control”, as a result of which it is not excluded that the application of this criterion may lead to attribution to more than one party’).

⁸⁸ See also Nollkaemper (n 85).

⁸⁹ Mothers of Srebrenica (Appeal Court, The Hague) (n 30).

⁹⁰ Compare Dannenbaum (n 11) 183 (pleading joint and several liabilities in respect of Srebrenica where UN action, or the failure thereof, merely significantly obstructed compliance with the law, but did not make it impossible). See also above on ‘forced omissions’, and Klabbers, Jan, An Introduction to International Institutional Law (CUP 2009) 285CrossRefGoogle Scholar.

⁹¹ Al Jedda (House of Lords) (n 28). In fact, in an older case (in 1970), the UK House of Lords had already heard a similar case concerning UK participation in a UN operation in Cyprus, and had ruled that UK troops involved in an international peace operation ‘remain[ed] in their own national service’ and ‘continued … to be soldiers of Her Majesty’, which is a most interesting example of a court attributing liability to a troop-contributing state: Attorney General v Nissan [1970] AC 179 (HL). We limit our analysis to post-Behrami decisions.

⁹² The House of Lords decision only addressed the applicable legal regime. Following that decision, the Court of Appeal ruled that, in the circumstances, a review procedure under Coalition Provisional Authority Memorandum no 3 (Revised) provided sufficient guarantees of fairness and independence to comply with Iraqi law, and thus that his detention was not unlawful: see Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758.

⁹³ Al Jedda v United Kingdom App no 27021/08 (ECtHR, 7 July 2011) (‘Al Jedda (ECtHR)’). On the same day, the Court rendered its opinion in the Al Skeini case, which revolved around the territorial scope of the European Convention on Human Rights: Al Skeini v United Kingdom App no 55721/07 (ECtHR, 7 July 2011).

⁹⁴ Al Jedda (House of Lords) (n 28) [24] (per Lord Bingham) (‘The analogy with the situation in Kosovo breaks down … at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN's proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control’).

⁹⁵ Al Jedda (ECtHR) (n 93) para 83 (‘The Court agrees with the majority of the House of Lords that the United Nations’ role as regards security in Iraq in 2004 was quite different from its role as regards security in Kosovo in 1999. The comparison is relevant, since in the decision in Behrami and Saramati (cited above) the Court concluded, inter alia, that Mr Saramati's detention was attributable to the United Nations and not to any of the respondent States’).

⁹⁶ cf Milanovic and Papic (n 71) 292 (suggesting that Al Jedda and Behrami could not be distinguished conceptually).

⁹⁷ Al Jedda (House of Lords) (n 28) [23].

⁹⁸ Commentary (12) to art 7, DARIO 2011 (n 1).

⁹⁹ Al Jedda (ECtHR) (n 93) para 84. The judgment still refers to art 5 of one of the previous DARIO versions.

¹⁰⁰ ibid (emphasis added).

¹⁰¹ In fact, in the entire paragraph 83 of the judgment, the Court defends the application of the ultimate control and authority standard it espoused in Behrami, at least with respect to the facts of that case.

¹⁰² Al Jedda (ECtHR) (n 93) paras 85–86.

¹⁰³ ibid para 101.

¹⁰⁴ Mukeshimana and Others v Belgian State and Others, Case no RG 04/4807/A and 07/15547/A (Brussels Court of First Instance, 8 December 2010) (on file with the author), ILDC 1604 (BE 2010).

¹⁰⁵ Mukeshimana, ibid para 38 (author's own translation of the French text) (‘It was clear that there was major friction between the Belgian authorities and the MINUAR, and that entire contingents of the Belgian forces de facto no longer fell under MINUAR authority. MINUAR's General Dallaire explicitly complained that the Belgian soldiers present at the airport and the Belgian officers no longer fell under his authority. General Dallaire also stated that authority over the Belgian blue helmets encamped at the [compound] was withdrawn from him. At no time was the concrete decision to evacuate the ETO the subject of a dialogue between [the Belgian troops] Colonel Marchal and General Dallaire. In fact, there was a permanent dialogue between Marchal and the chiefs of staff of the Belgian army, which did not hesitate to carry on regardless of consultations with the MINUAR. Therefore, the decision to evacuate the [compound] ETO was a decision taken by Belgium and not by MINUAR’).

¹⁰⁶ Decisions on the blameworthiness of the commanders and the evaluation of the damages to be awarded were reserved for a later date; ibid para 48 in fine, para 52.

¹⁰⁷ Commentaries (6)–(9) to art 7, DARIO 2011 (n 1).

¹⁰⁸ ibid Commentary (8).

¹⁰⁹ ibid Commentary (12).

¹¹⁰ ibid Commentary (11).

¹¹¹ Compare International Law Association, Committee on the Formation of Customary (General) International Law, Statement of Principles on the Formation of Customary (General) International Law, London Conference 2000; available at http://www.ila-hq.org/en/committees/index.cfm/cid/3.0; see Rule 30 (‘Resolutions of the General Assembly can (but do not necessarily) constitute an historic (“material”) source of new customary rules’); Rule 31 (‘Resolutions of the General Assembly can in appropriate cases themselves constitute part of the process of formation of new rules of customary international law’).