1. Inter alia, this involves the promotion of democracy, human rights and the rule of law; see generally Chesterman, S You, the People: The United Nations, Transitional Administration and State-Building (Oxford: Oxford University Press, 2004)CrossRefGoogle Scholar; Ratner, S The New UN Peacekeeping: Building Peace in Lands of Conflict after the Cold War (Basingstoke: Macmillan, 1995)Google Scholar; Tansey, O ‘the concept and practice of democratic regime-building’ (2007) 14 International Peacekeeping 633 CrossRefGoogle Scholar; Paris, R ‘International peacebuilding and the “mission civilistrace” ’ (2002) 28 Review of International Studies 28 CrossRefGoogle Scholar.

2. ‘A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations’ UN Doc A/59/710, 24 March 2005.

3. In order for an international organisation to be held legally responsible for an internationally wrongful act two requirements must be established. First, that that the act committed can be attributed to the organisation. Secondly, the act must constitute a breach of an international obligation. It is only the question of attribution that is addressed in this paper.

4. Art 6 of the Articles on the Responsibility of International Organisations (2011). This also includes ultra vires acts. However, it does not include unlawful acts that are committed in a ‘non-official capacity’; see ‘Liability of the United Nations for claims involving off-duty acts of members of peacekeeping forces – determination of “off-duty” status’[1986] UN Doc ST/LEG/SER.C/24, p 300.

5. Art 7 of the Articles on the Responsibility of International Organisations. As we shall see below, Art 7 makes it clear that the required degree of control is effective control.

6. Letter of 3 February 2004 by the UN Legal Counsel to the Director of the Codification Division, A/CN.4/454, sect II.G.

7. International Law Commission ‘Draft articles on the responsibility of international organizations, with commentaries’ 5 August 2011, p 20.

8. Ibid (footnotes omitted). In the words of Sari, ‘[a]lthough the participation of national forces in peace support operations may take various forms, national contingents retain their character as organs of their respective sending State under all circumstances. This includes…UN peacekeeping operations’; Sari, A ‘Jurisdiction and international responsibility in peace support operations: the Behrami and Saramati cases’ (2008) 8 Human Rights Law Review 151 CrossRefGoogle Scholar at 159.

9. Above n 7.

10. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA) (Merits) (1986) ICJ Reports 14; Application of the Convention on the Protection and Punishment of the Crime of Genocide (Bosnia v Serbia) (2007) ICJ Reports 1.

11. Art 7 of the Articles on the Responsibility of International Organisations (2011).

12. Behrami and Behrami v France, Saramati v France, Germany and Norway App Nos 71412/01 and 78166/01, Grand Chamber Decision, 2 May 2007.

13. McCoubrey, H and White, ND The Blue Helmets: Legal Regulation of United Nations Military Operations (Aldershot: Dartmouth, 1996)Google Scholar p 137 (‘[in relation to peacekeeping] there is a degree of institutional ambiguity not normally considered consistent with an efficient and effective command structure’).

14. Member states are therefore under no obligation to contribute forces to peacekeeping operations. For a good discussion of how the UN recruits peacekeeping personnel see Siekmann, R National Contingents in United Nations Peacekeeping Forces (Boston: Nijhoff, 1991)Google Scholar.

15. UN Department of Peacekeeping Operations Command and Control of Military Components in United Nation Peacekeeping Operations (October 2001) p 7.

16. ‘In the case of military personnel provided by Member States, these personnel are placed under the operational control of the United Nations Force Commander or head of military component, but not under United Nations command’; UN Department of Peacekeeping Operations UN Peacekeeping Operations: Principles and Guidelines (2008) p 68.

17. Command and Control of Military Components in United Nations Peacekeeping Operations, above n 15 at 8. Tactical control means ‘[t]he detailed and local direction of movement or manoeuvres necessary to accomplish mission or tasks assigned’; ibid.

18. UN Secretary-General Financing of the UN Protection Force UN Doc A/51/389 (1996) para 19.

19. See A Cowell ‘Italy in UN rift: threatens recall of Somalia troops’NY Times 16 July 1999 at A1; UN Department of Peacekeeping Operations, above n 16, p 68.

20. Dannenbaum, T ‘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 contingents serving as United Nations peacekeepers’ (2010) 51 Harvard Int'l LJ 113 Google Scholar at 150.

21. Leck, C ‘International responsibility in United Nations peacekeeping operations: command and control arrangements and the attribution of conduct’ (2009) 10 Melbourne Journal of International Law 346 Google Scholar at 359.

22. This does not mean, however, that once policies have been formulated by the UN Force Commander (in consultation with the troop contributing country) the troop contributing country (or its contingent commander) can deliberately depart from the UN Force Commander's instructions: ‘it is impermissible for contingent commanders to be instructed by the national authorities to depart from United Nations policies’; Report of the Secretary-General to the General Assembly ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects – command and control of United Nations peacekeeping operations’ UN Doc A/49/681 (1994) para 7.

23. Murphy, R ‘Legal framework of Un forces and issues of command and control of Canadian and Irish forces’ (1999) 4 Journal of Armed Conflict Law 41 CrossRefGoogle Scholar at 54.

24. Leck, above n 21, at 359.

25. Above n 22.

26. Ibid.

27. Ibid, para 6.

28. Above n 18.

29. UN Secretariat Responsibility of International Organizations UN Doc A/CN.4/545 (2004) p 17.

30. Dannenbaum, above n 20, at 124.

31. Nicaragua, above n 10.

32. Ibid, para 115.

33. Ibid, para 115.

34. Cassese, A ‘the Nicaragua and Tadić tests revisited in light of the Icj judgement in Bosnia’ (2007) 18 EJIL 649 CrossRefGoogle Scholar at 653.

35. Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion (1949) ICJ Reports 174.

36. Prosecutor v Tadić ICTY-94-1-A (1999) 38 ILM.

37. The Appeals Chamber explained that it was basing its ruling on ‘general international rules on State responsibility which set out the legal criteria for attributing to a State acts performed by individuals not having the formal status of State officials’; ibid, para 98.

38. Ibid, para 115.

39. Ibid, paras 131 and 137.

40. Ibid.

41. Talmon, S ‘the responsibility of outside powers for acts of secessionist entities’ (2008) 58 International and Comparative Law Quarterly 493 CrossRefGoogle Scholar at 506.

42. Tadić, above n 36, para 124. Wittich argues that the overall control test imposes a ‘less strict standard’ than the ICJ's effective control test; Wittich, S ‘the International Law Commission's articles on the responsibility of States for internationally wrongful acts adopted on second reading’ (2002) 15 LJIL 891 CrossRefGoogle Scholar at 894.

43. Bosnian Genocide, above n 10.

44. Ibid, para 404.

45. Even though the Appeals Chamber expressly stated that it was basing its ruling on the law on state responsibility; see n 37.

46. Bosnian Genocide, above n 10, para 403.

47. Although as I have previously argued, there seems to be no convincing reason why the test for determining attribution in relation to state responsibility should not be the same for determining attribution in relation to the responsibility of international organisations. However, that the ECtHR was required to deal directly with the responsibility of an international organisation does confer particular significance on this decision.

48. Behrami and Saramati, above n 12, paras 123–127.

49. Because if it could, then the action would be inadmissible as the UN is not a party to the ECHR.

50. Behrami and Saramati, above n 12, paras 142–143.

51. Not least because the national contingents that constituted KFOR remained subject to the disciplinary jurisdiction of their sending states. Thus, the national contingents remained organs of their sending states and could not be regarded as an organ of the UN. For an excellent overview of the KFOR command structure and its relationship with the UN see Tsagourias, N ‘The responsibility of international organisations for military missions’ in Odello, M and Piotrowicz, R (eds) International Military Missions and International Law (Leiden: Brill, 2011)Google Scholar.

52. Behrami and Saramati, above n 12, para 140.

53. Ibid, para 128.

54. Ibid.

55. Ibid, para 132.

56. Ibid, para 138.

57. Ibid, para 134.

58. Ibid, para 141.

59. Larsen, K ‘Attribution of conduct in peace operations: the “ultimate authority and control” test’ (2008) 19 EJIL 509 CrossRefGoogle Scholar at 522.

60. Sari, above n 8, p 164. See also Breitegger, A ‘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 155 CrossRefGoogle Scholar.

61. Interestingly, Cassese argues that the Behrami test is ‘precisely the same approach’ that the ICTY adopted in Tadić. Respectfully, for the reasons outlined above, this approach seems difficult to sustain; Cassese, above n 34, at 667.

62. Ibid, at 661.

63. The European Convention was operative because the UK, a party to the Convention, was considered to be responsible for this territory on the basis that it possessed effective control over it. The ECHR therefore applied extra-territorially; see Bankovic and others v. Belgium and others (Appeal Number 52207/99) Admissibility Decision of 12 December 2001, 11 BHRC 435.

64. R (on the Application of Al-Jedda) v Secretary of State for Defence[2007] UKHL 58, para 124.

65. Ibid, para 24. Although do note Lord Rodger's dissenting judgement in the House of Lords. Lord Rodger argued that, like in Behrami and Saramati, the UN had exercised ultimate authority and control over the British forces and therefore the unlawful acts were attributable to the UN; ibid, para 88.

66. Messineo, F ‘the House of Lords in Al-Jedda and public international law: attribution of conflict to Un-authorized forces and the power of the security council to displace human rights’ (2009) 56 NILR 35 CrossRefGoogle Scholar at 37.

67. District Court The Hague, LJN: BF0187 (10 September 2008). Hereafter referred to as the Mothers of Srebrenica case.

68. Ibid, para 4.9.

69. See Buchan, R, Jones, H and White, ND ‘Externalization of peacekeeping, practice, liabilities and accountability’ (2011) 15 Journal of International Peacekeeping 281 CrossRefGoogle Scholar at 307.

70. Mothers of Srebrenica, above n 67, para 4.14.

71. Ibid, para 4.15.

72. The Draft Articles on the Responsibility of International Organisations were adopted by the International Law Commission on 31 May 2011.

73. Seventh Report of the Special Rapporteur on the Responsibility of International Organizations A/CN.4/610 (2009) para 30. See also the most recent (eighth) report of the Special Rapporteur, which explains that the correct test for determining attribution is whether the international organisation possessed effective control over the commission of the unlawful act; Eighth Report of the Special Rapporteur on the Responsibility of International Organizations A/CN.4/640 (2011) para 32–35.

74. The Court of Appeal The Hague, LJN: BR0132 (5 July 2011). See generally C van Dam ‘The Netherlands found liable for Srebrenica deaths’ASIL Insights 19 September 2011, vol 15, issue 27.

75. Al-Jedda v UK App No 27021/08 (ECtHR, 7 July 2011).

76. Ibid, para 83.

77. Talmon, above n 41, p 497.

78. Sari, above n 8, p 164 et seq. See also Milanovic, M and Papic, T ‘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 267 CrossRefGoogle Scholar.

79. Perhaps this confusion can be explained on the basis that the ECtHR derived its ultimate authority and control test from Sarooshi's, D seminal text The United Nation and the Development of Collective Security: the Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Clarendon Press, 1999)Google Scholar. As the title indicates, this text concerns issues relating to the UN's institutional responsibility; specifically, when can the Security Council lawfully delegate its Chapter VII powers? Clearly, this text does not address general principles of public international law relating to when an unlawful act can be attributed to an international organisation.

80. This position was also expressly adopted by the Dutch District Court in the Mothers of Srebrenica case; above n 67, para 4.13.

81. As the ICTY has explained, ‘…it can be maintained that the whole body of the law on State responsibility is based upon the realistic concept of accountability….’; Tadić, above n 36, para 121.

82. ‘In many cases the question will in practice be whether a certain conduct should be attributed to one or, alternatively, to another subject of international law. However, conduct does not necessarily have to be attributed exclusively to one subject only…one could envisage cases in which conduct should be simultaneously attributed to an international organization and one or more of its members’; International Law Commission, Fifty-Eighth Session, Fourth Report of the Special Rapporteur on the Responsibility of International Organizations, A/CN.4/541 (2006) para 16. That the effective control test can result in dual attribution has also been recognised by the Dutch Court of Appeal in the Mothers of Srebrenica case; above n 74, para 5.9.

83. Milanovic, M ‘State responsibility for genocide’ (2006) 17 EJIL 553 CrossRefGoogle Scholar at 576.

84. A Cassese ‘A judicial massacre’Guardian 27 February 2007, available at http://www.guardian.co.uk/commentisfree/2007/feb/27/thejudicialmassacreofsrebr.

85. Cassese argues that ‘practice and case law strongly support the “overall control” standard when state responsibility for actions of organized armed groups or military units is at stake’; Cassese, above n 34, at 657. Milanovic arrives at an opposite conclusion, suggesting that there is insufficient state practice to support this claim; Milanovic, above n 83, at 588.

86. Bosnian Genocide, above n 10, para 406.

87. Tadić, above n 36, para 120.

88. In the words of the ICTY, ‘[n]ormally a member of the group does not act on his own but conforms to the standards prevailing in the group’; ibid.

89. Latin for ‘let the master answer’.

90. Cassese, above n 34, at 661.

91. As White explains, ‘[t]he traditional test of effective control is inadequate for attribution to organizations such as the UN, NATO, or the EU, and to insist upon such a test would be to allow international organizations to escape direct liability for injurious acts committed under their authority’; White, ND ‘Institutional responsibility for private military and security companies’ in Francioni, F and Ronzitti, N (eds) War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford: Oxford University Press, 2011)Google Scholar p 383.

92. Crawford, J The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002)Google Scholar p 103.