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AMSTERDAM LAW SCHOOL 2018
ATTRIBUTION OF THE CONDUCT IN THE CONTEXT OF UNITED NATIONS PEACE OPERATIONS
MDP Granados Del Águila
LL. M. Thesis in International and European Law: Public International Law Supervisor: Dhr. Dr. Kevin John Heller
3 Abstract
Taking the example of UNPROFOR, this study focusses in the attribution of a wrongful act by peacekeepers in the context of peace operations. Since States contribute personnel to the UN to conduct the operations, the attribution of the conduct could be attributed either to the UN, the State or both. Considering that, this study addresses the different types of peace operations and legal requirements, as well as the chain of command and the control exercised by the UN and the State during an operation. In addition, the legal personality of the UN is discussed, determining which law is applicable to it and consequently to the peacekeepers. In order to attribute a conduct in such a context, one has to bear in mind that peacekeepers are considered as transferred organs from the parent state to the UN. The discussion in that respect has led to several courts to address it in different manners applying the effective control test and the ultimate authority control test. This study examines those discussions and reaches the conclusion that the effective control established in article 7 ARIO determines the degree of control that either the UN and the TCC hold over them in a better way that the ultimate authority control test. Thus, the UN does not hold full command over the troops. Rather, that is reserved to the State. Article 7 ARIO focuses on the factual link but it does not exclude dual attribution. Consequently, dual attribution of conduct to the UN and the TCC is possible as different judgments have shown. They represent a big development in International Law. However, that information is not effective from a victim’s perspective. The immunity of jurisdiction of the UN does not allow them to present claims directly against it. Yet, they have to present them before national courts. This study highly and urgently recommends that the UN implements some mechanisms that could allow victims to present their claims directly against the UN and receive some compensation for the failures of the operation.
4 Contents
List of abbreviations ... 5
Chapter 1: General Introduction ... 7
1.1 Background of the study. ... 7
1.2 Purpose of the study. ... 10
1.3 Research methodology and structure of the study. ... 11
Chapter 2: Peace Operations. ... 12
2.1 Peace Operations: categories and legal framework. ... 12
2.2 Command and control in UN Operations. ... 17
2.4 UNPROFOR. ... 21
2.4.1 Historical context. ... 21
2.4.2 The course of the operation. ... 21
Chapter 3: Attribution of conduct in peace operations to the UN. ... 24
3.1 The UN legal personality, immunities and privileges. ... 24
3.2 The attribution of conduct to the UN. ... 26
3.2.1 The effective control test. ... 27
3.2.2 The ultimate authority and control test. ... 29
3.3 Dual attribution. ... 30
5 List of abbreviations
ADCON Administrative Control
ARBIH Army of the Republic of Bosnia and Herzegovina
ARIO Articles on Responsibility of International Organizations for
International Wrongful Acts
ARSIWA Articles on Responsibility of States for International Wrongful Acts
C2 Command and Control
DFS Department of Field Support
DPA Department of Political Affairs
DPKO Department of Peacekeeping Operations
EO Enforcement Operations
FC Force Commander
HOM Head of the Mission
HOMC Head of the Military Component
HS Host State
HVO Croatian Defence Council
IHL International Humanitarian Law
IHRL International Human Rights Law
ILC International Law Commission
JNA Yugoslav People’s Army
KFOR Kosovo Force
MINUSTAH United Nations Stabilization Mission in Haiti
MONUSCO United Nations Organizations Stabilization Mission in the DR Congo
MOU Memorandum of Understanding
MSs Member States
OP Operation Plan
OPCOM Operational Command
OPCON Operational Control
PEO Peace Enforcement Operations
PKO Peacekeeping Operations
PO Peace Operations
RtoP Responsibility to Protect
6 List of abbreviations
SG Secretary General
SOFA Status Forces Agreement
SOMA Status of Missions Agreements
TACOM Tactical Level Command
TACON Tactical Control
TCCs Troop Contributing Countries
UN United Nations
UNAMID United Nations African Union Mission in Darfur
UNAMIR United Nations Assistance Mission for Rwanda
UNC United Nations Charter
UNMIK United Nations Interim Administration Mission in Kosovo
UNMOGIP United Nations Military Observer Group in India and Pakistan
UNPROFOR United Nations Protection Force
UN SC United Nations Security Council
UNTSO United Nations Truce Supervision Organization
7 Chapter 1: General Introduction.
Initially, UN Peace operations were deployed to maintain the ceasefires and stabilize situations on the ground, providing crucial support for political efforts to resolve conflict by peaceful means1. They emerged in 1948 as an initiative of the Palestine Commission referring to the “possible need for an international force in the implementation of the recommendations of the General Assembly”2 to the Security Council. Since then, seventy-one peacekeeping operations have been deployed, whose core value is in accordance with the purposes of the UN: the maintenance of international peace and security3. In that sense, their effort in pursuing that value rewarded them with a Nobel Prize in 1988. Despite the efforts of the UN in carrying out the missions to lead and promote the international peace all around the Globe, they have shown some failures: several reports of sexual exploitation and abuse by peacekeepers to children and women have emerged since 1992. In addition, the outbreak of cholera in Haiti in October 20104 and the arm trade with warlords are two outrageous examples to mention. However, one of the worst incidents in the history of the peacekeeping missions changed dramatically the image of the UN and the development of International Law during the Balkans war: the massacre of Srebrenica in 1995.
1.1 Background of the study.
In 1992 in the height of the Yugoslav Wars, the United Nations Security Council deployed a peace operation named United Nations Protection Force (UNPROFOR) in Croatia. Its mandate was to ensure that the United Nations Protected Areas were demilitarised and to protect the civilians living in that areas. The operation´s mandate was extended to Bosnia and Herzegovina due to the intensification of
1 United Nations Peacekeeping “Our History” <https://peacekeeping.un.org/en/our-history>
2 General Assembly, United Nations Palestine Commission “Second Working Draft on First Monthly Progress Report to
the Security Council” (28 January 1948) UN Doc. A/AC.21/R/2, para. 14. See also General Assembly, United Nations Palestine Commission “First Monthly Progress Report to the Security Council” (29 January 1948) UN Doc. A/AC.21/7, para. 5 c.
3 Article 1, paragraph 1, United Nations Charter states that: “The Purposes of the United Nations are: To maintain
international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”.
4 Scientific studies have shown that Nepalese soldiers who arrived to Haiti as peacekeepers were the source of the cholera
that lately was spread among the Haitian population causing since 2010 around of 10.000 casualties. See: RR Frerichs, PS Keim, R Barrais and P Piarroux “Nepalese Origin of Cholera Epidemic in Haiti” (March 2012) 18 (6) Clinical Microbiology and Infection <https://www.researchgate.net/publication/224283567_Nepalese_origin_of_cholera_epidemic_in_Haiti>
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the conflict. Consequently, the Security Council declared as “safe areas” five Bosnian towns including Srebrenica in 19935.
For that purpose, the Netherlands placed a battalion (Airborne Brigade) at the disposal of UNPROFOR commanded by Lieutenant Colonel Thomas Karremans. This battalion established its base in Potočari near Srebrenica and replaced a Canadian contingent on 10th March 1994. Thousands of Muslims refugees (also known as Bosniaks) fled from all over the conflict territories to Srebrenica which ironically was called the “safe heaven”. The 11th of July of 1995, the Serbian forces leaded by Ratko Mladić arrived to the enclave of Srebrenica with a superior number of troops. Mladić and Karremans agreed to evacuate the civilian population from Srebrenica to a zone under Bosnian Serb control. Mladić separated the whole population in two groups: on the one hand, a group composed by women, children under 16 and elderly; on the other hand, men and boys in the age of combating. According to Mladić, the later had to be questioned with the purpose to find out who was a combatant within the group. In the days to follow and according to official data, the Serbs killed around 7475 persons from the enclave6. The Dutchbat´s mission was to protect the civilian population. For that purpose, they could use force in self-defence and ask air power support which was coordinated with the NATO, to the UN command. Nevertheless, the Dutch soldiers, waiting for air support had to surrender to the Serbian forces and stand “impassibly” and powerless before the massacre.
These facts have led to many debates and controversies: whether the number of fatalities was exactly as estimated, whether victims were combatants instead of civilians, whether the term genocide was imprecise, whether the mandate of UNPROFOR was too vague and the battalion was not adequately trained for its specific circumstances, etc. In addition, the whole world and the Dutch society called the Dutch soldiers “cowards” for not having done anything to prevent the biggest genocide after WWII. That fact has provoked on them psychological traumas that have led them either to commit suicide or to be under life-permanent psychological treatment7. Furthermore, the UN failed in ensuring the international peace and security and to effectively implement the mandate of the peace operation as the UN Charter states8.
After more than twenty years of this tragedy and the high number of victims, the question was: who bore responsibility for that genocide? Was it possible to attribute it to anyone? In that regard, the
5 UN SC Resolution 819 (16 April 1993) 3199th meeting, UN Doc. S/RES/819, p. 2.
6 H Brunborg et H Urdal “Report on the Number of Missing and Dead from Srebrenica” (12 February 2000) ICTY, p.1 7 M Corder et A Cohadzic “Srebrenica 20 years after the genocide: The Dutch peacekeepers still haunted by memories of
the massacre” (9 July 2015) The Independent < https://www.independent.co.uk/news/world/europe/srebrenica-20-years-after-the-genocide-the-dutch-peacekeepers-still-haunted-by-memories-of-the-10378913.html>
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International Courts have clarified some of the debates and controversies aforementioned. In the case of the ICJ, it was found out that the facts that took place in Srebrenica amounted to genocide9. The ICTY reached the same conclusion as the former, prosecuting and judging some of the top officials of the Bosnian Serb forces as General Radislav Krstić, commander of the Republika Srpska Army (VRS) Drina Corps, Dražen Erdemović, a VRS soldier with the 10th Sabotage Detachment, Dragan Obrenović, deputy commander of the VRS Zvornik Brigade and Ratko Mladić who has been sentenced to life imprisonment for the siege of Sarajevo and this massacre.
Once the individual criminal responsibility had been determined for some actors, the next questions that arose were: what about the responsibility of the other actors? Was the Dutchbat´s conduct wrongful for not having prevented the genocide? To whom is attributable the conduct: to the Netherlands, the UN or both? Did the victims get any remedy? Those questions entail a problem of attribution of the conduct for a wrongful act. From a victim’s perspective it is essential to determine the attribution in order to seek justice. That has been highly debated, especially when it comes to the immunity that the UN enjoys and the impossibility to present claims against it. In that regard, the victims have presented claims before the Dutch national courts against The Netherlands.
Conversely, such a heinous episode in the history of Europe has been very prolific for the development of the international law. The Court of Appeal in The Hague, on the one hand, has significantly shed light in the problem of attribution by developing and applying the “effective control test” in the context of Srebrenica. On the other hand, the European Court of Human Rights has developed and applied the “ultimate authority control” test in the context joint operations. In addition, the ILC codified in 2000s the Draft Articles on Responsibility of States for Internationally Wrongful acts10 and the Draft Articles on Responsibility of International Organizations for Internationally Wrongful Acts11.
But has all this development contribute enough to the attribution of the conduct for a wrongful act in the context of peace operations or is still insufficient?
9 Bosnian Genocide case (26 February 2007) ICJ, para. 297.
10 The Draft Articles on Responsibility of States for Internationally Wrongful Acts were adopted by the International Law
Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission´s report covering the work of that session, UN Doc. A/56/10. The report, which also contains commentaries on the draft articles, appears in the Yearbook of the International Law Commission, 2001, Vol. II, Part Two.
11 The Draft Articles on the Responsibility of International Organizations were adopted by the International Law
Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission´s report covering the work of that session, UN Doc. A/66/10. The report, which also contains commentaries to the draft articles, appears in the Yearbook of the International Law Commission, 2011, Vol. II, Part Two.
10 1.2 Purpose of the study.
Peace operations are composed by nationals of MSs. That implicates that they are incorporated into the institutional structure of the UN itself12. Thus, the legal complexity of their status is subjected to multiple layers of regulatory authority13. When a wrongful act is committed by a peacekeeper during the course of an operation, several issues are at stake: the responsibility of the troop-contributing State, the UN and the individual one of peacekeepers. Furthermore, the immunity of the UN, the mandate of the peace operation, the authority of the mission as well as the command in control revolve around the transfer of authority. In short, which legal consequences does the transfer of authority have? It is essential to be able to determine the attribution of the conduct in such a context in order to allocate responsibility, to prevent Human Rights and International Law violations and provide remedies for the victims of such violations.
Thus, this thesis aims to look into the specific problem of attribution of a wrongful act committed in the context of peace operations. For that purpose and taking the example of the UNPROFOR, specifically the conduct of the Dutch Battalion placed in Srebrenica, it seeks to provide an answer to the following questions:
1. To whom must be attributable a wrongful act committed by peacekeepers in the context of a peace operation: to the UN or to the State? And if so, under what circumstances?
In addition, two sub-questions must be addressed in connection with the main one: a) Is dual attribution possible? If so, under what circumstances?
b) Which test is more appropriate for attribution (effective control test or ultimate control test)? The importance of this study is significant since it will analyse the attribution of a conduct in the context of a peace mission. From a victim´s perspective, it is essential to shed light in this field due to the fact that it could facilitate them the information of where to get any remedy. They are always forgotten by the international community. These facts point out its sociological impact as well.
12 A. Orakhelashvili (ed.) “Research Handbook on Jurisdiction and Immunities in International Law” (2015) EE., p. 334.
11 1.3 Research methodology and structure of the study.
The problem of attribution of a wrongful act in the context of a PO cannot be elucidated without a proper understanding of the complex legal status and command structure of UN PKO. TCCs put at the disposal of the UN their organs to conduct the missions. In principle, they would fit under the wording of “transfer organs” to an international organization, therefore a wrongful conduct would be attributed to the UN. However, what would happen if the peacekeepers receive commands either from the UN and their State during the course of an operation? Would they be considered as organs of the UN or, on the contrary, would they remain as organs of the TCC or both? This thesis takes the position of the Dutchbat in Srebrenica and will discuss the three hypotheses following the “black letter law” methodology. This means that it will analyse the meaning of the legal rules of attribution established in ARSIWA and ARIO and apply them to such hypotheses. After the publication of the ARSIWA, there was a necessity to codify the same type of secondary rules but in the context of international organizations. In that sense, the ILC adapted in 2011 the ARIWA in the context of international organizations in a way to further develop the International Law. The ILC has been criticised for having adapted to ARIO the same defects as in ARSIWA14. However, as we will discuss further, the ARIO has been developed by courts.
Moreover, it will look to the UNC and “soft law” instruments such as resolutions, statements and reports of the SG. Furthermore, the thesis will compare the different judgments rendered by Dutch Courts in relation to this case and other tribunals that have dealt with similar cases. In doing so, it will determine whether their application of the effective and ultimate control tests for such situations where efficiently exercised.
Regarding the structure of the study, chapter 2 focuses in the analysis of the legal basis of peace operations, their types and deployment, the chain of command and the agreements between the UN and the TCCs. Finally, it will pay attention to UNPROFOR, explaining its mandate and context. Chapter 3 deals with the question of the attribution to the UN. For that purpose, it will discuss the UN legal personality, therefore, determining the applicable law to it. Later, it will turn to the question of attribution of a conduct to the UN, examining the two test that can allocate it and the possibility of dual attribution.
Chapter 4 is devoted to the conclusion of the study.
14 JD’Aspremont “The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law
12 Chapter 2: Peace Operations.
The absence of an international army and the general unwillingness of states to submit disputes to international adjudicatory tribunals have led the United Nations and some regional organizations to adopt the less controversial mechanism of peacekeeping15 to maintain the ceasefires and stabilizing situations on the ground and/or mediate disputes16. Thus, they serve as a guide to understand the relationship between the great powers and the maintenance of international peace and security.
2.1 Peace Operations: categories and legal framework.
Early UN Peace operations were unarmed and observer missions17. The first was UNTSO, established in 1948 and followed by UNMOGIP. Those correspond to the Cold War period till mid-1980s18. As a consequence of the changing nature of the conflicts, peace operations evolved into armed operations leaving behind the “traditional” missions to more complex and military robust ones19 .
There is not a definition of peace operations per se in the UN Charter. However, they have been defined as “field operations deployed to prevent, manage and/or resolve violent conflicts or reduce the risk of their recurrence”20. They serve as an instrument to carry out the core purpose of article 1 UN Charter21. In addition, POs will have to respect the principles of sovereign equality, use of force and non-intervention in domestic matters as stated in article 2 UNC.
The Security Council is the organ which is responsible to maintain the international peace and security22. For that purpose, it will take the necessary measures that fall under the scope of Chapters VI, which deals with “Pacific Settlement of Disputes” and VII that addresses “Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression”. Finally, Chapter VIII, “Regional
15 PF Diehl “International Peacekeeping” (1993) The Johns Hopkins University Press, p. 2.
16 A Dayal et LM Howard “Peace Operations” in JK Cogan, I Hurd et I Johnstone “The Oxford Handbook of International
Organizations” (2016) OUP, pp. 191-210, p. 195.
17 S Chesterman et al. (eds.) “Law and Practice of the United Nations” (2016) OUP, p 320.
18 TD Gill, D Fleck, WH Boothby and A Vanheusden (eds) “Leuven Manual on the International Law Applicable to Peace
Operations” (2017) CUP, p. 7.
19 n 12, p. 318.
20 UN Secretariat “United Nations Peacekeeping Operations: Principles and Guidelines” (March 2008) DPKO
International Publication, pp. 17-18 (hereafter, cited as Capstone Doctrine).
21 See n 3.
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Agreements” to deploy such operations. When acting under Chapter VII, the SC will be using the exception to the principles established in article 2.
Along practice, there have been settled different types of peace and security activities since the first deployment of a peace operation: conflict prevention or preventive diplomacy, peace-making, peacekeeping, peace enforcement and peacebuilding23. They conformed three groups of peace operations: a first group which employs primarily non-force methods of armed forces actions, such as observing and monitoring in order to fortify political and diplomatic efforts to halt and settle a conflict. A second one that uses those that combine political methods with active operations by an armed peacekeeping force that does not conduct any combat operation. Lastly, a third type of operations which involves the use of force, including combat actions to compel peace, in concert with political efforts or even without them24. Nevertheless, these terms refer to different phases in processes of maintaining or restoring peace, not different legal concepts25.
This thesis will focus on robust peacekeeping and peace enforcement operations26 led by the UN. They differ in the Mandate, the factual and military situations and means of implementation27. However, there are certain shared elements and functions among them, known as “grey areas”28, which hinders the comprehension of their role and objectives.
23 Capstone Doctrine p. 98
24 CA Demurenko et A Nikitin “Basic terminology and concepts in International Peacekeeping Operations: An Analytical
Review” (September 1998) Foreign Military Studies Office, Center for Army Lessons Learned, No. 98-26, p. 4.
25 M Bothe “UN Peace Operations”, pp. 50-74, p. 52 in D Fleck “The Handbook of the Law of Visiting Forces” (2018)
OUP.
26 Capstone Doctrine. p. 18.
27 TD Gill and D. Fleck (eds.) “The Handbook of International Law of Military Operations” (2015) OUP, p. 95. 28 Capstone Doctrine, p.18.
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Figure 1: Linkages and grey areas
Source: Capstone Doctrine, p. 19
2.1.1 Enforcement and Peace Enforcement Operations.
This category, known as “militarised peacekeeping”29, encompasses the use of force in self-defence or beyond it by previous authorization of the SC under Chapter VII30 in response to a threat to the international peace and security. More specifically, these operations are based on article 42 UNC which establishes that when non-forceable measures of article 41 “would be inadequate or have proved to be inadequate, the SC “may call upon MSs to take such actions by air, sea, or land forces as may be necessary to maintain or restore international peace and security”31. In short, these operations seek to impose the will of the SC by direct military or economic action32.
In this category, we can distinguish between enforcement operations and peace enforcement operations. EO could be considered as a “classic” military solution33 and are directed against a particular State or entity, including proactive and offensive measures. Thus, consent and impartiality
29 J Sloan “The Militarisation of Peacekeeping in the Twenty-First Century” (2011) Hart Publishing, p. 3. 30 Ibid, p. 31
31 Articles 41 and 42 UN Charter.
32 AJ Bellamy “The ´next stage´ in peace operations theory?” (2004) International Peacekeeping, 11 (1), pp. 17-38, p. 22. 33 n 26, p. 101. GILL
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are not legally required for some tasks34. They can amount to full-scale combat in the air, land and sea with the purpose of suppressing a breach of peace35. Operation Desert Storm, conducted in 1991 by an international coalition led by the USA against Iraqi forces who had invaded Kuwait previously, and the Operation Enduring Freedom against the Taliban in Afghanistan, are two illustrative examples of this type of operations.
Mentioned for the first time in An Agenda for Peace by former Secretary-General Boutros Ghali36, PEO have been defined as a “coercive action undertaken with the authorization of the UN SC to maintain or restore international peace and security in situations where the SC has determined the existence of a threat to the peace, breach of the peace or act of aggression”37. This definition points out that it is a hybrid creature that contains elements of peacekeeping and enforcement operations. What differentiates it from the former is that consent will be desirable but not necessary38. In addition, it will use force when necessary to achieve particular objectives such as: carrying out international sanctions against the opposing sides, isolating the conflict zones and preventing arms deliveries to the area, delivering air or missile strikes on positions of the side that refuses to halt its combat actions, and deploying peace forces to the combat zones in numbers sufficient to carry out the assigned missions, including localizing the conflict and disarming or eradicating any armed formations that refuse to cease their warfare39. It is worth mentioning MONUSCO as an example of PEO. Its mandate includes: consolidation of State authority throughout the territory and neutralizing armed groups to protect civilians and humanitarian personnel under threat of physical violence40.
In conclusion, EO and PEO share a common legal basis, Chapter VII, and both have as a main purpose the maintenance and restoration of international peace and security through the use of force41. Furthermore, they must promote and respect Human Rights and Fundamental Freedoms. However, they may differ in their objectives and their relationship with the Host State as well as if Humanitarian Law is applicable depending whether the mission participates or not in a non-international armed conflict42. 34 n 28, p. 3. 35 n 26, p. 100. 36 n 28, p. 56. 37 Capstone Doctrine, p. 97. 38 n 26, p.102. 39 Capstone Doctrine, p. 7.
40 United Nations Peacekeeping MONUSCO “Mandate” < https://monusco.unmissions.org/en/mandate> 41 n 26, p. 97.
42 TD Gill “Legal aspects of the Transfer of Authority in UN Peace Operations” in IF Dekker et E Hey (eds.) “Netherlands
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2.1.2 Peacekeeping Operations.
Described as “Chapter VI and a half” by former UN Secretary General Dag Hammarskjöld43, the UN normally conducts this type of operations by itself but eventually can conduct them with a joint organization. The founders of peacekeeping essentially conceived it as “the projection of the principle of non-violence onto the military plane”44. This conception points out its broad and non-well-defined nature which leaves the door open to a variety of definitions45. Former Secretary-General Boutros Ghali defined it as “the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, normally involving United Nations military and/or police personnel and frequently civilians as well. Peacekeeping is a technique that expands the possibilities for both the prevention of conflict and the making of peace”46.
Their pillar is based on three elements that are inter-related and mutually reinforcing47: consent, impartiality and non-use of force except in self-defence and defence of the mandate48.
The Peace operation must obtain the consent of the Host State in order to be deployed in its territory and at least the acquiescence of all the parties to the conflict49. Nevertheless, consent may not be given in territories that are internally divided and are controlled by armed groups and not fully controlled by any of the parties50. It is an expression of the principle of non-intervention which derives from the principle of sovereignty established in the UN C51.
The principle of impartiality is of vital importance since it will maintain the credibility and ensure the consent of the parties. It should not be confused with neutrality even though they are inseparable52. Whereas neutrality entails not engaging in hostilities and controversies of any kind and it is limited to the restrictions imposed by the belligerents53, impartiality implies that parties are equally treated and no sides are taken. Yet, both terms are confused and compromised in situations known as “grey areas”
43 n 26, p. 156. See also n 16, p. 319.
44 JM Guéhenno “Robust Peacekeeping and the limits of force”, pp. 373-392, p. 394 in S von Einsiedel, DM Malone, BS
Ugarte “The UN Security Council in the 21st Century” (2016) Lynne Rienner Publishers, Inc. 45 n 28, p.13.
46 B Ghali “An Agenda for Peace” (17th June 1992) Report of the Secretary-General, UN Doc. A/47/277, para. 20. 47 Capstone Doctrine, p. 31.
48 Ibid.
49 n 26, p. 154.
50 Capstone Doctrine, p. 32.
51 Article 2, paragraph 1, United Nations Charter states that: “the Organizations is based on the principle of the sovereign
equality of all its Members”
52 D Donald “Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century” (Winter 2002)
International Peacekeeping, 9 (4), pp. 21-38, p. 22.
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54.which refers to cases of civil wars that will require a robust force55 for the maintenance of cease-fires when the central authority has been collapsed.
The third pillar, self-defence and defence of the Mandate, entails use of force. The use of force is not intrinsic to the methods employed to carry out a peacekeeping operation. Rather, it has to be used as a measure of last resort when other methods of persuasion have been exhausted 56 in scenarios in which armed groups and criminal gangs are, for example, threatening the civilian population57.
Combining those three elements, the purpose of peacekeeping operations is to achieve a diplomatic solution among the parties dissuading them to engage in a conflict though mediation58. Examples of this type of mission are: MINUSTAH in Haiti and the UNAMID in Darfur59. The former was conducted jointly by the UN and the African Union. Its mandate englobes the protection of civilians, delivery of humanitarian assistance, mediation between the Government of Sudan and armed groups and in conflicts within the community.
2.2 Command and control in UN Operations.
In general terms, command and control has been defined as “the exercise of authority and direction by a properly designated commander over assigned forces in the accomplishment of the mission”60. C2 is the framework in which different states can operate together effectively to accomplish a common mission61 under the directions of a commander who plans, directs, coordinates and controls the forces and operations62.
Before explaining the command, authority and control structure in the UN Peace Operations, some elements of the C2 have to be explained in order to understand how they work in such operations. The Command is the authority that a commander in the armed forces lawfully exercises over subordinates
54 M Pugh “Peace Enforcement” in S Daws and TG Weiss “The Oxford Handbook on the United Nations” (2008), OUP,
pp.370-386, p. 373.
55 “Robust peacekeeping” is a new term introduced by the Brahimi Report (2000) which allows peacekeepers to use force
to protect civilians and provides freedom of manoeuvre to effectively implement the mandate. See T Tardy “A Critique of Robust Peacekeeping in Contemporary Peace Operations” International Peacekeeping (2011) 18 (2), pp. 152-167, p.152.
56 Capstone Doctrine, p. 35. 57 Ibid. p. 34.
58 n 16, p. 319. 59 n 41, p. 43.
60 Department of Defence “Dictionary of Military and Associated Terms” (February 2016) Joint Publication 1 (2), p. 40. 61 n 26, p. 261.
62 Royal Canadian Air Force “Canadian Forces Aerospace Command Doctrine” (March 2012) Doc. b-ga-401-000/fp-001,
p. 5 < http://www.rcaf-arc.forces.gc.ca/assets/AIRFORCE_Internet/docs/en/cf-aerospace-warfare-centre/b-ga-401-000-fp-001.pdf#chapter_1>
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by virtue of rank or assignment63. Control, on the contrary, is the authority exercised by a commander over part of the activities of subordinate organizations by implementing orders or directives, therefore not entailing full command64.
Furthermore, command is divided in three additional levels: full, operational and tactical. Full command rest in the authority of a commander who bears the responsibility to issue orders to subordinates not only in the military aspects but in the administrative sphere too65. The commander holds the authority to decide whether forces will be allocated for a particular mission and whether the mission will be terminated66. It is only exercised at the national level. Regarding OPCOM, a commander has been granted with authority to delegate tasks or missions to subordinate commanders and to retain or delegate elements of operational or tactical level command as well as to deploy units or reassign forces67. It does not include responsibility for administration. TACOM, with a narrower scope than the former, is the authority delegated to commanders to assign tasks to forces under their command for the accomplishment of missions assigned by higher authority68.
On the other hand, control can be exercised at the operational, tactical and administrative levels. OPCON is the authority delegated to a commander to direct allocated forces to accomplish specific missions or tasks that are usually limited by function, time and location with the purpose to deploy units concerned and to retain or delegate tactical control of those units. It permits commanders to benefit from the immediate employment of assigned forces without further reference to a senior authority69. TACON permits effective local direction and control of movements or manoeuvres necessary to accomplish missions or tasks assigned70. ADCON is the direction or exercise of authority over subordinate or other organizations in respect to administrative matters such as personnel management, supply, services and other matters not included in the operational missions of the subordinate or other organizations71.
Having said that, how does the C2 work in the context of the UN Peace Operations? It is based in a hierarchical system. From the top, the Security Council who has the ultimate strategic authority72, confers the operational authority to the Secretary General over the troops previously transferred by
63 n 59, p. 40. 64 n 26, p. 262 et n 59, p. 49-50. 65 Ibid, p. 261. 66 n 17, p. 42. 67 Ibid, p. 42. 68 Ibid, p. 42. 69 n 61, p. 7. 70 Ibid. 71 Ibid, p. 8. 72 n 17, p. 42.
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TCCs. Such authority is limited by a specific mandate of the SC for a specific period of time and a geographic area73. Furthermore, the UN Headquarters in New York, divided in the DPKO, DFS and the DPA, direct and control UN PO and formulates policies and develops operational guidelines based on UN SC resolutions.
Following the pyramid, we find the Head of the Mission (HOM), a senior UN Representative who represents the UN Secretary General and has overall authority over the activities of the United Nations in the mission area. In addition, the HOM directs the heads of the mission components74. The OPCON is exercised by the Head of Military Component (HOMC) or Force Commander (FC). That authority reports to the DPKO and deploys military personnel under TACON75.
Lastly, TCCs will retain TACOM and TACON. Those will be exercised by a Contingent Commander who will represent the TCC76.
Figure 2: Levels of Authority, Command and Control in UN Peacekeeping Operations
Source: Capstone Doctrine, p. 67
73 United Nations Department of Peacekeeping Operations, Department of Field Support “Authority, Command and
Control in United Nations Peacekeeping Operations” (February 2008) Ref. 2008.4, p. 3.
74 Ibid. p. 7. 75 Ibid p. 8. 76 n 17, p. 49.
20 2.3 Status of forces in Peace Operations.
Every PO requires a set of arrangements for its establishment. That conforms the legal and operational framework in which the mission is conducted: from the relationship between the UN and the HS and the TCC to the applicable internal rules of the UN, treaties and Customary International Law.
Once that the consultation phase is finished and it has been concluded that the UN presence is required on the ground, the UN SC will materialise the mandate of the operation in a resolution77. The mandate might include the objectives, duration, structure, and functions of the operation78. In addition, the SG may write some recommendations based on the findings of the technical assessment mission79; therefore, the mandate will be further elaborated or clarified80.
When the operation is being conducted with the Host State consent, the SOFA or SOMA will be signed between the former and the UN: either as a treaty or as a letter of exchange81. They apply to the members of a force as uniformed personnel, to the members of a civilian component and to the members of the group “dependent” (relatives of members of a force)82. These agreements will define the scope of their status: local law applicable, facilities, status, arrest and transfer of custody83. If required, further agreements of that type would be signed during the course of the operation. On the other hand, the MOU constitutes the agreement between the TCC and the UN in which the administrative, logistic, financial terms and conditions of the personnel contributed by the TCC are defined84. In addition, the transfer of control and authority will be regulated in this memorandum. When it comes to the internal rules of the UN, the Operations Plan or the Peacekeeping Force Commander’s Concept and the Rules of Engagement are the key documents for understanding the action of the peace force. ROE are directives to operational commanders in which the type of weapons that could be used during the operation are set. They are given in what is called the “soldier´s pocket
77 Department of Peacekeeping Operations, Peacekeeping Best Practices Unit “Handbook on United Nations
Multidimensional Peacekeeping Operations” (December 2003), p.4.
78 n 23, p. 9. 79 n 76, p.4. 80 n 24, p. 55.
81 United Nations Peacekeeping Law Reform Project “UN Peacekeeping and The Model Status of Forces Agreement”
(2010) School of Law, University of Essex, p. 15.
82 PJ Conderman “Status of Armed Forces on Foreign Territory Agreements (SOFA)” (February 2013) MPEPIL, para. 8. 83 n 23, p.10. For a detailed understanding see: General Assembly “UN Model Status-of-Forces-Agreement for
Peace-keeping Operations” (9 October 1990), 45th meeting, UN Doc. A/45/594. This 1990 agreement constitutes the first model
of SOFA.
84 Department of Peacekeeping Operations “Memorandum of understanding between the United Nations and (participating
21
card”85 and must be implemented under International Law86 .OP contains the C2 and a detailed description of the operational missions of the PO force among others87.
2.4 UNPROFOR.
2.4.1 Historical context.
In 1980 after the death of Josip Broz Tito, the SFRY started a process of disintegration which led to the Yugoslav Wars. The SFRY was composed by six republics with different ethnic groups and religions: Slovenia and Croatia were Roman Catholics. On the other hand, Serbia, Montenegro and Macedonia were Orthodox Christians and lastly, Bosnia and Herzegovina with a Muslim majority. The differences among the population went in crescendo and ended up with the independence of Slovenia and Croatia 1991. In 1992, the outbreak of the Bosnia War led to catastrophic consequences for all the ethnics groups in Bosnia and Herzegovina. The different factions were represented by the Bosniaks88 whose military group was the ARBIH and were loyal to the President Izetbegovic, Croats whose army was the HVO and the Bosnian Serbs organised into the VRS and were supported by the JNA.
2.4.2 The course of the operation.
UNPROFOR was deployed in 1992 for an initial period of 12 months89 in Croatia as a “classical” peacekeeping mission. Its main objectives were to relieve as far as possible the humanitarian consequences of the war, containing the conflict to the territories of the former Yugoslavia and to encourage to find a solution among the parties90. The headquarters were firstly established in Sarajevo but later were moved to Zagreb91. The C2 was distributed among General Bernard Janvier, who was
85 n 24, p. 60.
86 BF Klappe “The Law of International Peace Operations” in D. Fleck “The Handbook of International Humanitarian
Law” (2013) OUP, pp. 611-646, p. 631.
87 n 23, p. 10.
88 This is the term of how Muslims are known in Bosnia.
89 UN SC Resolution 743 (21 February 1992) 3055th Meeting, UN Doc. S/RES/743, para. 3.
90 MR Berdal “The Security Council, Peacekeeping and Internal Conflict After the Cold War” (1996) Duke Journal of
Comparative & International Law, 7 (71), pp. 71-91, p. 77.
91 United Nations Department of Public Information New York “The Blue Helmets: A Review of United Nations
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the fifth FC and took up his duties on March 199592 and Lieutenant-General Rupert Smith93, the Operational Commander in Bosnia. In addition, UNPROFOR included military, civil affairs, public information and administrative personnel94.
Initially, it had the consent of the parties95, even though it was withdrawn during the course of the war. In this sense, the Bosnian Croats and the Bosnian Serbs did not recognise the SOFA between the UN and Host State, represented by President Izetbegovic96. Thus, the UN SC had to enlarge its mandate in several occasions, readjusting the mission into a more “robust” one to reinforce the credibility of the organization itself to help to resolve the war97. In addition, it became concerned of the campaign of “ethnic cleansing” carried out by the Bosnian Serbs98 in the Bosnian territory. For that purpose, it supported the action of some international humanitarian organizations on the field to deliver humanitarian relief99 to the civilian population and it established “safe areas”100 in the cities of Srebrenica, Bihac, Gorazde, Sarajevo, Tuzla and Zepa101 acting under Chapter VII. Following that, UN SC Resolution 836102 authorised UNPROFOR “to act in self-defence, to take the necessary measures, including the use of force, in reply to the bombardments against the safe areas”. In addition, it authorised MSs “to act nationally or through regional organizations”. Therefore, this Resolution offered the opportunity to NATO to provide air support involving the use of air power in self-defence, and air strikes for pre-emptive purposes to UNPROFOR against artillery and mortar positions to deter attacks to such areas103.
Despite of all the measures taken, the massacre of Srebrenica was not prevented and consequently ended up with the death and missing of 7475 people104 and the termination of the mission. But how could it happen? From the UN, it has been argued that the 150 Dutch soldiers could do nothing against
92 Ibid.
93 Ibid. 94Ibid.
95 T. Tardy “UNPROFOR-Croatia” in JA Koops, T Tardy, N MacQueen et PD Williams (eds) “The Oxford Handbook of
United Nations Peacekeeping Operations” (2015) OUP, pp. 371-380, p. 375.
96 NIOD Report on “Srebrenica: Reconstruction, background, consequences and analyses of the fall of a ´safe area´” (April
2002), p. 920.
97 n 89, p. 557.
98 General Assembly Resolution (20 February 1993) 84th plenary meeting, UN Doc. A/RES/48/88. 99 UN SC Resolution 776 (14 September 1992) UN Doc. S/RES/776.
100 This is a concept developed by UN SC Resolutions and further developed by SG Ghali in his report of 9 May 1994. It
is defined as “areas free from armed attacks that would endanger the safety of their inhabitants and where the delivery of humanitarian aid would be unimpeded” The main purpose was” to protect the civilian population by the presence of UNPROFOR and, if necessary, through the application of air power till the settlement of a political agreement” (paras 12, 16 and 30).
101 UN SC Resolution 819 (16 April 1993) 3199th meeting, UN Doc. S/RES/819 and UN SC Resolution 824 (6May 1993)
3208 meeting, UN Doc. S/RES/824.
102 UN SC Resolution 836 (4 June 1993) 3228th meeting, UN Doc. S/RES/836.
103 GL Schulte “Bringing peace to Bosnia and change to the Alliance” (Mar. 1997) NATO Review, 2 (45), pp.22-25. 104 n 6, p. 10.
23
2000 Serbs105. Not surprisingly, the UN official documents about this tragedy do not dedicate much words to discuss how did this massacre happen106. Yet, it focuses on the numbers and does not make a self-critique of the facts. It has been discussed that if the Dutchbat would have informed earlier about the indications of Serbian troop movements, the international community could have responded earlier and consequently, have saved some lives107. According to this, the reason seemed to be the weak moral of the troop.108 Many voices have called the peacekeepers “cowards”, putting all the responsibility on them rather than in the SC or that UNPROFOR was the force that did not protect109.
Summing up, UNPROFOR initially was deployed as a peacekeeping mission. Later, it incorporated peace enforcement elements as a consequence of the intensification of the hostilities which made it a party to the conflict110. Thus, impartiality got compromised, leaving no room for neutrality. The constant changes in the mandate provoked that there was no clear plan de campagne to implement it in an effective manner111. That in turn points out the lack of a political will because of a bad coordination between the politicians and the military commanders112. In addition, UNPROFOR failed because there were not deployed sufficient troops specially to defend the “safe areas”, which proved to be just a theorical concept. Rather, they turn into ghettos113 which increased the suffering of the population who was dying, inter alia, because of the lack of water and food. UNPROFOR proved to be unsuccessful since the early beginning of its deployment but indirectly, it has contributed to develop further PO: the Bahimi Report, the PK Guidelines114 and the RtoP doctrine have been issued after its withdrawal.
105 Report of the Secretary General pursuant to GA Resolution 53/35 “The fall of Srebrenica” (15 November 1999) 54th
session, Agenda item 42, the situation in Bosnia and Herzegovina, UN Doc. A/54/549, para. 472.
106 n 89, pp. 558-559. 107 n 103, para. 474.
108 Human Rights Watch “The Fall of Srebrenica and the Failure of UN Peacekeeping in Bosnia and Herzegovina” (October
1995) 7 (13), p. 12 et 13.
109 D Rieff “The Peacekeepers who couldn´t” The Washington Post (December 11, 1994)
<https://www.washingtonpost.com/archive/opinions/1994/12/11/the-peacekeepers-who-couldnt/cdd1a3dd-7d71-4d40-a191-696b38fae440/?noredirect=on&utm_term=.f2c83582cf54>
110 Report of the SG pursuant to SC Resolutions 982 and 987 (1995) 50th Session, UN Doc. S/1995/444, paras. 68-69. 111 n 94p. 925.
112 The Hague Institute for Global Justice “International Decision-Making in the Age of Genocide: Srebrenica 1993-1995”
(June 29-July 2015), p. 3.
113 ED Mooney “Presence, Ergo Protection – UNPROFOR, UNHCR and the ICRC in Croatia and Bosnia and Herzegovina”
(1995) International Journal Refugee Law, 7 (3), pp. 407-435, p. 418.
114 T Tardy “UNPROFOR-Croatia” in JA Koops, T Tardy, N MacQueen et PD Williams (eds) “The Oxford Handbook of
24 Chapter 3: Attribution of conduct in peace operations to the UN.
In order to attribute a wrongful conduct to the UN, its legal personality has to be discussed since international organizations are subjects of International law and are bound by any obligation incumbent upon them under general rules of international law. However, the UN possesses immunity of jurisdiction and peacekeepers enjoy functional immunity. Then, the question that arises is to whom is attributable the wrongful conduct? The effective control test established in article 7 ARIO would be discussed in the light of the Nuhanovic judgment. In addition, the ultimate authority and control test used by the ECtHR in Behrami and Saramati will be addressed. Dual attribution will be discussed in the light of those two judgments and the Al-Jedda and Mothers of Srebrenica cases, that will provide a better picture of how a wrongful conduct is attributed in the context of cooperative military enterprises.
3.1 The UN legal personality, immunities and privileges.
States create international organizations with different forms and functions: law-making, dispute settlement and promoting, for instance, human rights, criminal justice, humanitarian action or counter-terrorism. Since the UN conducts itself such a wide range of activities and has many functions, it is widely accepted that it is required that it enjoys immunities and privileges to be successful in that regard. Nevertheless, those can only be hold and performed when the organization itself has legal personality, otherwise. “it could not carry out the intentions of its founders if it was devoid of international personality”115 . The ICJ came up with the conclusion that the UN “is an international person. That is not to say that is the same thing as a State, or that its legal personality and rights and duties are the same as those of a State”116. Consequently, the UN can enter into agreements with other international organizations and states. SOFA and MOU are two illustrative examples of agreements that the UN may conclude with States.
Having said that, article 105 of the UN Charter establishes that “the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes”. But not only the Organization enjoys immunities, but its personnel too, as they are “necessary for the independent exercise of their functions in connection with the Organization”117. The
115 Advisory Opinion of the International Criminal Court of Justice Concerning Reparation for Injuries Suffered in the
Service of the United Nations (April 1949), International Organization, 3 (3), (August 1949), University of Wisconsin Press, pp. 569-579, p. 572.
116 Ibid.
25
Convention on the Privileges and Immunities of the UN of 1946 further develops this article, specifically articles 5 and 6 which provide immunity of officials and experts for acts performed by them in their official capacity from personal arrest. That is what is understood as “functional immunity” as it protects the official functions of the personnel involved rather than offering personal privileges not related to these functions118. Nevertheless, this type of immunity has been interpreted in some jurisdictions as absolute immunity because of the functional personality of international organisations119. That view is generally accepted; according to Chief Justice Marshall in the Schooner Exchange, “foreign troops must benefit from immunity by necessary implication because subjecting them to the jurisdiction of the receiving state would undermine their effectiveness as a military unit and defeat the purpose thus rest on a functional basis, namely, considerations of military effectiveness and necessity”120. The functional immunity does not mean impunity. Rather, UN personnel are exempt from criminal jurisdiction in the Host State, but the Sending State retains exclusive criminal jurisdiction over such personnel121.In addition, UN personnel must respect the law of the Host State and the later can require leaving its territory in case of abuse of immunity or criminal offences. In case of disputes of a private law character, article 29 makes provision for appropriate modes of settlement. The Personnel Safety Convention of 1994 applies to such personnel in all UN operations conducted for maintaining or restoring international peace and security and establishes the aut dedere aut judicare principle; that is that MSs should “criminalize attacks on UN associated personnel and to prosecute or extradite persons suspected of such attacks”122. However, this Convention does not apply to enforcement operations under Chapter VII123.
Regarding the applicability of IHL, the UN itself is not a party of none of the Geneva Conventions. However, it is widely supported that the UN is bound by customary international law124. IHL is applicable when there is an armed conflict to all the parties of the conflict, including a PO125. Since 1991, the UN included in the Model Agreement between the UN and MSs Contributing Personnel and Equipment to the UN Peacekeeping Operations that “peace operations shall observe and respect the
118 n 17, p. 122.
119 A Reinisch “Privileges and Immunities” in JK Cogan, I Hurd et I Johnstone “The Oxford Handbook of International
Organizations” (2016) OUP, pp. 1048-1068, p. 1058.
120 n 12, p. 329. 121 n 17, p. 124.
122 Article 13 of the Convention on the Safety of United Nations and Associated Personnel (9 December 1994) UN Doc.
A/RES/49/59.
123 Ibid, article 2.
124 M. Zwanenburg “United Nations and International Humanitarian Law” (2015) Max Planck Encyclopedia of Public
International Law, para. 6.
125 ND White “Peacekeeping and International Law” in JA Koops, T Tardy, N MacQueen et PD Williams “The Oxford
26
principles and spirit of the general international conventions applicable to the conduct of military personnel” and that the TCC “shall ensure that its members will be fully acquainted with the principles and spirits of these Conventions”126. The observance of these Conventions was not included in any SOFA agreements till 1993127.
In the case of IHRL, the treaty and customary obligations of TCCs and the customary obligations of the UN would be applied to the PO128.
3.2 The attribution of conduct to the UN.
Overall, there are certain principles that must be observed during the course of a PO: good governance, good faith, due diligence and to be under the supervision of the sending State and organization129. International responsibility arises when “an action or omission is attributable to a State or international organization and that conduct constitutes a breach of an international obligation of that State or international organization”130.
In general, there are three types of rules of attribution depending on the links. The first one is the institutional link, which attributes the conduct of an organ to the State to the IO when the organ was acting under its official capacity (de jure); meaning that it was exercising either governmental authority or international organisation functions131. The second group of rules of attribution is based on the factual link which establishes that a conduct of a person will be attributed to the State or to the IO when that person was acting under the instructions, specific orders that leave some discretion to the person to act132, directions or control of an agent of the State or the IO133. Thirdly, the conduct acknowledged and adopted by an IO or a State ex post facto. Here, the attribution relates only to part of the conduct and is based on the attitude taken by the IO or the State134.
The general rule of attribution of conduct of organs or agents of IOs applies the institutional link established in article 6 ARIO. That entails that there is no distinction between organ and agent, understood as a person, “whether permanently employed or not, who has been charged by an organ to
126 n 123, para. 7. 127 Ibid, para. 8. 128 n 124, p.53. 129 n 17, p. 272. 130 n 10, article 2 et n 11, article 4.
131 A Nollkaemper et I Plakokefalos “Principles of Shared Responsibility in International law” (2014) CUP, p. 65. 132 n 130, p. 66
133 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits (27
June 1986) ICJ, paras. 105-115.
27
carry out functions of the organisations”135. In this sense, the ICJ has determined the UN must bear responsibility when “damages caused as a result of acts (or omissions) performed by the UN or its organs or agents in their official capacity, the organization may be required to bear responsibility for the damage arising from such acts”136. Since peacekeepers are organs (transferred) put at the disposal to the UN, there are specific rules, article 7 ARIO that will determine the attribution of the conduct applying the “effective control test”.
3.2.1 The effective control test.
Article 7 ARIO establishes that “the conduct of an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered an act of the latter organization if the organization exercises effective control over that conduct”137. This article has to be read in conjunction with article 6 ARSIWA even though the wording is different138. The reason is that both articles refers to the factual link or actual control139 that exists when the organ or agent of the State or IO is transferred (“put at the disposal”) to the seconded State or IO. Thus, that implies that the organ is acting with the consent, under the authority of and for the purposes of the receiving State140. Both articles could apply to peacekeeping forces in situations in which the conduct of the seconded organ or agent of the parent State or IO is to be attributed to the receiving organization or to the seconded State or IO141. Following this reasoning, that will imply that the conduct of the seconded organ or agent formally transferred to the “receiving” State or IO, it won’t be attributed to the parent State or IO rather, to the “receiving” one.
However, that rule will be rejected if the sending state exercises the effective control over the troops. As explained before, the TCC retains TACOM and TACON and transfers OPCOM and OPCON through a MOU to the. In short, TCC transfers partial command and control to the IO but not full command. Thus, the TCC retains some power of its troops, hindering the possibility of the exclusive attribution of a conduct to the UN during the course of the operation. Therefore, the troops will have
135 Ibid, article 6, Commentary 2, p. 17.
136 n 11, article 6, Commentary n 3, p. 18. ARIO 137 n 11, p. 19.
138 It states that “the conduct of an organ placed at the disposal of a State by another State shall be considered an act of the
former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed”.
139 n 17, p. 286.
140 P Palchetti “International Responsibility for Conduct of UN Peacekeeping Forces: the question of attribution “(June
2015) Seqüência (Florianópolis), n. 70, p. 19-56 < http://dx.doi.org/10.5007/2177-7055.2015v36n70p19>
28
a hybrid status. The wording of article 7 ARIO establishes a high threshold, which will have to be elucidated by courts.
In that sense, there has not been a unanimous approach of how effective control is retained. The effective control test was applied for the first time by the ICJ in the Nicaragua case under the wording of article 8 ARSIWA. In this case, the Court determined that the test applies in cases where there is evidence of “partial dependency” of the secessionist entity on the outside power142, not in cases in which, even though there is “general control”. Yet, it won’t be sufficient to establish effective control143. In the Bosnian Genocide case the ICJ reaffirmed the Nicaragua doctrine, establishing that the acts of the VRS could no be attributed to Serbia144. It must be pointed out that the control test applied in the previous two cases, is not the same “effective control test” as the wording of article 7 ARIO refers to. In this sense, it has been defined as a “criterion that determines when exclusive attribution can occur: the transfer of attribution follows the transfer of the organ only if the original institutional link with the sending state (or international organisation) has been (temporarily) severed”145.
Concerning the case of study of this thesis, several judgments have been rendered in The Netherlands concerning the attribution of the conduct of the Dutchbat in Srebrenica. The District Court of The Hague did not elaborate further in its arguments and concluded that the massacre of Srebrenica had to be exclusively attributed to the UN146 because the Netherlands consented to place its organs “under the direction and control” of the UN147 as the application of article 6 ARSIWA would apply by analogy148. In the Appeal Decision, the Court changed its previous ruling and applied the effective control test to the situation in the enclave. It reached the conclusion that the battalion was under such control of The Netherlands and that the former could have prevented the removal of the victims from the enclave149. The Court argued that the decision of the removal was directly connected to decisions and instructions of the parent state (factual control) and that the former retained formal power in regard
142 S Talmon “the Responsibility of Outside Powers for Acts of Secessionist Entities” (July 2009) ICLQ, 58, pp. 493-517,
p.502.
143 n 133, para. 115. 144 n 9, para 475. 145 n 130, p.92.
146 Hasan Nuhanovic v Netherlands (Ministry of Defence and Ministry of Foreign Affairs), First Instance Judgment,
Decision No LJN: BF0181, Case No 265615, ILDC 1092 (NL 2008), 10th September 2008, District Court, para.4.11. For a detailed explanation of the facts see para. 3.2.
147 P d´Argent “State organs placed at the disposal of the UN, effective control, wrongful abstention and dual attribution of
conduct” (2014) QIL, 1, pp. 17-31, p.18
148 n 130, p. 95.
149 Hasan Nuhanovic v. The Netherlands´ (Ministry of Defence and Ministry of Foreign Affairs) Court of Appeal in The
29
to personal and disciplinary matters (normative control)150. Thus, The Netherlands were found internationally responsible under articles 4 and 8 ARSIWA151. In addition, the Supreme Court of The Netherlands reached the same conclusion as the Appeal Chamber: “Although the mission had in fact failed and Dutchbat could therefore no longer exert any influence outside the compound, this does not detract from the fact that the State had effective control over Dutchbat’s conduct in the compound.”152. Thus, the Court clarified that in order to apply the effective control test, “the attribution of the conduct to the seconding State or the international organization is based on the factual control over the specific conduct, in which all the factual circumstances and the special context of the case must be taken into account”153.
The Nuhanovic case has set a precedent in the interpretation of article 7 ARIO´s effective control test to the recent development of ARIO, giving it more weight and to shape. The effective control test seems to be realistic but not “perfect” in the sense that it encompasses intrinsically some difficulties, that is, the possibility that the attribution of a conduct will could be attributed to the TCC based on the “full command” that it retains over its troop which in turn, will provoke a less enthusiastic participation in PO. In addition, it will be difficult to disengage the combined exercise of control between the IO and the TCC over the troops154.
3.2.2 The ultimate authority and control test.
This test was applied by the ECtHR in Behrami and Saramati case. Behrami concerns to the case of a father who had lost his children as a result of an explosion of an undetonated cluster bomb during NATO airstrikes. He claimed that the French contingency of KFOR was responsible for removing de mines in that area. Saramati, on the other hand, alleged illegal detention perpetrated by the Norwegian contingency of KFOR. They were grounded on the basis of articles 2 and 5 ECtHR, respectively. The respondents argued that KFOR and UNMIK were established by the UN SC. The ECtHR, then had to determine whether the conduct was attributable to the UN or not.
150 A Nollkaemper “Dual Attribution: liability of the Netherlands for conduct of Dutchbat in Srebrenica” (2011) JICJ, 9,
pp. 1143-1157, p. 1149.
151 Ibid, para. 3.8.1.
152 Hasan Nuhanovic v. The Netherlands´(Ministry of Defence and Ministry of Foreign Affairs) Final Appeal Judgment
(6 September 2013) Supreme Court, ECLI/NL/HR/2013/BZ9225, ILDC 2061 (NL2013), para. 3.12.3.
153 Ibid, para. 3.11.3. 154 n 17, p. 287.
