accountability and multinational military operations - Papers.ssrn.com

MPIL RESEARCH PAPER SERIES | No. 2018-09

ACCOUNTABILITY AND MULTINATIONAL MILITARY OPERATIONS Paulina Starski

1

Electronic copy available at: https://ssrn.com/abstract=3179459

MPIL RESEARCH PAPER SERIES No. 2018-09

ACCOUNTABILITY AND MULTINATIONAL MILITARY OPERATIONS

AUTHOR Paulina Starski EDITORIAL DIRECTORS Armin von Bogdandy, Anne Peters EDITOR-IN-CHIEF Steven Less TECHNICAL ASSISTANCE Verena Schaller-Soltau Angelika Schmidt STUDENT ASSISTANT Eda Oez

2


ABSTRACT Multinational military operations [MNMO] occur in different emanations: They might involve the concerted action of states – (ad hoc) ‘coalitions of the willing’– participating in a joint military operation in which every state retains command over its troops (‘national command model’) or a ‘multinational integrated command’ is established, or – in another variant – national contingents are subjected to the lead or domination of a specific state (‘framework nation’ or ‘lead nation’ model). Furthermore such coalitions may act with the authorization of an international organization [IO] or within its institutional setting under its lead or under the lead of one IO which might be in turn authorized by another IO. The plurality of actors involved and the intricate web of different spheres of authority and control characterizing MNMO pose considerable challenges in terms of ‘accountability’. This contribution is dedicated to illustrating these challenges and critically reflecting on the specific schemes international law offers to address the ‘pluriverse’ of ‘accountability problems’ arising when states and IOs act together militarily. After sketching the conceptual contours of ‘accountability’ [I] as well as the specific features of MNMO that make it difficult to hold relevant actors accountable [II], this contribution will, in its main part III, turn to rules on the ‘international legal responsibility’ of states and IOs – a genuinely legal scheme which realizes – ‘accountability’, before offering some final observations [IV]. It will be shown that the ‘pluriverse’ of MNMO gravitates in terms of ‘legal accountability’ around three basic sub-problems: the ‘attribution of conduct’, the ‘attribution of responsibility’ and the allocation of secondary obligations stemming from responsibility. With respect to these matters, the actors involved and the various overlapping spheres of control they exercise over MNMO pose a major challenge that international legal scholarship has yet to address in a satisfactory manner.

KEYWORDS: accountability, multinational military operations, international responsibility, attribution, multiple attribution, ILC Articles on the Responsibility of International Organizations, Articles on the Responsibility of States for Internationally Wrongful Acts

MPIL Research Paper Series No. 2018-09


3

Accountability and Multinational Military Operations to be published in: Heike Krieger and Robin Geiss (eds.), The Legal Pluriverse Surrounding Extraterritorial Military Operations (Oxford University Press, 2018.

Dr. iur. Paulina Starski, LL.B., Heidelberg/Hamburg/Melbourne* Multinational military operations [MNMO] occur in different emanations: They might involve the concerted action of states – (ad hoc) ‘coalitions of the willing’ 1 – participating in a joint military operation in which every state retains command over its troops (‘national command model’) or a ‘multinational integrated command’ is established or – in another variant – national contingents are subjected to the lead or domination of a specific state (‘framework nation’ or ‘lead nation’ model). 2 Furthermore such coalitions may act with the authorization of an international organization [IO] or within its institutional setting under its lead 3 or under the lead of one IO which might be in turn authorized by another IO. The plurality of actors involved and the intricate web of different spheres of authority and control characterizing MNMO pose considerable challenges in terms of ‘accountability’. This contribution is dedicated to their illustration and shall simultaneously critically reflect on the specific schemes international law offers to address the ‘pluriverse’ of ‘accountability problems’ arising when states and IO act together militarily. After sketching the conceptual contours of ‘accountability’ [I.] as well as the specific features of MNMO that account for the difficulties to hold relevant actors accountable [II.], this contribution will in its main part turn to rules on the ‘international legal responsibility’ of states and IO – a genuinely legal scheme which realizes – ‘accountability’ [III.] before closing with final observations [IV.]. Keywords: accountability, multinational military operations, international responsibility, attribution, multiple attribution, ILC Articles on the Responsibility of International Organizations, Articles on the Responsibility of States for Internationally Wrongful Acts I.

Accountability, Responsibility and Liability: Some General Remarks on Contested Concepts

‘Accountability’ is an ‘essentially contested concept’ 4 connoting various different things to various different people. 5 It permeates manifold ‘disciplines’ and ‘discourses’ – especially 1

See Matteo Tondini, ‘Coalitions of the Willing’ in André Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017) 701 et seq. 2 US, ‘The Army in Multinational Operations’ (2010) 2-3 accessed 21 February 2018; Australia, ‘Australian Defence Doctrine Publication, ADDP 00.3: Multinational Operations’ (2nd edn 2011) 4-3 ; Alan Ryan, ‘The Strong Lead-nation Model in an Ad-hoc Coalition of the Willing: Operation Stabilize in East Timor’ (2002) 9 International Peacekeeping 23-44. 3 Bérénice Boutin, ‘Attribution of Conduct in International Military Operations: A Causal Analysis of Effective Control’ (2017) 18 Melb J Int'l L 154 to 179, 155. 4 Walter Bryce Gallie, ‘Essentially contested concepts’ (1956) 56 Proceedings of the Aristotelian Society 167 et seq. 5 August Reinisch, ‘Governance Without Accountability?’ (2002) 44 German Yearbook of International Law 270, 273. Max Planck Research Paper Series No. 2018-09

1

those on governance and the legitimacy of the exercise of power and authority. 6 ‘Accountability’ can be defined as ‘answerability’, more precisely, as a ‘social relationship in which an actor feels an obligation to explain and to justify his conduct to some significant other.’ 7 As a notion it is closely related with the concepts of ‘responsibility’ and ‘liability’ which are all relational in nature: they describe the relation of agents in respect to a specific conduct, occurrence or outcome towards other agents. 8 Within the sphere of international law the key legal institution realizing ‘accountability’ 9 is ‘international legal responsibility’. ‘Responsibility’ – derived from the Latin term respondeo (‘I answer’) 10 – involves the ‘answerability for a wrongful act, which consists of an obligation to call into account a subject for its conduct and to make it respond to any moral or legal charges’. 11 ‘International legal responsibility’ forms the fundament of the largely decentralized international legal order and ultimately safeguards the ‘normativity’ of international legal rules. One sub-system of ‘international legal responsibility’ is formed by the customary rules on the international responsibility of states which are reflected 12 in the Articles on the Responsibility of States for Internationally Wrongful Acts [ARS] drafted by the International Law Commission [ILC], 13 the other one comprises the rules governing the responsibility of IO (and also states in respect of conduct of IO) which have been – to some extent – restated in the 2011 ILC Articles on the Responsibility of International Organizations [ARIO]. 14 Whilst it cannot be stated with certainty that the ARIO reflect customary international law de lege lata, 15 they are referenced to by scholarship 16 and jurisprudence 17 regularly, which justifies to take them as a general guideline also for the purposes of the present analysis – always 6

ILA, ‘New Dehli Conference, Committee on Accountability of International Organisations, Third Report’ (2002) 2. 7 Mark Bovens, ‘Public Accountability’ in Ewan Ferlie (ed, i.a.), The Oxford Handbook of Public Management (OUP 2007) 182, 183. 8 It plays a particularly import role in the context of IO, Ralph Wilde, ‘Enhancing Accountability at the International Level’ (2005-2006) 12 ILSA J Int'l & Comp L 395, 408 et seq. 9 On the different emanations of ‘accountability’ Marten Zwanenburg, Accountability of Peace Support Operations (Leiden Martinus Nijhoff 2005) 63. 10 Toni Erskine, ‘Introduction: Making Sense of ‘Responsibility’ in International Relations – Key Questions and Concepts’ in Toni Erskine (ed), Can Institutions have Responsibilities (Palgrave Macmillan 2004) 1, 7. 11 James Crawford and Jeremy Watkins, ‘International Responsibility’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 283. 12 James Crawford, ‘State Responsibility’ in MPEPIL online (2006) para 31 accessed 21 February 2018; Kjetil Larsen, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’ (2008) 19 EJIL 509, 517 (regarding Art 4, 8, 6 ARS). In terms of Art 6 ARS see Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep. 1999, 62, 87 para 62. 13 ILC, ‘Report of the International Law Commission’ (Fifty-third session), UN GAOR, 56th Sess., Supp. No. 10, 43, UN Doc. A/56/10 (2001). 14 ILC, ‘ARIO, Report of the International Law Commission’ (Sixty-third session, 26 April–3 June and 4 July– 12 August 2011, Supplement No 10) UN Doc A/66/10, 54-68. 15 Larsen (n 12) 518; Heike Krieger, ‘A Credibility Gap: The Behrami and Saramati Decision of the European Court of Human Rights’ (2009) 13 Journal of International Peacekeeping 159, 169. 16 Damien van der Toorn, ‘Attribution of Conduct by State Armed Forces Participating in UN-authorised Operations: The Impact of Behrami and AI-Jedda’ (2008) 15 Austl International LJ 9, 19; ILC, ‘Second report on responsibility of international organizations by Mr. Giorgio Gaja, Special Rapporteur’ (2 April 2004) UN Doc A/CN.4/541 para 29 et seq. 17 See Nuhanović v. de Staat der Nederlanden Case no 200.020.174/01 (Gerechtshof‘s-Gravenhage, Judgment, 5 July 2011) para 5.8; Mustafić-Mujić et al v. Netherlands Case no Az. 12/03329 (Hoge Raad, 1st Chamber, Judgment, 6 Sept 2013) 13 et seq; Nuhanović v. Netherlands Case no 12/03324 (Hoge Raad, 1st Chamber, Judgment, 6 September 2013) 14 et seq.

2

Max Planck Research Paper Series No. 2018-09

keeping in mind that international law might potentially evolve into a different direction. The rules that these sub-systems are comprised of are secondary in nature since they attach to violations of primary international obligations. According to Art. 2 ARS ‘an internationally wrongful act’ for which a state bears international legal responsibility consists of ‘an action or omission’ that ‘is attributable to the State under international law’ and ‘constitutes a breach of an international obligation of the State’. Similarly, 18 Art. 4 ARIO provides that an internationally wrongful act of an IO occurs ‘when conduct consisting of an act or omission: (a) is attributable to the international organization under international law; and (b) constitutes a breach of an international obligation of that international organization’. Whilst the terms ‘responsibility’ and ‘liability’ are frequently employed interchangeably, the concept of ‘liability’ has remained rather opaque. 19 It shall denote here the specific legal consequences that international legal responsibility of states and IO renders. 20 Since this contribution focuses on the legal responsibility of states and IO important accountability schemes – serving slightly different objectives 21 – remain outside its scope: This includes the regimes on the international criminal responsibility of individuals – which can be concurrent to the responsibility of states or IO 22 – and on civil liability 23 as well as domestic (public or private) ‘responsibility schemes’ and ‘softer’ – yet powerful – mechanisms like institutional oversight, investigations, inquiries and reporting. 24 II.

MNMO: Mapping the ‘Accountability Problem’

Several aspects explain why it is difficult to determine which actors within MNMO ‘should be held responsible, on which ground, and to which extent’ 25 and towards whom: First, the main feature of such operations is the plurality of actors – in themselves legal constructs – each exercising different kind of authority and degrees of control. Such operations are conventionally embedded in complex institutional settings like UN, EU 26 or NATO. None of 18

Crit. regarding the ‘parallelism’ between ARIO and ARS Ray Murphy and Siobhán Wills, ‘United Nations Peacekeeping Operations’ in André Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017) 585, 594. 19 Volker Roeben, ‘Responsibility in International Law’ (2012) 16 MPYB Int Law 99, 110; Matthias Hartwig, ‘International Organizations or Institutions, Responsibility and Liability’ (2011) MPEPIL Online, para 4 accessed 28 February 2018. 20 In the same vein Bérénice Boutin, The role of control in allocating international responsibility in collaborative military operations (PhD Thesis, Amsterdam 2015) 207; André Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 Mich J Int’l L 359, 414. 21 Gabrielle Simm, ‘International Law as a Regulatory Framework for Sexual Crimes Committed by Peacekeepers’ (2011) 16 Journal of Conflict and Security Law 473, 476; Boutin, role of control (n 20) 13. 22 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) ICJ Rep 2007, 43, para 173; André Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility in International Law’ (2003) 52 ICLQ 615; Jean Simon Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949, Volume III (International Committee of the Red Cross 1960) 129; Boutin, role of control (n 20) 13. 23 Agreements concluded between IO and or TCN include provisions on the settlement of claims, see n 47. See for the NATO constellation Pierre Degezelle, ‘General Principles of the NATO Claims Policy’ NATO Legal Gazette (Norfok and Mons, 13 July 2012) 18–19. 24 Murphy/Wills (n 18) 696 et seq. To be mentioned here are particularly the activities of the UN Office of Internal Oversight Services or parliamentary investigations. 25 Boutin, role of control (n 20) 3. 26 EU military operations will remain to a large extent outside the scope of this contribution, on these Council of the European Union, 'EU Military C2 Concept' EU Council Doc no 11096/03, 26 July 2006 para 14. Max Planck Research Paper Series No. 2018-09

3

these institutions displays self-standing military capacity, being dependent on national military contingents should it intend to undertake military operations. Frequently the institutional set-up displays a complex structure since an IO might ‘act militarily’ via more or less ‘independent’ subunits and may beyond that be authorized by another IO as the triad of UNNATO-Kosovo Force [KFOR] exemplifies. 27 Secondly, injuries that individuals incur in the context of MNMO are outcomes of complex courses of actions that are causally interrelated in which various actors play a role. Thirdly, the rules of ‘international legal responsibility’ of states and IO as reflected within the ARS and ARIO are ambiguous in many respects the state of law being hence uncertain. III.

MNMO and the Rules of International Legal Responsibility of States and IO

The challenges that MNMO pose in terms of the international legal responsibility of states and IO gravitate around two theoretical concepts: the ‘attribution of conduct’ 28 [1.] and the ‘attribution of responsibility’ 29 [2.]. Both might generate a ‘parallel’ or ‘joint responsibility’ of several actors for one internationally wrongful act which raises questions as to the of the distribution of secondary obligations [3.]. In addressing these aspects this contribution will focus on UN peacekeeping missions [UNPKM] and MNMO acting under UN mandate. Both appear particularly apt examples for highlighting the basic conundra. 1. MNMO and ‘Attribution of Conduct’ After depicting the contours of the notion of ‘attribution of conduct’ [a)] the following paragraphs will analyze UNPKM and MNMO endowed with a UN mandate through the prism of ‘attribution rules’ [b)], in a last step focusing on the idea of a ‘multiple attribution of conduct’ [c)]. a) ‘Attribution of Conduct’ – General Contours ‘Attributing conduct’ is a legal operation 30 essentially connected with the idea of legal personality. 31 Whilst legal persons have the capacity to bear legal rights and obligations, they

27

On KFOR see John Cerone, ‘Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo’ (2001) 12 EJIL 469 et seq. 28 These aspects (n 28 to n 215 and accompanying text) have already been elaborated by the author in this contribution: ‘Zurechnungsprobleme bei multinationalen militärischen Einsätzen’ in Stefan Sohm (ed a.o.) (Deutsche Gesellschaft für Wehrrecht und Humanitäres Völkerrecht), Multinationalität und Integration im militärischen Bereich – die wehrrechtliche Perspektive, Tagungsband zur Jahrestagung 2016 der Deutschen Gesellschaft für Wehrrecht und Humanitäres Völkerrecht e.V. (Nomos 2018) 163-208. 29 ILC, ‘ARIO’ (n 14) Art 1, para 4, n 1; James Crawford, The International Law Commissions’s Articles on State Responsibility (Cambridge University Press 2002) 145; James D Fry, ‘Attribution of Responsibility’ in André Nollkaemper and Ilias Plakokefalos (eds), Principles of Shared Responsibility (Cambridge University Press 2014) 98, 102 et seq. 30 ILC, ‘ARS Commentary, Yearbook of the ILC 2001 Vol. II Part Two’ (2001) 20, 35 Art 2 para 6; Christoph Ohler, Die Kollisionsordnung des Allgemeinen Verwaltungsrechts (Mohr Siebeck 2005) 201. Prima facie each legal order determines the rules governing the process of attribution autonomously, Nataša Nedeski and André Nollkaemper, ‘Responsibility of International Organizations in Connection with Acts of States’ (2012) 9 International Organizations Law Review 33, 35 et seq. But see Nuhanović v. de Staat der Nederlanden Case no 200.020.174/01 (Gerechtshof‘s-Gravenhage, Judgment, 5 July 2011) para 5.3. 31 Paul Groarke, ‘The legal concept of the person: a relational account’, (2010) HeyJ LI 298, 304 et seq.; Christiane Ahlborn, ‘To share or not to share? The allocation of responsibility between international organizations

4


remain abstractions only coming to life by the acts of human beings. 32 ‘Attribution rules’ determine in which cases conduct of individuals constitutes conduct of juridical persons 33 like the state, 34 IO 35 or supranational organizations. 36 Three determinants define attribution: An object – a factuality, more precisely conduct which can take the form of actions or omissions – is attributed to a subject according to legal rules. 37 Why is ‘attribution’ so essential in the realm of international law? Determining to which entity conduct is to be attributed decides which specific set of rules defines its legality. This is also a precondition for establishing the jurisdiction of adjudicative bodies 38 that might be available only for some actors. 39 Furthermore the ‘attribution of conduct’ is – which interests here most – a prerequisite for the international legal responsibility of states/IO according to the ARS and ARIO. 40 These entail specific ‘attribution rules’: Pursuant to the general principle enshrined in Art. 4 ARS 41 ‘state conduct’ equals ‘conduct of its organs’ whose status is primarily determined by national rules. Since a state’s armed forces qualify as its organs par excellence 42 conduct of the soldier on the ground acting within a MNMO is – as a ‘fall back’ rule – attributable to the state without the necessity to establish specific grounds of attribution beyond the status of a soldier as a member of the armed forces of a state. 43 Art. 6 ARIO echoes Art. 4 ARS establishing that conduct of its organs constitutes conduct of an IO. Art. 7 ARIO 44 – which is particularly relevant in the MNMO setting – governs a ‘secondment’ constellation: 45 The conduct of an ‘organ’ – understood broadly46 – placed at the disposal of an IO by a state or another IO is to be attributed to the IO. 47 The term ‘at the disposal of’ indiand their member states’ (2013) SHARES Research Paper 28, ACIL 2013-26, 1, 5 et seq. with further references. 32 On legal personality Hans Kelsen, Pure Theory of Law (first published 1934, translation from the 2nd edn, 1960 by Max Knight) (University of California Press 1967) 172 et seq. 33 Ahlborn (n 31) 1, 5. 34 Comprehensively Ulrich Häfelin, Die Rechtspersönlichkeit des Staates (Mohr 1959); Roland Portmann, Legal Personality in International Law (Cambridge University Press 2010) 42 et seq. 35 For UN see Reparation for injuries suffered in the service of the United Nations (Advisory Opinion) [1949] ICJ Rep. 1949, 174, 178 et seq. 36 Christian Walter, ‘Subjects of international law’, in MPEPIL online (2007) para 5 accessed 21 February 2018. 37 Alexa Surholt, Amtshaftung für Handlungen in Auslandseinsätzen der Bundeswehr (Nomos 2014) 110. 38 See with regard to the jurisdiction problem, Behrami and Saramati v France a.o. App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) accessed 27 February 2018. 39 UN officials and agents enjoy immunity, see Art 105 UNC and Convention on the Immunities and Privileges of the UN (13 February 1946 (1 UNTS 15). 40 Art 2 lit a ARS, Art 4 lit a ARIO. See ILC, ‘ARS’ (n 30) 34 Art 2 para 1. 41 Crawford, ‘State Responsibility’ (n 12) para 18. 42 See Larsen (n 12) 512. 43 Imprecise ILC, ‘ARIO’ (n 14) 88 Art 7 para 7. 44 In the earlier ARIO drafts Art 5 [ILC, ‘Draft Articles on Responsibility of International Organisations’ Art 5, UN Doc No A/CN4/L648 (27 May 2004)] or Art 6 [ILC, ‘Draft Articles on Responsibility of International Organisations, Report of the International Law Commission, Sixty-first session (4 May-5 June and 6 July-7 August 2009), General Assembly, Official Records, Sixty-fourth session Supplement No 10 (UN Doc A/64/10) 21, Art 6]. 45 Generally on ‘organ secondment’ Paolo Palchetti, ‘The allocation of responsibility for internationally wrongful acts committed in the course of multinational operations’ (2013) 95 International Review of the Red Cross 727, 731. 46 ILC, ‘ARIO’ (n 14), 87 Art 7 para 2. 47 Responsibility (not attribution) questions are addressed by agreements between secoding state and the respective IO, see Art 9 of the ‘Model Memorandum of Understanding’, in UN (ed), Manual on Policies and ProceMax Planck Research Paper Series No. 2018-09

5

cates that the IO is granted certain powers with regard to the organ. 48 Attributing the conduct of the seconded organ to the IO requires additionally that it is functionally endowed with some of the tasks of the IO 49 and that the IO exercises – which is particularly relevant – ‘effective control’ over the conduct in question. 50 It is not necessary that all institutional links to the seconding state or the IO are cut. 51 This can be inferred argumentum e contratrio from Art. 6 ARIO which would cover this constellation. 52 b) Close-Up on the ‘Attribution of Conduct’ Problem The application of these ‘attribution rules’ – particularly Art. 7 ARIO – will be addressed here, first, with view to national military contingents becoming operative within UNPKM [(1)], secondly, multinational forces merely mandated by the Security Council in the exercise of its Chapter VII powers [(2)] and, thirdly, multinational forces organized within or making use of the institutional infrastructure of another IO – like NATO – whilst mandated by the UN [(3)]. (1) UN Peacekeeping Missions In the case of UNPKM 53 troop-contributing states or nations [TCN] place their military contingents at the disposal of the UN either by ways of contingent treaties or informally. 54 Such treaties are based on an Exchange of Letters and accompanied by Memoranda of Understanding [MoU] 55 and refer to Regulations 56 adopted on UN level. The UNPKM itself is estabdures concerning the Reimbursement and Control of Contingent-owned equipment of troop/police contributors participating in peacekeeping missions (COE Manual) UN Doc A/C.5/69/18 (UN 2014)185 et seq. 48 Boris Kondoch and Marten Zwanenburg, ‘International Responsibility and Military Operations’, in Terry D Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (2nd edn 2015) 559, 563. But even if the IO endows the seconded organ with organ status within its institutional setting Art 7 ARIO is regarded to be applicable by the ILC, see ILC, ‘ARIO’ (n 14) 86 Art 6 para 6; ILC, ‘ARIO’ (n 14) 87 Art 7 para 1. 49 See Maike Kuhn, Die Europäische Sicherheits- und Verteidigungspolitik im Mehrebenensystem (Springer 2012) 167. Cf. Aurel Sari‚ ‘UN Peacekeeping Operations and Article 7 ARIO: The Missing Link’ (2012) International Organizations Law Review 9, 77, 79 50 Crit. Sari (n 49) 77, esp 80 et seq. 51 See ILC, ‘ARIO’ (n 14) 87 Art 7 para 1. 52 In constellations in which the institutional bonds between an organ and the entity seconding it are fully cut it appears persuasive to assume that only Art 6 ARIO is applicable, ILC, ‘ARIO’ (n 14) 87 Art 7 para 1. See also Pierre d’Argent, ‘State organs placed at the disposal of the UN, effective control, wrongful abstention and dual attribution of conduct’ (2014) QIL, Zoom-in 1, 17 (25). 53 Peacekeeping missions of the 1st to 3rd are to be distinguished from 4th generation missions. Within the latter military and civil components are intertwined, see e. g.the duality of UNMIK as an UN Interium Administration and subsidiary organ of the UNSC and NATO/KFOR which took over the military component, see Surholt (n 37), 99. Also Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’ (2008) 8 HRLR 151, 154; ILC, ‘Report of the International Law Commission, Official Records of the General Assembly, Fifty-ninth Session’ Supplement No 10 UN Doc A/59/10, Article 4 of the Draft Articles on Responsibility of International Organisations, 103 et seq. On the status of UNMIK Andreas Paulus, ‘Art 29’ in Bruno Simma (ed), The Charter of the United Nations Vol. I (2nd ed, OUP 2002) para 48. Since the UN employ their own officials within UN Interim Administrations the Art 7 ARIO problem does not arise. Generally on UNPKM Sylvia Maus, ‘The Responsibility to Rebuild – Some Remarks on a UN Obligation to Conduct Peacebuilding Activities’ (2010) HuV-I 52 et seq. 54 See e. g. Contingent Agreement between the UN and Finland regarding UNEF-I (271 UNTS 136). Furthermore Robert Siekmann, National Contingents in United Nations Peace-Keeping Forces (Springer 1991) 45. 55 See UN, ‘Model Memorandum of Understanding’ (n 47). 56 See e. g. Regulations for the United Nations Emergency Force (ST/SGB/UNEF/1) (20 February 1957) 271 UNTS 168.

6


lished as a subsidiary organ of one of the main UN organs. 57 Functionally, national contingents fulfill an obligation of the UN being peacekeeping. 58 The fact that these contingents (possibly) also fulfill own obligations of the TCN towards the UN and serve its national (security) interests does not pose an obstacle to attributing their conduct to the UN. Art. 7 ARIO merely requires that the seconded organ fulfills tasks of the IO it is seconded to in addition to serving ‘national functions’. 59 The UN takes the view that conduct of national contingents becoming operative within UNPKM would be attributable to it since the mission qualified as a subsidiary UN organ and the UN exercised ‘command and control’ 60 or ‘(exclusive) operational command’ 61 over them. 62 Others assume a rebuttable presumption pointing towards the attribution of conduct of TCN to the UN. 63 An ‘attribution automatism’ does, however, not correspond with the rationale of Art. 7 ARIO: 64 Whilst it is true that conduct of the UNPKM itself as a subsidiary organ of a main UN organ is attributable to it automatically (Art. 6 ARIO), conduct of soldiers on the ground remaining legally organs of the TCN is only attributable to the UN if it exercised ‘effective control’ over it. ‘Effective control’means ‘factual control that is exercised over the specific conduct taken’ 65 which is to be assessed considering the ‘full factual circumstances’ as well as the ‘particular context’ on a case-to-case basis 66 giving factual causalities priority over formal links. 67 The first challenge is to delineate the relationship between Art. 4 ARS and Art. 7 ARIO: The ILC Commentary appears to suggest a ‘reciprocal reading`’ of ‘effective control’ within Art. 57

Either the UN General Assembly or the UNSC, see Art 22, 25, 29 UNC. UN, United Nations Peacekeeping Operations: Principles and Guidelines (UN 2008) 13 ˂http://www.un.org/en/peacekeeping/documents/capstone_eng.pdf.˃ accessed 19 February 2018; UN, Handbook on United Nations Multidimensional Peacekeeping Operations (UN 2003) 57; Patryk I Labuda, ‘Peacekeeping and Peace Enforcement’ in MPEPIL online (2015) para 15 accessed 27 February 2018. 59 Irène Couzigou, ‘International Organisations and States within an Agency Relationship’ (2014) NILR, 335, 348; Surholt (n 37) 124. Cf. Sari (n 49) 77, 79. 60 Letter of the UN Legal Counsel to the Director of the UN Office of Legal Affairs, Codification Division, cited in ILC, ‘General Assembly’ (n 53) 112, para 5. 61 UNGA, ‘Report of the Secretary General on financing of United Nations peacekeeping operations’ (1996) UN Doc A/51/389, para 17; Kirsten Schmalenbach, Die Haftung internationaler Organisationen im Rahmen von Militäreinsätzen und Territorialverwaltung (Peter Lang 2004) 478. 62 See ILC, ‘Responsibility of International Organizations, Comments and Observations Received From International Organizations’ (2004) Un Doc A/CN.4/545; ILC, ‘Responsibility of International Organizations’ (2011) UN Doc A/CN.4/637/Add. 1, sect. II.B.3, para 3; ILC, ‘ARIO’ (n 14) 88 Art 7 para 6. This principle is also reflected in the practice of the UN: The UN assumed responsibility for conduct of peacekeeping forces and paid compensation, see ILC, ‘Report Gaja’ (n 16) para 34 et seq. The UN conclude treaties which concern the legal status of troops with host states (Model Status-of-Forces Agreement for Peacekeeping Operations, UN Doc. A/45/594 (9 October 1990)). In addition to this the UN exercise diplomatic protection for peacekeeping forces parallel to the respective nation states. 63 Kondoch/Zwanenburg (n 48) 563; Palchetti (n 45) 734; Alexander Breitegger, ‘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 Aljedda’ (2009) 11 International Community Law Review 153, 159. 64 See only Larsen (n 12) 516; Palchetti (n 45) 730 et seq. 65 ILC, ‘ARIO’ (n 14) 87 et seq Art 7 para 4. This analysis is based on the actual wording of Art 7 ARIO as adopted, but see as to the peculiarities of its drafting history Francesco Messineo, ‘Attribution of Conduct’ in André Nollkaemper and Ilias Plakokefalos (eds), Principles of Shared Responsibility (Cambridge University Press 2014) 60 (88 et seq). Regarding its ‘factual’ orientation see ILC, ‘General Assembly’ (n 53) Ch V, para 72, sub-para 3, 6,8. 66 ILC, ‘ARIO’ (n 14) 87 et seq Art 7 para 4. See United Kingdom, UN Doc A/C.6/64/SR.16 para 23. See Couzigou (n 59), 335, 350. 67 See ILC, ‘ARIO’ (n 14) 87 et seq. Art 7 para 4; Larsen (n 12) 516 et seq. 58


7

7 ARIO: 68 Depending to whether ‘effective control’ lies with the IO to which an organ is seconded or the state seconding it conduct would be attributable to one or the other. 69 However, applying Art. 4 ARS would suggest that attribution of conduct of a soldier to the state it serves occured per se irrespective of any ‘effective control’ considerations via its status. 70 In that sense Art. 7 ARIO will have to be read as suggesting that ‘exclusive effective control’ on part of the IO it is seconded to cuts the chain of attribution to the state based on Art. 4 ARS. 71 Second, beyond its ‘factual’ focus the substance of ‘effective control’ is difficult to grasp: What is ‘control’ and what makes it ‘effective’? In that regard it is a virtue (but potentially also a vice) that the ‘effective control’ notion permeates international law and legal discourse in different contexts: 72 Pursuant to Art. 8 ARS conduct of individuals is to be attributed to the state if they have acted ‘on the instructions of, or under the direction or control of’ 73 the state which has been interpreted by the ICJ in as a standard of ‘effective control’ its Nicaragua judgment. 74 Alternative standards like the ‘overall control’ concept introduced by International Criminal Tribunal for the former Yugoslavia [ICTY] into the discourse 75 have remained rather insulated. Scholarship has limited the significance of the ICTY approach ‒ if it was not rejected per se – to the specific problem of international criminal law it ruled upon which required a delimitation of an international from a non-international armed conflict. 76 This found support in the Genocide-judgement of the ICJ. 77 Although the customary nature 78 of the ‘effective control’ standard and its significance outside the state responsibility context

68

See also Andrea Spagnolo, ‘The ‘reciprocal’ approach in article 7 ARIO: a reply to Pierre d’Argent’ QIL 1 (2014) 33 et seq. 69 The ILC has remained rather imprecise on this point: ‘ARIO’ (n 14) 88 et seq, Art 7 para 7; UNGA (n 61) para 17 et seq, 6. 70 See also D’Argent (n 52) 17, 26 et seq. 71 This might not be the case when several actors exercise ‘effective control’, see n 179 et seq. and accompanying text. 72 It has also gained relevance within the ius in bello (Art 42 1907 Hague Regulations (UKTS (1910) 9)), see Eyal Benvenisti, ‘Occupation, belligerent’ in MPEPIL online, para 2 et seq accessed 22 February 2018. It determines the superior-responsibility in the context of international criminal law, see Mucić et al (Judgment) ICTY IT-96-21 (20 February 2001) para 196. The ECtHR refers to this standard in order to delineate its jurisdiction and the applicability of the ECHR, Banković a. o. v. Belgium a.o. App no 52207/99 (ECtHR Decision, 12 December 2001) para 71. 73 See ILC, ‘ARS’ (n 30) 20, 47 Art 8 para 1 et seq. 74 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 1986, 14 et seq; ILC, ‘ARS’ (n 30) 48 et seq Art 8 para 8. 75 As a standard of attribution for hierachally organized groups ‒ ICTY, Case IT-94-1, Prosecutor v. Tadić (1999) 38 ILM 1518, para 90 et seq; Antonio Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 EJIL 649 et seq. In contrast to the ‘effective control’ standard specific instruction by the state are not necessary to establish ‘overall control’, ICTY, Case IT-94-1, Prosecutor v. Tadić (1999) 38 ILM 1518, para 137, 121; André J. J. de Hoogh, ‘Articles 4 and 8’ (2001) 72 BYIL 255, 263; Michał Kowalski, ‘Armed Attack, Non-State Actors and a Quest for the Attribution Standard’ (2010) 30 Polish Y.B. Int’l L. 101, 114. 76 Larsen (n 12) 514 et seq. For the contrary view Marco Sassòli, ‘State Responsibility for Violations of International Humanitarian Law’ (2002) 84 IRRC 401, 408. 77 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgement) [2007] ICJ Rep 2007, 43, 209 et seq para 402–407. 78 In the opposite direction Moshe Hirsch, The responsibility of international organizations toward third parties: some basic principles (Springer 1995) 76 et seq. Krieger assumes that the ‘effective control’ standard appears as a legal logical necessity, although it is not yet endowed with customary status, Heike Krieger, ‘Die Verantwortlichkeit Deutschlands nach der EMRK für seine Streitkräfte im Auslandseinsatz’ (2002) 62 ZaöRV 669, 677 et seq.

8


has remained controversial, 79 at least regarding the attribution of individual conduct to the state no alternative standard can be identified which would more convincingly reflect international legal practice. Obviously, the peculiarities of the ‘IO setting’ have to be taken into account when reflecting on Art. 7 ARIO: Here ‘effective control’ serves different objectives if compared to its operation within Art. 8 ARS.80 In the former constellation it determines whether conduct of individuals qualifies as state conduct, in the latter it determines to which entity the individual conduct in question – the respective IO, a state or another IO – conduct is attributable. 81 In constellations of an ‘organ secondment’ ‘attribution rules’ will hence never generate the result that the conduct in question cannot be attributed to any abstract entity. In any case an attribution to the seconding state or IO will remain possible. Some voices have therefore argued that a lesser extent of control would render it ‘effective’ in the context of Art. 7 ARIO if compared to Art. 8 ARS. 82 The ILC, however, appears to assume a substantive congruity of ‘effective control’ in both constellations. 83 The ICJ has missed the opportunity to give ‘effective control’ specific content. It merely made clear that supportive and facilitating activities concerning financing and equipment fall short of it. 84 Even if uncertainties persist, following parameters appear apt to guide the operation of ‘effective control’ in the MNMO context: ‘Effective control’ can only be determined with respect to the specific conduct that causally85 lead to a harmful outcome. Decisive is control ‘concretely and actually exercised, beyond the formal delegation of operational authority’ 86 not over the mission as such but over conduct that is alleged to be wrongful. 87 It seems adequate to assume that the exercise of ‘effective control’ in the sense of Art. 7 ARIO is particularly given if a course of action is factually steered by ways of instructions. 88 Therefore, as a preliminary starting point the specific chains of command characterizing MNMO should be analyzed, whilst keeping in mind that the existence of command powers does not constitute ‘effective control’ if the commanding actor does not exercise ‘factual control’. 89 79

Regarding self-defence against non-state actors Paulina Starski, ‘Right to Self-Defense, Attribution and the Non-State Actor’ (2015) 75 ZaöRV 455 et seq. 80 Crit. Messineo (n 65) 88 et seq. 81 See ILC, ‘ARIO’ (n 14), 88 Art 7 para 5; Palchetti (n 45) 733; Tom Dannenbaum, ‘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 113, 155 et seq.; Larsen (n 12) 515. Also Behrami and Saramati v France a.o. App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) para 31 et seq accessed 27 February 2018. 82 Palchetti (n 45) 733. 83 Larsen (n 12) 515; Andreas von Arnauld, Völkerrecht (2nd edn, C.F. Müller 2012) 400. For the contrary view Palchetti (n 45) 733. See also Christopher Leck, ‘International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct’ (2009) 10 Melb J Int'l L 346, 348 et seq. Crit. Messineo (n 65) 92. See cautious ILC statements (‘ARIO’ (n 14) 88 Art 7 para 4). 84 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) (Judgement) [1986] ICJ Rep 1986, 14, 64, para 115. 85 Boutin, ‘Attribution of Conduct’ (n 3) 156. 86 Boutin, role of control (n 20) 83; Dannenbaum (n 81) 151; Larsen (n 12) 516; Messineo (n 65) 92. 87 Boutin, role of control (n 20) 85. 88 Cassese (n 75) 667. 89 Focusing on formal structures in a first step appears feasible since the peculiarities of and political sensitivity military operations taking place ‘in a fog of war’ (e. g. potentially classified materials) might make it a nonfulfillable task for courts or claimants to reconstruct the factual course of action, Marten Zwanenburg, ‘North Atlantic Treaty Organization-Led Operations’ in André Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017) 639, 650. Max Planck Research Paper Series No. 2018-09

9

In case of UNPKM the TCN transfer ‘operational control’ (opcon), 90 – ‘authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time, or location; to deploy units concerned, and to retain or assign tactical control of those units’ 91 –, occasionally (especially in older UNPKM) also ‘operational command’ (opcom) – the ‘authority granted to a commander to assign missions or tasks to subordinate commanders, to deploy units, to reassign forces, and to retain or delegate operational and/or tactical control as the commander deems necessary’ – to the UN. 92 Opcon/opcom is exercised by a UN Force Commander who assigns tasks to contributed troops which are organized in national contingents and headed by National Contingent Commanders acting on behalf of the UN. 93 ‘Full command’ – or ‘organic command’ 94 – in the sense of a subjection of the acting soldier in every military respect remains with the TCN. 95 Many instances evidence that ‘the umbilical cord’ between the soldiers and ‘their’ states ‘is not fully cut’: 96 First, the ‘state-soldier-nexus’ remains visible since soldiers continue to wear their national uniforms. Second, it is up to the national commanders to waive the immunity of ‘their’ soldiers 97 which remain subject to national criminal prosecution and disciplinary 90

See Capstopne-doctrine of the DKPO, UN, Peacekeeping Operations (n 108) 68. No uniform terminology has yet been established. The relevant terms all stem from the military context, however, within the legal discourse they are regularly understood different from their military meaning. NATO operates with following definitions, see NATO AAP-6, ‘Glossary of Termns and Definitions’ (NATO 2008): ‘Tactical control (Tacon): The detailed and, usually, local direction and control of movements or manoeuvres necessary to accomplish missions or tasks assigned. Tactical Command (TACOM): The detailed and, usually, local direction and control of movements or manoeuvres necessary to accomplish missions or tasks assigned. Operational Control (OPCON): The authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time, or location; to deploy units concerned, and to retain or assign tactical control of those units. It does not include authority to assign separate employment of components of the units concerned. Neither does it, of itself, include administrative or logistic control. Operational Command (OPCOM): The authority granted to a commander to assign missions or tasks to subordinate commanders, to deploy units, to reassign forces, and to retain or delegate operational and/or tactical control as the commander deems necessary. Full command: The military authority and responsibility of a commander to issue orders to subordinates. It covers every aspect of military operations and administration and exists only within national services. Note: The term ‘command” as used internationally, implies a lesser degree of authority than when it is used in a purely national sense. No NATO or coalition commander has full command over the forces assigned to him since, in assigning forces to NATO, nations will delegate only operational command or operational control.’ A slightly different definition of opcon is given by Tim Ford, Commanding UN Peacekeeping Operations, Training Materials for the UN Institute of Training and Research (‘UNITAR’) (Peace Operations Training Institute 2004) 15. See also DPKO Training Unit, Glossary of UN Peacekeeping Terms (1998) accessed 19 February 2018. 92 See (n 91). 93 See Patrick C Cammaert and Ben Klappe, ‘Authority, Command, and Control in United Nations-Led Peace Operations’ in Terry D Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (OUP 2010) 159. 94 Boutin, role of control (n 20) 30 referring to Attorney General v Nissan [1969] UKHL 3 [1970] AC 179, 223. See also Nuhanović v. Netherlands Case no 12/03324 (Hoge Raad, 1st Chamber, Judgment, 6 Sept 2013) para 3.10.2. 95 See also Attorney General v. Nissan [1969] UKHL 8/3 ILM (1969), 588, 593. 96 Zwanenburg, ‘NATO’ (n 89) 649. 97 Regularly the UN conclude agreements with the host state which epecially the regulate the immunities of peacekeeping forces within the host state’s jurisdiction, the so-called status-of-forces agreements (SOFAs) or status-of-mission agreement (SOMAs), see UN, Handbook on United Nations Multidimensional Peacekeeping Operations (UN 2003) 13; Paul J Conderman, ‘Status of Armed Forces on Foreign Territory Agreements’ in MPEPIL online (2013) para 1 et seq. < http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e410> accessed 22 February 2018. Within SOFAs or SOMAs the authority to decide upon a 91

10


measures. 98 This national ‘embedding’ persists even when multinational brigades are formed. Host states agree with the TCN – complementary to the treaties concluded between the host state and the UN – on the status of their soldiers. 99 TCN influence the Rules of Engagement [RoE] regarding the specific deployment modalities 100 and regularly declare caveats 101 to the effect that diverging RoE might de facto apply within one UNPKM. 102 These institutional bonds between TCN and their contingents render an attribution of conduct to the UN based on Art 7. ARIO not impossible. Quite to the contrary, they rather its substance: It requires – if read in light of Art. 6 ARIO – that the seconded organ remains an organ of the seconding entity. 103 Nevertheless, the ‘national bonds’ of troop contingents are extensive in the UNPKM setting: International orders have to be implemented by national commanders. 104 On the one hand soldiers will be regularly ordered to cooperate with international commanders and to obey their command 105 and national commanders might play only minor role as reflected by the Regulations. 106 This seemingly creates an uninterrupted chain of command from the UN to the soldier on the ground. On the other hand, the general order to obey international orders is reversible. 107 Contingent treaties regularly entail clauses which allow the TCN to revoke the secondment of their troops anytime. 108 These safeguard the TCN’s legal ability to comply with constitutional requirements should these demand a withdrawal of troops. 109 Additionally, national commanders are constitutionally obliged to examine the conformity of international orders with national and international law. 110 Whilst national commanders may not waiver of immunity is assigned to the sending states. See also UNMIK Regulation No 2000/47, on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo; Rachel A Opie, ‘Human Rights Violations by Peacekeepers: Finding a Framework for Attribution of International Responsibility’ (2006) New Zealand Law Review 1, 24 et seq. 98 UN, ‘Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects, Report of the Secretary-General’ (21 November 1994) UN Doc A/49/681, 3, para 6; Palchetti (n 45) 734; Dannenbaum (n 81) 146 et seq. See Art 47 lit b Model Status-of-Forces Agreement for Peacekeeping Operations, UN Doc A/45/594 (9 October 1990). 99 With regard on the role assumed by the host state in terms of an allocation of responsibilities Kondoch/Zwanenburg (n 48) 559. On SOFAs see (n 97). 100 See Leck (n 83) 358; Krieger, ‘Credibility Gap’ (n 15) 172. 101 Marten Zwanenburg, ‘International Military Forces’ in MPEPIL online (2015) para 23 accessed 19 February 2018. The UN see this practice critically, see UN, ‘Report of the Secretary-General, The future of United Nations peace operations: implementation of the recommendations of the High-level Independent Panel on Peace Operations’ (2 September 2015) para 98. 102 See Krieger, ‘Credibility Gap’ (n 15) 172. 103 See ILC, ‘ARIO’ (n 14) 87 Art 7 para 1. 104 Klaus Stoltenberg, ‘Auslandseinsätze der Bundeswehr im menschenrechtlichen Niemandsland?‘ (2008) ZRP 111, 113. 105 In the German context such a generalized obligation is enshrined within an ‘Anweisung zur Zusammenarbeit’and ‘instruction to cooperate’ ‒ a construction that is based on § 7 of the Soldatengesetz (Military Statute). See Zentrale Dienstvorschrift (Joint Serice Regulation) 1/50 of the German Federal Army (Bundeswehr). Furthermore Georg Nolte and Heike Krieger, Europäische Wehrrechtssysteme (Nomos 2002) 168; Krieger, ‘Verantwortlichkeit’ (n 78) 680 et seq. 106 See also Art 6 of the Regulations (n 56). 107 In terms of the NATO setting Krieger, ‘Credibility Gap’ (n 15) 173. 108 UN, United Nations Peacekeeping Operations (n 58) 68; Michael Bothe, ‘Peacekeeping Forces’ in MPEPIL online, para 28 et seq. accessed 22 February 2018. 109 To take Germany as an example: This clause safeguards the revocation rights of the German parliament (Bundestag) with regard to the deployment of the German armed forces according to § 8 Parlamentsbeteiligungsgesetz (Statute on Parliamentary Participation of 18 March 2005 (BGBl. I 775)). 110 See Erich Vad, ‘Auslandseinsätze deutscher Streitkräfte’ (1997) HuV-I 74, 79. Max Planck Research Paper Series No. 2018-09

11

make strategic decisions, the UN do not have the power to effectively implement an order against the will of a national commander. 111 The seemingly ‘uninterrupted chain of command’ depends on the ‘good will’ or at least passivity of the TCN. Furthermore it has to be considered that UN command structures ‘are straightforward in theory, but seldom so in practice’. 112 States have occasionally intervened in the operational management of their troops contrary to the ‘formal’ command structures, thereby undermining the operational authority of the UN Force Commander. 113 If the benchmark of ‘effective control’ would be the ability to prevent harmful outcomes – as suggested by some 114 – these aspects would certainly require to attribute injurious conduct of soldiers acting within MNMO regularly to the TCN. Even if this line is not followed, 115 considering these intricately entangled layers of control it can not be excluded per se that the ‘attribution scheme’ will point towards the TCN. 116 This is particularly imaginable in two constellations: First, according to the UN conduct of a soldier who follows an order of a national commander which contradicts the order of the UN Force Commander it not be attributable to it as an act ultra vires..117 A disruption of the chain of attribution is, however, not to be assumed easily: Not every internationally illegal act is per se ultra vires. Furthermore, assuming an ‘automatic’ non-attribution of ultra vires acts is seemingly at odds with the rationales underlying Art. 7 ARS and Art. 8 ARIO. These provide that ultra vires conduct of one of its organs remains attributable to a state/IO. 118 In any case, the case-specific focus of Art. 7 ARIO will have to be duly considered: Ultra vires acts potentially (but not necessarily) eradicate ‘effective control’ on part of the IO to which the or111

See also Dannenbaum (n 81) 148 et seq. Leck (n 83) 352. 113 For instance, during the 1993 UN Operation in Somalia II (UNOSOM II), ‘[t]he Force Commander of UNOSOM II was not in effective control of several national contingents which, in varying degrees, persisted in seeking orders from their home authorities,’ UN, ‘Report of the Commission of Inquiry Established Pursuant to Security Council Resolution 885 (1993) to Investigate Armed Attacks on UNOSOM II Personnel which Led to Casualties Among them’ (1 June 1994) UN Doc S/1994/653 paras 243-4. See also Murphy/Wills (n 18) 596 et seq. See also UN, ‘Report of the Office of Internal Oversight Services, Evaluation of the implementation and results of protection of civilians mandates in United Nations peacekeeping operations’ (7 March 2014) UN Doc A/68/787. 114 Mustafić-Mujić et al v the Netherlands Case no 200.020.173/01 (Gerechtshof‘s-Gravenhage, Judgment, 05 July 2011) para 5.9 [english translation in ILDC 1742 (NL 2011)]; Mustafić-Mujić et al v. de Staat der Nederlanden Case no 12/03329 (Hoge Raad, 1st Chamber, Judgment, 6 September 2013). See also Nuhanović v. de Staat der Nederlanden Case no 200.020.174/01 (Gerechtshof‘s-Gravenhage, Judgment, 5 July 2011) para 5.9; Nuhanović v. de Staat der Nederlanden Case no 12/03324 (Hoge Raad, 1st Chamber, Judgment, 6 September 2013); Case no C/09/295247 / HA ZA 07-2973 (Rechtbank Den Haag, Judgment, 16 July 2014); Stichting Mothers of Srebrenica v. de Staat der Nederlanden Case no 200.158.313/01 and 200.160.317/01 (Gerechtshof Den Haag, Judgment, 27 June 2017) In this direction Dannenbaum (n 81) 157 et seq. 115 ‘Effective control’ as conventionally understood is ex post oriented and prima facie qualitatively different from an ‘ability to prevent’, see André Nollkaemper, ‘Dual Attribution’ (2011) 9 Journal of International Criminal Justice 1143 et seq. 116 See also Cedric Ryngaert, ‘Apportioning Responsibility between the UN and Member States in UN PeaceSupport Operations’, 45 Israel Law Review (2012) 151, 155; Couzigou (n 59), 335, 348; Noemi Gal-Or and Cedric Ryngaert, ‘From Theory to Practice: Exploring the Relevance of the Draft Articles on the Responsibility of International Organizations (DARIO) - The Responsibility of the WTO and the UN’ (2012) 13 German LJ 511, 530. 117 Terry D Gill, ‘Legal Aspects of the Transfer of Authority in UN Peace Operations’ (2011) 42 Netherlands Yearbook of International Law 37, 55. 118 In that regard it has to be noted, however, that Art 8 ARIO concerns conduct of an ‘organ or agent’ of an IO, national contingents, which are placed at the disposal of the UN form a special category. The UN peacekeeping mission qualifies as an organ which does not mean that national contingents qualify or the individual soldiers as a member of such contingents qualifies as such, see Dannenbaum (n 81) 159; Palchetti (n 45) 735 et seq. For a different position, see Bothe (n 108) para 29 et seq. 112

12


gan is seconded. 119 Secondly, it is assumed that off duty conduct – acts and omissions beyond the official and operative context of a mission (e. g. sexual abuse) 120 – would not be attributable to the UN. 121 In contrast to ultra vires conduct which goes beyond the specific authority of a soldier but remains tied to the fulfillment of official tasks, off duty are treated as private in nature. Beyond that, international orders might give the TCN and the relevant national commanders some leeway: Frequently and they – out of necessity – merely set a frame of action which has to be concretized by national implementing orders. 122 Whilst it remains debatable whether these ‘national implementation margins’ suffice in order to interrupt the chain of attribution to the UN, the ‘overlap’ of ‘factual control’ given should not be ignored. Some international legal documents indeed reflect that TCN are not released from their international obligations even if acting within UNPKM and imply that violations of international rules remain attributable to them: Comment 31 of the UN Human Rights Committee suggest that parties to the International Covenant on Political and Civil Rights (ICCPR) 123 remain bound by its obligations also extraterritorially when exercising ‘effective control’ ‘regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.’ 124 The Committee found furthermore that Belgium was obliged to fulfill the obligations stemming from the ICCPR also when acting abroad be it within ‘peacekeeping missions’ or military operations under the auspices of NATO. 125 Previously the Committee expressed its concerns about ‘the behaviour of Belgian soldiers in Somalia’ and acknowledged ‘that the State Party has recognised the applicability of the Covenant in this respect’. 126 With regard to activities of Dutch peacekeepers in Srebrenica the Committee assumed the applicability of some of the provisions of the Covenant. 127 Furthermore, it welcomed Italy’s affirmation of the Covenant’s applicability ‘to the acts of Italian troops and police officers who are stationed abroad, whether in the context of peace or armed conflict’, 128 whilst expressing its worries concerning Germany’s state report since it omitted to state how it safeguarded the fulfillment

119

This is also indicated by the ILC commentary (ILC, ‘ARIO’ (n 14) 94 Art 8 para 4 et seq) while remaining controversial. Cp Dannenbaum (n 81) 159 (who assumes that conduct would be attributable to the TCN) with Palchetti (n 44) 735 et seq (who assumes a presumption that conduct would be attributable to the UN). 120 UN, United Nations Juridical Yearbook (UN 1986) 300 cited by ILC, ‘Fifty-sixth Session Geneva, 3 May-4 June and 5 July-6 August 2004’; ILC, ‘Report Gaja’ (n 16) para 55. 121 Gill (n 117) 56. 122 See Ohler (n 30) 260. Also Andrea Spagnolo, ‘The ‘reciprocal’ approach in article 7 ARIO: a reply to Pierre d’Argent’, QIL 1 (2014) 33, 40. 123 International Covenant on Civil and Political Rights (999 UNTS 171). 124 Human Rights Committee, ‘General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant vom 26. Mail 2004’ UN Doc. CCPR/C/21/Rev.1/Add.13, para 10. 125 ‘Concluding Observations of the Human Rights Committee: Belgium’ (12 August 2004) UN Doc. CCPR/CO/81/BEL, para 6. 126 ‘Concluding Observations of the Human Rights Committee on the Third Periodic Report of Belgium’ (19 November 1998) UN Doc CCPR/C/79/Add. 99, para 14. 127 ‘Concluding Observations of the Human Rights Committee on the Third Report the Netherlands’ (27 August 2001) UN Doc CCPR/CO/72/NET, para 8. 128 ‘Concluding Observations of the Human Rights Committee on the Fifth Report of Italy’ (24 April 2006) UN Doc CCPR/C/ITA/CO/5 para 3. Also regarding Polish armed forces, ‘Concluding Observations of the Human Rights Committee on the Fifth Report of Poland’ (2 December 2004) UN Doc CCPR/CO/82/POL, para 3. Max Planck Research Paper Series No. 2018-09

13

of Germany’s human rights obligations within MNMO – without excluding UNPKM. 129 In the case of Kurbogaj v. Spain 130 which dealt with conduct of UNMIK officials 131 the Committee dismissed the complaint since the local remedies in Spain had not been exhausted. This could be interpreted as an acknowledgment that conduct by UNMIK is not exclusively attributable to the UN which enjoys immunity before national courts – this should apply even more so to the military components of UNPKM. One constructive way to ensure that TCN remain bound by their human right commitments when acting within UNPKM whilst not ‘releasing’ the UN from their ‘international responsibility’ would be a ‘multiple attribution of conduct’ based on a ‘dual effective control’. 132 These concepts might more adequately reflect the realities of UNPKM sketched above. 133 (2) Missions with UN Mandate Whilst the UN Security Council [UNSC] does fulfill its core task of peacekeeping by mandating a MNMO, the institutional embedding of such operations is not comparable to UNPKM. The acting states do not transfer any power of command or control onto the UN, no UN Force Commander is assigned, whilst the specific mandate might oblige the acting states to coordinate their endeavors with the UN and to report regularly. 134 Constellations in which the UN would ‘effectively control’ MNMO under UN mandate on the ground are hardly imaginable (although Art. 7 ARIO forbids schematic assessments). 135 Most strikingly, however, the ECtHR 136 came to a different conclusion in its Behrami/Saramati judgment 137 which concerned the NATO/KFOR operations in Kosovo. Here the Court dealt inter alia with the legality of an incarceration by a KFOR soldier. Identifying to which entity the conduct in question was attributable was a prerequisite for establishing the Court’s jurisdiction which is – ratione personae – limited to ECHR parties. 138 The ECtHR attributed the conduct in question to the UN which – in its view – exercised ‘ultimate authority and control’. 139 The Court’s finding rested on five argumentative pillars: The UNSC possessed the competence to delegate its powers on other entities (1). The establishment of a military component in Kosovo would qualify as such a delegation of transferable powers (2). 140 In the case at hand the UNSC did not merely authorize the operation but it delegated its powers (3). The mandate defined the powers of 129

‘Concluding Observations of the Human Rights Committee: Germany’ (1 May 2004) UN Doc CCPR/CO/80/DEU, para 11. See also ‘Comments by the Government of Germany to the concluding observations of the Human Rights Committee’ (11 April 2005) UN Doc. CCPR/CO/80/DEU/Add.1 130 Azem Kurbogaj and Ghevdet Kurbogaj v. Spain Communication No. 1374/2005 (Human Rights Committee, 11 August 2006), UN Doc CCPR/C/87/D/1374/2005. 131 UNMIK is a subsidiary organ of the UN Security Council, Paulus (n 53) para 48; furthermore (n 53). 132 Surholt (n 37) 131 and n 179 et seq. 133 See n 179 et seq and accompanying text. 134 Authorizing UNSC resolutions regularly refer to ‘member states, acting nationally or through regional agencies or arrangements’, see Resolution 770 (1992). UNSC Resolution 940 (1994) speaks of a ‘multinational force’ but it is left up to the member states ‘to perform a multinational force under unified command and control’. 135 See UN, ‘Report of the Secretary-General’ (1996) UN Doc A/51/389, para 17. See also Palchetti (n 45) 736. 136 European Court of Human Rights. 137 Behrami and Saramati v France a.o. App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) accessed 27 February 2018. For a critique of the judgment see Breitegger (n 63) 153 et seq. 138 See Art 1 ECHR (European Convention of Human Rights (1950) 213 UNTS 221); see Breitegger (n 63) 164 et seq. 139 Behrami and Saramati v France a.o. App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) para 140 accessed 27 February 2018. 140 Behrami and Saramati v France a.o. App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) para 129 accessed 27 February 2018.

14


KFOR/NATO which exercised ‘operational control’ precisely (4). These included incarcerations. And lastly, the operating entities were obliged to report to the UNSC (5). 141 The ECtHR’s approach goes way beyond the ICTY’s ‘overall control’ standard: 142 It does not require any direct factual control on part of the UN, whilst the ICTY assumed that ‘overall control’ could only be given if a certain level of (even minor) 143 factual control existed. 144. The ECtHR did not give any reasons for deviating from the ‘effective control’ criterion of Art. 7 ARIO. 145 Its motives become, however, apparent 146 in between the lines of its rationes dedicendi: 147 The Court regarded a judicial review of UNSC Chapter VII resolutions as an encroachment upon the key competences of the UNSC. 148 Since ECHR rights are only derogable in exceptional circumstances (some of them being not derogable at all) 149 and principally apply in armed conflict situations the Court seemed furthermore to assume that ECHR parties would become reluctant to participate in military operations under UN mandate in light of the legal restraints the ECHR imposes on them. 150 This would pose a serious impediment to an effective fulfilment of UN tasks. 151 Besides, by rejecting its jurisdiction the ECtHR could rather conveniently evade addressing the potential normative conflict between the UNC/UNSC resolutions and the ECHR in light of Art. 24, 103 UNC. 152 The ECtHR has confirmed its ‘ultimate authority’ approach in subsequent decisions, 153 whilst relativizing it to in the case of Al-Jedda v. UK. Here it rejected the attribution of the conduct of the MultiNational Force Iraq [MNFI] – mandated by UNSC Resolution 1511 – to the UN referring to its lack of its ‘ultimate control’ (and also ‘effective control’). 154 It is, however, questionable whether the differences between the KFOR and the MNFI merited such a distinction following the inner logic of the Behrami/Saramati-judgment. 141

Behrami and Saramati v France App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) para 134. accessed 27 February 2018. 142 See (n 75). 143 The ECtHR shaped within its Loizidou v. Turkey judgment the term ‘effective overall control’, refrained, however, from addressing this point in the Behrami/Saramati-judgment, Loizidou v Turkey App no 15318/89 (ECtHR (Grand Chamber) Judgment, 18 December 1996) para 56. Critically Larsen (n 12) 519 et seq. 144 See ICTY, The Prosecutor v. Dusko Tadić, IT-94-1-A, Appeals Chamber, Judgement 15 July 1999, para 120 et seq. 145 Critically Larsen (n 12) 521 et seq; Palchetti (n 45) 737 et seq. 146 See Gerhard Hafner, ‘The ECHR torn between the United Nations and the States: The Behrami and Saramati Case’ in Fischer-Lescano (ed), Frieden in Freiheit: Festschrift für Michael Bothe zum 70. Geburtstag (Nomos 2008) 103, 119. 147 Here the Court explained why it cannot exceptionally – irrespective of the lack of its jurisdiction ratione personae – adjudicate the case, Behrami and Saramati v France App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) para 144 et seq accessed 27 February 2018. 148 Behrami and Saramati v France App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) para 149 accessed 27 February 2018. 149 See Art 15 ECHR. 150 But see Krieger, ‘Credibility Gap’ (n 15) 169. 151 Danesh Sarooshi, The United Nations and the Development of Collective Security (OUP 1999) 164 et seq. 152 See Breitegger (n 63) 174. 153 Kasumaj v Greece App no 6974/05 (ECtHR, Decision, 5 July 2007), Gajic v Germany App no 31446/92 (ECtHR, Decision, 28 August 2007), Berić and others v. Bosnia and Herzegovina App no 36357/04 (ECtHR, Decision, 16 October 2007) as well as Stephens v. Cyprus, Turkey and the UN App no 45267/06 (ECtHR, Decision, 11 November 2008). See Maria Canto Lopez, ‘Towards Dual or Multiple Attribution’ (2013) 10 International Organizations Law Review 204 et seq. 154 Al-Jedda v UK App no 27021/08 (ECtHR (Grand Chamber), Decision, 7 July 2011) para 84. On this Palchetti (n 45) 737; Lopez (n 153) 211 et seq. See also the more restrictive approach in terms of attribution based on ‘authorization’ Nada v Switzerland App no 10593/08 (ECtHR (Grand Chamber), Judgment, 12 Sept 2012) para 120. Max Planck Research Paper Series No. 2018-09

15

The ICJ has not decided on the attribution of conduct within mandated military operations, whilst having the opportunity to issue an obiter dictum in the course of the proceedings initiated by the former Yugoslavia regarding the NATO intervention in Kosovo. 155 But it seems most unlikely it would have followed the ECtHR’s ‘ultimate authority’ approach which fails to convince in many respects: 156 Contrary to the factual orientation of ‘attribution rules’ the ‘ultimate authority’ of the UN assumed in the Behrami/Saramati judgment is merely virtual – at the most political. 157 The UN have almost no legal or factual means to steer and influence mandated military operations on the ground beyond terminating the mandate. The ‘legality’ of mandating UNSC resolutions which the ECtHR regarded as decisive is – according to the logic of general attribution principles – irrelevant. 158 The Court’s reasoning conflicts furthermore with its Bosphorus judgment, where it clarified that a transfer of sovereign rights onto other entities would not absolve ECHR parties from their Convention obligations. 159 It assumed its jurisdiction over acts of member states based on directly applicable EU regulations which give them no leeway regarding their implementation. Following this rationale, an even stronger case could be made for reviewing conduct of ECHR parties determined by acts of an IO onto which no sovereign powers have been transferred. The Court’s attempts to distinguish between these constellations are hardly persuasive. 160 Its (underlying) assumption that international peacekeeping efforts and regional human rights protection regimes would be incompatible is questionable since their ‘systemic integration’ appears possible. 161 The ECtHR operates with a conceptually obscure 162 distinction between the ‘authorization’ of an entity and the ‘delegation’ of its powers. The ‘ultimate authority’ standard renders, most importantly, significant repercussions for the legal position of individuals whose rights are infringed in the course of military operations: 163 The complaint system of the ECHR would offer effective protection and judicial redress, is, however, unavailable since the Convention remains inapplicable ratione per155

In its application Yugoslavia assumed that the actions of KFOR would be attributable to the TCN, Legality of Use of Force (Serbia and Montenegro v. Netherlands) Memorial of Federal Republic of Yugoslavia 327 et seq. accessed 19 February 2018. The ICJ did not have to decide upon this point since it could declare that it had no jurisdiction over the case, Legality of Use of Force (Serbia and Montenegro v. Netherlands) Memorial of Federal Republic of Yugoslavia 327 et seq. accessed 19 February 2018. 156 Some authors argue in favor of applying the ‘effective control’ and ‘ultimate authority’ test concurrently, see Tondini (n 1) 717 et seq, 732. 157 Breitegger (n 63) 167 et seq; Pieter Jan Kuijper, ‘Introduction to the Symposium on Responsibility of International Organizations and of (Member) States: Attributed or Direct Responsibility or Both?’ (2010) 7. 158 Breitegger (n 63) 165 et seq. 159 Bosphorus v Ireland App no 45036/98 (ECtHR (Grand Chamber), Judgment, 30 June 2005) para 149 et seq. 160 See Pierre Boudeau-Livinec/Gionata Piero Buzzini/Santiago Villalpando, ‘International Decision: Behrami & Nehrami v. France; Saramati v. France, Germany & Norway: ECHR judgment on applicability of European Convention on Human Rights to acts undertaken pursuant to UN Chapter VII operation in Kosovo’ (2008) 102 AJIL, 323, 326 et seq; Marko Milanović/ Tatjana Papić, ‘As bad as it gets: The European Court of Human Right’s Behrami and Saramati Decicion and General International Law’ (2009) 58 ICLQ 267, 274 et seq; Sari (n 53) 158. 161 ILC, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (2006) Yearbook of the International Law Commission Vol. II, Part Two, 175, 180 para 17; Hassan v UK App no 29750/09 (ECtHR (Grand Chamber), Judgment, 16 September 2014) para 75. 162 Behrami and Saramati v France a.o. App no 71412/01 (ECtHR (Grand Chamber) Decision, 2 May 2007) para 43 accessed 27 February 2018. 163 Crit. Breitegger (n 63) 168. The ‘ultimate authority and control’ standard also surfaced in the Al-Jedda case before House of Lords auf which rejected an attribution of conduct of the MNFI to the UN. See R (on the application of AI-Jedda) (FC) v. Secretary of State for Defence [2007] UKHL 58 [2007].

16


sonae, 164 the entity to the conduct is attributable – UN – is not bound by the ECHR and enjoys immunity in (national) courts, 165 international courts which would be competent to adjudicate cases initiated by individuals against the UN do not exist. 166 Overall, it appears feasible to uphold ‘effective control’ and the ‘case to case’ approach it involves as the basis of attribution: Responsibility should lie with the entity which controlled a course of action 167 thereby being endowed with the actual capacity to ensure its conformity with international law. 168 This leaves us with the following result: In most constellations of MNMO with UN mandate conduct of national contingents will not be attributable to the UN due to lack of ‘effective control’ on its part. 169 Some voices question this result referring to the principle of good faith: 170 The UN would profit from the efforts of the ‘acting’ states, hence it would be unjust, if only these states should be held liable. 171 Such assertions are, however, not a sound legal ground for attributing conduct, although they are potentially helpful for establishing political or moral responsibility on part of the UN. (3) Plurality of IO – The KFOR Constellation When another IO is involved in MNMO that are endowed with an UN mandate – as it was the case in the KFOR constellation – an additional layer of ‘control’ is introduced rendering the attribution problem more complex. Regarding the triad of UN-NATO-KFOR the question was raised whether conduct of the TCN could be attributed to the NATO 172 assuming its legal personality. 173 This seems to find support in the Opinion on Human Rights in Kosovo of the Venice Commission. 174 Scholarship

164

See only Caitlin A. Bell, ‘Reassessing Multiple Attribution: The International Law Commission and the Behrami and Saramati Decision’ (2010) 42 International Law and Politics 533 et seq. 165 See (n 39); Stichting Mothers of Srebrenica a.o. v the Netherlands App no 65542/12 (ECtHR Chamber) Decision, 11 June 2013), esp para 141 et seq. 166 See Dannenbaum (n 81) 125 et seq. 167 On the failure to control Boutin, role of control (n 20) 180 et seq. 168 See also Gal-Or/Ryngaert (n 116) 529. 169 Particular problems occur in the context of ‘joint operations’. In this case national contingents act parallel to and in consultation with a UN peace keeping mission. Here it appears necessary to analyze the arrangements and agreements between the UN and the TCN. See ILC, ‘ARIO’ (n 14) 89, Art 7 para 9. UNOSOM II and Quick Reaction Force Somalia qualify as such ‘joint operations’, see only id. 170 Georg Troost, Die Autorisierung von UN Mitgliedstaaten zur Durchführung militärischer Zwangsmaßnahmen des Sicherheitsrates in Recht und Praxis der Vereinten Nationen (Shaker 1997) 265. 171 See Troost (n 170) 266. 172 And then possibly in a second step to the UN mediated via NATO. On this debate see for example Stein, who attributes conduct to the member states, Torsten Stein, ‘Kosovo and the International Community. The Attribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of its Member States’ in Christian Tomuschat (ed), Kosovo and the International Community: A Legal Assessment (Den Haag 2002) 181, 191 et seq. For the contrary view Pellet Alain Pellet, ‘L’imputabilité d’éventuels actes illicites: Responsabilité de l’OTAN ou des États membres’ in Tomuschat (ed), Kosovo and the International Community: A Legal Assessment (Den Haag 2002) 193, 199. KFOR is not endowed with legal personality and hence not a suitable attribution subject. The ILC Commentary points, however, into a different direction, see Art 15 ARIO, para 3, p 38. 173 Zwanenburg, ‘NATO’ (n 89) 640 174 European Commission for Democracy through Law (Venice Commission), ‘Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms’ No. 280/2004 (8-9 October 2004), CDL-AD (2004) 033, 18, para 79. Max Planck Research Paper Series No. 2018-09

17

has opposed this view widely, 175 referring to the central role played by national commanders within the chain of command, especially the right of TCN to oppose a ‘red card’ to certain sensitive missions.176 Furthermore, it was stressed that TCN did not fulfill an obligation of NATO but rather of the UN 177 and did not act through NATO but merely took advantage of its military and logistical infrastructure. Yet, the command structures characterizing KFOR displayed considerable similarities to UNPKM: The TCN transferred opcon onto NATO, soldiers remained subject to the orders of national commanders, a general instruction to obey international orders existed, international orders were reviewed by the national commanders for their compatibility with national and international law. Furthermore, it can well be argued that soldiers fulfilled an obligation of NATO which it assumed voluntarily towards the UN. The answer to the attribution question can hence likewise only be ‘it depends’: Following the case-to-case approach inherent to Art. 7 ARIO the course of action leading to a harmful outcome as well as the entity controlling it ‘effectively’ would have to be identified precisely. Depending on the peculiarities of the situation actions of soldiers on the ground might be attributable to NATO, 178 but not necessarily exclusively in light of the overlapping spheres of control. c) ‘Multiple Attribution of Conduct’ As seen, conduct of soldiers on the ground acting within MNMO is determined legally and factually both by the TCN as well as one or more IO. Attributing conduct exclusively to one entity stands at odds with this overlap of spheres of control. 179 In this regard a ‘multiple attribution of conduct’ 180 might process the reality of complex command structures more adequately. This concept suggests that actions or omissions of one agent constitute – for the purposes of establishing international legal responsibility – simultaneously conduct of several entities. Several subjects of international law would become individually responsible and liable for one and the same action or omission by one and the same individual or a group of individuals. 181 ‘Multiple attribution’ does hence not arise in constellations in which separate actions of one IO and a state cause one harmful outcome 182 or were (separate) organs of two subjects act together. 183

Rejecting an exclusive attribution, Krieger, ‘Credibility Gap’ (n 15) 172. Zwanenburg, ‘Accountability’ (n 9) 48; Cerone (n 27) 486 (esp. regarding the red card procedure). Some scholars assume that this red card procedure has the effect that operational control is shared between the TCN and NATO Commander, Boutin, ‘Attribution of Conduct’ (n 3) 158. 177 Apparently in the same vein Surholt (n 37) 133 et seq. 178 Zwanenburg assumes a rebuttable presumption that conduct is attributable to NATO, Zwanenburg, ‘NATO’ (n 89) 651. 179 Exactly because of this overlap approaches which try to attribute conduct based on the ‘sphere’ it belonged to are unconvincing. It has been suggested, for example, that ‘internal’ conduct (between soldiers of an operation) would be attributable the the TCN (except ultra vires acts) and ‘external’ conduct (with regard to third parties) to the UN, see Jochen Frowein, ‘Der völkerrechtliche Status von VN-Friedenstruppen und seine Bedeutung für das deutsche Recht’ in id./Stein (eds) Rechtliche Aspekte einer Beteiligung der Bundesrepublik Deutschland an Friedenstruppen der Vereinten Nationen (Springer 1990) 1, 9. See Angela Werner, Die Grundrechtsbindung der Bundeswehr bei Auslandseinsätzen (Peter Lang 2006) 192 et seq This approach is ignorant of the fact that even an ‘external’ conduct of a soldier remains influenced by orders of the national commanders and still follows an ‘either-or’ concept of attribution, see Surholt (n 37) 131. 180 Messineo (n 65) 62; Murphy/Wills (n 18) 604; Cedric Ryngaert, ‘The Responsibility of Member States of International Organizations: Concluding Observations’ (2015) 12 Int'l Org L Rev 502, 509. 181 See Troost (n 170) 259 et seq. 182 But see ILC, ‘ARS’ (n 30) 125 Art 47 para 6. 183 States can act through a joint organ. 175 176

18


The key question is whether a ‘multiple attribution of conduct’ fits into the scheme of the rules governing the international responsibility of states and IO. It would – in any case – be compatible with the principle of an independent responsibility of entities. This principle permeates the ARS and ARIO 184 and suggests that the responsibility of an actor is to be determined individually with respect to its own conduct and its own actions. 185 But this does not mean that instances of ‘parallel responsibility’ could not materialize. Quite to the contrary: Art. 47 ARS and Art. 48 ARIO allow the injured parties in cases of a multiplicity of actors responsible for the commission of one internationally wrongful act to invoke the responsibility of each actor individually whilst at the same time preventing their ‘overcompensation’. 186 This presupposes the possibility a ‘joint responsibility’ of different entities for the same internationally wrongful act 187 resulting from their individual conduct. And this would effectively be the effect of a ‘multiple attribution of conduct’. 188 ‘Multiple attribution’ might, however, be difficult to reconcile with the ‘effective control’ criterion if it is understood as exclusive control. 189 One point is obvious: The stricter ‘effective control’ is understood, the less imaginable does a ‘multiple attribution of conduct’ become. 190 But it is also obvious that within MNMO no actor ever attains ‘exclusive control’, control over soldiers can be transferred ‘partially’ yet ‘effectively’. 191 In addition to this ‘reality check’ theoretical, legal as well as policy aspects argue in favour of a ‘multiple attribution of conduct’ and it appears to have become more and more acknowledged: 192 Art. 7 ARIO necessarily presupposes – seen in conjunction with Art. 6 ARIO – that institutional bonds between the seconded organ and the seconding entity remain: neither is ‘the umbilical cord’ fully cut 193 nor necessarily the chain of attribution. 194 ILC Special Rapporteur Gaja stressed that what mattered would not be the ‘exclusiveness of control, which for instance the United Nations never has over national contingents, but the extent of effective control. This would also leave the way open for dual attribution of certain conducts.’ 195 In its ARIO commentary the ILC states that although ‘it may not frequently occur in practice, dual or even multiple attribution of conduct cannot be excluded. Thus, attribution of a certain conduct to an international organization does not imply that the same conduct cannot be attributed to a State, nor does attribution of conduct to a State rule out attribution of the same conduct to an international organization.’ 196 Whilst the ILC speaks of an ‘exclusive’ ‘effective 184

Ahlborn (n 31) 1, 26. ILC, ‘ARS’ (n 30) 64 Chapter IV of Part I, para 1. 186 ILC, ‘ARS’ (n 30) 125 Art 47 para 9. 187 ILC, ‘ARS’ (n 30) Art 48 ARIO, para 1. 188 The discussion of whether ‘multiple attribution’ results in one wrongful act or several wrongful acts appears to be rather ‘esoteric’ without implications (especially with respect to secondary obligations, Messineo (n 65) 79. 189 Messineo (n 65) 91. See also Couzigou (n 59) 350. 190 Kondoch/Zwanenburg (n 48) 569. 191 Boutin, role of control (n 20) 101. 192 See Nuhanović v de Staat der Nederlanden Case no 200.020.174/01(Gerechtshof‘s-Gravenhage, Judgment, 5 July 2011) para 5.9. This view was not shared by previous instances, see Nuhanovic v the Netherlands Case no 265615 / HA ZA 06-1671 (District Court, The Hague, Judgment, 10 September 2008) para 4.14.1 [engl. translation in: ILDC 1092 (NL 2008)]. Some scholars assume that ‘effective control’ could be divided Krieger, ‘Credibility Gap’ (n 15) 170 et seq. See also Janik (n 67) 139. Assuming the possibility of a ‘multiple atribution’ Leck (n 83) 361 et seq; Sari (n 53) 159; Ahlborn (n 31) 5 et seq. Critically referring to a lack of corresponding state practice Palchetti (n 45) 739, 741. 193 Zwanenburg, ‘NATO’ (n 89) 649. 194 For the contrary view Messineo (n 65) 88 et seq. 195 ILC, ‘Report Gaja’ (n 16) para 48. 196 ILC, ‘ARIO’ (n 14), 86 Chapter II para 4. 185


19

control’ in the context of the ARS, 197 it does simultaneously purport that the same conduct could be attributable to two states in exceptional circumstances: ‘The principle of independent responsibility reflects the position under general international law, in the absence of agreement to the contrary between the States concerned. In the application of that principle, however, the situation can arise where a single course of conduct is at the same time attributable to several States and is internationally wrongful for each of them.’ 198 Furthermore situations could also ‘arise where the organ of one State acts on the joint instructions of its own and another State, or there may be a single entity which is a joint organ of several States. In these cases, the conduct in question is attributable to both States under other articles of this chapter.’ 199 More importantly, the ILC stressed expressly in the ARS context that when the seconded organ acts ‘exclusively for the purposes of’ 200 the receiving State, ‘its conduct is attributed to the latter State alone’. 201 Interpreted e contrario, this seems to imply that the seconded organ could be under the control of both states in which case its conduct would be attributable to both of them. 202 In particular, it ‘is perfectly possible for someone to have received general instructions to carry out a certain conduct by a state and/or international organisation, and then to be under the more specific ‘effective’ control of another state and/or international organization when carrying out the orders’. 203 The concept of ‘multiple attribution of conduct’ already found its way into jurisprudence and international legal materials: 204 Dutch courts derived it from Art. 48 in conjunction with Art. 7 ARIO 205 and the ECtHR hinted at it in its Al-Jedda judgment 206 by stressing that it did not assume that ‘as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations.’ 207 In its Opinion on Human Rights in Kosovo the Venice Commission clarified that an exclusive attribution of KFOR operations either to NATO or to the TCN would not be the only constructive option imaginable: There might be ‘difficult intermediate cases, such as when soldiers are acting on the specific orders of their national commanders which are, however, themselves partly in execution of directives issued by the KFOR commander and partly within the exercise of their remaining scope of discretion.’ 208 In light of the fact that the UN rather unambiguously assumes that any actions of peacekeeping forces are (generally) attributable to it, 209 ‘multiple attribution’ seems to be implicitly present in statements of the 197

ILC, ‘ARS’ (n 30), 44 Art 6 para 1. ILC, ‘ARS’ (n 30) 124 Art 47 para 3. Emphasis by the author. 199 ILC, ‘ARS’ (n 30) 45 et seq. Art 7 para 3. 200 IILC, ‘ARS’ (n 30) 6 para 1. 201 ILC, ‘ARS’ (n 30) Art 6, para 1. Emphasis by the author. 202 Boutin, role of control (n 20) 101. 203 Messineo (n 65) 78. 204 Scholars frequently refer to mixed treaties which fall into the competence sphere of both the EU as well as the member states and are concluded by both, see Krieger, ‘Credibility Gap’ (n 15) 171. Generally C-316/91 European Parliament v Council of the European (1994) ECR 1-653, I-661 et seq, para 29. Whilst mixed treaties appear as apt examples of ‘joint responsibility’ it remains to be analyzed whether they are indeed instances of a ‘multiple attribution of conduct’. 205 See (n 192). In particular Nuhanović v de Staat der Nederlanden Case no 12/03324 (Hoge Raad, 1st Chamber, Judgment, 6 Sept 2013) para 3.9.4; Mustafić-Mujić et al v. de Staat der Nederlanden Case no 12/03329 (Hoge Raad, 1st Chamber, Judgment, 6 Sept 2013) para 3.9.4. The Court found that Art 7 ARIO in conjunction with Art 48 ARIO would not exclude a ‘multiple attribution’. 206 Lopez (n 153) 215. 207 Al-Jedda v UK App no 27021/08 (ECtHR (Grand Chamber), Decision, 7 July 2011) para 80. 208 Venice Commission (n 174) 18, para 79. 209 See (n 60). 198

20


Human Rights Committee affirming the responsibility of the parties to the ICCPR for its observance even when acting within UNPKM. 210 Beyond that ‘multiple attribution of conduct’ appears to be a feasible concept from a policy perspective: First, it might be an effective means to facilitate the establishment of a fair and just liability regime – both from the perspective of IO as well as TCN. In constellations in which following the ‘traditional’ doctrine an exclusive attribution of would have to be assumed – either to the UN (in cases of UNPKM) or to the TCN (in cases of MNMO with UN mandate), ‘multiple attribution’ would trigger a ‘joint responsibility’ of actors. 211 Secondly and most importantly, it is – at least in the constellation of UNPKM – an effective means for the effectuation of human rights and the strengthening the position of victims. In particular, it would prevent the troubling consequences that the Behrami/Saramati judgment rendered. 212 Attributing injurious conduct (also) to the TCN in constellations of UNPKM opens up the gate to national courts and international human rights courts. 213 The key remaining problem that scholarship should direct its attention to are the exact contours of ‘effective control’ when it is understood non-exclusively and the specific conditions under which Art. 7 ARIO disrupts the chain of attribution between the soldier on the ground and the TCN. This would likely require a ‘reciprocal reading’ of ‘effective control’ in the sense of Art. 7 ARIO. 214 ‘Multiple attribution’ requires viewing ‘control’ as a continuum, present in different degrees. 215 Although this gradual concept of ‘effective control’ inevitably induces uncertainties since it remains to be established when the threshold of ‘effective control’ is overstepped and when ‘multiple effective control’ is given, it reflects the realities of MNMO more adequately. 2. MNMO and ‘Attribution of Responsibility’ The ‘attribution of conduct’ paradigm is not the only way to establish responsibility. It can be complemented by instances of ‘attributed responsibility’ 216 – both are not exclusive. 210

See (n 124) et seq. Some interpret also the co-respondent mechanism which is envisaged in the draft of a EU Accession Agreement to the ECHR (Art 3 des Draft revised Agreement on the Accession of the European Union to the Convention for the Protection of Human rights and Fundamental Freedoms, European Council, Doc 10 June 2013, 47+1(2013)008rev2, Appendix I) as an emanation of ‘multiple attribution’, Enzo Cannizzaro, ‘Beyond the Either/Or: Dual Attribution to the EU and to the MS for Breach of the ECHR’ in Panos Koutrakos/Malcolm Evans (eds), The International Responsibility of the European Union (Hart Publishing 2013) 295, 308 et seq. 211 See on this n 260 et seq and accompanying text. 212 See n 137 et seq and accompanying text as well as Krieger, ‘Credibility Gap’ (n 15) 171. 213 See Venice Commission (n 174) para 75. 214 Art 7 ARIO would – in order to accommodate – ‘multiple attribution’ have to be read in the sense that a certain degree of ‘effective control’ on part of the state seconding an IO would require that the chain of attribution to the state which rests on Art 4 ARS is not cut (see already n 68 et seq and accompanying text). This would effectively lead to a reciprocal reading of ‘effective control’. In this direction Andrea Spagnolo, ‘The ‘reciprocal’ approach in article 7 ARIO: a reply to Pierre d’Argent’, QIL 1 (2014) 33, esp 40 et seq; Gal-Or/Ryngaert (n 116) 531. A ‘reciprocal reading’ underlies also the relecant Dutch judgments, particular Nuhanović v de Staat der Nederlanden Case no 12/03324 (Hoge Raad, 1st Chamber, Judgment, 6 Sept 2013) para 3.9.4; MustafićMujić et al v de Staat der Nederlanden Case no 12/03329 (Hoge Raad, 1st Chamber, Judgment, 6 Sept 2013) para 3.9.4. See crit. D’Argent (n 52) 26 et seq. 215 Clyde Eagleton, ‘International Organization and the Law of Responsibility’ 76 Recueil des cours (Brill 1950) 319, 386. 216 Actors involved in MNMO may of course assume their responsibility by ways of adopting certain conduct as their (Art 11 ARS, Art 9 ARIO). See Pierre d’Argent, Reparation, Cessation, Assurances and Guarantees of Max Planck Research Paper Series No. 2018-09

21

In constellations of ‘attributed responsibility’ 217 a state or IO incurs responsibility ‘in connection with’ the wrongful act of another state or IO. ‘Attributed responsibility’ rests on a specific ‘conduct’ attributable to a state or IO with regard to the wrongful act of another state or IO being either ‘aid’ or ‘assistance’ (Art. 14, 58 ARIO, Art. 16 ARS 218), ‘direction’ and ‘control’ (Art. 15, 59 ARIO, Art. 17 ARS), ‘coercion’ (Art. 16, 60 ARIO, Art. 18 ARS), or – specifically in cases involving IO – ‘adopting’ a binding decision leading to the ‘circumvention of international obligations’ (Art. 17, 61 ARIO). Whilst appearing particularly apt to grasp the realities of MNMO at first glance, 219 on closer look these provisions pose considerable theoretical and practical challenges of which – focusing on Art. 14, 15 ARIO – only some shall be addressed here. These intricacies explain why they have been met with skepticism, remained largely outside the spotlight of the discourse on the allocation of responsibilityies within UNPKM and rejected by states. 220 Art. 14, 15 ARIO cover constellations in which an IO ‘aids’ or ‘assists’ 221/‘directs’ and ‘controls’ a state or another IO in the commission of a wrongful act. Such conduct triggers the responsibility of the IO under strict conditions: It requires, first, its ‘knowledge of the circumstances of the internationally wrongful act’ (lit a.), secondly, its intention to support or facilitate the commission of a wrongful act, 222 thirdly, a causal relationship between ‘assisting or aiding’/‘directing and controlling’ and the commission of the wrongful act, and, fourthly, the conduct of the state or IO must simultaneously constitute a breach of the international obligations of the ‘assisting or aiding’/directing and controlling’ IO (obligation synchrony) (lit b). 223 Coming now to the challenges of Art. 14, 15 ARIO: First, they stand with the principle of individual and independent responsibility224 seemingly at odds by establishing a ‘derived’ 225, ‘derivative’, 226 ‘indirect’ 227, ‘ancillary 228’ or ‘dependNon-Repetition, in André Nollkaemper/Ilias Plakokefalos (eds), Principles of Shared Responsibility (Cambridge University Press 2014) 210 238 et seq. The UN has in some instances acknowledged its responsibility for peacekeeping operations for conduct that was not attributable to it beyond any doubt, Murphy/Wills (n 18) 597 et seq, in others – Haiti Cholera outbreak – it did not (Colum Lynch, ‘UN Invokes Diplomatic Immunity on Haiti Cholera Epidemic’, Foreign Policy (Turtle Bay, 21 February 2013) accessed 21 February 2018. Critically Murphy/Wills (n 18) 611. 217 Fry (n 29) 98 et seq. 218 They cover the ‘complicity’ constellation. Generally Helmut Aust, Complicity and the Law of State Responsibility (Cambridge University Press 2011), Vladyslav Lanovoy, ‘Complicity in an Internationally Wrongful Act’, in André Nollkaemper/Ilias Plakokefalos (eds), Principles of Shared Responsibility (Cambridge University Press 2014) 134 et seq. 219 See with regard to UNPKM Kuijper (n 157) 14; Boutin, role of control (n 20) 155 et seq. Pellet regards these provisions as an adequate pattern to solve the KFOR/NATO/UN problem Pellet (n 172) 199. Pellet assumed that conduct of KFOR would be attributable to NATO by analogy to Art 17 ARS (now Art 15 ARIO). 220 See Boutin, role of control (n 20) 171; Kuijper (n 157) 21. 221 In the case of military operations assistance or aid can occur in different guises, it can be substantial, logistical or financial, Boutin, role of control (n 20) 152 et seq. 222 ILC, ‘ARS’ (n 30) 66 Art 16 para 5. 223 In contrast, Art 17, 60 ARIO are characterized by an ‘obligation asynchrony’ or ‘asymmetry’. 224 On the principle of independent responsibility, see ILC, ‘ARS’ (n 30) Chapter IV of Part I, 64 para 1. 225 See e. g. Boutin, role of control (n 20) 173. 226 ILC, ‘ARS’ (n 30) introductory commentary to Chapter IV of Part I, para 7. 227 Zwanenburg, ‘NATO’ (n 89) 648. 228 James Crawford, State Responsibility (General Part) (Cambridge University Press 2013) 395.

22


ent’ responsibility. 229 On closer look, they appear compatible with it if read substantively: Art. 14, 15 ARIO establish that the ‘deliberate participation’ of an IO in the wrongful conduct of a state or another IO ‘constitutes a separate wrong’. 230 In this reading they would encompass an individual and separate wrongful act – the ‘second tier wrongful act’ – which is ‘contingent’ 231 on another wrongful act 232 – the ‘first tier wrongful act’. 233 As a consequence, they inevitably dilute the distinction between primary and secondary rules effectively prohibiting ‘the act of assisting or directing another subject to breach its obligations’ as aptly pointed out by Boutin. 234 Yet considerable ambiguities remain particularly facilitated by unclear ILC statements on parallel ARS provisions: At one point the ILC contended these would qualify ‘certain conduct as internationally wrongful’ 235 and entail the ‘obligation not to facilitate the commission of an internationally wrongful act by another State’ 236 which ostensibly supports the substantive reading. On others occasion it qualified them as ‘exceptions to the principle of independent responsibility’ which defined the ‘cases where it is appropriate that one State should assume responsibility for the internationally wrongful act of another’ 237 or contended that ‘a State which directs and controls another in the commission of an internationally wrongful act is responsible for the act itself, since it controlled and directed the act in its entirety’ 238 seemingly implying the controlling or directing entity would ‘take over the whole conduct and become solely responsible’. 239 Hence: A lot of scholarly work is yet to be done here. Leaving these overarching conceptual problems aside the application of Art. 15 ARIO – which is supposedly of the greatest significance in the context of MNMO – remains challenging: First, it is unclear how ‘direction and control’in the sense of Art. 15 ARIO are to be understood. It is not the directing and controlling o the state or IO agent which is relevant – this would be the reference point of Art. 8 ARS – but ‘direction and control’ exercised over the state or IO in the commission of its wrongful act. 240 Since IO and states are legal abstractions ‘direction and control’ would have to be conceptualized differently than in the context of Art. 8 ARS. This seems also to be supported by the fact that – at least in its wording – Art. 15 ARIO establishes a cumulative requirement of direction and control, whilst Art. 8 ARS presents them as alternatives. 241 How ‘direction and control’ are to be understood particularly in 229

As any example the ILC mentions assistance by UN Mission in the Democratic Republic of the Congo (MONUC) in support of the FARDC (Forces Armées de la République démocratique du Congo), ILC, ‘ARIO’ (n 14) 104 et seq. Art 14 para 6. 230 Boutin, role of control (n 20) 173 et seq. 231 Maarten den Heijer, ‘Shared Responsibility Before the European Court of Human Rights’ (2013) 60 Netherlands International Law Review 411, 422. 232 Boutin, role of control (n 20) 173 et seq. 233 It is the very core of an attribution of responsibility that the aiding/assisting/directing/controlling entity does not become the ‘perpetrator’ of the ‘first-tier wrongful act’, see Fry (n 29) 109 et seq. 234 Boutin, role of control (n 20) 173 (referring to Vaughan Lowe, ‘Responsibility for the Conduct of Other States’, 101 Kokusaihō gaikō zasshi/Journal of Int Law and Diplomacy (2002) 1, 4); Lanovoy (n 218) 139; Kuijper (n 219) 23; Fry (n 29) 116. But see Fry (n 29) 104. 235 ILC, ‘ARS’ (n 30), Chapter IV of Part I, para 7. 236 See ILC, ‘ARS’ (n 30) 67 Art 16, para 9. 237 ILC, ‘ARS’ (n 30) 64 Chapter IV of Part I, para 5. 238 ILC, ‘ARS’ (n 30) 61 Art 17, para 1. 239 Fry (n 29) 118 et seq. 240 See Fry (n 29) 109; Boutin, role of control (n 20) 181. 241 See August Reinisch, ‘Aid or Assistance and Direction and Control between States and International Organizations in the Commission of InternationallyWrongful Acts’ (2010) 7 IOLR 63, 75. But see ILC, ‘ARIO’ (n 14) 38 Art 15, para 3. The ILC referred here to contentions made by France in the course of the proceedings on the Legality of Use of Force (Yugoslavia v France) (Preliminary Objections of the French Republic, 26, para 15 et seq accessed 22 February 2018). France stated that Max Planck Research Paper Series No. 2018-09

23

the military context, is yet to be explored by scholarship considering the ‘nuances of […] command arrangements’. 242 If the ILC commentary on Art. 17 ARS – the ‘state responsibility counterpart’ of Art. 15 ARIO – is consulted ‘direction’ and ‘control’ would have to be actual 243 and ‘operative’ 244 mere ‘oversight’, 245 ‘incitement’ 246 or ‘influence’ being insufficient. ‘Control’ would involve ‘domination over the commission of wrongful conduct’ 247 which effectively compromised ‘a state’s freedom to decide’. 248 This implies that´ factual direction/control is required, not only normative. 249 Since TCN retain spheres of discretion – even when acting within UNPKM 250 – it is difficult to assume that their freedom to decide has been compromised totally. 251 The ILC implies, however, that an IO could ‘direct and control’ another state or IO by issuing a decision binding upon it 252 – which would effectively lead to an overlap with Art. 17 ARIO. A ‘binding decision’, however, constitutes rather a case of ‘legal’ and not ‘factual control’. 253 Questions as to the delimitation of ‘effective control’ in the sense of Art. 7 ARIO and Art. 15, 59 ARIO, the difference between directing/controlling a state/IO and directing/controlling its organs, 254 hence in the end between ‘attribution of conduct’ and ‘attribution of responsibility’ remain to be answered. Beyond that a multiple attribution of responsibility appears possible which raises further questions. 255 Furthermore, the necessary causal links between the ‘first tier wrongful act’ and ‘direction/control’ remain to be explored. Leaving this problem aside, it will be difficult to establish the knowledge of a ‘directing/controlling’ IO that a state/IO is committing a wrongful act even if one operates with the notion of ‘constructive knowledge’. 256 Boutin argues that ‘coalitions operating under a multinational command that is not fully integrated’ in which ‘participants agree for some States to have a prevailing influence over the chain of command’ might be covered by Art. 15 ARIO 257 but the term ‘prevailing influence’ remains rather vague. The ILC’s classification of the NATO-KFOR-UN triangle as a case of control by one IO (UN) and direction by another (NATO) likewise raises more questions than it provides answers. 258 Most importantly, ‘attributed responsibility’ is by no means a panacea for the ‘responsibility conundrum’ MNMO pose: Establishing the ‘first tier wrongful act’ as well as the ‘second tier wrongful act’ – here regarding aid/assistance/direction/control – necessitates to decide upon that NATO would be ‘responsible for the ‘direction’ of KFOR’ and ‘the United Nations for ‘control’ of it’, id, 33, para 46. 242 See e. g. Boutin, role of control (n 20) 202. 243 ILC, ‘ARS’ (n 30) Art 17, para 6. 244 ILC, ‘ARS’ (n 30) Art 17, para 7. 245 Ibid. 246 ILC, ‘ARS’ (n 30) 65 Chapter IV of Part I, para 9. 247 ILC, ‘ARS’ (n 30) Art 17, para 7. 248 Crawford, State Responsibility (n 228) 399. 249 Fry (n 29) 118. 250 See n 53 et seq and accompanying text. 251 The ILC does not exclude that a decision of an IO binding on its members might qualify as ‘direction/control’ in the sense of Art 15 ARIO, ‘legal control’ appears sufficient, ILC, ‘ARIO’ (n 14) 39 Art 15, para 5. 252 ILC, ‘ARIO’ (n 14) 39 Art 15, para 5. 253 Although it will beyond doubt influence the decision-making process of the state/IO it is addressed to. See also Fry (n 29) 120. 254 August Reinisch, ‘Aid or Assistance and Direction and Control between States and International Organizations in the Commission of InternationallyWrongful Acts’ (2010) 7 IOLR 63, 76 et seq. 255 Fry (n 29) 111. 256 Anglo-Norwegian Fisheries Case (Merits) [1951] ICJ Rep 166, 152, sep. opinion Judge Alvarez (‘ought to have known’). 257 Boutin, role of control (n 20) 155 et seq. 258 ILC, ‘ARIO’ (n 14) 38 Art 15, para 3 and n 241 here.

24


the ‘attribution of conduct’ in the TCN-IO context which requires addressing all open questions sketched above. 259 And lastly, ‘attributed responsibility’ does not bind the aiding/assisting/directing/controlling entity to the norms that apply to the entity committing the ‘first tier wrongful act’, rather it presupposes an ‘obligation synchrony’. Therefore, in cases of violations of the ECHR by treaty parties, for example, the UN could not incur ‘attributed responsibility’ since it is not a party to the Convention. Considering all these challenges ‘attributed responsibility’ as of now rather adds an additional problem layer to the ‘accountability conundrum’ surrounding MNMO than offering a solution. 3. MNMO and the ‘Distribution of Secondary Obligations’ Both a ‘multiple attribution of conduct’ as well as ‘attributed responsibility’ result in the responsibility of multiple actors – e.g. TCN, UN, NATO – for the same wrongful act. This poses significant challenges in terms of allocating secondary obligations of these actors stemming from their responsibility. 260 The main principle governing the allocation of secondary obligations is the principle of independent responsibilities which is also echoed by the right of the injured party to invoke the responsibility of each actor individually (Art. 48 ARIO). 261 In terms of the ‘allocation exercise’ it is necessary to distinguish between the different modes of secondary obligations. Here merely the duty to make reparations shall be briefly discussed which is triggered if an injury has been caused – the ILC requires a sufficient causal link and a proximate cause 262 – by a wrongful act (Art. 31 para. 1 ARS, Art. 31 para. 1 ARIO). 263 Furthermore it appears helpful to distinguish between the constellation of ‘multiple attribution of conduct’ and ‘multiple attribution of responsibility’ and well as the different relationships involved: those between the responsible parties and the injured parties as well as the ‘internal’ relationship amongst the responsible actors. Regarding both constellations the discussion has largely focused on the notion of ‘joint and several responsibility’. The main feature of this concept is that each subject within a plurality actors is responsible and liable and the injured subject may claim full reparation for the damage incurred from each subject. 264 ‘Joint’ refers to the substantive aspect (which entity is liable?), ‘severability’ to the procedural side (Is it necessary to raise a claim against all responsible subjects or does a claim against one suffice?). 265 Typically, this construct would include internal compensatory schemes amongst the responsible subjects. On the international plane, however, no general and coherent rules on ‘joint and several responsibility’ in this ‘domestic 259

See n 53 et seq. and accompanying text. These include cessation, non-repetition and reparation, Art 30, 31, 34 ARS and ARIO. 261 Fry (n 29) 111. See Jean d’Aspremont, ‘The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility’ (2012) 9 International Organizations Law Review 15, 23. 262 ILC, ‘ARS’ (n 30) 92 Art 31, para 10. See also León Castellanos-Jankiewicz, ‘Causation and International State Responsibility’, Amsterdam Law School Legal Studies Research Paper No. 2012-56, 45. 263 D’Argent (n 216) 220. On the causation requirement see Dinah Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’, 96 AJIL (2002) 833, 846 et seq. 264 D’Argent (n 216) 244 et seq. 265 Boutin, role of control (n 20) 207. 260


25

sense’ can be identified 266 and its domestic provenance warrants to employ this term cautiously. 267 In the constellation of a ‘multiple attribution of conduct’ it is, however, not necessary to establish the normative status of the ‘joint and several responsibility’ in order to conclude that each actor is obliged to make full reparation. This result can be derived from the general principle that responsibility of each actor is to be determined individually: ‘the wrongful act is the only cause of the injury, even if several subjects bear responsibility for it’. 268 Responsibility ‘is not diminished or reduced by the fact that one or more other States’ or IO ‘are also responsible for the same act’. 269 The same applies in the ‘attribution of responsibility’ constellation. In both respects the idea of a – genuinely international – ‘joint’ or ‘solidary liability’ 270 is reflected in Art. 48 ARIO, Art. 47 ARS. 271 The internal distribution of secondary obligations and possible rights of recourse amongst a multiplicity of responsible actors warrants, however, a deeper scholarly reflection. Whilst it is generally acknowledged that ‘[w]here two or more States engage in a common activity and one of them is held responsible for damage arising, it is natural for that State to seek a contribution from the others on some basis’, 272 no rules enjoying lex lata status can be identified with regard to rights of recourse. 273 One way to allocate obligations of reparation could be to determine the causal contributions of the responsible actors to the harmful outcome. 274 Indeed the ILC has stated that ‘unless some part of the injury can be shown to be severable in causal terms from that attributed to the responsible State, the latter is held responsible for all the consequences, not being too remote, of its wrongful conduct’. 275 This appears to imply that in certain instances apportionment would be imaginable. 276 Apportionment based on the causality of the contributions is particularly difficult, not only because legally relevant causality is never merely factual but essentially normative. 277 In the constellation of ‘multiple attribution of conduct’ this would effectively translate into distinguishing between different degrees of ‘effective control’ exercised over an acting agent since there would be only one ‘conduct’ that is attributed to several actors. In cases of Art. 15 ARIO as an example of ‘attributed responsibility’ two instances of conduct and two wrongful acts would be given interconnected by the same harm or damage

266

Crawford, The International Law Commissions’ Articles on State Responsibility (n 29) 272–3. On this topic John E Noyes & Brian D Smith, ‘State Responsibility and the Principle of Joint and Several Liability’, 13 Yale J. Int’l L. (1988) 225 et seq. 267 In French law obligation in solidum, in German law Gesamtschuld). See ILC, ‘ARS’ (n 30) 124 Art 47 ARS, para 3; Crawford, State Responsibility (n 228) 329. 268 D’Argent (n 216) 238; Stefan Talmon, ‘A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition Provisional Authority in Iraq’ in Philip Shiner and Andrew Williams (eds), The Iraq War and International Law (Hart 2008) 185, 211 et seq; Boutin, role of control (n 20) 215. 269 ILC, ‘ARS’ (n 30) 124, Art 47 para 1. See also D’Argent (n 216) 239. 270 Boutin, role of control (n 20) 208. 271 ILC, ‘Third Report on State Responsibility by Special Rapporteur James Crawford, UN Doc A/CN.4/510 and Add 1-4’ in Yearbook of the International Law Commission (UN 2000) 3, para 276 (d). 272 ILC; ‘Third Report’ (n 271) 75, para 276. 273 Boutin, role of control (n 20) 215. 274 D’Argent (n 216) 220; Samantha Besson, ‘La Pluralité d’États Responsables: Vers une Solidarité Internationale?’ (2007) Revue Suisse de Droit International et de Droit Européen 13, 28. 275 ILC, ‘ARS’ (n 30) 93 Art 31, para 13. 276 Boutin, role of control (n 20) 216. 277 D’Argent (n 216) 223.

26


that they have caused: 278 the actual conduct constituting the ‘first tier’ wrongful act and e.g. ‘direction’ and ‘control’ constituting the ‘second tier’ wrongful act. The aspect of ‘control’ would surface here in different guises within the respective relationships (state-IO, stateacting agent). 279 A ‘price tag’ would have to be attached to these different degrees of control. It is, however, difficult to establish which conduct and exercised control contributed to the outcome to a greater extent – particularly within MNMO. One option would be to apply ‘qualitative’ schemes by establishing quasi-normative, ‘moral’ or ‘policy oriented’ categories of responsibility indicating which entity – the TCN, NATO or UN – is to be regarded ‘more responsible’ or deserves to be ‘sanctioned’. Irrespective of the questionable sensibility of such an approach, it is very much a construct of unripe scholarly imagination. IV.

Final Observations

The ‘pluriverse’ of MNMO gravitates in terms of ‘legal accountability’ 280 around three basic sub-problems: the ‘attribution of conduct’, the ‘attribution of responsibility’ and the allocation of secondary obligations stemming from responsibility. In these dimensions the plurality of actors involved and the various overlapping spheres of control pose a major challenge. Obviously ‘control’ lacks a general definition and occurs in many guises (‘military control’, ‘legal control’, ‘causal control’). It is, however, one of the fundaments of ‘allocating’ responsibility: ‘control breeds responsibility’. 281 MNMO confront us with a ‘responsibility conundrum’ exactly because – as has been aptly pointed out by Boutin – ‘control in the military sense and control in the legal sense has not been sufficiently explored’. 282 In the end MNMO are an example of the high complexity of our today’s world: Harmful outcomes are the product of a multitude of actors, actions and omissions. In order to preserve international law’s effectivity, the regime of international legal responsibility as a potentially powerful scheme to implement accountability must fit and be reactive to these realities. In that regard there is yet a long path to travel – particularly for scholarship. A first and important step is, however, not only to accept that the ‘duality of responsibility’ is a ‘constant feature of international law’, 283 but that a specific conduct ‘may well ‘belong’ to more than one collective entity at once’. 284

278

Boutin, role of control (n 20) 177. Arguing, however, for apportionment based on degrees of control Boutin, role of control (n 20) 225 et seq. 280 Fry (n 29) 19. 281 For this term see Charles Cheney Hyde, International Law, Chiefly as Interpreted and Applied by the United States (vol 2, 2nd edn, Little Brown and Company 1947) 922. 282 Boutin, the role of control (n 20) 156. 283 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) ICJ Rep 2007, 43 para 173. 284 Messineo (n 65) 63. 279


27

Cover: Imbalanced World, 1996, Veronika Dell‘Olio (photo: Miriam Aziz) “Essential to our concept was the establishment of a connection to the work and objectives of the institute. In view of the diversity of the research tasks concerned, we have attempted to highlight an overarching idea that can be understood as the institute’s mission. We see this as the ideal of peaceful relations between peoples on the basis of an internationally validated notion of justice…. The depicted sculpture…[symbolizes] an imbalanced world in which some peoples are oppressed while others lay claim to dominance and power. The honeycomb form of the circular disks denotes the [international] state structure. Glass parts … [represent] the individual states .… [The division] of the figure … into two parts [can] be interpreted as the separation of the earth into two unequal worlds. The scissors-shaped base, on the one hand, makes the gap between them clear, on the other hand, a converging movement of the disks is conceivable…. The sculpture [aims] at what is imagined – the possibility of the rapprochement of the two worlds.” [transl. by S. Less] Art in architecture, MPIL, Heidelberg

Im Neuenheimer Feld 535 D-69120 Heidelberg Tel.: +49 (0)6221 482 - 1 Fax: +49 (0)6221 482 - 288 www.mpil.de [email protected]

4