Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

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In such instances there will generally be no possibility of resorting to the remedy of application to the ECtHR, since the UN is not under its jurisdiction. It would also appear that the original model of peacekeeping, even after its development into ‘complex’ forms, has not given rise in actual practice to disputes that would have led to attempts to seise the Strasbourg system.42 The fact remains, however, that any third party claims are settled by the UN itself, which does not correspond to the modern logic of human rights where, to a considerable extent, individuals may take disputes with public authorities to a judicial body. However, it would be extremely difficult to devise a juridical construction to the effect that, notwithstanding the UN’s authorship, the troopcontributing countries must bear liability. Their integration into the relevant UN force is a fact that cannot be disputed. Where the UN acts as a subject of international law, it has to shoulder liability, even when, for injured third parties, the regime of responsibility lacks the ultimate finish of perfection. In the language of civil law, this is a case of vicarious liability, where the principal must make good any damage caused by its agents.43 This inference can also be seen as the result of a functional theory according to which the determinative question is on whose behalf the relevant agent had acted.44

3.3Military operations mandated by the Security Council by

authorisation or ‘delegation’

3.3.1 Factual background

Another model of UN operations was essentially initiated in 1990–1 at the time of the invasion of Kuwait by Iraqi forces. Its characteristic is the restricted role of the Security Council, which limits itself to authorising

process for determining reimbursement to Member States for contingent-owned equipment, UN doc. A/51/967, 27 August 1997, art. 9: ‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this Memorandum. However, if the loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government, the Government will be liable for such claims.’

42See, however, the case of Behrami and Saramati.

43Similar considerations by D. Sarooshi, International Organizations and Their Exercise of Sovereign Powers (Oxford University Press, 2005) 40 et seq.

44See Superior Court of Appeal, Vienna, Judgment, 26 February 1979, 77 ILR 470, at 472.

an operation carried out by a group of states ready to shoulder the corresponding burden.45 For the first time in the history of the UN,46 it proved feasible to activate the system for the protection and preservation of international peace and security with the aim of stopping an aggressor. It would certainly have been possible to establish a UN force under the authority of a UN commander. However, none of the powers ready to assist Kuwait was prepared to accept that traditional formula. Instead, by Resolution 678 (1990),47 the Security Council ‘[a]uthorize[d] Member States co-operating with the government of Kuwait … to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area’.48 First and foremost, this authorisation was relied upon by the United States which, through massive deployment of its superior military might, succeeded in bringing about the withdrawal of Iraqi troops from Kuwait and defeating the Iraqi army.

The model of authorisation was subsequently used many times, in particular with regard to Kosovo, where Security Council Resolution 1244 (1999)49 determined that for a transitional period, two ‘presences’ would be deployed there – an international civil presence (UNMIK) under the authority of the Secretary-General (para. 10) as well as an international security presence. As far as this latter presence was concerned, Annex 2 of Resolution 1244 (1999) provided (para. 4):

The international security presence with substantial North Atlantic Treaty Organization participation must be deployed under unified command

45For an extensive study of this type of operations, see N. Blokker, ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing”’, European Journal of International Law 11 (2000) 541–68 (hereinafter Blokker, ‘Is the Authorization Authorized?’); E. de Wet, The Chapter VII Powers of the United Nations Security Council (Oxford and Portland: Hart Publishing, 2004) 260–310 (hereinafter de Wet, The Chapter VII); and recently, A. Peters, ‘Die Anwendbarkeit der EMRK In Zeiten komplexer Hoheitsgewalt und das Prinzip der Grundrechtstoleranz’, Archiv des Völkerrechts 48:1 (2010) 22–41 (hereinafter Peters, ‘Die Anwendbarkeit der EMRK’); J.-P. Schütze, Die Zurechenbarkeit von Völkerrechtsverstößen im Rahmen mandatierter Friedensmissionen der Vereinten Nationen (Berlin: Duncker & Humboldt, 2011) 43–8, 148–69 (hereinafter Schütze, Die Zurechenbarkeit).

46I do not take into account the Korea operation, which was not placed under the authority of the UN, see infra, text accompanying n. 82.

47UN SC, Resolution 678 (1990) concerning Iraq and Kuwait, 29 November 1990.

48Ibid., operative para. 2. The resolution was preceded by the much weaker Resolution 665 (1990), 25 August 1990.

49UN SC, Resolution 1244 (1999) concerning Kosovo, 10 June 1999.

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and control and authorized to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees.

In a similar fashion, the recent operation against Libya was linked to the UN only by virtue of a mandate given to an undefined group of states ready to take action. Under paragraph 4 of Resolution 1973 (2011),50 the Security Council:

Authorize[d] Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi…

It is easily understandable why this model of indirect command has become a success story. For the UN, which has its headquarters in New York, mostly far away from the theatre of hostilities, to organise and manage a huge operation which encompasses thousands of armed soldiers constitutes a challenge which it can handle only with a tremendous effort that goes to the outer limits of its capabilities.51 For the armed forces of the main troopcontributing countries, the effort required is far less significant, inasmuch as it corresponds to what a military force is required to accomplish.

3.3.2 Responsibility

The question who can be made accountable if such an operation, which has been ‘authorised’ by the UN but not directly steered by it, produces injuries for which the victims seek reparation.

3.3.2.1 General rules of responsibility Recourse may be had to the articles prepared by the ILC that set out the rules governing the responsibility of international organisations (DARIO),52 since those articles essentially reflect customary international law.53 It stands to reason that

50UN SC, Resolution 1973 (2011), concerning Libya, 17 March 2011.

51Currently, the operation MONUSCO in the Democratic Republic of the Congo comprises more than 20,000 persons, military and civilian personnel.

52Supra note 35.

53See doubts raised by C. Ryngaert, ‘The European Court of Human Rights Approach to the Responsibility of Member States in Connection with Acts of International Organizations’, International and Comparative Law Quarterly 60 (2011) 997–1016, at 998–9 (hereinafter Ryngaert, ‘ECtHR Approach to Responsibility’).

in the case of mandated operations, article 6 on attribution54 cannot apply. Where the UN confines itself to issuing an authorisation to a group of states or an international organisation, the troop contingents involved in the operation concerned do not become organs of the UN. Accordingly, it would seem that article 7 DARIO must be relied upon, where ‘effective control’ is chosen as the decisive criterion.55

The test of effectiveness has been derived from articles 6 and 8 of the ILC Articles on Responsibility of States for internationally wrongful acts (ARS).56 However, given the structural differences between states and international organisations, different language can be found in the ARS, on the one hand, and in the ‘Gaja draft’, on the other. Article 6 ARS, which from the point of view of substance is closest to article 7 of the ‘Gaja draft’, expresses the idea of intimate connection as a requirement of attribution by the words: ‘if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed’. Rapporteur Gaja and, following his lead, the ILC, did not find that formula adequate, since in their view international organisations do not exercise ‘governmental’ authority57 – which, however, seems rather, to be a semantic problem.58 On the other hand, article 8 ARS clearly endorses the test of effectiveness by stating:

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

54Art. 6 ‘Conduct of organs or agents of an international organization

1.The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.

2.The rules of the organization apply in the determination of the functions of its organs and agents.’

55‘Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law as an act of the latter organization if the organization exercises effective control over that conduct.’

56Taken note of by UN GA, Resolution 56/83, 12 December 2001, Responsibility of States for Internationally Wrongful Acts.

57See ILC 2011 Report, Commentary on art. 7, 86, para. 4.

58It is true that an international organisation does not exercise ‘sovereign’ powers.

an application is brought to the ECtHR, two initial questions arise. On the one hand, in terms of attribution, it must be clarified who was the author of the act complained of, an issue to be assessed in light of the rules of general international law.59 Within a purely domestic context, this question normally has no actual relevance. All the acts and measures taken by one of the three branches of government are attributable to the state behind them. No specific inquiry is needed if a measure is taken by a national authority on the basis of a law enacted by the respective national legislature. However, when states and international organisations cooperate, the issue of attribution takes a pivotal role. Acts performed by national authorities in pursuing a UN mandate can be attributed either to the state concerned or to the UN, according to the circumstances. The same or similar questions may arise in assessing whether acts or omissions come within the scope of applicability of the ECHR ratione personae, since the relevant criteria overlap to a wide extent.

A functional approach, according to which it must first be asked on whose behalf an organ or agent has acted, found full recognition by the ECtHR in the case of Drozd and Janousek, where the question arose whether France’s and Spain’s readiness to lend justices to Andorra for the administration of justice in that country entailed the responsibility of those two countries. The Court denied any such responsibility, holding that French and Spanish judges sitting as members of Andorran courts did not do so in their capacity as French or Spanish judges, since those courts exercised their functions in an autonomous manner, their judgments not being subject to supervision by the authorities of France or Spain.60 That was a situation not confronting the ECtHR with any real difficulties, since France and Spain were not substantively involved in the proceedings.

By contrast, the case of Behrami and Saramati61 has hitherto raised the most complex issues regarding the authorship of the measures which the applicants had submitted to the review of the ECtHR. All the

59Quite erroneously, it is many times contended that ‘attribution’ is exclusively a concept of international responsibility. Logically, the precondition of any inquiry into international relations is to know who acted. Thereafter, the specific operation of attribution commences. Both intellectual operations may overlap to a significant degree.

60ECtHR, Drozd and Janousek v. France and Spain (Appl. No.12747/87), Judgment (Plenary), 26 June 1992, Series A, Vol. 240, para. 96. At that time, Andorra was not yet a state party to the ECHR.

61Behrami and Saramati.

commentators of the decision of the ECtHR in Behrami and Saramati have observed that the test adopted in that decision – namely, ‘ultimate authority and control’ (para. 133) – seems to be irreconcilable with the straightforward test of effectiveness, as it has been chosen by the two drafts in the field of international responsibility. In cautious words, the UN distanced itself from the assessment of the legal position by the ECtHR.62 Likewise, in the legal literature the Court’s formula has found few supporters,63 among them, in particular, Antonio Cassese64 who, as rapporteur in the Tadic appeal judgment of the ICTY, had opted for a somewhat looser test, namely, ‘overall control’.65 In fact, there may be substantive grounds fully justifying the approach preferred by the ECtHR.66

In Behrami, where the application was directed against France, the basic facts were simple. Of two children of the applicant Behrami, one

62UN SG, Report of the Secretary-General on the UN Interim Administration in Kosovo, UN Doc. S/2008/354, 12 June 2008, para. 16: ‘It is understood that the international responsibility of the United Nations will be limited to the extent of its effective operational control.’

63See, for instance, the critical voices of A. 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 Al Jedda’, International Community Law Review 11 (2009) 155–83, at 167 (hereinafter Breitegger, ‘Sacrificing the Effectiveness’); L. Doswald-Beck, Human Rights in Times of Conflict and Terrorism (Oxford University Press, 2011) 22–5; C. Janik, ‘Die EMRK und Inter-

nationale Organisationen’, Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 70 (2010) 126–79, at 143 (hereinafter Janik, ‘Die EMRK’); M. Milanović and T. Papić, ‘As Bad As It Gets: The European Court’s Behrami and Saramati Decision

and General International Law’, The International and Comparative Law Quarterly 58:2 (2009) 267–96, at 267 et seq. (hereinafter Milanović and Papić, ‘As Bad As it Gets’); Peters, ‘Die Anwendbarkeit der EMRK’, at 34, 42, Ryngaert, ‘ECtHR Approach to Responsibility’, 1008; Schütze, ‘Die Zurechenbarkeit’ at 164.

64A. Cassese, ‘The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgement on Genocide in Bosnia’, European Journal of International Law 18 (2007) 649–68, at 667; also P. Lagrange, ‘Responsabilité des Etats pour actes accomplis en application du Chapitre VII de la Charte des Nations Unies’, Revue Générale de Droit International Public 112 (2008) 85–110, at 108; A. Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’, Human Rights Law Review 8 (2008) 151–70, at 162 (hereinafter Sari, ‘Jurisdiction’).

65Case IT-94-1-A, The Prosecutor v. Dusko Tadic, 15 July 1999, ILM 38 (1999) 1518, at 1540 et seq., paras. 116–45.

66The ECtHR has continued its jurisprudence in Kasumaj v. Greece (Appl. No. 6974/05), Decision (First Section), 5 July 2007, not reported; Gajic v. Germany (Appl. No. 31446/02), Decision (Fifth Section), 28 August 2007, not reported; Beric v. Bosnia and Herzegovina

(Appl. No. 36357/04), Decision (Fourth Section), 16 October 2007, not reported. See also decision in Galić and Blagojević.

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had died and the other remained gravely injured, as a consequence, as the applicant argued, of a grossly negligent omission of the responsible French contingent, which had not de-mined the area concerned as provided for. Here, according to the internal delimitation of responsibilities, UNMIK was found to be in charge of de-mining activities, not the French troops which were deployed in the area. Since UNMIK was a subsidiary organ of the UN, the failure to act had to be attributed directly to the UN.67 Thus, the question of whether the parent organisation had ‘effective control’ was essentially moot and was not looked into.68 Curiously enough, the Court did not reflect on whether, alongside the UN, France could possibly also be made accountable for its inertia in taking the requisite measures of precaution.

The situation regarding KFOR was infinitely more complex. As already noted, the mandate given to KFOR departed from the usual model of peacekeeping, in that the UN had refrained from assuming full responsibility for the military presence required in Kosovo, but had ‘authorized’ member states and ‘relevant international organizations’ to establish that presence ‘with substantial North Atlantic Treaty Organization participation’. The chain of command ran from the Security Council and the Secretary-General to NATO, which established the requisite ‘unified command’ for KFOR. There could be no doubt that the political direction of the operation in Kosovo remained in the hands of the UN. KFOR was meant to ensure public safety and order until UNMIK could take responsibility for that task. It was enjoined to support UNMIK and cooperate with it; thus, it was part of a concerted action by the UN.

On the other hand, it is certainly doubtful whether the UN kept ‘effective control’ according to the scheme of responsibility developed by the International Court of Justice (ICJ) in Nicaragua v. United States with regard to international responsibility of states.69 The ECtHR does not engage in a lengthy discussion on what the appropriate yardstick is. It confines itself to the straightforward statement that the Security Council retained ‘ultimate authority and control’.70 The subsequent considerations on whether such ‘authority and control’ did in fact exist add little,

69Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports (1986) 14, at 61–5, paras. 105–15. This line was continued in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports (2007) 43, at 207, para. 397.

70Behrami and Saramati, para. 133.

almost nothing, to the correctness of the choice of the relevant parameter. In particular, the distinction between ‘authorisation’ and ‘delegation’ on which the Court relies is of no great help in understanding the rationale of the Court. Security Council 1244 simply speaks of an authorisation (para. 7: ‘Authorizes’), without having recourse to the term ‘delegation’: in fact, nothing is resolved by semantic games.71 The true – and only – question is to what extent the Security Council may be considered authorised to entrust third parties with discharging its specific tasks, whatever the name that may be given to such a mandate, and to which degree it ensures its control of an operation.

That the ECtHR remained fairly reticent in explaining its reliance on the formula ‘ultimate authority and control’ may be due to its earlier jurisprudence where similar, though not identical, situations had to be addressed. In Loizidou, where it had to adjudicate the claim of a Greek Cypriot who was barred from accessing her house in the northern part of Cyprus, the crucial question was whether that property was placed under the jurisdiction of Turkey. Turkey, which maintains strong contingents of military forces in that part of the island since its invasion in 1974, where under its aegis the Turkish Republic of Northern Cyprus (TRNC) was proclaimed, denied that it could be made accountable for the actions of the local authorities. But the ECtHR held that, although the concept of jurisdiction was primarily territorial, extra-territorial activities of a contracting party could also be comprised in the scope of application ratione territorii of the ECHR. With very few words, it stated:

Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.72

71Rightly, therefore, de Wet, The Chapter VII, 258–60, treats the two terms as synonyms. On the other hand, D. Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Clarendon Press, 1999) 4–15, 142–55, 163–6, draws a sharp distinction between authorisation and delegation. Ultimately, the issue of responsibility depends essentially on the degree of control retained by the Security Council.

72ECtHR, Loizidou v. Turkey (Preliminary Objections) (Appl. No. 15318/89), 23 March 1995, Series A, Vol. 310, para. 62.

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Although the words ‘effective control’ are presented as the key notion in this passage, the subsequent elaboration does not correspond to the general premise. Control exercised through a ‘subordinate local administration’ can hardly be effective control in the sense that the superior authority determines conduct at the grass roots level in a comprehensive fashion at any point in time. When coming to the merits of the case, the ECtHR had another opportunity to particularise its concept of control. It specified that under the prevailing circumstances in northern Cyprus, taking into account the great number of Turkish troops deployed there, it was not necessary to find out whether Turkey actually exercised ‘detailed control over the policies and actions of the authorities of the “TRNC”’. It was obvious that her army exercised ‘effective overall control over that part of the island. Such control … entails her responsibility for the policies and actions of the “TRNC”… Those affected by such policies or actions therefore come within the “jurisdiction” of Turkey for the purposes of article 1 of the Convention’.73 In other words, the Court applied a softened concept of ‘effective control’, viewing the system of governance in northern Cyprus as a wellfunctioning integrated whole where, in the last analysis, every governmental act could be attributed to Turkey which, as the determinative factual power, held sway over the ‘TRNC’. In the later judgment on the inter-state application brought by Cyprus against Turkey, the same reasoning was upheld. The Court re-affirmed that in the ‘TRNC’, Turkey exercised ‘effective overall control’ and was therefore responsible for any official act in that entity.74

It seems hardly promising to engage in a semantic study of the differences between the various formulations employed by the ECtHR and the ICJ. One thing is certain, however. Two tendencies are opposed to one another. According to a strict yardstick, that of ‘effective control’, the authority of the superior command entity must be total and without any major gaps, taking into account, however, that in human relationships absolute perfection can never be obtained. On the other hand, there are those who plead for a somewhat more flexible approach that emphasises the organisational unity of an operative system of governance or

73ECtHR, Loizidou v. Turkey (Merits) (Appl. No. 15318/89), Judgment (Grand Chamber), 18 December 1996, Reports 1996-VI, para. 56.

74ECtHR, Cyprus v. Turkey (Appl. No. 25781/94), Judgment (Grand Chamber), 10 May 2001, Reports 2011-IV, para. 77. Doswald-Beck, ‘Human Rights in Times of Conflict and Terrorism’, at 17, speaks of ‘a fairly wide interpretation to the term “effective control”’.

military command. Indeed, as Antonio Cassese has suggested, issues of responsibility should be assessed in their specific context.75

The criterion of ‘effective control’, taken as determinative by the ICJ both in Nicaragua v. United States76 and in Bosnia-Herzegovina v.

Serbia,77 is well suited for certain configurations. In the international community of equal sovereign states, which are supposed to respect one another, it can hardly ever be presumed that one state incites insurgents in another state to carry out armed activities, hoping to topple the government of that state. Such activities are strictly forbidden by general rules of international law. The Friendly Relations Declaration of the General Assembly provides in its elaboration on the principle of nonuse of force that ‘[e]very State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State’.78 Not to comply with this rule constitutes a grave infringement of basic commitments under international law. Therefore, the relevant criteria of attribution must be strict and clear-cut. To derive international responsibility of a state from any kind of linkage it has with opposition or insurgent movements in another state would lead to absurd results in the world of today where all the former barriers to communication have been swept away. Article 8 ARS, to which the ICJ explicitly refers in its judgment in Bosnia-Herzegovina v. Serbia and Montenegro,79 hence deserves full approval for such situations.

The same considerations apply when a state is charged with interfering by armed force in the territory of a neighbouring state and participating in genocidal acts, which was the complaint brought by Bosnia-Herzegovina against Serbia. Charges of armed interference and genocide are of the utmost gravity. It should never be lightly presumed that a state engages in such conduct in open breach of the fundamental

75‘The Nicaragua and Tadic Tests Revisited’, 661.

76See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).

77Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Reports (2007) 43, paras. 396–407.

78UN GA Resolution 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (Sixth Committee) (A/8082), 24 October 1970.

79Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), para. 398.