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Part 2 The United Nations: What it is, 13 Responsibility of the United Nations

Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan

From: Oppenheim's International Law: United Nations

Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 09 May 2021

Subject(s):
Immunity from jurisdiction — Responsibility of international organizations — Attribution

(p. 429) 13  Responsibility of the United Nations

  1. 1.  Introduction 13.01

  2. 2.  Attribution of conduct 13.08

  3. 3.  Allocating responsibility between the UN and member states 13.13

  4. 4.  Unequal access to dispute settlement mechanisms 13.28

  5. 5.  Immunity of the UN in national proceedings 13.29

  6. 6.  Circumstances precluding wrongfulness 13.30

  7. 7.  Consequences of a finding of responsibility 13.35

  8. 8.  The implementation of the international responsibility of an international organization 13.45

  9. 9.  Responsibility of the UN in peacekeeping operations 13.48

Aznar Gómez, ‘La responsabilidad internacional de las organizaciones internacionales por daños al patrimonio cultural causados por sus misiones de paz’ in Estudios de derecho internacional y derecho europeo en homenaje al profesor Manuel Pérez González (ed Cardona Llorens, (2012), 167; 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; Daudet, ‘La responsabilité des Nations Unies’ in La responsabilité en droit public: aspects contemporains (2005); Dominicé, ‘La responsabilité internationale des Nations Unies’ in La Charte des Nations Unies: commentaire article par article (eds Cot and Pellet, 2005); Eagleton, ‘International Organization and the Law of Responsibility’ (1950) 76(1) RCADI 319, (on the UN) at 335; Gowlland-Debbas, ‘The Security Council and Issues of Responsibility under International Law’ (2012) 353 RCADI 185; Hartwig, ‘International Organizations or Institutions, Responsibility and Liability’ (2011) MPEPIL; Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (1998); Pérez González, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 92 RG 63; Ragazzi (ed), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (2013); Sarooshi (ed), Responsibility and Remedies for the Unlawful Acts of International Organizations (2013); Schrijver, ‘Srebrenica voorbij: de volkenrechtelijke immuniteit van de Verenigde Naties’ (2013) 143 Handelingen der Nederlandsche Juristen-Vereeniging 211; Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011); United Nations International Law Commission, Draft Articles on the Responsibility of International Organizations with Commentaries (2011).

(p. 430) 1.  Introduction

1.1  Overview

13.01  The question of the responsibility of international organizations only attracted significant attention after 1985, following the bankruptcy of the International Tin Council (ITC) and the subsequent litigation in UK courts.1 The question has since been considered in depth by international bodies,2 and has been the subject of Draft Articles on the Responsibility of International Organizations (DARIO) finalized by the International Law Commission (ILC) in 2011. There are aspects, however, that remain uncertain due to the limited applicability of the principles of state responsibility to the UN, the status of the DARIO as progressive development rather than codification of international law, the few express statements on responsibility in international instruments,3 as well as scant practice.4 At the same time, the engagement of the UN in peacekeeping and territorial administration increases its potential exposure to claims of responsibility for internationally wrongful acts.5 The UN has been implicated in the cholera epidemic in Haiti,6 lead poisoning of the Roma in Kosovo,7 and child abuse by peacekeepers in the Central African Republic.8

(p. 431) 13.02  The practice in this area draws a distinction between accountability for acts of commission versus acts of omission, and for public versus private acts—this being without prejudice to the legal, and often moral, responsibility of the organization.

13.03  The chapters in this volume on legal personality (chapter 6), and the powers (chapter 9) and immunities (chapter 16) of the UN should also be consulted.

1.2  Draft Articles on the Responsibility of International Organizations

13.04  The DARIO are heavily based on the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), with many Articles being identical save for the reference to ‘State’ or ‘international organization’.9 The analogy with the allocation of responsibility in an inter-state context is nevertheless hard to maintain. International organizations like the UN have limited competence, limited funds, no territory, and no population for creating material resources.10 There are many tensions and contradictions in applying state-based principles to the UN,11 without paying due attention to the principle of speciality.12

13.05  The potential application of the DARIO is limited by lex specialis,13 but it provides that an international organization may not rely on its rules as justification for failure to comply with obligations relating to the legal consequences of an internationally wrongful act.14 Those rules could, however, entail the international (p. 432) responsibility of an international organization. The practice of the UN illustrates the challenge of identifying such rules.15 The DARIO may lead to the emergence of a law of responsibility of international organizations, but at this stage there is insufficient practice and, in fact, the DARIO often depart from the UN norms.16

1.3  Internationally wrongful act

13.06  Before responsibility can be determined, it must be established that the UN was bound by a primary obligation of international law.17 The UN is a party to over 650 treaties listed in the United Nations Treaty Series (UNTS) database, but few of these are law-making treaties.18 Moreover, the extent to which the UN is bound by customary international law is controversial.19 For example, the UN has only expressly declared its willingness to be bound by the ‘fundamental’ principles of international humanitarian law.20

(p. 433) 13.07  Nonetheless, if the UN commits a wrongful act,21 its responsibility will be entailed. This has been acknowledged by the Secretary-General22 and the International Court of Justice (ICJ).23

2.  Attribution of conduct

2.1  Attribution of the conduct of a UN organ or agent

13.08  Conduct that may be attributed to the UN includes that of its principal and subsidiary organs, as well as that of its ‘agents’.24 These ‘agents’ may be its officials, as well as other persons acting for the organization on the basis of functions conferred by a UN organ.25 The organization acts through a wide variety of persons and entities, going beyond the categories of ‘staff’, ‘officials’, or ‘experts on mission’ referred to in the UN Charter and the Convention on Privileges and Immunities.26

(p. 434) 2.2  Attribution of conduct of organs of a state or organs or agents of another international organization placed at the disposal of the UN

13.09  The most common scenario in which a state organ is placed at the disposal of the UN is peacekeeping, where military contingents are contributed to UN missions. Typically, the state retains disciplinary powers and criminal jurisdiction over the members of the military contingent. The operational control of UN operations is in principle held by the unified UN command, but in practice actual command and control are often retained by the individual troop-contributing countries.27

13.10  Outside the context of peacekeeping, a disaster relief unit established by the UN could engage the responsibility of the UN.28 A regional body placed at the disposal of a UN agency has been held to be capable of engaging the responsibility of that UN agency.29

2.3  Attribution of conduct performed ultra vires

13.11  In the limited practice of the UN regarding attribution for conduct performed ultra vires,30 the test for attribution is whether the act related to the functions of the organization.31 The UN assumes responsibility for ultra vires acts of its organs or individuals acting as its agents; the violation of the internal distribution of powers does not absolve the organization of responsibility.32 In its Advisory Opinion on Certain Expenses of the United Nations, the ICJ stated:

If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization. If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate (p. 435) cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent.33

13.12  The ICJ has also asserted the UN’s responsibility for ultra vires acts of persons other than UN officials.34

3.  Allocating responsibility between the UN and member states

3.1  Membership does not automatically entail responsibility

13.13  The baseline is that membership of the UN as such does not entail international responsibility for member states, whether concurrent or subsidiary, when the organization commits an internationally wrongful act, such as the breach of a treaty obligation.35 The question of what more is needed has not yet been clearly answered.

13.14  Allocating responsibility for the breach of treaty obligations is essential to international cooperation. If there is a low threshold for a member state to be held responsible for the breach by the UN, it may discourage states from becoming members and entrusting tasks to the organization. However, an unrealistically high threshold may encourage the abuse of rights by member states,36 and provide a disincentive for the UN to engage in risky activities, such as peacekeeping.

3.2  Responsibility of a member state in connection with the conduct of the UN

13.15  A member state may be responsible (in a subsidiary sense) for an internationally wrongful act of the UN if it accepted responsibility for that act towards the injured party, or led the injured party to rely on its responsibility.37

(p. 436) 13.16  In theory, a member state may also incur responsibility if it ‘circumvents’ an international obligation by causing the UN to commit an act that, if committed by the state, would have constituted a breach of the obligation.38 However, apart from the challenge of proving intent,39 it is rather implausible that an individual member state could cause the UN to commit a breach of an international obligation. It seems that this scenario would only arise in the context of small organizations with limited membership and a decision-making structure that allows domination by one member state.40

13.17  In a series of cases, the European Court of Human Rights (ECtHR) has upheld the principle that a member state may be held responsible for a treaty breach by an international organization, but it has not found any violations on the facts.41 Although the ECtHR has made clear that the mere transfer of competence by a state to an organization does not absolve it of its responsibility under the European Convention on Human Rights (ECHR) in the areas covered by the transfer, the Court has not specified the test for incurring that responsibility. It would appear that a member state would not easily be held responsible, especially where there has been an effort to make available alternative and ‘equivalent’ means for satisfying ECHR requirements within the international organization.42

(p. 437) 3.3  Responsibility of the UN in connection with the act of a state or another international organization through aid and assistance in committing an internationally wrongful act

13.18  The UN would be responsible for an internationally wrongful act by a state or another organization if it aided or assisted the commission of the act with the knowledge of the circumstances.43 This possibility was first raised in the context of the United Nations Mission in the Democratic Republic of the Congo (MONUC), where the UN faced a ‘political–moral dilemma’44 of whether to continue assisting Government-led forces45 in their military operations against armed groups as mandated by the Security Council, or to decline to do so given the knowledge that in the course of such operations Government forces were committing serious violations of human rights and humanitarian law against the civilian population, whose protection had also been mandated by the Security Council.46

13.19  In Security Council Resolution 1856 (2008), the Secretary-General had devised a ‘conditionality policy’ stating the conditions for MONUC assistance.47 It provided that MONUC was not to participate or support operations with FARDC units if ‘there were substantial grounds for believing that there was a real risk that such units would violate international humanitarian, human rights or refugee law in the course of the operation’.48 In Security Council Resolution 1906 (2009), the Security Council approved the Secretary-General’s conditions and called upon MONUC to ‘intercede with the FARDC command if elements of a FARDC unit receiving MONUC’s support are suspected of having committed grave violations of such laws’; and if the situation persisted, for MONUC to withdraw its support from the units.49

(p. 438) 3.4  Responsibility of the UN in connection with the act of a state or another international organization through authorizing an internationally wrongful act or authorizing a mission that commits an internationally unlawful act

13.20  The UN may incur international responsibility by adopting a decision binding on member states to commit an act that would be internationally wrongful if committed by the UN.50 It is highly unlikely that this scenario would arise, as member states would usually have an alternative course that would not involve committing an internationally wrongful act. The Kadi case in the European system clarified that the binding nature of Security Council resolutions does not override the protection of fundamental rights in domestic or regional law.51

13.21  The UN may also incur international responsibility if it circumvents an international obligation by authorizing member states to commit an act that would be internationally wrongful if committed by the UN, and the act in question is committed because (p. 439) of that authorization.52 This scenario is also remote, not least because of the difficult of showing causation.53

13.22  The UN is constantly navigating the broader relationship between authorization and responsibility in its peacekeeping operations.54 This can be seen in a letter from the UN Secretary-General to the Prime Minister of Rwanda in 1996:

[I]nsofar as ‘Opération Turquoise’ is concerned, although that operation was ‘authorized’ by the Security Council, the operation itself was under national command and control and was not a United Nations operation. The United Nations is, therefore, not internationally responsible for acts and omissions that might be attributable to ‘Opération Turquoise’.55

13.23  The ECtHR has controversially attributed to the UN the acts of a UN-authorized operation International Security Force in Kosovo (KFOR) conducted under regional command and control, on the grounds that the Security Council had ‘delegated’ its powers to the operation and had ‘ultimate authority and control’.56

13.24  A different situation is where the UN receives claims for damages or costs incurred as a result of the implementation of Security Council sanctions. The practice of the UN has been to reject the responsibility of the organization: states are responsible for the costs of carrying out enforcement measures under Chapter VII of the Charter.57

(p. 440) 3.5  Responsibility of member states towards third parties for an internationally wrongful act of the UN

13.25  Views are divided on the question of responsibility of member states when an international organization of which they are members commits an internationally wrongful act. The Institut de droit international adopted a resolution in 1995, stating:

Save as specified in article 5, there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.58

13.26  Lord Kerr, in the English Court of Appeal in the ITC litigation, said that he could not

find any basis for concluding that it has been shown that there is any rule of international law, binding upon the member States of the ITC, whereby they can be held liable—let alone jointly and severally—in any national court to the creditors of the ITC for the debts of the ITC resulting from contracts concluded by the ITC in its own name.59

13.27  With regard to an alleged rule of international law imposing on ‘States members of an international organization, joint and several liability for the default of the organization in the payment of its debts unless the treaty which establishes the international organization clearly disclaims any liability on the part of the members’, Lord Templeman found that ‘[n]o plausible evidence was produced of the existence of such a rule of international law before or at the time of ITA6 [the Sixth International Tin Agreement] in 1982 or afterwards’.60

4.  Unequal access to dispute settlement mechanisms

13.28  The uncertainty surrounding the attribution of responsibility between the UN and member states concerns not only the allocation of responsibility, but also the legal consequences of joint or concurrent responsibility. As already observed, states and international organizations have unequal access to dispute settlement by the ICJ. In (p. 441) a dispute over shared responsibility, the responsibility of the UN will be part of the ‘very subject matter’ and will require the appearance of the organization before Court, which is not possible under the ICJ Statute.61 Thus, the dispute would be dismissed for the absence of a necessary third party,62 leaving only the circuitous and non-binding Advisory Opinion route. Unlike certain other international organizations, the UN does not have inspection panels,63 though its oversight body, the Office of Internal Oversight Services (OIOS), conducts investigations and inspections.64

5.  Immunity of the UN in national proceedings

13.29  If the dispute is brought before national courts, it is likely to be dismissed on the basis of the entitlement of the member state and/or the UN to immunity.65 The Dutch Supreme Court has held the UN was immune from claims that it was responsible, at least in part, for failing to prevent the 1995 genocide at Srebrenica.66 United States courts have held the UN enjoys immunity from jurisdiction under Section 29 of the General Convention in the case concerning allegations that it is responsible for the introduction of cholera to Haiti through, among other things, its failure to screen Nepalese peacekeepers.67 The UN’s usual practice is to invoke its immunity in (p. 442) such cases. It has very occasionally made ex gratia payments for injury or damage caused by its agents.68

6.  Circumstances precluding wrongfulness

6.1  Consent

13.30  Valid consent by a member state or an organization to the commission of an act by the UN would preclude the wrongfulness of that act in relation to that state or the former organization to the extent that the act remains within the limits of that consent.69 States may, for example, consent to allowing an investigation to be carried out on their territory by a board of inquiry or commission of inquiry set up by the Security Council,70 or to the verification of the electoral process.71 This consent is a precondition for the conduct of the UN on the territory (except for Chapter VII peacekeeping operations). In traditional peacekeeping operations, where consent is withdrawn, the UN has usually withdrawn its forces.72 There have to date been no instances of an unlawful act by the UN being remedied by consent of a state.73

6.2  Countermeasures

13.31  For international organizations of ‘quasi-universal membership’, such as those of the UN system, the possibility for their respective member states to take countermeasures against them would either be severely limited by the operation of the rules of those organizations, or would be subject to a lex specialis to the extent that the (p. 443) rules of the organization do not prevent the adoption of countermeasures by its member states.74

13.32  In practice the UN has never qualified a particular action as a countermeasure. The decisions of the General Assembly to exclude apartheid South Africa from meetings in the 1970s75 and the former Yugoslavia in the 1990s,76 were not qualified as such.77 There is a principle of ‘cooperation and good faith’ guiding relations between the UN and its member states.78

6.3  Self-defence

13.33  Self-defence could operate as a circumstance precluding wrongfulness,79 but it has not yet arisen in the context of the UN’s responsibility being invoked for a breach of the prohibition on the use of force. In the practice of the UN, the term ‘self-defence’ has been used not with regard to Article 51 of the UN Charter, but rather in the context of self-defence by peacekeeping forces in situations of armed conflict.80 The UN has accepted liability for certain types of damage incurred in the course of military operations, whether offensive or defensive in nature.81

6.4  Necessity

13.34  The UN employs a concept of ‘necessity’ different from that used in the law on state responsibility.82 The principle of ‘operational necessity’ has been applied by the UN to preclude responsibility for property loss or damage caused during peacekeeping operations, but it is not a consistent practice.83

(p. 444) 7.  Consequences of a finding of responsibility

7.1  Obligation of member states to enable the organization to make reparation

13.35  Damages or compensation to be paid by the UN would form part of its expenses and therefore be included in the budget of the organization, to be shared by member states according to the scale of assessments.84

7.2  Compensation

13.36  The most common form of reparation is compensation. The UN has paid compensation on multiple occasions to settle claims arising from peacekeeping operations. The most well-known example is the settlement of claims arising from the UN Operations in the Congo. Compensation to nationals of Belgium, Switzerland, Greece, Luxembourg, and Italy was granted through exchanges of letters between the Secretary-General and the permanent missions of the respective states in keeping with the UN declaration contained in these letters stating that the UN ‘would not evade responsibility where it was established that United Nations agents had in fact caused unjustifiable damage to innocent parties’.85

13.37  In a letter dated 6 August 1965, addressed to the Permanent Representative of the Soviet Union, the Secretary-General said:

It has always been the policy of the United Nations, acting through the Secretary-General, to compensate individuals who have suffered damages for which the Organization was legally liable. This policy is in keeping with generally recognized legal principles and with the Convention on Privileges and Immunities of the United Nations. In addition, in regard to the United Nations activities in the Congo, it is reinforced by the principles set forth in the international conventions concerning the protection of the life and property of the civilian population during hostilities as well as by considerations of equity and humanity which the United Nations cannot ignore.86

(p. 445) 13.38  A resolution of the General Assembly sets out financial and temporal limitations on third-party liability resulting from peacekeeping operations.87 This includes injuries as well as other losses, such as non-consensual use by peacekeepers of premises.88 The payment of compensation is subject to various limitations, including limiting compensable loss to economic loss and capping compensation.89 Compensation paid by the UN may be reduced due to contributory negligence.90

13.39  The UN may require a signed release from the claimant before payment is made, and it may reserve the right to seek reimbursement from a government.91 The UN has made commercial arrangements to cover third-party claims for personal injury and death resulting from gross negligence or wilful misconduct, and vehicle and aircraft accidents. The principle of UN responsibility for combat-related damage and damage caused in the course of the operational activities of its forces has generally been accepted as a rule of customary international law.92

13.40  Compensation outside of the peacekeeping context is governed by financial regulations pertaining to, inter alia, the UN Headquarters District in New York.93

7.3  Ex gratia payments

13.41  The UN occasionally makes ex gratia payments to persons injured by its activities. The Secretary-General may make such payments ‘as are deemed necessary in the interest of the Organization’.94 In practice such payments are approved by the Under-Secretary-General for Management; the Legal Counsel must be of the opinion that that there is no clear liability on the part of the UN but that payment is in the interest of the organization.95 The underlying assumption is that even though the conduct may be attributed to the UN, the responsibility is not attributable. The view of the OLA is that an ex gratia payment cannot be made if responsibility (p. 446) is legally entailed—the appropriate response in such a case would be payment of compensation ‘as a matter of obligation’.96 In cases where an ex gratia payment is made, as with compensation payments, the UN usually requires the signing of a release in advance, and may reserve the right to seek reimbursement from a state.97

7.4  Arbitration or negotiated settlement

13.42  It is a long-established policy and practice of the UN to engage in arbitration and other negotiated or agreed forms of settlement in certain circumstances.98

7.5  Satisfaction

13.43  Where restitution and compensation are insufficient or inappropriate, the UN may give satisfaction by acknowledging a breach, expressing regret, or issuing a formal apology.99

13.44  The UN’s failures to prevent the tragedies in Srebrenica and Rwanda have elicited expressions of regret from the Secretary-General.100 At the same time, the Secretariat emphasized that these examples ‘do not expressly refer to the existence of a breach of an obligation under international law’.101

(p. 447) 8.  The implementation of the international responsibility of an international organization

8.1  Invocation

13.45  The international responsibility of an international organization may be invoked other than by a state or another international organization.102

8.2  Nationality of claims and the local remedies rule

13.46  The question of nationality is not relevant to the admissibility of a claim against the UN.103 There has been limited practice by the UN regarding the exhaustion of local remedies. It would appear that the requirement to exhaust local remedies depends on the circumstances of the claim.104

8.3  Concurrent claims

13.47  Where more than one state or international organization is injured by the same internationally wrongful act of the UN, each injured party may separately invoke the responsibility of the UN.105

9.  Responsibility of the UN in peacekeeping operations

9.1  ‘Effective control’ of peacekeeping operations

13.48  The Secretary-General declared in 1996 that the UN would bear responsibility for all acts conducted under the effective control of the organization.106 This is the guiding (p. 448) principle in determining the responsibilities of the UN and troop-contributing countries (TCCs). The challenge is that troops placed at the disposal of the UN may be both ‘fully seconded’ to the UN, in that they are subsidiary organs, and subject, at least in part, to the operational control of the TCC.107

13.49  There is a distinction between ‘United Nations operations conducted under United Nations command and control’ and ‘United Nations-authorized operations conducted under national or regional command and control’. The UN Secretariat has observed that ‘United Nations operations conducted under United Nations command and control are subsidiary organs of the United Nations’ and ‘[t]hey are accountable to the Secretary-General under the political direction of the Security Council’.108 The ‘long-established position’ of the UN is that forces placed at its disposal are ‘transformed’ into a subsidiary organ and therefore entail the responsibility of the organization, like any other subsidiary organ, regardless of whether the control exercised over all aspects of the operation was in fact ‘effective’.109 The ‘effective control’ test therefore applies to the UN-authorized operations conducted under national or regional command and control, but not to UN operations conducted under UN command and control.110 The UN has placed importance on the degree of control that the TCC retains over disciplinary and criminal matters.111

(p. 449) 13.50  Several variations on the ‘effective control’ test have been developed in the case law of international, regional, and national courts. It has been used by the ICJ to determine the responsibility of states for the acts of non-state actors on another state’s territory.112 The International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber purported to develop its own, less stringent standard of ‘overall control’,113 but the ICJ explained in the Bosnia Genocide judgment of 2007 that the ICTY was not called upon to rule on questions of state responsibility, since its jurisdiction was criminal and limited to individuals. Thus, the ICTY had addressed an issue that ‘was not indispensable for the exercise of its jurisdiction’.114 The ICJ reaffirmed the test of ‘effective control’ in the context of state responsibility.115

(p. 450) 13.51  The ECtHR used the test of ‘ultimate authority and control’ to attribute to the UN responsibility for the acts of the Kosovo Force.116 It applied this test in later cases.117 However, in a case concerning an operation not authorized by the UN, the ECtHR returned to the language of ‘effective command and control’ to attribute the conduct of UK forces in Iraq to the UK.118 The ECtHR’s practice in this area has been controversial and not widely accepted.

13.52  Dutch and Belgian courts have concluded that certain conduct was under the ‘effective control’ of the TCC and it was therefore responsible.119 The UN was not a party to any of these proceedings, but the Dutch Supreme Court noted that more than one party can have effective control, and ‘the possibility cannot be excluded that application of this criterion could result in the attribution to more than one party’; the conduct could be attributed to both the UN and the TCC.120 The attribution would be based on factual control over the specific conduct, taking into account all the factual circumstances and the special context of the case.121

(p. 451) 9.2  Responsibility for the off-duty acts of peacekeepers

13.53  In general, the ‘off-duty’ conduct of a member of a national military contingent would not be attributed to the UN, but the ‘on-duty’ conduct may be so attributed. The guiding principle is whether the person was acting in a non-official/non-operational capacity when the conduct arose.122

Footnotes:

1  The question of the responsibility of the UN in relation to the operation in the Congo (Opération des Nations Unies au Congo (ONUC)) had arisen in the early 1960s. Hartwig, ‘International Organizations or Institutions, Responsibility and Liability’ (2011) MPEPIL, para 5.

2  Institut de droit international, The Legal Consequences for Member States of the Non-Fulfilment by International Organizations of their Obligations toward Third Parties, Resolution at the Lisbon Session 1995 (Rapporteur: Rosalyn Higgins); International Law Association, Final Report on the Accountability of International Organizations (2004) (Co-Rapporteurs: Malcolm Shaw and Karel Wellens).

3  Few treaties expressly establish the responsibility of an international organization for breaches: eg, the 1972 Convention on International Liability for Damage Caused by Space Objects and the 1982 UN Convention on the Law of the Sea (UNCLOS), Annex XI, Art 5. The UN Charter is silent.

4  The limited practice is due to, among other things, the lack of use of third-party dispute settlement procedures and the non-disclosure by states and international organizations (ILC, Report of the International Law Commission, 63rd session (26 April–3 June and 4 July–12 August 2011), UN Doc A/66/10 (2011), p 70).

5  The Office of Legal Affairs (OLA), eg, emphasized that the capacity of the UN Interim Administration Mission in Kosovo to conclude bilateral agreements on behalf of Kosovo should not engage the responsibility of the UN or create any legal, financial, or other obligation for the organization ([2005] UN Juridical YB 461).

7  For example, the Human Rights Advisory Panel (HRAP) of the UN Mission in Kosovo (UNMIK) issued an opinion noting that UNMIK had commissioned a report in 2000 that found extremely elevated blood–lead levels in affected community members living in the internally displaced persons camps, but that UNMIK did not make the report public and failed to take sufficient action to address the risks of lead exposure in the camps. It recommended that UNMIK publicly acknowledge its failure to comply with applicable human rights standards in response to the adverse health condition caused by lead contamination, and to compensate victims for both material and moral damage. NM and Others v UNMIK, Case No 26/08, 26 February 2016. The HRAP was an advisory body that only had the power to issue recommendations to the Special Representative of the Secretary-General.

8  For example, ‘Taking action on sexual exploitation and abuse by peacekeepers’, Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic, 17 December 2015.

9  An exception is the ‘circumvention of responsibility’ in DARIO Arts 61 and 17, which has no equivalent in the ARSIWA.

10  Hartwig, n 1, para 25.

11  See the critical perspective of a senior UN Secretariat official in Shraga, ‘ILC Draft Articles on Responsibility of International Organizations—the Interplay between the Practice and the Rule’ (2011) ASIL Proceedings 351, criticizing in particular DARIO Arts 5 and 6 for their departure from UN practice and DARIO Arts 8, 14, and 15 for their lack of support by practice. The ILC transformed the exceptional nature of derivative responsibility (conduct attributable to another subject of international law) into a general rule in the DARIO, without paying sufficient attention to the fact that organizations act almost exclusively through their member states while states rarely act through other states I Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011) 47). See also DARIO Art 21, which provides that ‘self-defence’ is a circumstance precluding the wrongfulness of an act of an international organization, whereas Art 51 of the UN Charter limits self-defence to armed attacks against states. The general rule on international organization responsibility for member states is in DARIO Art 62.

12  Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1996, p 66, at para 25: ‘International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.’

13  DARIO Art 64: ‘These draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or of a State in connection with the conduct of an international organization, are governed by special rules of international law. Such special rules of international law may be contained in the rules of the organization applicable to the relations between an international organization and its members.’

14  DARIO Art 32:

  1. 1.  The responsible international organization may not rely on its rules as justification for failure to comply with its obligations under this Part.

  2. 2.  Paragraph 1 is without prejudice to the applicability of the rules of an international organization to the relations between the organization and its member States and organizations.

15  DARIO Art 2(b) defines ‘rules of the organization’ as ‘in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization’. For the UN, the ‘decisions’ and ‘resolutions’ may be international law in character, such as treaties adopted by the General Assembly, or internal law, in the form of resolutions adopting Financial Regulations and Rules. Moreover, in a number of areas the activities of the UN, such as peacekeeping and the election of office holders, have developed ‘almost entirely through practice’. ILC, ‘Responsibility of International Organizations: Comments and Observations Received from International Organizations’, UN Doc A/CN.4/637/Add.1 (2011).

16  See, eg, the norm on the effective control of peacekeeping troops.

17  Sources of primary legal obligations include customary international law and treaties. See ch 25, ‘Promotion of International Law’. Art 24(2) of the UN Charter refers to the Security Council’s discharging its duties ‘in accordance with the Purposes and Principles of the United Nations’. See also s 29 of the Convention on the Privileges and Immunities of the United Nations, and relevant provisions of the various status of forces agreements (SOFAs) and status of mission agreements (SOMAs) that also create binding legal obligations regarding the UN’s responsibility not only under international humanitarian law, but also with regard to private and other claims.

18  Available at https://treaties.un.org/Pages/AdvanceSearch.aspx?tab=UNTS&clang=_en. These range from the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLT-IO) to the Exchange of notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the United Nations Interim Administration Mission in Kosovo (UNMIK) concerning the transfer of Mr Luan Goçi to the jurisdiction of the United Kingdom of Great Britain and Northern Ireland. Not all treaties concluded by international organizations are registered in the UNTS database. The obligation to register treaties with the Secretariat in Article 102(1) of the Charter does not apply to international organization, but only to ‘any Member of the United Nations’. See also GA Res 97(I) (1946) and GA Res 52/153 (1997).

20  Secretary-General’s Bulletin, Observance by United Nations forces of international humanitarian law, UN Doc ST/SGB/1999/13 (1999); Shraga, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage’ (2000) 94 AJIL 406.

21  An ‘internationally wrongful act’ may also be an omission. In United States Diplomatic and Consular Staff in Tehran ICJ Rep 1980, p 3, at paras 63 and 67, the responsibility of Iran was engaged by the ‘inaction’ of its authorities, which ‘failed to take appropriate steps’ in circumstances where such steps were evidently called for.

22  UN Doc A/51/389 (1996), p 4, para 6, report by Secretary-General Boutros-Ghali on Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: ‘the principle of State responsibility—widely accepted to be applicable to international organizations—that damage caused in breach of an international obligation and which is attributable to the State (or to the Organization) entails the international responsibility of the State (or of the Organization)’, cited in ILC, Draft Articles on the Responsibility of International Organizations with Commentaries (2011), YBILC, 2011, II, pt 2, p 13.

23  In Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999, p 62, at para 66, the Court pointed out ‘that the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity…. The United Nations may be required to bear responsibility for the damage arising from such acts’ (cited in ILC, n 22, 13).

24  DARIO Art 6.

25  Provisions of the UN Charter refer to ‘organs’, but the ICJ has also emphasized the fact that a person had been conferred functions by a UN organ. The ICJ stated that it understood ‘the word “agent” in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts’ (Reparation for Injuries Suffered in the Service of the United Nations ICJ Rep 1949, p 174 at 177). In Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) ICJ Rep 1989, p 177, at para 48, the ICJ observed that ‘[i]n practice, according to the information supplied by the Secretary-General, the United Nations has had occasion to entrust missions—increasingly varied in nature—to persons not having the status of United Nations officials’. In Difference Relating to Immunity, n 23, p 62, at para 66, the Court noted that in case of ‘damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity…[t]he United Nations may be required to bear responsibility for the damage arising from such acts’ (emphasis added). Cases cited in ILC, n 22, 17–18.

26  These include individual and corporate contractors providing commercial goods and services. The UN uses ‘executing agencies’ and ‘implementing partners’ to carry out aspects of its programme or perform certain activities, such as non-governmental organizations (NGOs) used by the Office for the Coordination of Humanitarian Affairs in the field (UN Doc A/CN.4/637/Add.1 (2011), pp 8–9).

28  [1971] UN Juridical YB 187.

29  An agreement between the World Health Organization (WHO) and the Pan American Health Organization (PAHO) provided that the Pan American Sanitary Conference serves ‘respectively as the Regional Committee and the Regional Office of the World Health Organization for the Western Hemisphere, within the provisions of the Constitution of the World Health Organization’ (Art 2 of the Agreement of 24 May 1949). According to the Legal Counsel of WHO, ‘acts of PAHO and of its staff could engage the responsibility of WHO’ (Letter of 19 December 2003 from the Legal Counsel of WHO to the United Nations Legal Counsel, UN Doc A/CN.4/545, s II.H).

30  See ch 9, ‘Powers’, section 7, ‘Consequences of ultra vires acts’.

31  The OLA advised in 1974 that tortious acts committed by members of a UN Emergency Force (UNEF) during their off-duty periods could be recognized as engaging the responsibility of the UN if the acts were closely related to the functions of the UNEF member, such as the use of a government-issued weapon (UN Doc A/CN.4/637/Add.1 (2011), p 15). See also DARIO Art 8.

32  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151 at p 169; Difference Relating to Immunity, n 23, p 62, at para 66.

33  Certain Expenses of the United Nations, n 32, at 168.

34  In its Advisory Opinion on Difference Relating to Immunity, n 23, the Court stated that ‘it need hardly be said that all agents of the United Nations, in whatever official capacity they act, must take care not to exceed the scope of their functions, and should so comport themselves as to avoid claims against the United Nations’ (para 66). See also section 9, ‘Responsibility of the UN in peacekeeping operations’.

35  Institut de Droit International, n 2, Art 6. This position attracts wide consensus in legal scholarship (d’Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4 International Organizations Law Review 91, at 95). See also Webb, ‘International Organizations: Uneasy Analogies’ in Research Handbook on the Law of Treaties (eds Tams and Tzanakopoulos, 2013), ch 19.

36  Institut de Droit International, n 2, Art 5(b).

37  DARIO Art 62. In an arbitration dispute concerning Westland Helicopters, the arbitral tribunal found that reliance may be engendered by the conduct of a member state: ‘the trust of third parties contracting with the organization as to its ability to cope with its commitments because of the constant support of the member States’ (para 56 of the award of 21 July 1991 in Higgins, ‘The legal consequences for Member States of non-fulfilment by international organizations of their obligations towards third parties: provisional report’ (1995) 66-I Ann de l’Inst 373, at 393; ILC, n 22, 98). Third-party responsibility may also arise if ‘the members lead a third party reasonably to assume that they would stand in if the responsible organization did not have the necessary funds for making reparation’ (ILC, n 22, 98).

38  DARIO Art 61. If the act of the international organization is wrongful and caused by the member state, there could be an overlap between the cases covered in this Article and those in Arts 58 (aid or assistance by a state), 59 (direction and control exercised by a state), and 60 (coercion by a state). The ILC points out that this is not problematic, ‘because it would only imply the existence of a plurality of bases for holding the State responsible’ (ILC, n 22, 95). Those Articles are largely duplicative of the ILC Articles on State Responsibility.

39  DARIO Art 61 establishes a test that requires the member state to possess the intent to avoid compliance with an obligation and a relationship of causation. The ILC Commentary clarifies that the existence of an intention to avoid compliance is implied in the use of the term ‘circumvention’ (ILC, n 22 , 93).

40  Paasivirta, ‘Responsibility of a Member State of an International Organization: Where Will it End? Comments on Article 60 of the ILC Draft on the Responsibility of International Organizations’ (2010) 7 International Organizations Law Review 49, at 61; cf d’Aspremont, n 35, at 93 (arguing that when a member state has ‘effective and overwhelming’ control over the decision-making process of an international organization, it must be held jointly or concurrently responsible for international law violations that involve decisions of that organization).

41  In Waite and Kennedy v Germany ECHR 1999-I, 410 (on the question of the immunity of the European Space Agency in relation to employment claims), the Court held that the ‘essence’ of the applicant’s ‘right to a court’ under the Convention had not been impaired (ibid, para 57). In Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirketi v Ireland ECHR 2005-VI, [2005] ECHR 440, at para 154 (the implementation of a European Community (EC) Regulation enforcing UN sanctions), the Court found that Ireland was not responsible because the relevant rights were protected within the EC, ‘in a manner which can be considered at least equivalent to that for which the Convention provides’ (ibid, 158, para 155). In Gasparini v Italy and Belgium App no 10750/03 (ECHR, 12 May 2009) (two employees of the North Atlantic Treaty Organization (NATO) alleged the inadequacy of the settlement procedure concerning employment disputes with NATO), the Court found that the obligation to ensure ‘equivalent protection’ to that under the ECHR mechanism was not breached because the NATO procedure was not tainted with ‘manifest insufficiency’.

42  Paasivirta, n 40, 56.

43  DARIO Art 14.

44  Shraga, ‘ILC Articles on Responsibility of International Organizations: The Interplay between the Practice and the Rule (a View from the United Nations)’ in Responsibility of International Organizations (ed Ragazzi, 2013), 206.

45  Forces armées de la République démocratique du Congo (FARDC).

46  UN Doc A/CN.4/637/Add.1 (2011), p 19.

47  The ‘conditionality policy’ has since been referred to as the human rights due diligence policy, which, in addition to the need to identify risks of violations of international humanitarian law and international human rights law, also requires that there be a failure to take mitigating or corrective measures within a reasonable period prior to suspending or terminating support to the unit or units concerned.

48  S/2009/623, cited in UN Doc A/CN.4/637/Add.1 (2011), p 18.

49  The Legal Counsel wrote: ‘If MONUC has reason to believe that FARDC units involved in an operation are violating one or the other of those bodies of law and if, despite MONUC’s intercession with the FARDC and with the Government of the DRC [Democratic Republic of the Congo], MONUC has reason to believe that such violations are still being committed, then MONUC may not lawfully continue to support that operation, but must cease its participation in it completely.…MONUC may not lawfully provide logistic or “service” support to any FARDC operation if it has reason to believe that the FARDC units involved are violating any of those bodies of law.…This follows directly from the Organization’s obligations under customary international law and from the Charter to uphold, promote and encourage respect for human rights, international humanitarian law and refugee law’ (New York Times (9 December 2009), cited in ILC, n 22, 37).

50  DARIO Art 17(1). The act would not actually have to occur for the responsibility to be engaged.

51  In Joined Cases C-402/05 P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351 (European Court of Justice (ECJ), 3 September 2008) (Kadi case), the ECJ held that fundamental rights as protected by (then) EC law limited the implementation of UN Security Council decisions, such as imposing restrictive measures on certain persons and entities alleged to be associated with specific terrorist groups (eg, asset freezing). The ECJ found that the lack of any judicial review procedure violated the fundamental rights protected by EC law. The EC implementing regulation had to be amended to conform with fundamental rights. The Court emphasized that the review of lawfulness ensured by EC courts applied to the Community act intended to give effect to the international agreement in issue, and not to the international agreement itself. It noted that the UN Charter left it to the member states to choose among various options for transposing Security Council resolutions into their domestic legal order. In Kadi II, the General Court struck down the re-listing of Mr Kadi by the EU following the ECJ’s annulment of the Regulation that had listed him for the first time (Case T-85/09 Kadi v Commission [2010] ECR II-5177). On 18 July 2013, the ECJ dismissed the appeal by the European Commission, EU Council, and the UK from the General Court’s Judgment, finding, inter alia, that the UN’s re-examination procedure for the listing and de-listing of persons and entities was still inadequate (Joined Cases C‑584/10 P, C‑593/10 P, and C‑595/10 P European Commission and others v Yassin Abdullah Kadi (ECJ, Grand Chamber, 18 July 2013)). It set out a standard of review that encompassed not only procedure, but also a substantive review of the reasons given for the listing (paras 118–19). An Ombudsperson system had been introduced by the UN in SC Res 1904 (2009), 1989 (2011), and 2083 (2012). The Court held that this did not constitute ‘judicial protection’, which requires the ability of the person concerned ‘to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is erased from the legal order’ (Kadi II, para 134).

The Kadi case has been followed by other courts. The UK Supreme Court held that the national implementation of certain UN sanctions was ultra vires and was annulled in so far as it did not provide for an effective remedy: Her Majesty’s Treasury v Ahmed [2010] UKSC 2. In Nada v Switzerland App No 10593/08 (ECHR, 12 October 2012), the ECtHR held that the mere fact that a measure was intended to give effect to a Security Council resolution did not exclude it from judicial review in the light of fundamental freedoms. Feinäugle, ‘Kadi Case’ (2014) MPEPIL.

52  DARIO Art 17(2). Situations arising under Art 17(2) will require careful contextual analysis of the scope of the authorization and the causal relationship between it and the breach. While the UN would be responsible if it requested, albeit implicitly, the commission of an act that would represent a circumvention of one of its obligations, that organization would clearly not be responsible for any other breach that the member state to which the authorization is addressed might commit.

53  The UN has noted that the cumulative conditions in Art 17, especially the requirement that the decision imputing responsibility to the international organization must be in circumvention of its international obligation, ‘makes its application in the realities of international organizations…highly unlikely’ (Responsibility of International Organizations: Comments and Observations Received from International Organizations (UN Doc A/CN.4/637/Add.1 (2011)), p 22).

54  The authorization of the peacekeeping mission itself is not an internationally unlawful act, but the mission may commit internationally unlawful acts.

55  ILC, n 22, 42.

56  Behrami & Behrami v France App no 71412/01; Saramati v France, Germany and Norway App no 78166/01 (ECHR, 2 May 2007); Kasumaj v Greece App no 6974/05 (ECHR, 5 July 2007); Gajic v Germany App no 31446/02 (ECHR, 28 August 2008); Beric v Bosnia and Herzegovina App no 36357/04 (ECHR, 16 October 2007). See also section 9, ‘Responsibility of the UN in peacekeeping operations’.

57  UN Doc A/CN.4/637/Add.1 (2011) 21–2. One example was an airline that claimed compensation for additional costs due to the re-routing of its aircraft to avoid flying over Libya as a result of SC Res 748 (1992) ([1993] UN Juridical YB 352). In imposing sanctions, the Security Council often makes allowances for breaches of contractual arrangements previously concluded between states (SC Res 687 (1991), para 25). See the 2006 intervention by the UN Legal Counsel in the Security Council on behalf of the then Secretary-General, referring to the ‘minimum standards required to ensure that the procedures are fair and transparent’, which mentions a person’s ‘right to review by an effective review mechanism. The effectiveness of that mechanism will depend on its impartiality, degree of independence and ability to provide an effective remedy, including the lifting of the measure and/or, under specific conditions to be determined, compensation’ (UN Doc S/PV.5474 (2006), p 5).

58  Art 6(a), (1996) 66-II Ann de l’Inst 445. Art 5 reads as follows: ‘(a) The question of the liability of the members of an international organization for its obligations is determined by reference to the Rules of the organization; (b) In particular circumstances, members of an international organization may be liable for its obligations in accordance with a relevant general principle of law, such as acquiescence or the abuse of rights; (c) In addition, a member State may incur liability to a third party (i) through undertakings by the State, or (ii) if the international organization has acted as the agent of the State, in law or in fact.’

59  Judgment of 27 April 1988, Maclaine Watson & Co Ltd v Department of Trade and Industry; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others (1990) 81 ILR 670.

60  Judgment of 26 October 1989, Australia & New Zealand Banking Group Ltd and Others v Commonwealth of Australia and 23 Others; Amalgamated Metal Trading Ltd and Others v Department of Trade and Industry and Others; Maclaine Watson & Co Ltd v Department of Trade and Industry; Maclaine Watson & Co Ltd v International Tin Council (1990) 29 ILM 675.

61  Art 34(1) of the ICJ Statute reads: ‘Only states may be parties in cases before the Court.’

62  East Timor (Portugal v Australia), ICJ Rep 1995, p 90; d’Aspremont, n 35, 117.

63  The World Bank, International Bank for Reconstruction and Development, and International Development Agency, eg, have inspection panels that investigate claims by groups affected on the territory of the borrower by the respective bank’s loan. They give recommendations to management and are focused on the compatibility of actions and omissions with internal directives and policies rather than international law. The UN Joint Inspection Unit is mandated to use its inspections to increase efficiency, not to investigate claims of injury to third parties.

64  See ch 15, ‘The United Nations Secretariat and Secretary-General’, and references to OIOS therein.

65  d’Aspremont, n 35, 117. Even if there is no immunity from jurisdiction, the entitlement to immunity for enforcement is generally broader. Note, however, that Section 29 of the Convention on the Privileges and Immunities of the United Nations provides that ‘The United Nations shall make provisions for appropriate modes of settlement of: (a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; (b) Disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General.’

66  Stichting Mothers of Srebrenica et al v State of The Netherlands and the United Nations, Supreme Court of The Netherlands, Case no 10/04437, 13 April 2012. The Hague Court of Appeal in the same case had pointed out that the claimants could sue The Netherlands or the individual perpetrators of the genocide (Stichting Mothers of Srebrenica, Appeal Court of The Hague, 30 March 2010).

67  Georges and Others v United Nations and Others, US District Court, Southern District of New York, 9 January 2015; upheld on appeal, Georges v United Nations, No 15–455 (2d Cir 2016). Approximately 9,500 Haitians have died from cholera since the outbreak and over 800,000 have been ill. After denying responsibility for years, the UN Secretary-General in August 2016 acknowledged ‘moral responsibility’ and stated he was putting together a compensation package. The statement followed a report by Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights, that stated: ‘The United Nations was clearly responsible and it must now act accordingly…. [W]hat is at stake is the Organization’s overall credibility in many different areas. Its existing position on cholera in Haiti is at odds with the positions that it espouses so strongly in other key policy areas. It has a huge amount to gain by rethinking its position and a great deal to lose by stubbornly maintaining its current approach’ (UN Doc A/71/367 (2016), para 73). On 1 December 2016, Secretary-General Ban offered an apology to Haitians on behalf of the UN and acknowledged the UN’s moral, if not legal, responsibility. He said he was ‘profoundly sorry’ and urged member states to raise up to US$400 million to treat and cure Haiti’s cholera victims. Boon, ‘The United Nations as Good Samaritan: Immunity and Responsibility’ (2016) 16 Chicago JIL 341.

68  [1965] UN Juridical YB 41; cf the UN’s reluctance to accept blame or to make an ex gratia payment for the cholera outbreak introduced into Haiti by UN peacekeepers. See section 7.3 on ex gratia payments.

69  DARIO Art 20.

70  Para 6 of the Declaration annexed to GA Res 46/59 (1991).

71  Report of the Secretary-General on enhancing the effectiveness of the principle of periodic and genuine elections (UN Doc A/49/675 (1994), para 16). Cited in ILC, n 22, 42–3.

72  See, eg, UNEF in 1967 and Eritrea in 2008, which was accompanied by ‘obstructions’ by the state towards the UN Mission in Ethiopia and Eritrea (SC Res 1827 (2008)).

73  UN Doc A/CN.4/637/Add.1 (2011), p 24. A possible precedent may be the consent granted by the Haitian Government to the Pakistani Government, allowing the latter to court martial its formed police unit (Pakistani FPU) on Haitian soil rather than its be subjected to criminal jurisdiction under Haitian law in respect of alleged sexual exploitation and abuse of Haitian minors by the Pakistani FPU.

74  Comment by the WHO on ILC DARIO (UN Doc A/CN.4/609 (2009), s II).

75  UN Doc A/8160 (1970).

76  UN Doc A/47/485 (1992), annex.

77  The view of the OLA was that ‘measures designed to achieve a result other than by means provided for in the Charter are not consistent with the legal order established by the Charter’ (Shraga, n 11 (emphasis in original). See also [1968] UN Juridical YB 195).

78  UN Doc A/CN.4/637/Add.1 (2011), pp 26–7, citing Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) ICJ Rep 1980, p 73 at para 43. The UN Secretariat’s view is that the fundamental differences between international organizations and states and the lack of practice indicate that countermeasures should not have been included in DARIO.

79  DARIO Art 21.

80  United Nations Protection Force (UNPROFOR), United Nations Operation in Somalia (UNOSOM), MONUC, United Nations Mission in Sudan (UNMIS), and United Nations African Mission in Darfur (UNAMID) (UN Doc A/CN.4/637/Add.1, p 25 and ILC, n 22, 46).

81  UN Doc A/CN.4/637/Add.1 (2011), p 25. This has usually been through a third-party claims process implemented by individual peacekeeping missions.

82  ARSIWA Art 25.

83  GA Res 52/247 (1998) and Report of the Secretary-General on third-party liability (UN Doc A/51/389, para 14). The UN regularly offers compensation for property damage caused by peacekeeping operations: see section 7.2, ‘Compensation’.

84  Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1954, p 47. In Certain Expenses of the United Nations (n 32), the ICJ held that the payments of member states must meet all the costs of the UN, including expenditures due as a consequence of responsibility for a breach of international law. See also DARIO Art 40. The ILC commentary to DARIO (n 22) states that Art 40 is of an ‘expository character’ and does not intend to create any further instances in which member states would be held internationally responsible for the act of an organization of which they are members.

85  535 UNTS 199; 564 UNTS 193; 565 UNTS 3; 585 UNTS 147; and 588 UNTS 197. Quoted in ILC, n 22, at 61. Further settlements in connection with the same operation were made with Zambia, the US, the UK, and France, as well as the International Committee of the Red Cross (ICRC) (Schmalenbach, Die Haftung Internationaler Organisationen (2004), 314–21; Ginther, Die völkerrechtliche Verantwortlichkeit Internationaler Organisationen gegenüber Drittstaaten (1969), 166–7 (text of ICRC agreement)).

86  [1965] UN Juridical YB 41; UN Doc S/6597 (1965). The view that the UN placed its responsibility at the international level was supported by Salmon, ‘Les accords Spaak-U Thant du 20 février 1965’ (1965) 11 AFDI 468, at 483 and 487. Cited in ILC, n 22, 61.

87  GA Res 52/247 (1998).

88  [2010] UN Juridical YB 521 (third-party claim against the United Nations Mission in Liberia (UNMIL) for non-consensual use of private premises). The UN’s responsibility to compensate property owners for non-consensual use of private property is set out in UN Docs A/51/489 (1996) and A/51/903 (1997), adopted by GA Res 51/13 (1996) and 52/247 (1998).

89  As of 2016, it was at US$50,000 subject to approval of the GA (UN Doc A/71/40823 (2016), para 62).

90  In a case involving the shooting of a civilian vehicle in the Congo, compensation by the UN was reduced due to the contributory negligence of the driver of the vehicle (Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (1998), 606).

91  [2010] UN Juridical YB 521.

92  The principle that acts performed by the UN or its agents acting in their official capacity entail UN responsibility for damage that may raise from such acts, was affirmed by the ICJ in Difference Relating to Immunity, n 23, 88–9, para 66. Shraga, n 44, 202.

93  GA Res 41/210 (1986) and Rules Governing Compensation to Members of Commissions, Committees or Similar Bodies in the Event of Death, Injury or Illness Attributable to Service with the United Nations.

94  Financial Regulation 5.11 and ST/SGB/2003/7.

95  Financial Rule 105.12.

96  UN Doc A/CN.4/637/Add.1 (2011), p 16.

97  [2010] UN Juridical YB 521–2. See also GA Res 52/247 (1998). The OLA has also recommended ensuring that a Board of Inquiry is convened in such cases. One example is the ex gratia payment recommended where UN soldiers from the United Nations Stabilization Mission in Haiti (MINUSTAH) Brazilian Battalion engaged in a military operation involving local gang members, and a civilian Haitian who was crossing the street was shot in the leg during an exchange of gunfire ([2009] UN Juridical YB 428–30).

98  Contracts concluded by the UN, its subsidiary organs, and other independent organs must contain standard arbitration clauses, set out in the UN General Conditions for Contracts, available at https://www.un.org/Depts/ptd/about-us/conditions-contract. But the initial method for dispute settlement is a negotiation between the UN and the contracting party, which is set out in the standard arbitration clauses. See Schmalenbach, ‘Dispute Settlement’ in The Convention on the Privileges and Immunities of the United Nations and Its Specialized Agencies: A Commentary (eds Reinisch and Bachmayer, 2016), 549–50.

99  DARIO Art 37.

100  With regard to the fall of Srebrenica, the Secretary-General said: ‘The United Nations experience in Bosnia was one of the most difficult and painful in our history. It is with the deepest regret and remorse that we have reviewed our own actions and decisions in the face of the assault on Srebrenica’ (Report of the Secretary-General pursuant to General Assembly resolution 53/35: the fall of Srebrenica (UN Doc A/54/549 (1999)), para 503). After receiving the report of the independent inquiry into the actions of the UN during the 1994 genocide in Rwanda, the Secretary-General stated: ‘All of us must bitterly regret that we did not do more to prevent it. There was a United Nations force in the country at the time, but it was neither mandated nor equipped for the kind of forceful action which would have been needed to prevent or halt the genocide. On behalf of the United Nations, I acknowledge this failure and express my deep remorse.’

101  UN Doc A/CN.4/637/Add.1 (2011), p 32.

102  DARIO Art 33(2) provides that the right to invoke the international responsibility of an international organization is ‘without prejudice to any right, arising from the international responsibility of an international organization, which may accrue directly to any person or entity other than a State or an international organization’. See also DARIO Art 50; and Gaja, ‘Articles on the Responsibility of International Organizations: Introductory Note’ [2014] UN Audiovisual Library of International Law 2, where Gaja states: ‘The purpose of these “without prejudice” provisions is to convey that the articles are not intended to exclude any such entitlement.’

103  Reparation for Injuries Suffered in the Service of the United Nations ICJ Rep 1949, p 174 at 186; cf DARIO Art 45.

104  As regards the EU, whether a claim is addressed to the EU member states or the responsibility of the EU is invoked, exhaustion of remedies existing within the EU would be required (ILC, n 22, 73. See also UN Doc A/CN.4/597 (2008), para 17).

105  DARIO Art 47. In Reparation for Injuries Suffered in the Service of the United Nations, the ICJ found that both the UN and the national state of the victim could claim ‘in respect of the damage caused…to the victim or to persons entitled through him’, and noted that there was ‘no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim. The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense’ (ICJ Rep 1949, p 174 at 184–6).

106  Financing of the United Nations Protection Force (Report of the Secretary-General, 20 September 1996, UN Doc A/51/389, paras 17–18).

107  Shraga, n 11. Shraga, Principal Legal Officer in the OLA in 2011, points out that the perception of exclusive UN operational command and control is ‘often deceptive’, but the UN is keen to maintain the integrity of UN peacekeeping operations vis-à-vis third parties and is likely therefore to continue the practice of recognizing its international responsibility for acts of its peacekeeping operations. It will revert, where appropriate, to the TCC to recover compensation payments made. For explicitly joint operations, the UN has been prepared to share responsibility. It was stated regarding the Second UN Operation in Somalia (UNOSOM II), eg: ‘The 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 before executing orders of the Forces Command. Many major operations undertaken under the United Nations flag and in the context of UNOSOM’s mandate were totally outside the command and control of the United Nations, even though the repercussions impacted crucially on the mission of UNOSOM and the safety of its personnel’ (UN Doc S/1994/653, paras 243–4, cited in ILC, n 22, 22).

108  UN Doc A/CN.4/637/Add.1 (2011), p 10, 13. See also para 15 of the 1990 Model SOFA, providing that a UN peacekeeping operation ‘as a subsidiary organ of the United Nations, enjoys the status, privileges and immunities of the United Nations’ (UN Doc A/45/594, Annex).

109  UN Doc A/CN.4/637/Add.1 (2011), p 13. The UN may nonetheless negotiate recovery of compensation payments, or make arrangement for burden-sharing of responsibilities with TCCs. Art 9 of the model ‘Memorandum of Understanding’ (MOU) between the UN and TCCs provides: ‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this MOU. However, if any 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’ (UN Doc A/C.5/60/26 (2006)), cited in Shraga, n 44, 202.

110  UN Doc A/CN.4/637/Add.1 (2011), pp 13–14. The DARIO imply, but do not state, that conduct of military forces of States or international organizations is not attributable to the UN ‘when the Security Council authorizes States or international organizations to take necessary measures outside a chain of command linking those forces to the [UN]’ (at 16).

111  The OLA has stated, eg, that the responsibility for enforcing the provisions of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora rests on TCCs that are parties to the Convention that retain jurisdiction over the criminal acts of their military personnel ([1994] UN Juridical YB 450).

112  In the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) ICJ Rep 1986, p 14, the ICJ had held that the activities of non-state actors would be attributable if it could be shown that ‘effective control’ was exercised by a state, or that the state’s instructions were given in respect of each operation in which the alleged violations occurred, and not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.

113  Prosecutor v Dusko Tadić (Jurisdiction of the Tribunal), Decision of 2 October 1995 in Case no IT-94-1-AR72; (1996) 35 ILM 32 (Tadić Appeals Judgment), para 120. The Nicaragua–Tadić divide has become the classic example of ‘fragmentation’ in international law. The ILC Study Group on Fragmentation in International Law used the contrast between Nicaragua and Tadić as an example of a ‘normative conflict between an earlier and a later interpretation of a rule of general international law’ (ILC, ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law: Report of the Study Group of the International Law Commission—finalized by Martti Koskenniemi’ (13 April 2006) UN Doc A/CN.4/L.682, p 31).

114  In so far as the ‘overall control’ test was employed to determine whether or not an armed conflict is international—the sole question the ICTY had been called upon to decide—the ICJ admitted that the test might well be applicable and suitable in that context; it did not think it appropriate to take a position on that point in the Bosnia Genocide Judgment, as it was not a question before it (Bosnia Genocide (Judgment), ICJ Rep 2007, para 403). The ICJ observed that the tests for (i) the degree and nature of a state’s involvement in an armed conflict on another state’s territory required for the conflict to be ‘international’, and (ii) the degree and nature of involvement required to give rise to that state’s responsibility for a specific act committed in the course of the conflict, could differ without logical inconsistency (ibid, para 405).

115  In 2005, the ICJ had affirmed its ‘effective control’ test as articulated in Nicaragua in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ Rep 2005, p 168 (Congo v Uganda case). In that case, the Court explained that although Uganda acknowledged giving training and military support to the ‘Mouvement de libération du Congo’, there was no probative and credible evidence that Uganda controlled, or could control, the manner in which such assistance was used. Accordingly, citing the pertinent paragraphs of Nicaragua as well as Arts 4, 5 and 8 of the ILC Articles on State Responsibility, the Court concluded that the requisite tests for sufficiency of control of paramilitaries had not been met with regard to the relationship between Uganda and the ‘Mouvement de libération du Congo’ (Congo v Uganda case, para 160). The question was raised more starkly in the Bosnia Genocide Judgment of 2007, because one of the parties (Bosnia) had expressly argued in favour of applying the ICTY Tadić ‘overall control’ test. Moreover, this time the ICJ and ICTY were both pronouncing on the same conflict—the war in the Balkans in the 1990s.

116  Behrami and Behrami v France; Saramati v France, Germany and Norway Decision (Grand Chamber) of 2 May 2007 on the admissibility of App nos 71412/01 and 78166/01, para 133. While noting ‘the effectiveness or unity of NATO command in operational matters’ concerning KFOR (ibid, para 139), the ECtHR noted that the presence of KFOR in Kosovo was based on a Security Council resolution and concluded that ‘KFOR was exercising lawfully delegated Chapter VII powers of the UNSC so that the impugned action was, in principle, “attributable” to the UN’ (ibid, para 141). The judgment has attracted criticism from various commentators: Bell, ‘Reassessing Multiple Attribution: the International Law Commission and the Behrami and Saramati Decision’ (2010) 42 NYU JILP 501; Bodeau-Livinec, Buzzini, and Villalpando, ‘Behrami and Behrami v France and Saramati v France, Germany and Norway, European Court of Human Rights (Grand Chamber), May 2, 2007’ note (2008) 102 AJIL 323, at 328–9; Klein, ‘Responsabilité pour les faits commis dans le cadre d’opérations de paix et étendue du pouvoir de contrôle de la Cour européenne des droits de l’homme: quelques considérations critiques sur l’arrêt Behrami et Saramati’ (2007) 53 AFDI 43, at 55; Lagrange, ‘Responsabilité des Etats pour actes accomplis en application du chapitre VII de la Charte des Nations Unies’ (2008) 112 RG 85, at 94–5. Following the ECtHR judgment, the Secretary-General stated in his 2008 report on UNMIK that ‘[i]t is understood that the international responsibility of the United Nations will be limited in the extent of its effective operational control’ (UN Doc S/354 (2008), para 16. Cited in ILC, n 22, 23–4).

117  See also, regarding the attribution of KFOR conduct, Kasumaj v Greece, Decision of 5 July 2007 on the admissibility of App no 6974/05 and Gajić v Germany, Decision of 28 August 2007 on the admissibility of App no 31446/02. In Berić and Others v Bosnia and Herzegovina, Decision of 16 October 2007 on the admissibility of App nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, the Court followed Behrami to conclude that that the conduct of the High Representative in Bosnia and Herzegovina had to be attributed to the UN.

118  Al Jedda v United Kingdom [2009] ECHR 408. Shraga, n 44, 204.

119  In one case the conduct was the decision to withdraw the Belgian contingent from a camp in Kigali, abandoning a de facto refugee camp (Makeshimana-Ngulinzira and Others v Belgian State and others, para 38 (unreported, cited in DARIO, at 90, fn 109)). In the Dutch case, it was the decision to expel three Bosnian Muslim men from the compound who were later killed by Bosnian Serb forces in Srebrenica (Netherlands v Hasan Nuhanovic, Supreme Court, First Chamber, 6 September 2013, 12/03324).

120  Netherlands v Hasan Nuhanovic, n 119, paras 3.5.2 and 3.9.4.

121  ibid, para 3.11.3.

122  The OLA has stated the following regarding off-duty acts of members of peacekeeping forces: ‘United Nations policy in regard to off-duty acts of the members of peacekeeping forces is that the Organization has no legal or financial liability for death, injury or damage resulting from such acts…. We consider the primary factor in determining an “off-duty” situation to be whether the member of a peacekeeping mission was acting in a non-official/non-operational capacity when the incident occurred and not whether he/she was in military or civilian attire at the time of the incident or whether the incident occurred inside or outside the area of operation…. [W]ith regard to United Nations legal and financial liability a member of the Force on a state of alert may nonetheless assume an off duty status if he/she independently acts in an individual capacity, not attributable to the performance of official duties, during that designated “state-of-alert” period.…[W]e wish to note that the factual circumstances of each case vary and, hence, a determination of whether the status of a member of a peacekeeping mission is on duty or off duty may depend in part on the particular factors of the case, taking into consideration the opinion of the Force Commander or Chief of Staff’ ([1986] UN Juridical YB 300). For example, the act of a member of the UN Interim Force in Lebanon who moved explosives to the territory of Israel was considered to be an ‘off-duty act’ by the District Court of Haifa in a judgment of 10 May 1979: [1979] UN Juridical YB 205.