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 ( 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.’
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).
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  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).
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,  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’.
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  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  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  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.
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) ( 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.
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  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.
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).
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  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.
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.
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  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.
88  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  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  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 ( 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.
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’  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 ( 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  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.
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’ ( 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:  UN Juridical YB 205.