Attribution of Conduct by State Armed Forces Participating in UN-Authorised Operations: The Impact of Behrami and Al-Jedda

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Abstract

Missions authorised by the UN Security Council in which contributing States act under their own operational command and control have become an enduring part of the international landscape. In the course of such missions, questions have arisen as to who is responsible for the conduct of individual troops where they breach international obligations, including those under international human rights and humanitarian law. This in turn raises the question as to whether such conduct is attributable to the contributing State or organisation in which operational command and control vests, or to the UN itself as the authorising power. This issue was raised recently before the European Court of Human Rights in Behrami and before the House of Lords in Al-Jedda. Behrami, in particular, found that such conduct will frequently be attributable to the UN in such circumstances. These cases are critically examined to determine their validity. Alternative reasoning is explored based on the application of the law of responsibility of international organisations, as opposed to the internal, institutional laws of the UN as applied in Behrami.

Introduction

On several occasions the United Nations Security Council ('UNSC') has 'authorised' one or more willing Member States or other international organisations to use force to discharge a particular security mandate. (1) In carrying out such missions, the mandated States or other entities act under their own operational command. (2) As frequently occurs in warfare, allegations about the commission of some internationally wrongful act by mandated States or organisations have arisen in the course of such missions. The question arises as to who is ultimately responsible for the act. This in turn raises the issue as to whether the act is attributable to the Member States or international organisations discharging the mandate, or to the United Nations ('UN') itself.

The issue is one of extreme importance for international law and the international community. Its resolution determines who may be held responsible for breaches of international humanitarian and human rights law or other international obligations under these missions, and therefore whether and how victims can obtain redress. Since these types of missions appear to be a permanent part of the international landscape, the issue will continue to arise in legal proceedings in international and domestic tribunals.

The recent Grand Chamber of the European Court of Human Rights ('ECtHR') decision in Bebrami v France; Saramati v France, Germany and Norway (3) ('Behrami') and the decision of the United Kingdom House of Lords ('HoL') in R (on the application of Al-Jedda) v Secretary of State for Defence (4) ('Al-]edda') consider this issue in the context of UN mandates in Kosovo and Iraq.

This article first examines the context of and reasoning in these cases. Second, the reasoning in these cases is critically analysed to determine their validity and whether alternative reasoning should have been employed. Finally, the implications of the cases for the international community are examined.

I. Behrami

A. Background, Complaints and Responses

As is well known, a conflict between Kosovar Albanians and Serbian forces erupted within Kosovo in 1998 and 1999. This eventually led to North Atlantic Treaty Organization ('NATO') air strikes between March and June of 1999. Following the air campaign, an agreement was signed providing for the withdrawal of Serbian forces and the introduction of an international security force mandated by a UNSC Resolution ('UNSCR'). On 10 June 1999, the UNSC passed UNSCR 1244 establishing international security and civil presences in Kosovo and authorising the security presence with 'all necessary means to fulfil its responsibilities.' (5)

From June 1999, the Kosovo Force ('KFOR') became the 'international security presence' in Kosovo. …