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

By Van Der Toorn, Damien | Australian International Law Journal, Annual 2008 | Go to article overview

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


Van Der Toorn, Damien, Australian International Law Journal


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.