Article 5 of the International Law Commission's Draft Articles on the Responsibility of International Organizations prescribes the use of the 'effective control' test to determine the attribution of conduct of United Nations peacekeeping forces. A close examination of UN command and control arrangements, however, suggests that art 5, as it is currently understood, may not allow for the comprehensive attribution of conduct as it does not fully take into account the complex arrangements governing the employment of military contingents contributed by UN member states to UN peacekeeping operations. In this regard, the premise upon which art 5 is based may need to be revisited and a new approach considered, to ensure that the conduct of such forces is accurately imputed and that responsibility is correctly attributed to the actors concerned.
II The Law on Responsibility of International Organisations
and the Attribution of Conduct of Peacekeepers
III The UN and International Responsibility
IV Command and Control in the Current UN Peacekeeping Context
V Prevailing Thinking and Practice on the Attribution of Conduct
VI Can the UN Really Have 'Effective Control' of Peacekeepers?
VII Attributing the Conduct of Peacekeepers--Determining a
Article 5 of the International Law Commission's ('ILC') Draft Articles on the Responsibility of International Organizations ('Draft Articles') utilises the 'effective control' test to attribute the conduct of state organs placed at the disposal of international organisations ('IO's). (1) Although only adopted provisionally by the ILC, art 5--or the principle it reflects--has been invoked by a number of international and national tribunals in recent cases pertaining to the conduct of international military forces in peace operations. These have included the European Court of Human Rights in Behrami and Saramati, (2) the House of Lords in Al-Jedda (3) and the District Court in The Hague in HN v The Netherlands, (4) giving art 5 significant importance in terms of its legal application. As peace operations continue to expand in scale, scope and complexity, the issue of the attribution of the conduct of international military forces deployed in such operations is likely to continue to feature before such tribunals. This is particularly due to the corresponding increase in the range of situations in which force will be employed as well as the intensifying attention in recent years on violations of international humanitarian law ('IHL') and international human rights laws ('IHRL') and other misconduct by such forces.
In this regard, this commentary seeks to reflect on the efficacy of art 5 in the attribution of conduct--one of the two constitutive elements of international responsibility--with respect to kiN peacekeeping operations ('PKOs'), focusing in particular on its correlation with UN command and control arrangements. (5) The discussion will focus solely on the attribution of the conduct of formed 'blue-helmet' military contingents in UN PKOs, and not that of UN military observers, civilian police or civilian personnel, which have a different status as experts or officials on mission and are governed by different rules and arrangements, for instance, in terms of privileges and immunities. (6) Non-UN-led peace operations will be addressed only in so far as their command and control arrangements provide relevant insights, although the conclusions suggested in this commentary are also relevant to such peace operations. The commentary begins with a review of the law governing the attribution of the conduct of peacekeepers (Part II) as well as the UN's stance on international responsibility (Part III), before moving on to consider command and control arrangements in the current UN peacekeeping context (Part IV) and prevailing thinking and practice on the attribution of conduct (Part V). …