Attribution of conduct by State armed forces participating in UN-authorised operations: the impact of Behrami and Al-Jedda.

• Author: Van Der Toorn, Damien

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.

1. Behrami

1. 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. As provided by UNSCR 1244, KFOR was led by NATO and consisted of troops contributed by NATO Member States (including France, Germany and Norway). (6) The UN Interim Administration in Kosovo ('UNMIK') became the 'international civil presence' in Kosovo. UNMIK was formed as an organ of the UN by the Secretary-General and was led by his Special Representative. (7)

   In March 2000, Bekir and Gadaf Behrami were playing in the hills near Mitrovica in Kosovo when they picked up an unexploded cluster munition dropped by NATO during the air campaign. It exploded, killing Gadaf and blinding Bekir. Their father, Agim, complained to the ECtHR on behalf of himself and his son that France (as the contributing nation to KFOR responsible for the area) had known about the unexploded cluster munitions and had failed to properly mark and clear them. It was alleged that this inaction by French troops amounted to a breach of article 2 of the European Convention on Human Rights ('ECHR') which protects the right to life. (8)

   In April 2001, Ruzhdi Saramati was arrested by UNMIK police on suspicion of attempted murder and the illegal possession of a weapon. He was later released, but was re-arrested at a police station in Prizren (an area for which Germany was the responsible KFOR-contributing nation) on the orders of the Commander of KFOR (a Norwegian officer) because he was thought to have had involvement with certain armed groups. He applied to local courts for release on several occasions, but was denied on the basis that only KFOR (by this time, led by a French commander) were competent to so order. He was eventually convicted of attempted murder, but this was later quashed by local courts and sent for re-trial. Saramati alleged that his detention amounted to an unlawful deprivation of liberty by, variously, France, Norway and Germany (9) under article 5 of the ECHR. (10)

   France, Norway and Germany (as well as other third party States) challenged the complaints on the basis that the applicants were not 'within their jurisdiction' under article 1 of the ECHR and that the complaints were therefore inadmissible. One of the key reasons advanced in support of this position was that the conduct of individual troop-contributing nations of KFOR (including France, Germany and Norway) was solely attributable either to NATO or the UN and that, for this reason, the ECtHR had no competency to examine the matter. (11) This became the central issue for the ECtHR in this particular decision, even though the court might potentially have decided the case on other grounds, such as the extra-territorial application of the ECHR. (12)

2. ECtHR's Decision as to Attribution

   Having found that issuing detention orders fell within the security mandate of KFOR and that the supervision of de-mining fell within the mandate of UNMIK, (13) the ECtHR turned to the question of whether the conduct of the respondent States as part of KFOR and UNMIK could be attributed to the UN.

   To answer this question, the ECtHR first examined the framework for the establishment of KFOR and UNMIK under Chapter VII of the UN Charter. The court noted that 'the UNSCR 1244, inter alia, recalled the UNSC's "primary responsibility" for the "maintenance of international peace and security"' (14) and that the UNSC had determined that a 'threat to international peace and security' existed in Kosovo. (15) UNSCR 1244 also referred expressly to Chapter VII of the UN Charter, which provides the basis for the UNSC's collective use of force. (16)

   The ECtHR found that, in response to this threat, the UNSC had authorised 'Member States and relevant international organizations to establish the international security presence in Kosovo ... with all necessary means to fulfil its responsibilities'. (17) UNSCR 1244 provided that the security presence would have 'substantial [NATO] participation' and had to be deployed 'under unified command and control'. (18) It noted that UNSCR 1244 did not specify the basis in Chapter VII under which it was acting, although there were a number of possible bases, including article 42 (19) read in conjunction with article 48, (20) and the exercise of 'implied powers' under the UN Charter. (21)

   According to the ECtHR, political realties have meant that the UNSC has to rely on willing Member States and other international organisations to perform the collective security role on behalf of the UNSC. (22) This is primarily because no 'Article 43 agreements' have been concluded between Member States and the UNSC for the former to contribute military forces for the purpose of maintaining international peace and security. (23)

   The ECtHR then examined the nature of the powers exercised by the UNSC in establishing KFOR and UNMIK. It found that the UNSC had 'delegated to willing organisations and Member States ... the power to establish an international security presence [KFOR] as well as its operational command' and that 'troops in that force would operate ... on the basis of UN delegated and not direct, command.' (24) The ECtHR also found that the UNSC was 'delegating civil administration powers to a UN subsidiary organ (UNMIK) established by the SG.' (25)

   Although UNSCRs generally use the term 'authorise', the ECtHR found that the UNSC was in fact 'delegating' its security powers to KFOR. By 'delegation', the ECtHR meant the 'empowering by the [Security Council] of another entity to exercise its function'. (26) This could be contrasted with the act of '"authorising" an entity to carry out functions which it could not itself perform.' (27)

   The court then considered the validity of this delegation of power by the UNSC. It held that, although the UNSC may delegate its security powers, such a delegation must be 'sufficiently limited to remain compatible with the degree of centralisation of UNSC collective security constitutionally necessary under the Charter'. (28) The court here was referring to the primary responsibility of the UNSC under the UN Charter for the maintenance of international peace and security and the alleged...