A Research On Attribution Crite Rion Of Internationally Wrongful Acts Committed During UN Peacekeeping Operations

In the beginning of2000, the United Nations International Law Committee(UNILC hereinafter) got started on drafting the rules of “International Organizations’Responsibility”. And UNILC, on its second reading, approved the Draft articles onthe responsibility of international organizations in2011. To some extent, thisconstituted a new trend in the codification and the development of international rules.Since it is a legal file concerning to international organizations, the scope ofapplication of this rule, in the first place, remind people of the biggest as well as themost sophisticated international organization, the United Nations.As the recipient of Nobel Peace Prize, the UN peacekeeping troops hold asignificant status in maintaining the peace and the safety of the whole world. However,after the Cold War, the peacekeeping troop was sent out on an astonishingly increasedfrequency. The wrongful act conducted by peacekeeping members was exposedgradually, and this attracted great public attention. It is worth noting that the unlawfulacts committed during the UN Peacekeeping operations can be categorized into threetypes: first, it can refer to acts which contravene the institutional laws or rules of theUnited Nations. For instance, acts that go against the binding rules inside the UnitedNations; second, acts that are regarded as unlawful according to certain domestic laws,and a classic example is when the peacekeeping forces are deployed in the hostcountries, they may be involved in various legal relationships with the host countries as well as their citizens; third, acts that betray international law, for example,members of peacekeeping forces may carry out conduct that go against internationalhuman rights law and international humanitarian law. This article only focuses on theattribution criterion of conduct of the third type, excluding conducts that are graveenough to fall into the application scope of the Rome Statute.UN peacekeeping missions operate under the authority of the UN. However, themilitary personnel that constitute a UN peacekeeping mission remain organs of thestates from which they are contributed. Thus, whether unlawful acts committed bypeacekeepers can be attributed to the UN is dependent upon whether the peacekeepingforce can be regarded as being under the direction and control of the UN. This is aquestion of fact. According to the International Law Commission, unlawful actscommitted by peacekeeping forces will be attributed to the UN only where the UNexercised ‘effective control’ over the commission of the unlawful act. In contrast, theECtHR has consistently propounded a very different test, asserting that unlawful actswill be attributed to the UN only where the UN retained ‘ultimate authority andcontrol’ over the peacekeeping mission. I argue, however, that neither of these testsprovides a suitable legal framework for determining attribution of unlawful conduct inthe context of UN peacekeeping missions. After outlining the deficiencies of thesetests, I submit that a more suitable approach to determining attribution would be basedupon the overall control test as outlined by the ICTY in Tadic′.The layout of this dissertation is as follows. It starts with the first chapter whichclarifies the theory basis for the United Nations to bear international responsibility.Whether seen from the perspective of international legal personality or from thelong-lasting practices, the United Nations shall bear responsibility for its unlawfulacts. Although there are many theories about the specific foundations of peacekeepingoperations in the Charter, we nevertheless can find it from the Charter. Therefore, theUnited Nations shall, under certain circumstances, bear responsibilities for unlawfulacts committed during its peacekeeping operations. The second chapter introduces an attribution criterion established by the UnitedNations International Law Commission’s Draft Articles of Responsibility ofInternational Organizations, that is, the criterion of effective control. Whenattributing unlawful acts, ILC first put forward the Multiple Imputation Principle,which means that when an international organization and one or more country jointlycarry out a certain unlawful conduct, successful attribution to one entity does notautomatically excludes the possibility of attribution to another or more at the sametime. This dissertation approves this principle since it can allocate legal responsibilityto pertinent entities more effectively. Meantime, the effective control criterionrequires that an entity exercises effective control over a certain conduct only when ithas exclusive direction and control over it.The third chapter demonstrates the ultimate command and control criterionestablished by the European Court of Human Rights in the famous case of “Behrami&Saramati”. Obviously, the criterion go against the one that is supported by ILC andit only examines whether certain powers have been delegated lawfully, moving eventhe slightest degree of factual control out of the scope of assessment.Last, the fourth chapter, by analyzing the chain of command and control insidethe peacekeeping operations, puts forward that the previously discussed two criterionboth have their own drawback when applied to the UN peacekeeping operation, and amore appropriate criterion that should be used is the test of overall control establishedin the Tadic case by ICTY.In addition, this dissertation is about to point out that the one of the goals ofinternational law that all international subjects shall bear the responsibility validly reston them requires an examination of the possibility of attributing conducts to both theUnited Nations as well as the dispatching states, since contributing countries and theUN controlled the troops jointly. When analyzing the attribution of internationallywrongful acts committed during peacekeeping operations, the Multiple ImputationPrinciple described in UNILC’s Draft Articles on the Responsibility of International Organizations should be considered in the first place, which means to reckon thepossibility of attributing to both UN and contributing countries. However, whendiscussing whether wrongful acts can be attributed to UN, the overall control standardestablished by the ICTY is more suitable to provide a legal frame to discuss theattribution, compared to the effective control standard which is stipulated by the Draftarticles on the responsibility of international organizations and the ultimateauthorization and control standard which is erected by ECHR, taking the complex UNcontrolling structure into account.