Ivory Coast and Shared Responsibility: Is Everybody Responsible?

 Posted by: Jacobs Dov

Cross-posted on Spreading the Jam

Ivory Coast is quickly becoming a political nightmare. Indeed, with the evidence of crimes being committed by Gbagbo forces, as well as by Ouattara’s supporters, the international community is faced with a dilemna: if it turns out that Ouattara is indeed condoning such actions, how can he be supported by the world community, if it is to be consistent with calls for removal of other leaders who have alledgedly been involved in such situations, such as Khadafi in Libya? The result of such consistency would however be a political vaccum that might create more chaos in the country.

Beyond this political dimension, the situation raises interesting issues of Shared Responsibility. In her previous post, Bérénice considered the Shared Responsibility of France and the UN in Ivory Coast. One issue that needs to be considered in addition to that is the question of the responsibility for the crimes being committed on the ground, by both sides, which is even more complex.

Indeed, this is a case of Shared Responsibility which involves several types of entities, several levels of responsibility and types of obligations from various areas of law.

The first level is obviously the individual responsibility of those committing the crimes, which would arguably fall under several categories of International Criminal Law (ICL), whether under the war crimes of the crimes against humanity label. Still within ICL is the command responsibility of the military, but also civil, leaders.

The second level requires looking at the entities to whom those crimes can be attributed. Interestingly, because Ouattara has been recognised by the entire international community as the legitimate representative of Ivory Coast, you can argue that the State Responsibility of Ivory Coast could be invoked. Also, and to make things even more interesting, it appears that mercenaries from other countries, more particularly Liberia, are involved. Depending on the facts, this could give rise to either direct responsibility of Liberia, should it be wilfully supporting the mercenaries, or, alternatively, failure to exercise due diligence, at least over its own territory and borders, if it could have prevented such a situation.

The third level is that of the responsibility of external entities, more particularly France and the UN, not only for their actions as considered by Bérénice, but also for actions by the parties to the conflict. The first angle that one could adopt, is their failure to exercise its responsibility to protect, as an emerging, but strongly debated and contested, norm of international law. Should the actions fall under genocide (there is some evidence that specific tribes are being targetted), it could trigger the specific duty to prevent that was recognised (if haphazardly applied) by the ICJ in the Genocide Case (PDF) in relation to Serbia. The second possible angle is complicity. Indeed, this might seem a little far fetched, but to the extent that the international community has been positively supporting Ouattara, not only politically, but also militarily, by targetting exclusively Gbagbo forces, couldn’t it be seen as an active participant in the conflict (I have argued elsewhere against the fiction of neutral external intervention), and therefore be help responsible if the party it supports commits crimes that were foreseeable? this certainly raises issues of knowledge and intent which, under their current definition in international might not cover such situations, but the question should at least be considered.

An “unlikely scenario” that occurred in Ivory Coast… And a case for shared responsibility between the UN and France

 Posted by: Bérénice Boutin

In follow-up to Security Council Resolution 1975, and in response to recent attacks against civilians and the United Nations mission, the international forces in Ivory Coast recently launched operations against the Gbagbo camp. The “unusually robust” reaction seems to have been triggered by the attacks by the armed forces loyal to Gbagbo directed against the United Nations Operation in Côte d’Ivoire (UNOCI) Headquarters. The impartiality of a UN operation directly targeting Gbagbo has been quickly questioned, but it can easily be shown that “the fact that Gbagbo’s troops attacked the UN justifies the punishing response”. These events prompt two questions of international law.

 

SELF-DEFENSE IN CASE OF AN ATTACK AGAINST A UN PEACEKEEPING MISSION

In an article recently published in the International Organizations Law Review, Paolo Palchetti analyzed an “unlikely scenario”, namely, the right to self-defense in case of an armed attack against a UN peacekeeping mission. Insisting on the well-known specific status of peacekeepers being part of an international force while still being an organ of its sending State, he demonstrates that the UN but also the contributing States have a right to self-defense.

The situation gets a bit more complex here because it is not the UNOCI that actually conducted most of the recent operations in reaction to the Gbagbo’s attacks. Rather, the French forces composing the Opération Licorne did so. Present in Ivory Coast since 2003, the Opération Licorne is distinct from the UNOCI and placed under French command. The French forces have a mandate (Resolution 1962 of 21 December 2010) to act in support of the UNOCI, and progressively evolved as a Quick Reaction Force (QRF) able to deploy an operation very quickly. It is in this context that the Secretary General was able to call for help by the French forces in support of the UNOCI.

In case of such a deployment, the UN Commander is provisionally given tactical command (TACOM) over the QRF. This means that the UN commander can assign tasks to the French operation, while the French commander retains operational command and control (OPCOM and OPCON), ie the authority to direct and deploy the troops.

The argument of self-defense could be raised if the forces were accused to act beyond their mandate.

 

SHARED RESPONSIBILITY BETWEEN THE UN AND FRANCE

In international military operations, the attribution of wrongful acts of primarily depends on the command and control arrangements between the actors involved. The UNOCI being under the command of the UN, its acts are presumably attributable to the UN under Article 6 DARIO, while shared attribution with the contributing State cannot be excluded in case of shared effective control. On the other hand, the acts of the French troops of Opération Licorne are presumably attributable to France, which holds command and control over them.

But in the case of the operations conducted by the UN and France this week, the question whether there is a case of shared responsibility deserves consideration.

It would be unconvincing to argue that effective control over the troops of Opération Licorne is shared amongst France and the UN. The TACOM granted to the UN Commander is not sufficient to attribute acts to the UN, as the French remains in full control of their forces.

What cannot be denied is that the operations were planned and conducted together. Troops of both forces were involved. It is thus arguable that the operations qualify as a joint action of the UN and France. A joint action perpetrated in whole by two or more co-authors is fully attributable to each of the co-author as an action of its own. In the case at hand, not only has the operation globally be constructed in concert by both, specific operations have actually be conducted together. Just today, helicopters of both forces fired at the residence of Gbagbo. Such operation certainly raises questions of responsibility, and the answer could well be that the responsibility is shared amongst the UN and France, to both of which possible breaches of international law will be attributable.

An “unlikely scenario” that occurred in Ivory Coast… And a case for shared responsibility between the UN and France

Posted by:

Bérénice Boutin

Topics:

Military Operations

In follow-up to Security Council Resolution 1975, and in response to recent attacks against civilians and the United Nations mission, the international forces in Ivory Coast recently launched operations against the Gbagbo camp. The “unusually robust” reaction seems to have been triggered by the attacks by the armed forces loyal to Gbagbo directed against the United Nations Operation in Côte d’Ivoire (UNOCI) Headquarters. The impartiality of a UN operation directly targeting Gbagbo has been quickly questioned, but it can easily be shown that “the fact that Gbagbo’s troops attacked the UN justifies the punishing response”. These events prompt two questions of international law.

 

SELF-DEFENSE IN CASE OF AN ATTACK AGAINST A UN PEACEKEEPING MISSION

In an article recently published in the International Organizations Law Review, Paolo Palchetti analyzed an “unlikely scenario”, namely, the right to self-defense in case of an armed attack against a UN peacekeeping mission. Insisting on the well-known specific status of peacekeepers being part of an international force while still being an organ of its sending State, he demonstrates that the UN but also the contributing States have a right to self-defense.

The situation gets a bit more complex here because it is not the UNOCI that actually conducted most of the recent operations in reaction to the Gbagbo’s attacks. Rather, the French forces composing the Opération Licorne did so. Present in Ivory Coast since 2003, the Opération Licorne is distinct from the UNOCI and placed under French command. The French forces have a mandate (Resolution 1962 of 21 December 2010) to act in support of the UNOCI, and progressively evolved as a Quick Reaction Force (QRF) able to deploy an operation very quickly. It is in this context that the Secretary General was able to call for help by the French forces in support of the UNOCI.

In case of such a deployment, the UN Commander is provisionally given tactical command (TACOM) over the QRF. This means that the UN commander can assign tasks to the French operation, while the French commander retains operational command and control (OPCOM and OPCON), ie the authority to direct and deploy the troops.

The argument of self-defense could be raised if the forces were accused to act beyond their mandate.

 

SHARED RESPONSIBILITY BETWEEN THE UN AND FRANCE

In international military operations, the attribution of wrongful acts of primarily depends on the command and control arrangements between the actors involved. The UNOCI being under the command of the UN, its acts are presumably attributable to the UN under Article 6 DARIO, while shared attribution with the contributing State cannot be excluded in case of shared effective control. On the other hand, the acts of the French troops of Opération Licorne are presumably attributable to France, which holds command and control over them.

But in the case of the operations conducted by the UN and France this week, the question whether there is a case of shared responsibility deserves consideration.

It would be unconvincing to argue that effective control over the troops of Opération Licorne is shared amongst France and the UN. The TACOM granted to the UN Commander is not sufficient to attribute acts to the UN, as the French remains in full control of their forces.

What cannot be denied is that the operations were planned and conducted together. Troops of both forces were involved. It is thus arguable that the operations qualify as a joint action of the UN and France. A joint action perpetrated in whole by two or more co-authors is fully attributable to each of the co-author as an action of its own. In the case at hand, not only has the operation globally be constructed in concert by both, specific operations have actually be conducted together. Just today, helicopters of both forces fired at the residence of Gbagbo. Such operation certainly raises questions of responsibility, and the answer could well be that the responsibility is shared amongst the UN and France, to both of which possible breaches of international law will be attributable.

The MSS Case: Shifting Burdens and Evading Responsibilities?

 Posted by: Swerissen Isabelle

The European Court of Human Rights issued a landmark ruling in the case of M.S.S. v. Belgium and Greece on 21 January 2011. The case concerned the expulsion of an asylum seeker to Greece by the Belgian authorities in application of European asylum law. Not only is this judgment extraordinarily rich, it also exposes serious flaws in the current European asylum regime.

The Common European Asylum System (CEAS) was established to reduce ‘asylum shopping’ and ensure minimum standards of protection to asylum seekers across the European Union. So far, so good.

The Dublin II regulation, which is an important part of the CEAS, determines which Member State is responsible for the examination of an asylum application and allows them to deport asylum seekers to the country where they first entered the European Union. For geographical reasons, southern and southeastern European countries, including Greece, receive the greatest share of asylum seekers. After all, they form the closest port of entry into Europe. The result: unbalanced burden-sharing among the various European countries. Just take a look at Italy which is currently trying to deal with hundreds of thousands fleeing Libya. Here the trouble starts.

The Court has acknowledged these challenges by saying that “the States which form the external borders of the European Union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers” (para. 223). Yet, by recalling the absolute character of Article 3 of the European Convention on Human Rights, it also underlines that the Dublin regulation (and a minimalist reading thereof) do not absolve Member States of their responsibilities vis-à-vis that Convention or other applicable international treaties, including the 1951 Refugee Convention.  Belgium and Greece are thus held individually responsible for violating their own human rights obligations.

How then is this case relevant from the perspective of shared responsibility? An interesting question is to what extent Belgium can be held responsible for the violations on the part of Greece? By virtue of the CEAS there arguably is a collective obligation on the Member States of the European Union to protect refugees, predicated on the presumption that all participating states can and will provide generally equivalent protection to those in need.

However, in the case of Greece, that presumption has been rebutted. Countless reports of NGOs and international instances such as UNHCR, Amnesty International and the European Committee of Torture have documented the structural deficiencies that plague the Greek asylum procedure. The Court therefore argues that the Belgian authorities must have been aware of the risks they were exposing the applicant to by returning him to Greece (para. 358).

I therefore wonder whether it can be argued that these authorities had a perception of risk that makes them subject to responsibility – not only for exposing the applicant to conditions in Greece that amount to violations of the Convention, but also for the violations themselves?

A valid question, especially in light of the fact that the Court has already held more than one state responsible in the past (albeit in circumstances that cast doubt on the credibility of its findings). The Court, in the Ilascu case, found that the breaches of the applicants’ rights under Articles 3 and 5 were attributable to both defendant states – Moldova and Russia.

And even though the Court does not pronounce itself on the possibility of multiple responsibility in this particular case, we may still be able to infer a difference in degree of responsibility from the respective damages that were awarded to the applicant. Pursuant to Article 41 of the Convention, Greece was held to pay the applicant some €6.000 in compensation whereas Belgium was fined to the tune of a whopping €30.000!

So where does this judgment leave us? It has dealt a severe blow to the principle of inter-state confidence in the CEAS. The Court considers that transferring states should not just “assume”, but must actively “verify” that other Member States will comply with their human rights obligations (para. 359). In practice, this means that, when an issue arises under Article 3, they are obliged to apply the so-called ‘sovereignty clause’ (read: suck it up and handle the examination of an asylum application themselves). However, this fails to remedy the principal problem: southern and southeastern European states will still receive far more asylum seekers than western European states. The question is how these problems of sharing responsibility can be better dealt with in the future?

Business, Human Rights and Shared Responsibility

 Posted by: Jacobs Dov

On the 21 March 2011, after six years of research, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations issued its final report which includes its guiding principles on Business and Human Rights. The general idea of the guidelines is to guarantee the implementation of the UN “Protect, Respect and Remedy” Framework. In this sense, the guidelines are a combination of references to “hard rules” and recommendations to improve prevention of violations of human rights.

A few brief points of interest, both in general and in relation to Shared Responsibility.

First of all, this is another striking confirmation of the trend towards the horizontalisation of human rights. Not only do States have Human Rights obligations, but so do business enterprises (see guideline 11). The idea that private entities can violate “human rights” has certainly entered the public domain, but its conceptual consequences are often ignored. What does it say of the nature of human rights? What does it mean for other branches of law, such as tort law or criminal law?

Second of all, it is interesting to see that, contrary to the trend in many human rights institutions towards the ‘criminal law’-oriented approach to punishing human rights violations, the guidelines provide for a wide range of possible remedies, which they call ‘grievance mechanisms’, and don’t particularly insist on criminal investigations and sanctions. It would be interesting to know if this can be an important UN contribution to this debate, or is just circumscribed to the area of the guidelines.

Third of all, the guidelines require that States promote human rights in the multilateral institutions they are members of (guideline 10). This is certainly interesting from the point of view of the unity/fragmentation debate, and more specifically in relation to the debate that exists in most specific regimes of international law about the articulation with HR law.

Finally, this could be a perfect case study for Shared Responsibility in International Law. For one, the guidelines clearly indicate that States should minimise human rights violations by businesses in other countries, thus going beyond the traditional jurisdictional criteria for HR obligations. This necessarily leads to questions of joint responsibility between various States (the State where the violations occured, and the State of ‘origin’ of the business). Second of all, in the relation between the States and the Businesses, there is no clear indication of the distribution of responsibility should any human rights violations occur. Finally, the guidelines, if they were to evolve as ‘solid’ obligations, could more particularly have far-reaching consequences in conflict situations. Indeed, the guidelines require that States support business respect for Human Rights in conflict-affected areas (guideline 7), and consider that businesses should “treat the risk of causing or contributing to human rights abuses as a legal compliance issue wherever they operate” (guideline 23, my emphasis). This is a strong obligation based on risk and could possibly cover any business with any government in the world that might have a poor track-record in human rights, more particularly in relation to graves breaches of international criminal law.

In a nutshell, if you combine this with the extra-territorial jurisdiction mentioned above and the traditional debate about ‘complicity’ of States and businesses in war-torn countries, you have an elaborate web of possibly responsible entities, with no clear indication as to how exactly to distribute responsibility among them. In this sense, and if only for that, the guidelines should be welcomed as yet another testimony to the utility of SHARES…