Responsibility for peace, and responsibility in war: on the military operation in Mali

 Posted by: Bérénice Boutin

It has been almost two weeks since France began a military intervention to help the Malian army fight Islamist groups controlling the north of the country. The operation — code-named ‘Serval’ — was sparked by the ‘serious deterioration of the situation’ in Mali, after successful offensives by extremists who managed to take over the city of Konna, ‘a frontier town that had been the de facto line of government control’. The action of France, coming about after months of lengthy negotiations attempting to resolve the crisis in Mali, has been overall welcomed by the international community, and reportedly relatively successful in pushing back Islamists. In terms of international law, the military operation raises a number of issues, two aspects of which this blog post will address: the responsibility for maintaining peace, and the responsibility during the conduct of war.

1. RESPONSIBILITY FOR MAINTAINING PEACE

France has repeatedly stated that it was acting in accordance with international law, referring to UN Security Council Resolutions, Mali’s request, and/or Article 51 of the UN Charter to support its claim, but fell short of elaborating which specific legal ground was actually justifying its operation. To begin with, French actions cannot be said to fall within the ambit of UNSC Resolution 2085, which authorized on 20 December 2012 the deployment of an international military force in Mali. Resolution 2085 indeed authorized an African-led International Support Mission in Mali (AFISMA), to be composed of troops from member States of the AU and ECOWAS and other countries in the region. Besides, the Resolution states that ‘the military planning will need to be further refined before the commencement of the offensive operation’. The fact that the UN Secretary-General expressed the hope that the intervention would be ‘consistent with the spirit’ of UNSC Resolutions only confirms that the French operation is not based on any of them. Although authorized by the UN, the deployment of the AFISMA has been protracted inasmuch as the force ‘was not expected to even begin its offensive before next September or October’. In this context, the French operation was a very swift answer to an urgent call for help from the Malian government, at a time where troops from neighboring States were not in the position to rapidly react.

This request by Mali is actually what justifies best the use of force by France. Indeed, pursuant to Article 20 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ASR), valid consent from a State ‘precludes the wrongfulness of that act in relation to’ this State. Accordingly, since Mali solicited France to use force in its territory, the forceful action otherwise wrongful became justified. Some doubts have been raised as to whether the consent expressed by the current Government of Mali, an interim government in place since only a few months and established in the wake of a military coup, can qualify as ‘valid’ in the sense of Article 20 ASR. The legitimacy of a government is indeed an element to be considered in appraising the validity of consent according to ILC commentary to Article 20 (para 5); yet the notion is far from having a settled meaning in international law and rather depends on the perceptions of each State. An unequivocal appraisal of the legitimacy of the Malian Government would be difficult and does not appear necessary for the purpose of Article 20 ASR. What can be demonstrated is that a number of States — which positively considered Mali’s request — are of the opinion that the Government is, so to speak, ‘legitimate enough’ to demand an intervention. Indeed, Mali’s interim President Traoré was admittedly not elected, but was appointed with relative international support, notably from ECOWAS. Besides, the local population has appeared very favorable to the military operation since its inception, confirming the legitimacy of the Government’s consent.

In such a situation of requested intervention within an internal conflict, Article 2(4) of the UN Charter, which prohibits the use of force between States, actually ‘does not come into play’[1]. The absence of inter-State conflict is also why the argument of (collective) self-defense — notably advanced before the UNSC by the Permanent Representative of France to the UN ­— ought to be discarded. As rightly demonstrated by Prof. Christakis and Dr. Bannelier on EJIL:Talk!, it does not make sense to interpret Article 51 of the UN Charter so as to include self-defense against rebel groups in northern Mali.

The operation thus appears justified, and has been overall widely praised by the international community given the urgency of the situation. This formal support however stands in sharp contrast with the very limited concrete support contributed to the operation. A number of Western States have expressed their willingness to contribute logistical support, but none has offered to participate in combat operations. The UK, for instance, has agreed to make transport aircrafts available to France, and even sent a few troops charged with providing strategic support, but stressed that no troops will be deployed in combat operations. Belgium, Canada, Denmark, Germany and the US are amongst the other States which deployed transport planes to help transporting French equipment and troops to Mali. The EU has accelerated the approval of a EU Training Mission (EUTM), but its troops will be focused on training the Malian army, and will not directly help fighting rebels. As mentioned above, African States have the willingness to participate but have a limited capacity to deploy their troops in haste. Many of them confirmed their commitment to send troops for the AFISMA, but ‘even if some troops arrive in Mali soon, training will take more time’, so that help from States able to quickly react is needed until the peacekeeping force is fully deployed.

The various contributions provided are useful and welcome. It is nonetheless striking that most international actors support the intervention, but none of them want to get dirty hands by actually going to war. In other words, many States seem unwilling to share the burden of restoring peace in the area. In his 2004 Report ‘A more secure world: our shared responsibility’, the UN Secretary-General insisted that ‘States should strongly support’[2] and broadly participate in efforts to effectively implement the system of collective security. Whether to participate in a military operation aimed at restoring peace is, in any case, a decision that a State is free to make, so that no strict obligation to engage in a war can be formulated. But the collective duty to ensure that peace is maintained in the world is shared by all States. As long as States remain the only actors with military capacities, the aims of this shared duty can only be achieved by increasing cooperation and promoting a wider participation of States.

2. RESPONSIBILITY FOR WRONGFUL ACTS IN MILITARY OPERATIONS

For those States which decide to actively engage in the conflict comes the risk of having their responsibility engaged for internationally wrongful acts. Responsibility in this strict sense refers to the obligation of reparation incurred by a State when a breach of international law is attributable to it. Some allegations of possible wrongful acts in Mali have been made, concerning summary executions by Malian armed forces and civilian deaths resulting from French air strikes. In this military operation, France and Mali are fighting together against Islamist groups. In terms of attribution, the question arises whether their acts can be individually attributed or ought to be attributed to both.

Although cooperating at the strategic level, French and Malian actions have been up to now clearly separable. The armed forces remain under national command with no unified command over both forces, so that every organ remains fully under the authority of its State. Besides, the two States have at first not engaged in common operations. To retake the town of Diabaly, Malian forces fought on the ground, with French forces ‘providing only air support’, and control of the Gao airport was taken by French ground forces acting alone. In these circumstances, wrongful acts occurring in the operations can be individually attributed to each State under Article 4 ASR.

Complicating factors are however likely to emerge. For instance, French and Malian troops could conduct joint operations. It is debated whether a specific conduct alleged as wrongful can be attributed to two States on the ground that they were jointly acting. Article 47 ASR recognizes that the same internationally wrongful act can be attributed to more than one State, and joint acts are one of the circumstances of possible dual attribution mentioned by the ILC in its commentary to this Article. But unless two soldiers pull the trigger together, it can often be argued that a conduct is individually attributed to the State whose organ was acting. Another layer of complexity is to be added with the progressive arrival of forces composing the AFISMA, as well as troops part of the EUTM. The command structures of the each mission will remain distinct, but they will certainly cooperate and possibly contribute to common injuries. The difficulty in such a situation would be to assess the amount of damages to be paid by each responsible party. In time to come, the multiplicity of actors involved in the conflict will raise complex questions of responsibility, which will assuredly be further discussed on this blog.

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[1] Y. Dinstein, War, Aggression and Self-Defence (5th edn, 2011), p 119.

[2] A more secure world: Our shared responsibility – Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change (2004), p 69.

Providing weapons to Syria: a situation of shared responsibility?

 Posted by: Nedeski Nataša

The continuing conflict in Syria has raised many questions of shared responsibility (see, for example, here and here). This blog post will discuss the issue of the provision of weapons and other military equipment to Syria.

In June this year, Human Rights Watch urged governments and companies around the world to stop signing new contracts (and evaluate existing contracts) with arms suppliers that are providing weapons to the Syrian government, such as the Russian firm Rosoboronexport, and suggested that those providing weapons to the Syrian regime could be regarded as being complicit in the crimes committed by the Syrian army. According to a recent report of the Independent International Commission of Inquiry on the Syrian Arab Republic, these crimes could include crimes against humanity and war crimes. The Chair of the Independent Commission has said that there are ‘grounds to believe that Government forces and the Shabbiha committed war crimes, gross human rights violations and crimes against humanity’ and that similarly, ‘anti-Government forces committed war crimes, including murder, extrajudicial executions and torture’.

Rosoboronexport is not the only actor outside Syria accused of providing material support to Bashar Al-Assad’s regime. On 4 September, the New York Times reported that Iran has resumed shipping military equipment to Syria through Iraqi airspace. According to United States intelligence, it is likely that these planes are carrying weapons and military equipment. Last March, Iranian flights through Iraqi airspace were stopped for some time after Iraq was requested to do so by the United States. However, when these overflights resumed in July, Iraq accepted Iranian assurances that its airplanes carry only humanitarian aid and allowed them passage through its airspace without any form of inspection.

A series of UN Security Council resolutions have imposed an arms ban on Iran, and the latest in line ‘calls upon’ all States to inspect cargo to and from Iran in their territory if the State in question has reasonable grounds to believe it contains prohibited items. The US claims that Iraq has an obligation under these resolutions to inspect the cargo of Iranian planes that are suspected of flying arms to Syria, and accuses Iraq of allowing Iran to transport weapons to Syria through its airspace. These accusations have been reiterated in a Western intelligence report disclosed on 20 September by Reuters. This report states that large quantities of Iranian weapons have been transported to Syria through Iraq, allegedly thanks to an agreement between senior Iraqi and Iranian officials.

Iraq has rejected all accusations, and reported last week that it has denied permission to a North Korean plane to pass through Iraqi airspace because of suspicions that it was carrying weapons to Syria. In addition, an Iraqi government official was quoted this Sunday as saying that authorities will conduct random inspections of Iranian airplanes heading for Syria on suspicion that they might be carrying weapons.

Should the cargo transported by Iranian planes in fact consist of weapons or other military equipment, such material support could be used by the Syrian army to commit gross human rights violations against the Syrian population. While at this point we can do no more than speculate as to what it is these planes are carrying, the facts and allegations cited above raise a range of questions on the possible responsibility of actors that provide support to Syria. Can such actors be regarded as aiding or assisting the internationally wrongful act(s) committed during this conflict?

Reports have drawn attention not only to the support provided to the Syrian regime, but also to the support that opposition forces in Syria have received from actors outside Syria. This allegedly includes military support from Saudi Arabia, Qatar and Turkey, as well as support from the US, France and the UK (which has somewhat curiously been referred to as ‘non-lethal’ assistance). It should be noted that the general rule on aid or assistance in international law deals only with the responsibility of a State providing aid or assistance to another State. It remains a somewhat troubling lacuna that support to opposition forces, at least as a matter of general international law, will not easily engage the responsibility of supporting states for aid or assistance. Of course, it could be argued that States providing support to the Syrian opposition are acting in violation of international law, for example because such conduct is not in accordance with the principle of non-intervention.

For the States that provide support to the Syrian government the legal situation appears to be different. Article 16 of the ILC Articles on State Responsibility (ASR) provides that a State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if a) that State does so with knowledge of the circumstances of the internationally wrongful act; and b) the act would be internationally wrongful if committed by that State. In its commentaries, the ILC further clarifies that knowledge of the circumstances of the wrongful act is not sufficient; a State is only responsible for aid or assistance if it intended to facilitate the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.1)

It is apparent that there are several hurdles to be crossed before responsibility for aid or assistance can be established. In its commentaries to the ASR the ILC has stated that a State may be held responsible if it ‘provides material aid to a State that uses the aid to commit human rights violations’, but only if it was ‘aware of and intended to facilitate the commission of the wrongful conduct.’2) Information about the situation in Syria is widely available, and ‘knowledge of the circumstances of the internationally wrongful act’ is arguably present. However, it is not clear how one would establish that Iran intended for its material support to be used to commit gross human rights violations in the absence of explicit pronouncements illustrating such intent. The intent-requirement has indeed been subjected to serious criticism due to the practical difficulties relating to the establishment of a State’s intent.3)

Another ambiguity relates to the question whether supportive conduct should reach a certain threshold in order to be qualified as aid or assistance. For example, should Syria have used the Iranian weapons for the commission of its crimes in order for Iran to be held responsible for aid or assistance? The ILC’s commentaries in this respect are contradictory. On the one hand, they provide that the aid or assistance need not have been essential for the performance of the internationally wrongful act, but rather require that it should have ‘contributed significantly to that act.’4) This implies that some (undetermined) form of causation should be taken into consideration. On the other hand, however, the commentaries simply state that aid or assistance need not be substantial but ‘may have been only an incidental factor in the commission of the primary act’, contributing ‘only to a minor degree, if at all, to the injury suffered.’5) This disparity makes it particularly difficult to indicate when supportive conduct will be considered as aid or assistance.

A different but related issue concerns aid or assistance provided to States that themselves provide aid or assistance to a wrongdoing State. Iraq’s role may, at least based on the above-mentioned allegations, be an example. Its role would be complicated, as it is not accused of actively providing weapons to Syria but rather of allowing such weapons to pass through its airspace without taking any action. The first question would be whether this conduct should be qualified as active support (which would be the case if Iraq were to give explicit permission for these overflights) or as support by omission.6) While it cannot be excluded that aid or assistance can take the form of an omission, the fulfilment of the requirements set out above in such a case would appear to be more difficult to establish. For example, it would have to be determined whether Iraq’s conduct was a conscious choice aimed at facilitating the transfer of weapons so that they may be used to commit gross human rights violations, or mere passivity (or even inability) lacking any form of intent whatsoever. Moreover, one may wonder whether Iraq should be considered as aiding or assisting Iran by allowing it to provide aid or assistance to Syria, aiding or assisting Syria in the human rights abuses of its people, or aiding or assisting both?

In view of the somewhat clouded nature of the principle of aid or assistance, the question should be considered whether we need at all to evaluate the legal position of, for example, Iran and Iraq in these terms. In a recent book chapter, Olivier Corten and Pierre Klein argue that we should resort to the concept of due diligence in many situations in which aid or assistance cannot be established because of its strict conditions of application7) (the Corfu Channel case and the Application of the Genocide Convention case are analysed to illustrate this argument).

Responsibility for a failure to exercise due diligence can be established without having to establish intent, as it requires only that a State knew or should have known that certain unlawful conduct was likely to occur. In such situations, a State should take those measures that are reasonably within its power to make sure that its territory is not used for activities contrary to the rights of others (in this case, the rights of the Syrian population and, if one were to argue that the Syrian conduct is in violation of an obligation erga omnes, the rights of all States of the international community), regardless of whether the State in question could in fact have prevented the unlawful conduct.

If one were to argue that Iraq knew or should have known of the possibility of Iranian airplanes carrying material support to Syria and of the risk that this support could be used to commit gross human rights violations, this would entail that Iraq is under the obligation to take measures within its power to prevent such unlawful conduct. These measures could reasonably include inspecting the cargo of airplanes that are suspected of carrying weapons and military equipment through its airspace. The same approach could of course be applied to Iran. In this respect one may think of a due diligence obligation of supporting States to make sure that their support is not used for the commission of internationally wrongful acts.8)

Should the international responsibility of all three States be established, it would still have to be determined if and how this responsibility should be shared: who can be held responsible for what, and what does this entail in terms of reparation? The multitude of questions raised by this situation once again illustrate the complexity and importance of the topic of shared responsibility in international law.

 

FOOTNOTES

• 1) International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,2001 (A/56/10), at 66 para. 5↑
• 2) Ibid., at 67 para. 9.↑
• 3) See, also for a defence of the inclusion of the intent-requirement in article 16 ASR, Helmut Aust, Complicity and the Law of State Responsibility (CUP, 2011) pp. 230-249.↑
• 4) Supra note 1, p. 66 para. 5.↑
• 5) Ibid., p. 67 para. 10.↑
• 6) See Georg Nolte & Helmut Aust, ‘Equivocal Helpers – Complicit States, Mixed Messages and International Law’ (2009) 58 International and Comparative Law Quarterly 1 at 10.↑
• 7) Olivier Corten & Pierre Klein, ‘The Limits of Complicity as a Ground for Responsibility: Lessons Learned from the Corfu Channel Case’ in Karine Bannelier et al (eds.), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Routledge, 2011) 315 at 316.↑
• 8) As argued by supra note 6 at 15.↑

On Human Shields: Balancing the Responsibilities of Attackers and Defenders?

 Posted by: Swerissen Isabelle

Professor Yoram Dinstein, a leading authority in international humanitarian law, has been making a whirlwind tour of the Netherlands, giving lectures on various legal issues pertaining to war and peace. One of those lectures featured the topic of human shields. Human shielding involves the use of persons protected by international humanitarian law, such as civilians, to deter attacks on combatants and military objectives.

While certainly not representing a new battlefield phenomenon, human shielding has become more commonplace due to the dramatic asymmetry characterizing many of today’s armed conflicts. Most recently, reports surfaced of human shields being used by forces loyal to former Libyan leader Gaddafi in response to air strikes by NATO. In the face of overwhelming technological superiority, as was the case in Libya, weaker parties to a conflict have embraced shielding as a method of warfare designed to counter attacks against which they cannot effectively defend using conventional weaponry and forces. By making use of human shields instead, it is presumed that the prospect of killing civilians will dissuade the attacker from striking, despite the military advantage that could thereby be gained.

In this blog post, I will highlight one aspect of human shields that may be relevant from the perspective of shared responsibility: the sharing or, more accurately, the balancing of responsibilities between attackers and defenders.

The use of human shields is expressly prohibited by international humanitarian law. Article 51(7) of Additional Protocol I (API) stipulates that ‘[t]he Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations’. This provision stems from the general principle of distinction between combatants and military objectives on the one hand and civilians and civilian objects on the other. The latter shall not be the object of attack pursuant to Article 51(2) API. Article 58 API complements this prohibition by imposing an affirmative obligation on Parties to ‘endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives’. But in the case of human shielding, defenders deliberately fail to comply with these obligations to make things more difficult for attackers.

Do the violations on the part of the defender affect the obligations of the attacker? Put more specifically, does this relieve the attackers from complying with their obligations?

This question should be answered in the negative, according to Dinstein and several other experts. They point to Article 51(8) API which unequivocally states that ‘any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians’.[1] But they are quick to add that, since the defender has failed to live up to its obligations to ensure the safety of civilians, the attacker is effectively saddled with an ‘additional responsibility’ of avoiding injury to them.[2] After all, the attackers must first discern whether individuals are actually involved in shielding and, if so, whether they are acting voluntarily. This is a point made with force by W. Hays Parks, who writes that there was a deliberate attempt during the drafting of API to ‘shift’ responsibility onto the shoulders of the attackers only.[3] Major General A.P.V. Rogers builds on his argument by writing that ‘this is an area where [API] fails to achieve an objective balance’ between the responsibilities of the attackers and defenders and, perhaps, ‘encourages’ the defenders to violate international humanitarian law.[4] The problem is exacerbated by the so-called ‘CNN effect’: the images of dead and injured civilians, even if the result of lawful operations, are likely to get more media attention than the unlawful activities of the defender.[5]

The balance between the responsibilities of the attackers and defenders can, in Dinstein’s opinion, be redressed with the help of the principle of proportionality. Here it should first be observed that international humanitarian law, as it currently stands, does not necessarily bar attack on a military target shielded by civilians, especially when they act of their own volition. Voluntary human shields are generally regarded as civilians who take a direct part in hostilities and, as such, lose their protection from attack.[6] But even the presence of involuntary human shields does not immunize military operations, as long as the number of civilians likely to be injured or killed during an attack is not excessive in relation to the military advantage anticipated.

However, Dinstein pushes the boundaries of the law by adding that ‘the actual test of excessive injury to civilians must be relaxed’ in the case of human shielding.[7] That is to say, ‘the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that – if an attempt is made to shield military objectives with civilians – civilian casualties will be higher’.[8]

While others, such as Rogers, have made remarks along similar lines, I find this a highly peculiar position to take. Note that Dinstein and Rogers do not deny that care should be taken to spare the lives of involuntary human shields. Yet, by virtue of their rebalancing exercise, they come dangerously close to devaluating the human worth of civilian shields and the protections to which they are entitled if there is no commensurate correction of the military objective’s value in the proportionality analysis. Here I find myself more in agreement with Michael N. Schmitt. He argues that, to the extent that there is balancing, it is between the rights of the parties to the conflict (without distinction as to their offensive or defensive character) to pursue legitimate military objectives and the rights of protected persons to be free from the direct effects of warfare; not between the responsibilities of attackers and defenders. Fairness between these two is, in his view, ‘not the issue’.[9]

Although a full analysis of this complex issue is beyond the scope of this blog, the positions articulated here demonstrate that defenders and attackers in certain respects have a shared responsibility towards protected persons. Indeed, if defenders fail to abide by their obligations, it is up to the attackers to do their share. However, the exact modalities and limitations of such sharing – as evidenced  by the operation of the proportionality principle – remain, as so many other issues of shared responsibility, controversial.

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[1] See also Article 60(5) of the Vienna Convention on the Law of Treaties which provides that ‘treaties of a humanitarian character, in particular … provisions prohibiting any form of reprisals against persons protected by such treaties’ may not be terminated or suspended as a consequence of its breach by one of the parties.

[2] W. Hays Parks, Air War and the Law of War (1990) 32 Air Force L. Rev. 1, 163.

[3] ibid.

[4] A.P.V. Rogers, Law on the Battlefield (Juris Publishing / Manchester University Press: Manchester, 2004) 129.

[5] ibid.

[6] Article 51(3) API.

[7] Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press: Cambridge, 2004) 131.

[8] ibid.

[9] M.N. Schmitt, Book Review: Law on the Battlefield (1998) 8 U.S. A.F. Acad. J. Legal Stud. 255, 268-267.

Obligations of the UK in respect of a Pakistani national detained by the US in Afghanistan

 Posted by: Nollkaemper André

At Lawfare, Robert Chesney notes an decision of the UK Court of Appeals (Civil Division) of 14 December that raises interesting questions of shared responsibility. The case is Yunus Ramhmatullah v. Secretary of State for Foreign and Commonwealth Affairs et ano. The Court, by an opinion of the Master of the Rolls, held that a Pakistani man (Yunus Rahmatullah) held by the US military in Afghanistan may pursue a habeas corpus petition against the UK’s Secretary of State for Defence and for Foreign and Commonwealth Affairs.

Yunus Rahmatullah was captured in Iraq by British forces in 2004 and then transferred to US custody. In 2004 the US moved Yunus Rahmatullah from Iraq to Afghanistan. Despite the fact that a US Detainee Review Board determined in 2010 that the applicant was not an enduring security threat, he remains at Bagram, which, as noted by the lower court, was said to be ‘notorious for human rights abuses’. In May 2010, the applicant’s cousin learned that he was detained at Bagram, and filed the writ of habeas corpus that led to the present judgment.

The ‘SHARES’ aspect of the case is that under international law, the UK maintain obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US.

In case of Rahmatullah not being treated in conformity with the Geneva Conventions, both under the Third (Article 12) and the Fourth (Article 45) Geneva Convention, the UK had the obligation to take effective measures to correct the situation or request his return.

At the time, the UK certainly was aware of this obligation. To ensure US willingness to protect persons transferred by the UK to the US, and their return if so requested, in 2003 a Memorandum of Understanding was concluded between the UK and the US Governments. This provided that the transfer of persons will be implemented in accordance with the Geneva Conventions, that detainees transferred by the UK to the US would be returned to the UK without delay upon request by the latter, and that the rendition to territories outside Iraq of transferred detainees ‘will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.’

The combined effect of the Geneva Conventions and the MoU, thus, is that the UK retained obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US. The UK retained the obligation to secure his return and through this end any breach of his rights at the hands of the power to which he had been transferred. In other words, these provisions both form the basis of a possible shared responsibility of the UK and the US, and a procedural means for the UK to avoid breaching its own obligations.

Based on these provisions, Yunus Rahmatullah now applied for a writ of habeas corpus – in effect asking the UK to exercise its rights under the Geneva Conventions and the MoU. The Secretary of State argued that Yunus Rahmatullah was under the  control of the US Government and that the writ  should be rejected.

The Court found otherwise. It held that in the light of the Geneva Conventions and the MoU, there was ‘a substantial case for saying that the UK Government is under an international legal obligation to demand the return of the applicant, and the US Government is bound to accede to such a request.’ It found that the Government had provided insufficient evidence to conclude that such action could not be effective.

Interestingly, the Court found it unnecessary (and ‘inappropriate’) to address the question ‘whether, by not taking that course, it might, conceivably, be said that as a result of the combination of Section 1 of the 1957 Geneva Conventions Act and Article 130 of Geneva III, the UK Government could be aiding or abetting a “grave crime”’ (the Court here presumably referred to Geneva III). The question may indeed be premature, but the scenario is not entirely unrealistic and indeed may induce the negotiation of  agreements such as the MoU in question that enable states to exercise their responsibility vis-à-vis detained persons.

The case illustrated how states, through the Geneva Conventions and, as added security, the MoU, ex ante make sure that they retain the rights necessary to perform obligations incumbent on them. In addition it demonstrates how responsibility may continue, even after control is transferred.

Dual attribution: liability of the Netherlands for removal of individuals from the compound of Dutchbat

 Posted by: Nollkaemper André

On 5 July 2011, the Court of Appeal of the Hague decided that the State of the Netherlands had acted unlawfully and is liable for evicting Bosnian nationals from the compound of Dutchbat in Srebrenica on 12 July 1995. Ibro Nuhanovic, Muhamed  Nuhanovic, Nasiha Nuhanovic and Rizo Mustafic were subsequently killed by Bosnian Serbs, as part of what the ICTY and the ICJ later found to be acts of genocide.

The decision adds another chapter to the tortuous attempt of the Netherlands to cope with its multiple failures, with dramatic consequences, in its policies and decisions regarding the conduct of Dutch peacekeeping troops in Srebrenica in 1995, In 2002, the Government of then prime minister Wim Kok resigned after a report held it partly to blame for the failure to offer protection in Srebenica. At the time, Kok said that he accepted political, but no legal responsibility. Almost ten years later, the Court of Appeal has made clear that the responsibility is not only political, but that the Dutch policy in regard of Srebrenica also has engaged its legal liability.

When not overturned by the Supreme Court, the decision of the Court of Appeal will stand as a groundbreaking ruling on the possibility of dual attribution of an act (or omission) to the United Nations (UN) and a troop contributing state, in this case the Netherlands.

Ibro Nuhanović, Nasiha Nuhanović and Muhamed Nuhanović were respectively the father, mother and brother of Hasan Nuhanović, an interpreter who worked for Dutchbat, a Dutch battalion under command of the United Nations peacekeeping force UNPROFOR. On 12 July 1995, he was with other refugees inside the compound protected by Dutchbat. After Srebrenica had fallen, the refugees were taken away by the Bosnian Serbs. Local staff of Dutchbat who were employed by the UN and had a UN identity card were allowed to stay in the compound. Hasan Nuhanović had such a card, but Ibro, Nasiha and Muhamed Nuhanović were compelled to leave the compound the following day. All three were killed.

Rizo Mustafic had since 1994 been working as electrician for Dutchbat. After the fall of Srebrenica, Mustafic had sought refuge on the compound with his family. Though he wanted to stay, he was removed from the compound. He then was separated from his family and killed by Bosnian Serbs.

Relatives of Nuhanovic and Mustafic brought a tort claim against the State of the Netherlands. Their main claim was that the State had committed a wrongful act (tort) and that it should compensate any damage incurred as a consequence of that wrongful act.

In September 2008, the District Court of the Hague rejected the claims of the families of Nuhanovic and Mustafic against the Netherlands holding that the acts of Dutchbat could only be attributed to the UN. Nuhanovic and Mustafic then appealed.

The Court of Appeal in the Hague quashed the first instance judgment of the District Court and found that the disputed conduct was attributable to the Netherlands, and that the Netherlands had acted wrongfully. Three aspects of the decision require brief comments: 1) the disputed conduct 2) attribution of the conduct 3) wrongfulness of the conduct.

1. THE DISPUTED CONDUCT

An important preliminary point is that the Court only rules on the actual removal of Nuhanovic and Mustafic from the compound, not on any failure of the Netherlands to subsequently protect them.

Plaintiffs based their claims on both the removal of Mustafic and Nuhanovic from the compound and on the failure to intervene when Mustafic and Nuhanovic were (outside the compound) separated from their relatives.

The Court only rules on the first of these claims. The plaintiffs had asked that the State had committed a wrongful act (tort) and that it should compensate any damage incurred as a consequence of that wrongful act. Since that claim could be sustained on the basis of the findings of the Court in regard to the first claim, considering the second claim (however interesting that would have been for other cases) would not have led to a different outcome and the Court thus does not consider that claim (par. 6.22). This means that the judgment in respect of the wrongfulness of the conduct of the Netherlands in principle is strictly limited to the active removal from the compound.

This limits the possible relevance of the decision for other claims in connection to the conduct of Dutchbat in Srebrenica or comparable peacekeeping operations. However, the Court did also rule on the legal implications of the instructions of general Gobillard (UNPROFOR) ‘to take all reasonable measures to protect refugees and civilians in your care’, and thus may have broader implications for obligations to protect of peacekeeping forces and troop contributing states.

2. FINDINGS ON ATTRIBUTION OF CONDUCT

The Court of Appeal holds that the question of attribution should be decided solely on the basis of international law. Plaintiffs had argued that the question of attribution should have been decided on the basis of national (ie Bosnian) law, probably in view of the case-law on attribution of the European Court on Human Rights (ECtHR), which present substantial hurdles to a finding of attribution of conduct to a troop contributing state.

The Court rejects the argument that it should rule on attribution on the basis of Bosnian law and states that the question whether troops have been put at the disposal of the UN, and what the contents and consequences of an agreement to that effect are (including the consequences for a civil liability claim) should be assessed on the basis of international law (par. 5.3.2).

The Court adds however that even if it would have answered the question under Bosnian law, the outcome would have been the same since Bosnian law does not contain a relevant rule on attribution and that the Court therefore should have relied on international law to fill the gap (par. 5.4).

Against this background, the decision of the Court of Appeal essentially rests on a three-fold construction of the principles of attribution.

◆    First, it determines that the standard for attribution is ‘effective control’. In doing so, it rejects the standard for attribution of conduct that was used by the District Court (‘operational overall control’), the standard used by the ECtHR in Behrami (‘ultimate authority and control’) as well as the basis of attribution that the UN itself believes to be correct when it claims that peacekeeping troops are to be considered as subsidiary organs of the UN.  However, the Court does align itself with the criterion formulated in article 7 of the Draft Articles of the International Law Commission on the Responsibility of International Organizations, as adopted by the International Law Commission on second reading on 3 June 2011. This article has had broad support from states, and this aspect of the decision of the Court thus rests on solid ground.

◆    Second, the Court takes the position that for determining whether the state had effective control it is not only relevant whether the act was an implementation of a specific instruction by either the United Nations or the State,

‘but also whether, if there is no such specific instruction, if the United Nations or the State was able to prevent the conduct in question.’ (par. 5.9, author’s translation).

That is: the removal of Nuhanovic and Mustafic from the compound could be attributed to the Netherlands, if the Netherlands was able to prevent that removal. The exact language used by the Court is a matter of some importance. The Court says, in Dutch, that for determining whether there is effective control, it is relevant whether the UN or the Netherlands ‘het in zijn macht had het het desbetreffende optreden te voorkomen’. This could be translated by ‘had the power to prevent the conduct in question’, but because of the various connotations of ‘power’, the translation in terms of ‘being able’ is to be preferred. In any case both the Dutch words and the translation can either be interpreted in legal or factual terms, and their construction follows from the remainder of the judgment, as analysed below.

◆   Third, directly implied by the preceding point, the Court states that

‘it is possible that more than one party has ‘effective control’, and that it therefore is not excluded that application of this criterion leads to attribution of conduct to more than one party’. (par. 5.9)

In view of its finding on the possibility of dual attribution, the Court leaves aside the question whether the United Nations also possessed effective control, and it proceeded to examine whether the State exercised effective control over the disputed action. That it could do so follows from the individual nature of attribution. In such a case of possible dual attribution, the question whether an act can indeed be attributed to the UN would not affect its attribution to the Netherlands. Under the principles adopted by the ILC, it would also not affect the liability of the Netherlands and its possible obligation to provide reparation.

The Court does not elaborate on the first of these three steps (it limits itself to referring to the ILC Commentary), nor on the third (other than stating that the possibility of dual attribution is ‘generally accepted’ – somewhat of an overstatement, but the third step as such rests on solid ground). In contrast, much of the decision explains, in not always clear reasoning, what it means to exercise effective control, that is, in the construction of the Court, not only whether the state gave a specific instruction or whether the state was ‘able to prevent the conduct in question’.

The construction of effective control in terms of ability to prevent an act seems to differ from the ILC’s construction, which emphasizes ‘the factual control that is exercised over the specific conduct taken by the organ or agent placed at the receiving organization’s disposal’ (par 3 of the 2009 Commentary to what now is art. 7 of the DARIO). But this certainly does not mean that is therefore wrong.

Interestingly, this approach is quite close to a position defended by Tom Dannenbaum in a recent seminal piece on attribution on peacekeeping operations (‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’, 51 Harv. Int’l L.J. 113 (2010)). This piece was relied on by counsel for the plaintiffs and is cited by the Court (though on another point). Dannenbaum writes that ‘effective control (…) is held by the entity that is best positioned to act effectively and within the law to prevent the abuse in question’ (p. 158): His interpretation ‘aims at ensuring that the actor held responsible is the actor most capable of preventing the human rights abuse.’  The Court’s approach bears a close similarity to this reasoning.

Saying that a state exercises effective control in regard to a particular act if it is able to prevent that act may be open a wide door. Does a troop contributing state not always have the factual possibility to send orders or instructions to its nationals who serve in a UN operation if that is necessary to make them act in a certain way or to prevent them from acting in a certain way? If one accepts this position, conduct of peace keeping forces almost by definition can be attributed to the state (whether or not in parallel to the UN), since there was always the possibility for that the state to exercise control in a way that prevents the impugned conduct from occurring. In effect, this comes close to the position that some scholars have taken that conduct of contributing troops can always be attributed to both the sending state and the UN.

While there is much to say for this position from a theoretical and a normative perspective, there is little practice that supports this broad construction. Likewise, the comments by states and international organizations to the DARIO do not offer much support for this construction. The Court therefore rightly backs away from this broad construction of dual attribution.

The Court emphasis that effective control should be assessed in the concrete circumstances of the case, not in terms of an abstract possibility to exercise control. In its reasoning, whether control is ‘ effective control’ depends both on the factual and the formal aspects of control in a specific context.

As to the factual nature, the Court appreciates effective control in concreto and states that the disputed conduct in question (the removal of Nuhanovic and Mustafic from the compound) was directly connected to decisions and instructions of the government of the Netherlands. After 11 July, the UN and the Dutch government had decided to evacuate Dutchbat with the refugees. The Court found that during this process of evacuation, the Netherlands was actively involved in the process of evacuation. For instance, the Court notes that together with UN force commander Janvier, two Dutch military officials took, on behalf of the Dutch Government, the decision to evacuate Dutchbat and the refugees. The Court concludes that the government in the Hague actually instructed the Dutch military officials. It also notes that the Dutch General Nicolai fulfilled a double role because he acted both for the UN and for the government of the Netherlands.

It is in this factual context that the removal of Nuhanovic and Mustafic from the compound has to be assessed. The Court find this to be a consequence of the way in which the evacuation from the compound was organized and the way the instructions from the government were implemented (par 5.19-5.20).  The Court thus infers from the fact that the Netherlands Government in fact was closely involved in the evacuation, that the removal of Mustafic and Nuhanovic from the compound had to be attributed to the Netherlands. It tellingly notes that if the Government would have given Dutchbat the order to keep Mustafic and Nuhanovic on the compound, that order would have been implemented.

In other words: it is not the abstract possibility that the state could intervene and order its nationals who act as part of a peacekeeping mission to act in a particular way that triggers effective control. Rather, it was the specific factual situation in which the government in fact was so involved with the evacuation that it has be assumed that its orders would have been effective, that triggers effective control.

It might well be argued that even if the Netherlands had until that moment not been involved at all, an order from the Hague to keep Mustafic and Nuhanovic on the compound, would have been implemented just as well. In such a case, the Netherlands would not yet have exercised any form of control, but it always could have done so. However, that mere possibility would not have been sufficient as a basis of attribution in terms of the ILC’s construction, and it appears that likewise for the Court it was not the abstract possibility of control that mattered, but the actual exercise of control, that made the possibility of prevention more than a theoretical one.

However, the Court does not limit itself to a factual account of the involvement of the Netherlands government as a basis for its finding on effective control. The Court connects the ability to prevent an act (and thus the existence of effective control) with the legal power (or the normative control) to do so. On this point two aspects should be distinguished.

First, the Court emphasizes that a troop contributing state retains formal power in regard to personal and disciplinary matters, as well as to withdraw the troops (par 5.10). For instance, it states that the removal of Nuhanovic and Mustafic from the compound was contrary to the instructions of general Gobillard to protect refugees, and that the State had the authority (or: legal power) to take disciplinary measures against these acts (par .5.18).

It would seem that what the Court means is that when a battalion fails to act to protect civilians in a situation where it should offer such protection (certainly if that required by the mandate or by specific instructions given by the UN), the state not only can as a factual matter act, but also has the legal authority to do so. This points directly to possible attribution to the state. This finds some support in the ILC’s commentary, which argued that attribution based on effective control is linked with the retention of these powers by the state (par 6 of the 2009 Commentary to what now is art. 7 of the DARIO). This construction is also in line with the abovementioned construction of attribution by Dannenbaum, who argues that  effective control is held by the entity that is best positioned to act effectively ‘and within the law to prevent the abuse in question’ (p. 158, emphasis added).

While in this particular case this reasoning has a rather narrow scope (it is limited to conduct by which specific individuals were evicted from the compound against orders of the UN to protect them and indeed against both Bosnian and international law), there may a broader implication of this reasoning. If we accept an obligation of peacekeeping forces to protect (for instance on the basis of the Genocide Convention), it may be argued that the state should on that basis intervene or at least take disciplinary measures against those who act contrary to that obligation. Such an obligation thus could not only provide a ground for wrongfulness but, in the reasoning of the Court of Appeals, also a ground for attribution. Though plaintiffs had relied on the Genocide Convention and in particular the ICJ’s interpretation of prevention of genocide, the Court of Appeals does not pursue this – neither in relation to attribution nor in relation to  wrongfulness (as it finds wrongfulness on other grounds).

Second, the Court appears to attribute legal relevance to the fact that the peacekeeping operation had entered a new phase on 11 July. The Court found that during this process of evacuation, not only the United Nations but also the government of the Netherlands formally had authority (‘zeggenschap’) over Dutchbat, because this concerned the preparation of the withdrawal of Dutchbat from Bosnia-Herzegovina.

While this new situation (transition of a functioning peace keeping mission to the evacuation of Dutchbat) primarily is relevant to explain the factual involvement of the Netherlands, it also has direct legal relevance. It allows the Court to distinguish this case from the facts in the Behrami case, that the Court considers as an example of the ‘normal situation’ in which troops that have been put at this disposal of the UN function. The State of the Netherlands had strongly relied on Behrami, and as indicated earlier this even caused plaintiffs to opt for Bosnian law. This fear of Behrami proved unjustified. The distinguishing factor was that after July 11 the mission to protect Srebenica had failed. As Srebrenica had fallen in the hands of the Bosnian-Serbs, Dutchbat, or UNPROFOR would no longer continue the mission (par. 5.11). The decision to evacuate Dutchbat and the refugees was taken in mutual consultation between Janvier (on behalf of the UN) and high representatives of the Netherlands.

It is noted that it is by no means to be accepted as a given that in the ‘normal’, Behrami type of situation the acts would exclusively be attributed to the UN – even in such cases a strong argument can be made that there can be double attribution (see eg A. Sari, Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases, Human Rights Law Review 2008, 151). But the Court does not enter that path since it considered the facts to be different.

In this respect the judgment bears some similarity to the decision of the Belgium Court of First Instance of Brussels of 8 December 2010, where the Court found that the failure by the UN peacekeeping contingent to prevent the killing of Tutsis’ in the 1994 Rwanda genocide could be attributed to Belgium in a situation where the Belgian government had decided to withdraw itself from the peacekeeping operation (Mukeshimana-Ngulinzira and others v Belgium and others, First instance judgment, R.G. n° 04/4807/A et 07/15547/A; ILDC 1604 (BE 2010), 8 December 2010). Counsel for the plaintiffs has relied on this case, but the Court does not refer to it.

It is to be added that while this legal context gave the Netherland legal authority to act, and allowed the Court to find that the Netherlands had effective control, it does not follow that in the absence of legal authority a troop contributing state cannot exercise effective control. This was accepted by the District Court (which on this point was relied upon by the ILC), that held that

‘Acts of Dutchbat might have been attributable to the state had Dutchbat been instructed by the Dutch authorities to ignore UN orders or to go against them, and Dutchbat behaved in accordance with this instruction from the Netherlands. The same would have been true if Dutchbat to a greater or lesser extent had backed out of the structure of UN command, with the agreement of those in charge in the Netherlands, and considered or shown itself as exclusively under the command of the competent authorities of the Netherlands’

Thus: an (effective) instruction to Dutchbat will in all  cases lead to a finding of effective control and thus to attribution to the Netherlands – with or without legal authority. What is specific for the case at hand is that there was no instruction, but an involvement combined with legal authority that enabled the Netherlands to act – it was that ability that was the basis of attribution.

3. FINDINGS ON WRONGFULNESS

Based on the finding that the Netherlands had effective control and that the disputed conduct had to be attributed to the Netherlands, the Court then finds that the acts were wrongful. It rejected the argument of the Netherlands that the acts of Dutchbat in Bosnia-Herzegovina should exclusively be assessed on the basis of international (and not national law). Apart from questions of immunity, the acts of peace keeping forces remain subject to the national legal order, and in principle thus can lead to liability in a tort action under Bosnian law (that was the applicable law on the basis of Dutch rules of private international law). While the Court bases attribution on international law, it thus based its finding on wrongfulness primarily on national law. This can be explained in part by the fact that the Court found that Bosnian law did not contain a relevant rule on attribution. But as indicated above, for the Court this was only a subsidiary argument; its prime argument being that attribution between two subjects of international law should be decided on the basis of international law. While that may be true, the question should be raised whether the legal status of individuals in international law should not imply that also the question of wrongfulness, and responsibility, should be considered under international law, which would allow the Court to maintain a connection between primary and secondary rules. For the outcome that probably would not have a difference, but it would from the perspective of international law have been a more consistent approach.

The possibility of basing wrongfulness on international law is recognized by the Court itself. Even though the Court opts for determination of wrongfulness under Bosnian law, it adds that the acts were also wrongful based on a breach of the principles contained in articles 2 and 3 ECHR and 6 and 7 ICCPR (right to life and right to freedom from inhumane treatment), arguing that these principles have to be considered as part of customary international law that bind the state. The Court adds that it assumes that the State, which had argued that the treaties were not applicable to acts of Dutchbat in Bosnia, did not aim to argue that it should not comply with the principles contained in articles 2 and 3 ECHR and 6 and 7 ICCPR during peacekeeping missions such as that of Dutchbat.

The Court did not deal with the argument advanced by counsel that the human rights treaties were applicable based on effective control on the compound – an argument that was supported by the judgment of the ECtHR two days later in Al-Skeini and Others v. the United Kingdom (application no. 55721/07).

Perhaps to protect itself against claims that the application of human rights standards to extraterritorial military actions is controversial, the Court adds that on the basis of art. 3 of the Constitution of Bosnia-Herzegovina, the rights in question have direct effect and that since in any case the ICCPR was in force for Bosnia in 1995, articles 6 en 7 ICCPR are part of the Bosnian law and have supremacy over any conflicting rules of Bosnian law.

The Court then determines on the basis of the facts that the commanders in question (Karremans and Franken) should have known that the Bosnian men who were to be ‘evacuated’ from the compound faced a real risk of being killed or at least being subjected to inhumane treatment. It follows that Dutchbat on the basis of Bosnian law and the directly applicable rights of the ICCPR was not allowed to send Mustafic and Nuhavonic from the compound and that the state thus acted wrongfully. It adds that Mustafic and Nuhanovic would have been alive if they would not have been removed, and that there thus was a causal connection between the removal and their death (without considering any possible intervening factors, that broke the causal chain, as the ICJ did in the Genocide Case in looking at the relationship between Serbia’s failure to prevent and the eventual genocide that occurred).

The Court concludes that, on the basis of article 155 of the Law of Contracts of Bosnia and Herzegovina, the state is liable for the immaterial damage of the plaintiffs in this case.

The Court did not yet make a final ruling on reparation due to the fact that it still wishes to examine a possible breach of the right to a fair trial in connection to a replacement of the judges in the District Court – a matter that is left aside here.

4. CONCLUSION

In many respects, this was a ‘hard case’. The voluntary eviction of own employees, in the face of clear evidence of threatened death and genocide, while there were ample possibilities to offer protection, constitutes a rather unique and extreme set of facts. It seems inevitable that these facts influenced the interpretation and construction of the relevant legal principles.

Whether the decision will survive a possible cassation with the Supreme Court remains to be seen, but it should be observed that the Supreme Court cannot revisit the facts, and the facts in this case strongly support the claim of the plaintiffs. Likewise, the Supreme Court cannot revisit questions of foreign (Bosnian) law. If the Supreme Court would annul the decision, it would have to be based on a different interpretation of the principles of international law – something that has never been done in the history of the Supreme Court. While there is a first time for everything, this is neither to expected nor to be desired. The decision of the Court of Appeal in large part is solidly based in positive international law. In its innovative parts, it is a major contribution to the clarification and development of the principles pertaining to the (dual) attribution of acts of peacekeeping troops.

The departure from the dominant black and white approach that was adopted in Behrami, is to be welcomed. As such it is also supported by the ECtHR itself, that on 7 July 2011 in Al-Jedda v. the UK (application no. 27021/08) held that  ‘The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations.’ (para. 80)

Given these unique facts, and given the fact that attribution was based on the active involvement of the Netherlands in the evacuation process (a mere possibility to intervene would not have been enough) and that the case rests largely on the fact that the mission de facto had been completed, one should be very cautious in using the judgment as a possible basis for other claims in regard to liability of troop contributing countries.

However, the main message of the Court of Appeal (effective control, and thus attribution, depends on a test of ‘appreciation in concreto of the ability to prevent’) may apply to broader situations. Depending on the facts, attribution can be approached as a sliding scale, that includes on the far sides exclusive attribution to the UN and exclusive attribution to the troop contributing state. In the middle of this continuum, in factual situations where both the state and the UN have normative control and are factually are involved, dual attribution is the proper approach.