Responsibility of the UK for detentions in Afghanistan: questions of attribution of conduct

 Posted by: Bérénice Boutin

In a decision of 2 May 2014, the British High Court of Justice held that the United Kingdom (UK) was responsible for the continued detention of an individual in Afghanistan, in violation of human rights law. The decision has already been commented on, notably here, here and here, focusing on the affirmation by the Court that the UK’s international human rights obligations applied to the non-international armed conflict in Afghanistan. This post will briefly address another important aspect of the decision, that of attribution of conduct.

The case was brought by Serdar Mohammed, an Afghan national who had been captured by British forces part of the NATO-led International Security Assistance Force (ISAF) in April 2010 on the suspicion of being a member of the Taliban. He remained detained without charges until July 2010, when he was transferred to Afghan authorities. He claimed compensation from the UK for a breach of his right to liberty under Article 5 ECHR.

Apart from finding that the detention was in breach of applicable human rights obligations, the Court engaged in a relatively extensive discussion of whether the disputed conduct was to be attributed to the UK (paras 158–187, pp 47–55), thereby adding a new stone to the debate on allocation of responsibility in international military operations.

The Court answered the question of attribution in two steps: first, it determined to whom the conduct of ISAF should be attributed as a matter of principle, and then asked whether the detention itself should be considered an act of ISAF or whether it actually was an act of the UK. A number of scholars have considered such a two steps method appropriate to implement the test of effective control: they have suggested to first identify which entity is presumably responsible in view of command arrangements before enquiring whether a specific conduct was actually controlled by the troop-contributing State.[1]

The Court wrongly concluded that the conduct of ISAF was in general attributable to the UN because it possessed ‘ultimate authority and control’, but correctly held that the specific detention of Serdar Mohammed was to be attributed to the UK. These two parts of the reasoning of the Court on attribution are explained below.

Grounding once again its argument in the Behrami and Saramati cases, the UK had contended that since British forces in Afghanistan were operating as part of the ISAF – a NATO force that was authorised by the UN – the conduct should be attributed to the UN. If courts in Al-Jedda could distinguish the situation in Iraq from the one in Kosovo on the facts, the Court was here bound to recognise the close similarity of the case at hand with the detention of Mr Saramati by the NATO-led KFOR:

177. […] It seems to me that the chain of delegation of command for ISAF is essentially similar to the chain of delegation and command for KFOR, as described in the judgment of the European Court in the Behrami and Saramati cases.

The British Court did not dismiss Behrami and therefore held that, prima facie, the conduct of ISAF was attributable to the UN:

178. In these circumstances, although I do not find the question easy, I consider that the UN Security Council has “effective control” (and “ultimate authority and control”) over ISAF in the sense required to enable conduct of ISAF to be attributed to the UN. Thus, if the detention of [Serdar Mohammed] had been authorised by [ISAF] […], I would expect the European Court to hold that the detention was not attributable to the respondent state, applying the same analysis as it did in the Behrami and Saramati cases.

As often denounced with regard to the Behrami decision, holding the UN responsible for the conduct of forces over which it has no control makes little sense and is not in line with the established test of effective control. Under this test, the conduct of ISAF should rather have been prima facie attributed to NATO which was vested with operational command over the force. The UN only authorised the deployment of ISAF and did not have operational control over its activities in the field. The conduct of ISAF should therefore not have been considered as a conduct of the UN.

While the argument on attribution of ISAF conduct to the UN is weak, the Court nonetheless reached a reasonable conclusion in the second step of its reasoning. It analysed the distribution of authority between NATO, ISAF and the UK, and demonstrated that the detention of Serdar Mohammed was exclusively under the authority of the UK.

Indeed, the Court showed that, as far as detention operations were concerned, the UK was acting independently from ISAF, according to its own policies and through its own channels. Under ISAF’s rules, individuals could be detained for up to 96 hours after which they had to be transferred to Afghan authorities. Considering that ‘detaining individuals beyond 96 hours can yield vital intelligence’, the UK decided to adopt a different policy allowing longer detentions by its troops. As a result, detention operations by British troops in Afghanistan have been conducted under the direct authority of the British Ministry of Defence:

180. […] the chain of command for authorising detention set out in the MOD Standard Operating Instruction J3-9 shows that the detention authority is the Commander of Joint Force Support (Afghanistan) (“Comd JFS p(A)”), who reports directly to the UK Permanent Joint Headquarters (“PJHQ”), which in turn reports to the MOD. By contrast, the chart shows that the relation between the UK detention authority and the ISAF chain of command is one of liaison and coordination only.

Considering that the disputed ‘detention was authorised and reviewed exclusively by UK officials and Ministers’, the Court held that the conduct was attributed to the UK which actually exercised authority over this part of the operation, and not to the UN and NATO.

In effect, the Court demonstrated that the specific disputed conduct was under the effective control of the UK which concretely exercised authority over its troops in detentions matter. The conclusion of the case is therefore in line with the principle enshrined in Article 7 ARIO.

Like in Nuhanovic, attribution of conduct of international forces to the contributing State is justified by a clear link between specific government’s decisions over operational matters and the disputed conduct. In Nuhanovic, the Dutch government was in close contact with the contingent commander and had directly instructed to evacuate the compound. In the case at hand, the direct control of the UK government over detentions justified to attribute the conduct to the State.

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1. See eg: A Sari, ‘UN Peacekeeping Operations and Article 7 ARIO: The Missing Link’ (2012) 9(1) International Organizations Law Review 7; M Zwanenburg, Accountability of Peace Support Operations (Martinus Nijhoff, Leiden, Boston, 2005) at 100.

Responsibility of the Netherlands for the conduct of Dutchbat: overview of the Supreme Court decision

 Posted by: Bérénice Boutin

On 6 September 2013, the Dutch Supreme Court confirmed that the Netherlands was responsible in relation to the death of three Bosnians in Srebrenica. Finding no ground for cassation, it upheld the 2011 decisions of the Court of Appeal of The Hague, concluding the last stage of proceedings in the important cases of Nuhanović and Mustafić. These cases are remarkable in that a remedy is finally provided to some victims, but also because they comport a number of important findings for the debate on the shared responsibility of States and international organizations for the conduct of peacekeepers. Notably, the Supreme Court unequivocally recognizes the possibility of multiple attribution, notably under the test of effective control (para 3.11.2).

For those not familiar with the cases, their specific factual circumstances must be recalled. The cases of Nuhanović and Mustafić are based on a limited claim that the Dutch contingent to UNPROFOR (Dutchbat) wrongfully forced a few individuals to leave a compound where they had sought refuge. Following the capture of the enclave of Srebrenica in July 1995, about 32 000 civilians took refuge in and around the nearby industrial compound where Dutchbat was stationed. The Dutch government and UNPROFOR commanders rapidly agreed to evacuate the compound and withdraw forces, and Dutchbat commander Karremans met with Mladic to attempt to negotiate the safe evacuation of the refugees. Refugees started being evacuated by buses of the Bosnian-Serb army, and it quickly became clear that refugees, specially able-bodied men, were being murdered. Nonetheless, Muhamed Nuhanović, Ibro Nuhanovic and Rizo Mustafić were forced to leave and died. Relatives of these three individuals brought two almost identical claims before Dutch courts to upheld the responsibility of the Dutch State for the wrongful removal by Dutchbat.

In 2008, the District Court rejected the claims on the ground that the alleged conducts were attributable to the UN alone. In 2011, the Court of Appeal ruled in favor of the victims, finding the State responsible on the basis of effective control (see here). The Dutch State, which has always maintained that the UN should be responsible for the conduct of Dutchbat, brought the cases to cassation. In these landmark decisions, the Dutch Supreme Court confirmed the responsibility of the State for the conduct of forces engaged in peacekeeping operations.

1. Attribution

In previous instances, victims maintained that their claim, including the issue of attribution, was to be decided under Bosnian law (applicable through Dutch private international law). Here, victims did not challenge the finding that attribution had to be decided under international law, thus the Supreme Court proceeded on the assumption that ‘the question of attribution should be answered solely in accordance with the rules of international law‘ and pointed the ILC Articles on the Responsibility of States (DARS) and the ILC Articles on the Responsibility of International Organizations (DARIO) as relevant instruments (paras 3.6.2, 3.7).

The Court rejected the State’s submission that ‘Dutchbat’s conduct should, in principle, always be attributed to the United Nations’ (para 3.10.1) under Article 6 DARIO. It rightly considered that, even if Dutchbat was a UN organ during the time of the mission, it did not cease being an organ of the Netherlands, which – as any State contributing troops to a military operation – retained ‘organic command‘ (that is, disciplinary powers and criminal jurisdiction) over its troops (para 3.10.2). Referring extensively to the ILC commentaries, the Supreme Court confirmed that Article 7 DARIO is the relevant rule for the attribution of the conduct of peacekeepers.

On the question of multiple attribution, the State submitted that ‘international law excludes the possibility […] that both the United Nations and the State had effective control’ and inter alia suggested that multiple attribution of the same conduct was not possible in the ILC framework. The Supreme Court dismissed this claim as an ‘incorrect interpretation of the law’ (para 3.11.2). It pointed out that, according to the ILC Commentaries, ‘articles 6-9 DARIO do not necessarily mean that conduct must be exclusively attributed to an international organization – thereby resulting in the exclusive responsibility of the international organization – but instead leave open the possibility of conduct being attributed to an international organization and a State, which would then result in dual attribution to the international organization and the State concerned‘, and added that ‘Article 48(1) DARIO therefore expressly leaves open the possibility of more than one State or organization being held responsible for the consequences of an internationally wrongful act’ (para 3.9.4).

Further, the Supreme Court upheld the interpretation that, to exercise effective control, ‘it is not necessary for the State to have countermanded the command structure of the United Nations by giving instructions to Dutchbat or to have exercised operational command independently’ (para 3.11.3), and confirmed that during the transitional period of withdrawal where the Stare was closely involved, ‘not only the United Nations but also the Dutch government in The Hague had control over Dutchbat and also actually exercised this in practice‘ (para 3.12.2). By these decisions, the Supreme Court impotantly confirmed that a State exercising some degree of effective control cannot hide behind the UN when it comes to responsibility for the conduct its contingent.

2. Wrongfulness

The Court of Appeal had held the conduct wrongful on the basis of alternatively Bosnian torts law or international law (art 2 and 3 ECHR, art 6 and 7 ICCPR). Under Dutch law, the Supreme Court cannot review ‘in the cassation proceedings the correctness of these rulings of the Court of Appeal in so far as they are based on application of the domestic law of Bosnia and Herzegovina’. In its decisions, the Supreme Court could therefore confirm the wrongfulness of the conduct on the sufficient basis of Bosnian law (para 3.15.5).

Nonetheless, the Court addressed the State’s submission that the ECHR and ICCPR were not applicable extraterritoriality. It took the opportunity to ‘observe, by way of obiter dictum’ that the Netherlands derived competence in Srebrenica from the Status of Force Agreement concluded with Bosnia and Herzegovina, and therefore exercised ‘jurisdiction within the meaning of article 1 ECHR in the compound‘ (para 3.17.3).

The Court powerfully concluded by asserting that courts should not refrain from holding a State responsible on account that it was engaged in a peacekeeping operation. It observed: ‘far-reaching restraint is unacceptable. Nor is this altered by the fact that the State expects this to have an adverse effect on the implementation of peace operations by the United Nations, in particular on the willingness of member States to provide troops for such operations. This should not, after all, prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent‘ (para 3.18.3).

With its clear stance on multiple attribution, effective control, and judicial review, it is expected that the Supreme Court ruling will have some impact on future cases of responsibility in military operations before domestic courts and the ECtHR.