What Responsibility for States Participating to a Lesser Extent to the NATO Operation in Libya?

 Posted by: Bérénice Boutin

As usually for international military operations led by an international organization, States participating in the NATO-led Operation Unified Protector placed their military contingents under the operational command of NATO.  However the Rules of Engagement – which define the conditions under which members of a national contingent can engage force – may differ amongst participating States.

The Netherlands, for instance, decided to send planes to Libya but limited their mission to providing support in enforcing the UNSC Resolution, while forbidding them to participate in ground bombings.  In military terms, the Dutch forces can provide surveillance, intelligence or air-to-air refuelling, but they do not engage in air-to-ground missions. This limited engagement probably stems from a will of limiting the Dutch responsibility in case of a wrongful act of the coalition. However, one can wonder to what extent the Netherlands could be held liable for the injuries resulting of wrongful acts of the Operation Unified Protector.

The first question is whether acts of contributed troops would be attributable to the contributing States at all. Indeed, it is well established that when an international organization is entrusted with operational command and control over national contingents, the acts of the troops are presumably attributable to the organization under Article 6 DARIO, as it would a priori have effective control over the acts of the troops. Nevertheless, it is now more often argued that attribution of the acts of troops to an organization does not exclude attribution to the State of the contingent, where this State exercised effective control over its troops as well. Therefore, the acts of troops could possibly be attributed to States and not only to NATO. The rationale for dual attribution in international military operations lies in the share of authority and control that a State necessarily retains over its own troops in the form of training obligations and disciplinary powers, which provides him with some level of effective control over its troops. The wrongful acts of the troops could thus be attributed to their sending State if they are the result of insufficient training and/or discipline.

Further to attributing acts of troops to the sending State together with NATO, one could envisage the joint responsibility of all participants in the NATO-led operation, in the sense that wrongful acts would be attributable to each State. This argument was made by Brownlie in his pleading in the Case concerning the Legality of the Use of Force.  The argument of the joint responsibility of NATO member States for their military operations seems to rely on the specificity of NATO being a military alliance through which States act. However, this progressive argument leading to holding the Netherlands responsible for acts it did not itself commit is probably not the strongest.

More convincingly, the responsibility of States limitedly involved in the operation could be sought on the ground of aid and assistance given in the commission of an internationally wrongful act. The supportive role of the Dutch planes, providing surveillance and intelligence, could easily qualify as aid and assistance provided to the main coalition partners. This aid was provided with the full knowledge of how it will be used and with the view of facilitating the operations. In that case, the State would not be directly responsibility for the wrongful act itself. However, as shown by the Corfu Channel case, the liability obligation arising from indirect responsibility could maybe consist of an obligation to make full reparation for the injury. In other words, a party injured by a bombing could attempt to claim full reparation from the Netherlands even though it would not be responsible for the direct violation.

Finally, a State participating in the Operation could be responsible if it was in breach of its duty to ensure respect of International Humanitarian Law by other parties. Again, the responsibility would be based on a wrongful act distinct from the main violation, but an injured party could seek to recover full reparation.

This short overview demonstrates that there are avenues to hold a State liable for injuries caused by the military operation, even though that State wanted to limit its involvement and responsibility.

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.