The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ario

in International Organizations Law Review
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The commentary to Article 7 of the Articles on the Responsibility of International Organizations (on lent organs) clearly singles out disciplinary authority and criminal jurisdiction as factors relevant to locating effective control and, in turn, attribution. The present study scrutinizes the function and significance of these factors in that context. As the International Law Commission’s Commentary apparently fails to justify their special importance, alternative explanations provided in legal literature are considered together with the idea that reference to these factors originates from Special Rapporteur Gaja’s preoccupation with military personnel. The author concludes that while military discipline and military criminal jurisdiction play a unique role in relation to military personnel, a broader approach focusing on all relevant manifestations of the persisting organic link may provide a more appropriate framework for the attribution of the conduct of lent State organs (military and civilian alike) under the effective control test.

The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ario

in International Organizations Law Review

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43

Opened for signature 3 March 1973entered into force 1 July 1975 993 unts p. 243.

61

Dannenbaumsupra note 13 p. 157.

69

Nollkaempersupra note 28 p. 1148 (footnote omitted). A similar position has been articulated by Leck supra note 38 pp. 359–360.

77

Seyerstedsupra note 11 pp. 204–205 322 411.

94

Cameron and Chetailsupra note 51 p. 163 (footnotes removed emphases added). The unique nature of the resulting military structures—and the role of this uniqueness in the context of State responsibility—is widely recognized: see e.g. Peter Rowe ‘United Nations Peacekeepers and Human Rights Violations: the Role of Military Discipline A Response to Dannenbaum’ (2010) 51 Harvard International Law Journal Online p. 69 at p. 75; Zwanenburg supra note 39 p. 106.

114

Burkesupra note 4 (referring also to “selection training and promotion”); Dannenbaum supra note 13 pp. 162 164 and 168 (identifying the same factors as relevant); Nissan (House of Lords) supra note 35 p. 593 (referring also to continued employment); Mothers of Srebrenicasupra note 28 para. 4.57 (referring to selection training and preparations personnel matters and disciplinary powers) and ibid. para. 4.41 noting that the Netherlands retained the power to withdraw (full command); Nuhanovic (Hague Court of Appeal) supra note 28 para. 5.10 (referring also to “personnel matters” and “the power to withdraw the troops”); Nuhanovic (Supreme Court) supra note 28 para. 3.10.2. Admittedly the latter specifies initially only “disciplinary powers and criminal jurisdiction” adding however a reference to the broader concept of ‘organic command’ (on this term see text accompanying note 119 below) and later in the same paragraph referring also to the State’s control over personnel affairs. In addition the applicants cited a number of factors believed to have affected control in that context in their pleadings in Behrami and Saramati (supra note 28 para. 77): [a]s to the input of [tccs] the applicants noted that kfor troops … were directly answerable to their national commanders and fell exclusively within the jurisdiction of their [tccs]: the rules of engagement were national; troops were disciplined by national command; deployment decisions were national; the troops were financed by the States; individual [Troop Contributing Nation Claims’ Offices] had been set up; [tccs] retained disciplinary civil and criminal jurisdiction over troops for their actions in Kosovo … and since a British court considered itself competent to examine a case about the actions of British kfor in Kosovo individual State accountability was feasible …; and it was national commanders who decided on the waiver of the immunity of kfor troops whereas the sg so decided for unmik personnel. It was disingenuous to accept that kfor troops were subject to the exclusive control of their [troop contributors] and yet deny that they fell within their jurisdiction. There was no [tcc]/un agreement or a Status of Forces Agreement … between the un and the [Federal Republic of Yugoslavia]. It must however be noted that the Court more or less summarily dismissed the claim that these factors (jointly or any of them separately) could or would have undermined (the effectiveness of) control by the North Atlantic Treaty Organization: ibid. para. 139.

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