Disentangling ‘Effective Control’ Test for the Purpose of Attribution of the Conduct of un Peacekeepers to the States and the United Nations

in Nordic Journal of International Law
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Despite the efforts of the United Nations (un), the world continues to hear news about un peacekeepers committing crimes in the state where they are deployed. One of the reasons is that the responsibility of the troop-contributing states for the conduct of their peacekeepers is not sufficiently recognised. In order to address the issue, this article advocates for ‘effective control’ to be interpreted as a material ability of a national contingent commander (for troop-contributing states) or un Force Commander (for the un) to prevent particular conduct (criminal act). Although representing a minority of academic views, this approach derives from superior responsibility, the International Court of Justice’s jurisprudence, is supported by the International Law Commission and in line with the un’s position and practice. Following this interpretation, the article concludes that in many instances unlawful conduct of peacekeepers will be attributed to the troop-contributing states and not only to the un.

Disentangling ‘Effective Control’ Test for the Purpose of Attribution of the Conduct of un Peacekeepers to the States and the United Nations

in Nordic Journal of International Law

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References

24

Dannenbaumsupra note 4 p. 146.

36

Sarisupra note 26 pp. 158–159; Milanović and Papić ibid. pp. 270 272.

47

Dannenbaumsupra note 4 p. 157.

50

Dannenbaumsupra note 4 p. 157.

57

Zwanenburg supra note 5 p. 128.

64

Murphysupra note 54 p. 118; see also Mothers of Srebrenica case supra note 7 paras. 2.40–2.41.

66

Murphysupra note 54 p. 117; see also Dannenbaum supra note 4 p. 146.

78

Prince Zeid’s reportsupra note 75 paras. 19 A.35.

88

UN Secretariat submission (2011)supra note 20 pp. 13–14.

91

UN Secretariat submission (2011)supra note 20 p. 14 para. 4; Secretary-General’s Report (1996) A/51/389 supra note 89 paras. 17–18.

92

MoUsupra note 70 Article 9.

97

UN Secretariat submission (2011)supra note 20 p. 13 para. 2. The UN Secretariat does not define what it means by ‘horizontal’ and ‘vertical’ control. However it is evident from the wording that the ‘horizontal’ control is to consider the top level of control – whether the control belongs to the UN or to the national/regional command over the whole operation whereas ‘vertical’ control is suited to attribute the acts committed on the lower level by peacekeepers to the top level – the UN or the state.

98

MoUsupra note 70 Article 9; see also for instance Secretary-General ‘The Administrative and budgetary aspects of the financing of the United Nations peace-keeping ­operations: Reform of the procedures for determining reimbursement to Member States for contingent-owned equipment’ note to the General Assembly 9 July 1996 A/50/995 Article 9.

141

MoUsupra note 70 Article 7 ter para. 7.5; Article 7 quater para. 7.11.

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