Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: An Inquiry into the Application of the ‘Effective Control’ Standard after Behrami

Abstract

There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILC's Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.