Which nations serve as international peacekeepers

Lightly armed UN observers would be highly vulnerable to attack by armed groups operating in Afghanistan—chief among them al-Qaida and the Islamic State-Khorasan. Furthermore, experts on local security dynamics in Afghanistan have warned that peacekeepers operating in small company or smaller formations would quickly risk being confined to cities and their bases, thereby reducing their ability to conduct patrols and monitor the situation.

Automated forms of machine surveillance could help but are hardly a sufficient substitute, especially if a rapid response is required. Such risks are why in semi-permissive or high-threat environments like Afghanistan, the UN would not usually consider deploying observers without a larger, more robust protection force.

But given the extent of armed actors in Afghanistan, even a large and robust protection force would also be vulnerable. These considerations mean that while a small deployment of observers—like the short-lived and largely ineffective UN Mission in Syria —is unlikely, a large mission will almost certainly struggle to find enough personnel.

China is particularly interesting to watch since it does have an untested 8,strong peacekeeping standby force. Yet it has been a louder advocate about the need to keep UN peacekeepers safe and secure than it has about the importance of civilian protection, and Beijing abstained on Security Council Resolution They can deploy within 60 days of receiving a formal invitation from the UN Secretariat.

In sum, neither local nor international politics are currently right for a UN peacekeeping deployment in Afghanistan. Both could change, of course. But right now, no clear and realistic mission has been officially discussed or scoped. No troop-contributing countries have stepped forward.

Most importantly, the Taliban have not offered an invitation, and even if they did, there is the added complication of preparing for the threat that al-Qaida and Islamic State-Khorasan fighters would pose to any peacekeepers. Paul D. His latest book is Understanding Peacekeeping Polity Press, 3 rd edition, This test has been applied by a number of judgments of domestic courts dealing with the problem of attribution with respect to acts of UN peacekeeping forces 37 37 For an analysis of the relevant practice, see Report of the International Law Commission,suprafn 14, pp.

However, for the view that 'the test adopted by the Commission constitutes progressive developments', see B. Montejo, 'The notion of "effective control" under the Articles on the responsibility of international organizations', in M. Ragazzi ed. A more radical view is expressed by D. Shraga, 'ILC Articles on responsibility of international organizations: The interplay between the practice and the rule a view from the United Nations ', ibid. Two conditions must be met for the conduct of a lent organ to be attributed to the receiving organization.

First, the organ must be 'placed at the disposal of the organization'. Secondly, the organization must exercise 'effective control' over the conduct of the organ placed at its disposal. While most commentators place emphasis almost exclusively on the latter condition, the former one is equally important for understanding the content and scope of application of the criterion of attribution set forth in Article 7.

The Commentary to Article 7 does not clarify the meaning of the words 'placed at the disposal'. However, the ILC addressed this issue in the Commentary to Article 6 of the Articles on state responsibility, which corresponds to Article 7. The point made by the ILC in the context of Article 6 may equally be used to interpret Article 7 38 38 As the ILC noted in the Introduction to the Commentary to the Articles on the responsibility of international organizations, '[i]n so far as provisions of the present draft articles correspond to those of the articles on State responsibility, and there are no relevant differences between organizations and States in the application of the respective provisions, reference may also be made, where appropriate, to the commentaries on the latter articles'.

Report of the International Law Commission, suprafn 14, p. In a lengthy passage, which deserves to be quoted in full, the Commission observed: 'The words "placed at the disposal of" in article 6 express the essential condition that must be met in order for the conduct of the organ to be regarded under international law as an act of the receiving and not of the sending State.

The notion of an organ "placed at the disposal of" the receiving State is a specialized one, implying that the organ is acting with the consent, under the authority of and for the purposes of the receiving State.

Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed, but in performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State' 39 39 Yearbook of the International Law Commission, , Vol. Two, Part. II, p. Thus, according to the Commission, for an organ of a state to be considered as placed at the disposal of another state, there must be a double link between the lent organ and the receiving state.

On the one hand, there must be an 'institutional link': the organ must perform functions entrusted to it by the receiving state in conjunction with the machinery of that state. It is to be noted that the Commission does not require that the lent organ be given the status of organ of the receiving state. Whether the lent organ acquires that status or not is not relevant for the purpose of applying the criterion of attribution set forth in Article 6 40 40 This point was addressed by the Special Rapporteur, Roberto Ago, in his Third report on state responsibility.

Ago observed that, irrespective of whether the lent organ acquires the status of organ or not, 'the basic conclusion is still the same: the acts or omissions of organs placed at the disposal of a state by other subjects of international law are attributable to that state if in fact these acts and omissions have been committed in the performance of functions of that state and under its genuine and exclusive authority'.

Yearbook of the International Law Commission, , Vol. Two, Part I, p. On the other hand, the lent organ must act under the exclusive direction or control of the receiving state, 'rather than on instruction from the sending state'. This must not be taken as meaning that the sending state cannot retain some powers over the lent organ 41 41 See G. Gaja, 'Second report on the responsibility of international organizations', Yearbook of the International Law Commission, , Vol.

It only means that, for a conduct of a lent organ to be attributed to the receiving state, the organ must have acted under the control of that state. Since the requirement that the lent organ be 'placed at the disposal' of the receiving organization presupposes that the organization exercises a degree of factual control over that organ, one may ask why the text of Article 7 also contains a reference to the requirement of 'effective control'. This latter requirement may appear to be superfluous 42 42 It must be noted that Article 6 is differently worded as it requires that 'the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed'.

According to the ILC, while differently worded, the approach is the same as in Article 7: the use of a different expression 'effective control' rather than 'exercise of governmental authority' is justified 'because the reference to "the exercise of elements of governmental authority" is unsuitable to international organizations'.

On the solution retained by the ILC see however the critical remarks by F. While the Commentary does not address this issue, a possible explanation can be found in the views expressed by the Special Rapporteur, Giorgio Gaja, in his Second Report.

Referring to the abovementioned passage of the ILC's Commentary to Article 6, and in particular to the point where it is said that the lent organ must act under the exclusive direction and control of the receiving state, he observed that '[t]his point could be made more explicitly in the text, in order to provide guidance in relation to questions of attribution arising when national contingents are placed at an organization's disposal and in similar cases' 43 43 See G. Gaja, 'Second report', suprafn 41, p.

To that end, the Special Rapporteur proposed to include the notion of 'effective control' directly in the text of the provision. If the reference to 'effective control' contained in Article 7 serves the purpose of rendering explicit what was already implicit in the requirement that the organ be 'placed at the disposal' of the organization, one may reasonably conclude that the conditions for attribution under Article 7 of the text are substantially the same as under Article 6 of the text.

This means, in particular, that attribution under Article 7 would depend on the existence of both an 'institutional' and a 'factual' link between the lent organ and the receiving organization 44 44 Similarly F.

Salerno, 'International responsibility for the conduct of "Blue Helmets": Exploring the organic link', in M. This preliminary conclusion, however, is subject to a further investigation as to the degree of control required for an act of a lent organ to be attributed to the organization. Under Article 6 of the Articles on state responsibility, the test of control is relatively straightforward. As we have seen, it is required that, when performing the functions entrusted to it by the receiving state, the lent organ must act 'under its exclusive direction and control, rather than on instructions from the sending State'.

It must be asked whether the same test applies in the context of placing an organ at the disposal of an organization. Article 7 does not clarify the degree of control required to reach the threshold of 'effective control' and therefore to attribute the conduct of the lent organ to the organization.

Several commentators hold the view that a very high threshold is required: the conduct of a lent organ can be attributed to the organization only if the organization exercised a control over each specific conduct of that organ 45 45 For the view that, in providing the standard of effective control, the Articles on the responsibility of international organizations 'codified what was already a longstanding principle for the attribution of wrongdoing at international law', as recognized, among others, by the International Court of Justice, see T.

Dannenbaum, 'Translating the Standard of Effective Control', suprafn 7, p. See also Ch. Two distinct arguments are usually put forward to justify this view.

The first is based on a textual element: by establishing that the receiving organization must 'exercise effective control over that conduct', Article 7 seems to require from the organization a control over every single act of the organ placed at its disposal by a state. The second argument is based on the view that the notion of effective control referred to in Article 7 has the same meaning as the notion used in the context of the law of state responsibility.

As it is well known, an 'effective control' test was employed by the International Court of Justice in the Nicaragua and the Genocide Convention cases in order to determine whether the conduct of groups of individuals, who were not organs of a state and who were connected to the state only on the basis of a de facto link, was to be attributed to that state.

According to the International Court of Justice, in order for the state to be legally responsible for the conduct of such individuals, it would have to be proved that the state had effective control over the operations during which the wrongful conduct occurred.

The same test was subsequently adopted by the ILC in Article 8 of the Articles on state responsibility 47 47 Article 8 provides that '[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

To interpret the notion of effective control in Article 7 as requiring such a high threshold of control would significantly complicate attribution of an act to the organization, as in many cases it would be extremely difficult to prove the existence of such an 'effective control'. This could lead to the unreasonable result that in many cases the sending state could risk bearing responsibility for acts of its national contingent in the performance of functions of the organization.

This would be so because attribution of the conduct to the state would not depend on proof that that state exercised effective control over the conduct at issue. Once it is determined that the conduct of a national contingent cannot be attributed to the organization for lack of effective control, attribution to the sending state would be justified by the status of the contingent as organ of that state.

However, it does not seem that Article 7 requires such a high threshold of control for the purpose of attribution of the conduct of lent organs. As the Commentary to this provision makes clear, the notion of 'effective control' as used in Article 7 does not play the same role as in the context of the law on state responsibility. The ILC was careful to specify that control within the context of Article 7 does not concern 'the issue whether a certain conduct is attributable at all to a State or an international organization, but rather to which entity - the contributing State or organization or the receiving organization - conduct is attributable'.

Thus, the ILC seems to be aware of the fact that, if one requires a high threshold of control for attributing the conduct of lent organs to the organization, the result would be that in most cases the conduct of such organs would have to be attributed to the sending states. While the ILC does not say so expressly, the fact that it stresses the different meaning of the notion of effective control in the context of placing an organ at the disposal of an organization seems to imply that, unlike under the rules on state responsibility, the attribution of a certain conduct to the organization under Article 7 does not necessarily depend on proof that the conduct took place on the instruction of, or under the specific control of, the organization.

This suggests, at least indirectly, that a lower degree of control may also be sufficient to justify attribution to the organization. It is submitted that the degree of control required for an act of a lent organ to be attributed to a receiving organization is not different from the control required under Article 6 of the Articles on state responsibility. In this respect, the requirement of effective control under Article 7 has to be assessed in the light of the other requirement which is implicit in the fact that the lent organ has to be placed at the disposal of the organization, namely the existence of an 'institutional link' between the organ and the organization.

Once there is proof of conduct by the organ in the performance of functions entrusted to it by the organization and in conjunction with the machinery of that organization, there is little reason for requiring a higher degree of control for justifying attribution to the organization. As the Commentary to Article 6 seems to suggest, when the lent organ acts in the exercise of the functions of the receiving organization, the condition of the exclusive direction and control of the organization may be presumed to be met unless it is demonstrated that the organ was acting on instructions from the sending state.

This interpretation of the notion of effective control is not inconsistent with the views expressed by the ILC according to which '[t]he criterion for attribution of conduct either to the contributing State or organization or to the receiving organization is based according to article 7 on the factual control that is exercised over the specific conduct taken by the organ or agent placed at the receiving organization's disposal'. Factual control over the specific conduct is certainly decisive for the purpose of attribution, but this does not mean that, in the absence of different instructions from the sending state, the existence of control by the organization cannot be simply presumed.

If one considers the question of attribution of acts of UN peacekeeping forces in the light of these elements, it becomes clear that the first point to be addressed is to determine whether the force was acting in the performance of functions entrusted to it by the UN.

It seems that, in order to answer this question, importance must be attached in the first place to the manner in which the transfer of powers was formally arranged between the organization and the troop-contributing state. As we have seen, the agreement concluded by the UN with troop-contributing states normally provides that the UN has operational command over the forces while troop-contributing states retain the disciplinary powers and criminal jurisdiction over the forces, as well as the power to withdraw the troops.

It can be held that, depending on the manner in which the transfer of authority over the forces is arranged, a presumption may arise that certain conduct is attributable to the organization rather than to the contributing state. Indeed, by identifying the functions that formally fall under the authority of the UN and those that remain within the troop-contributing state, these agreements provide a key indication as to the subject on whose behalf members of the force were supposed to exercise a certain function.

If the force is supposed to perform certain functions on behalf and under the formal authority of the organization, and not of the contributing state, it can be presumed that its conduct took place under the exclusive direction and control of the organization and is therefore attributable to it.

In other words, the formal transfer of powers giving authority to the organization entails a presumption that the conduct is to be attributed to the organization, without the need to demonstrate that the conduct was the result of specific instructions or effective control over the specific conduct. Such a presumption should not be confused with the status as subsidiary organ of the organization.

Sari, 'UN Peacekeeping Operations', suprafn 30, p. What matters here is not so much the status of the force under the rules of the organization but the agreement between the organization and the sending state, as one may presume that the delimitation of the respective powers agreed upon by the two parties provides an indication as to which entity, in principle, has control over the troops in relation to a given conduct 52 52 This does not mean that the rules of the organization are irrelevant.

They may serve to delimit and further identify the functions entrusted by the organization to the lent organ. Obviously, this presumption may be rebutted. It may happen that a force, while acting under the formal authority of the UN for instance, because it is engaged in combat-related activities falling in principle under the operational control of the UN has undertaken a certain conduct because of the instructions given to it by the contributing state.

In such circumstances, the conduct must evidently be attributed to the state and not to the organization. In particular, it observed that '[w]hat is decisive here is that the State in giving Dutchbat this instruction interfered with the management of the operational implementation of the mandate by Dutchbat that it had already transferred to the UN'.

In the same judgment, the District Court also held the view that 'in order to accept effective control there would be no requirement for the State in giving instructions to Dutchbat to have broken the structure of the chain of command at the UN or exercised independent operational authority to give orders.

However, this statement appears to refer to situations - such as the transitional period after the fall of Srebrenica - in which peacekeepers act under the formal authority of the sending state, or of both the UN and the sending state. The Court of Appeal found that the criterion for determining whether the conduct of the Dutch troops in Srebrenica had to be attributed to the UN or to the Netherlands was the effective control test now set forth in Article 7 of the Articles on the responsibility of international organizations 55 55 This 'reciprocal' reading of Article 7 has been criticized by P.

While this statement is not free from ambiguities and may be interpreted in different ways, 57 57 One possible reading is that the Court of Appeal applied the test proposed by T. According to B. The Court makes the point that, for purpose of attribution, relevance must be given not only to factual control but also to the formal authority of the organization or of the contributing state over the acts concerned 58 58 The District Court of The Hague took an even clearer stand on this point when it observed that '[s]ince the dispute is related to a UN peacekeeping operation to implement a UN mandate when attributing Dutchbat's actions to the State it is important to know what powers the State still had and what powers it had transferred to the UN.

This appears to find confirmation in the reasoning followed by the Court of Appeal in order to justify its findings that the conduct concerned was to be attributed to the Netherlands. Netherlands, 5 July , para. The Court also referred to the fact that the Dutch government 'held it in its power to take disciplinary actions' against the conduct concerned 60 60 Ibid. The formal authority retained by the state over its troops during the evacuation period and the control it had actually exercised at that time were the two elements on which the Court of Appeal relied in order to justify its conclusion that the conduct in question had to be attributed to the Netherlands 61 61 Ibid.

See also the judgment of the Court of First Instance of Brussels, where the conduct of the Belgian contingent taking part in the United Nations Assistance Mission for Rwanda UNAMIR peacekeeping force was considered to be attributable to Belgium since such conduct took place at a time when the Belgian government had decided to withdraw from the peacekeeping operation: Court of First Instance of Brussels, Mukeshimana-Ngulinzira and others v. The manner in which the transfer of powers is arranged between the organization and the troop-contributing state appears to be relevant for the attribution of responsibility for an ultra vires conduct in the context of the peacekeeping operation.

No doubt, the fact that certain conduct was carried out by peacekeepers exceeding their authority or contravening instructions does not exempt the sending state or the organization from bearing responsibility. This principle is clearly stated in Article 8 of the Articles on the responsibility of international organizations and in Article 7 of the Articles on state responsibility 62 62 Article 8 of the Articles on the responsibility of international organizations provides that '[t]he conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions'.

According to Article 7 of the Articles on state responsibility, '[t]he conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions'.

However, these provisions address, respectively, the situation of an organ or agent of an international organization and of an organ of a state. They do not refer specifically to the case of an organ of a state which has been placed at the disposal of an international organization or of another state.

Given that peacekeepers are placed under the authority of both the UN and the sending states, it seems that, in order to determine the entity to which the ultra vires conduct must be attributed, the capacity in which the person in question was acting during such conduct has to be established. For these purposes, account must primarily be taken of the functions the peacekeeper was performing when engaging in the wrongful conduct and of the respective powers of the organization and of the state with respect to the exercise of this function.

Here again, if a peacekeeper was performing functions under the formal authority of the organization such as engaging in combat-related activities falling under the operational control of the UN , it can be presumed that the ultra vires conduct must be attributed to the organization.

This presumption can be rebutted if it is demonstrated that the peacekeeper had acted on the instructions of the sending state. According to the District Court ultra vires conduct of peacekeeping troops must be attributed to the sending state, irrespective of whether this state had given any instruction or order relating to the ultra vires conduct.

This would be so because that 'state has a say over the mechanisms underlying said ultra vires actions' 63 63 District Court of The Hague, Stichting Mothers of Srebrenica et al. In particular, the effective control of the sending state over such conduct would result from the fact that the state has a say in the 'selection, training and the preparations for the mission of the troops placed at the disposal of the UN', as well as from the fact that, by retaining control over disciplinary and criminal matters, the state has the power 'to take measures to counter ultra vires actions on the part of its troops' 64 64 Ibid.

For a similar view, see T. However, it is one thing to say that the conduct is to be attributed to the state when the state is aware of the fact that its troops are going to contravene the instructions of the UN and does nothing to prevent the ultra vires conduct.

Indeed, one may argue that under certain circumstances lack of prevention may be regarded as amounting to a form of tacit instruction. It is a totally different matter to say that every ultra vires conduct must invariably be attributed to the state because it retains disciplinary powers or the power to exercise criminal jurisdiction over the troops. The retention of such powers does not imply that the state exercised factual control over the specific ultra vires conduct of peacekeepers.

For the purpose of attributing ultra vires conduct, what is decisive is whether peacekeepers were 'purportedly or apparently carrying out their official functions', 65 65 Report of the International Law Commission, suprafn 14, p.

It might be that the sending state is under an international obligation to punish peacekeepers who, by contravening instructions from the UN, committed breaches of human rights or humanitarian law. While lack of punishment may entail the international responsibility of the sending state, responsibility would arise as a consequence of the omission of state authorities, and not as a consequence of the wrongful conduct of peacekeepers. While the manner in which the transfer of powers is arranged may create a presumption which also applies to attribution of ultra vires conduct, the agreement that the UN concludes with the troop-contributing state can hardly be regarded as decisive for the purpose of determining to whom the ultra vires conduct of peacekeeping troops must be attributed.

Gill, 'Legal Aspects of the Transfer of Authority', suprafn 11, pp. However, such an agreement can only apply in the relation between the organization and the sending state. It cannot exclude the application of the general rule set forth in Article 8 in the relation between these two subjects and any third party 68 68 See also Report of the International Law Commission, suprafn 14, p. In its Commentary to the Articles on the responsibility of international organizations, the ILC recognized the possibility that the same conduct may be simultaneously attributed to a state and to an international organization.

According to the Commentary, 'although it may not frequently occur in practice, dual or even multiple attribution of conduct cannot be excluded' 69 69 Report of the International Law Commission, suprafn 14, p. Strong civil institutions play an important role in preventing conflict from starting or reoccurring, and civilian peace operations help fragile states to rebuild institutions so they have the capacity to provide for the local population.

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