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Agim Behrami and Bekir Behrami v France, App. No. 71412/01 and Ruzhdi Saramati v France, Germany, and Norway, App. No. 78166/01, European Court of Human Rights, 2 May 2007

Santiago Villalpando[1]

Relevance of the case

When the European Court of Human Rights (ECtHR) rendered its Behrami and Saramati decision, in 2007, the responsibility of international organizations was only emerging as a topic of interest for the mainstream of international legal scholarship. Judicial precedents being scarce and the relevant practice difficult to identify, few authors ventured into the topic, which was generally perceived as somewhat abstract and out of focus. The International Law Commission (ILC) itself—which had taken up the topic for codification back in 2002—encountered obstacles in identifying relevant primary sources and relied heavily on a transposition, mutatis mutandis, of the rules codified in its draft articles on state responsibility.

The Behrami and Saramati decision constitutes a watershed precedent, insofar as it highlighted the concrete legal and logistical problems that could arise from responsibility claims, both for international organizations and their member states. Its findings served to bring the issues in this area into clearer focus, triggering a lively debate that quickly spread to other judicial fora and brought the topic to the central stage of international law.

As a precedent, however, the decision is not exempt from ambiguities. While being vested with the highest possible authority in the European judicial system of human rights protection (as it was rendered by the Grand Chamber of the ECtHR), the decision was only adopted by majority and its reasoning often reads as a patchwork of legal arguments sewn together, probably with a view to gathering the agreement of different factions in the deliberations. While ground-breaking in its statements regarding the respective roles of international organizations and their member states in peacekeeping and peace enforcement operations, the decision ultimately dismissed the claims before it on procedural grounds and did not make any determination as to the responsibility of the stakeholders involved (the respondent states, the North Atlantic Treaty Organization (NATO), or the UN). While it quickly became a locus classicus of international jurisprudence, being repeatedly cited by domestic and international tribunals, its reasoning contains controversial findings and has been subject to severe criticism in the legal literature.

I. Facts of the case

The decision rendered, on 2 May 2007, by the Grand Chamber of the ECtHR concerned two applications regarding events that had taken place in Kosovo subsequent to

Resolution 1244 of 10 June 1999. By this resolution, the Security Council of the United Nations had decided the deployment in Kosovo of an international civil administration (the United Nations Interim Administration Mission in Kosovo, UNMIK) and an international security presence (the Kosovo Force, KFOR), which were active at the time of the events. The Behrami application, filed against France, concerned the tragic death of a young boy and serious injury inflicted to his brother from the detonation of a cluster bomb dropped by NATO forces in 1999: the applicants argued that the failure of French KFOR troops to mark or defuse such bombs, which they knew to be present on the site, constituted a breach of art. 2 of the ECHR. In the Saramati application, filed against Norway and France, the applicant claimed that his arrest and extrajudicial detention by UNMIK police under Norwegian and French command violated arts. 5, 13, and 6, para. 1, of the Convention.

II. The legal question

The decision was limited to the question of the admissibility of the applications. The main issue to be examined by the Court was whether there was a sufficient jurisdictional link, within the meaning of art. 1 of the Convention, between the applicants and the respondent states (para. 66). Noting that, on the relevant dates, Kosovo was under the effective control of international presences, which exercised the public powers on the territory, the Court considered that this implied determining the contribution of the respondent states to those international presences (para. 71), which would allow it to establish the compatibility rationepersonae of the applications with the provisions of the Convention (para. 72).

III. Excerpts

As the first step of its assessment (paras 123-6), the Court determined that the issuance of detention orders fell within the security mandate of KFOR and the supervision of de-mining fell within UNMIK’s mandate.

The Court then turned to the question whether the impugned action of KFOR (the detention of Mr Saramati) and inaction of UNMIK (the failure to de-mine in the Behrami case) could be attributed to the UN, a matter that led it to examine first the legal foundation of these international forces under Chapter VII of the UN Charter (paras 128-31). According to the Court, the Security Council, by its Resolution 1244, had ‘delegated’ to willing organizations and member states the power to establish KFOR, which therefore operated ‘on the basis of UN delegated, and not direct, command’. The Court further considered that the Security Council had also ‘delegated’ civil administration powers in Kosovo, in this case to UNMIK, a subsidiary organ established by the Secretary-General.

With regard to the detention of Mr Saramati (paras 132-42), the Court interpreted Resolution 1244 as giving rise to a chain of command by which the Security Council ‘was to retain ultimate authority and control over the security mission and it delegated to NATO [...] the power to establish, as well as the operational command of, the international presence, KFOR’ (para. 135; see also paras 138 and 140). The Court thus concluded that ‘KFOR was exercising lawfully delegated Chapter VII powers of the [Security Council] so that the impugned action was, in principle, “attributable” to the UN’ (para. 141).

As to the alleged failure to de-mine in the Behrami case (paras 142-3), the Court found that, given that UNMIK was a subsidiary organ of the UN created under Chapter VII of the Charter, ‘the impugned inaction was, in principle, “attributable” to the UN’ (para. 143).

Having decided (at least in principle) the issue of attribution, the Court turned to the question of its competence ratione personae (paras 144-52). Noting that the UN had a legal personality separate from that of its member states and that the organization was not a contracting party to the Convention (para. 144), the Court also found that it could not interpret the Convention in a manner that would interfere with the fulfilment of the mandate of the organization, including the effective control of its operations (para. 149). Given that it had considered that the impugned acts and omissions of KFOR and UNMIK could not be attributed to the respondent states and, moreover, had not taken place on their territory or by virtue of a decision of their authorities, the Court therefore concluded that the applicants’ complaints were incompatible ratione personae with the provisions of the Convention (para. 152), which ultimately led it to declare both applications inadmissible.

IV. Commentary

The legal regime of the responsibility of international organizations constitutes the backbone of the decision of the Court in the Behrami and Saramati cases. From the outset, the Court framed its reasoning in terms of international responsibility with reference to the work of the ILC, and its final conclusions relied on two essential findings in this area, namely: that the impugned actions and omissions were, in principle, attributable to the United Nations; and that this attribution implied that the respondent states could not be held accountable for such actions and omissions under the Convention.

The Court’s reliance on the work of the ILC is remarkable. In the section devoted to the relevant law and practice, the Behrami and Saramati decision described the ILC draft articles on international responsibility and their commentaries immediately after the rules on the use of force and the UN Charter, and before, for example, the Vienna Convention on the Law of Treaties or Security Council Resolution 1244. While the order is not decisive in itself, it is noteworthy that the Court seems to have accepted without hesitation that the rules codified by the ILC constituted a faithful reflection of the applicable customary rules, since it referred to them without discussion and without invoking any other relevant precedent in the area. This conviction was already widely shared by international jurisprudence (including the International Court of Justice) with respect to the ILC articles on state responsibility, which were adopted in 2001, but not as regards the draft articles on the responsibility of international organizations, which, at the time, the ILC was still considering on first reading. Furthermore, the reference to the work of the ILC provided an important legal foundation for the judicial determination of the cases. In the first steps of its assessment, the Court clarified that it used the term ‘attribution’ in the same way as the ILC in the draft articles, and it is the finding with regard to this issue that ultimately led to the conclusion that the applications were inadmissible.

The finding that the impugned actions and omissions were attributable to the UN played, indeed, a central role in the reasoning of the Court and constitutes one of the most significant legacies of the Behrami and Saramati decision. On closer analysis, however, this finding raises several issues.

First of all, the Court analyzed, under the same concept of ‘delegation’, the legal situation ofboth KFOR and UNMIK. In the decision, ‘delegation’ is defined as ‘the empowering by the [Security Council] of another entity to exercise its function as opposed to “authorising” an entity to carry out functions which it could not itself perform’ (para. 43). The Court considered that, in its Resolution 1244, the Security Council had made two ‘delegations’ so defined: a delegation to willing organizations and member states of the power to establish an international security presence in Kosovo, which resulted in the creation of KFOR; and a delegation of civil-administration powers on the territory to a subsidiary organ established by the Secretary-General, UNMIK. These are, however, two very different factual situations: the latter takes place exclusively within the institutional framework of the organization, while the former implies a recourse to different international legal persons, particularly NATO and the respondent states, which could be held separately accountable for their actions.

This is important from the perspective of the law of international responsibility. In the decision, the concept of ‘delegation’ is instrumental to the conclusions of the Court and establishes the link with the issue of attribution. The Court indeed postulates the principle that ‘delegation must be sufficiently limited so as to remain compatible with the degree of centralisation of [Security Council] collective security constitutionally necessary under the Charter and, more specifically, for the acts of the delegate entity to be attributable to the UN’ (para. 132). In other words, for the Court, a delegation necessarily requires that all delegated actions and omissions remain attributable to the organization under the law of international responsibility.1

The situations of KFOR and UNMIK are very different from the perspective of the rules on attribution. In its description of the applicable law, the decision referred to two provisions of the ILC’s ARIO, as provisionally adopted on first reading: draft art. 3 (General principles) and draft art. 5 (Conduct of organs or agents placed at the disposal of an international organization by a State or another international organization).[2] [3] These provisions are directly relevant to the attribution to the

UN of conduct by KFOR, which is an international military presence established from organs placed at the disposal of the organization by NATO and its member states. However, the most pertinent provision to analyze UNMIK’s conduct, namely draft art. 4,[4] was not quoted in the decision. According to this provision, the conduct of an organ or agent of an international organization in the performance of its functions shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization (including, for example, its characterization as a subsidiary organ).

The most controversial aspect of the Behrami and Saramati decision lies in its application of the test of attribution to the conduct of KFOR. According to the codification by the ILC,[5] the conduct of an organ of a state or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization ‘if the organization exercises effective control over that conduct’. In other words, under the test identified by the ILC, an action by KFOR should have been attributed to the UN if the latter had exercised effective control over that action. In its decision, the Court describes the chain of command that resulted from Resolution 1244 in the following terms: ‘The [Security Council] was to retain ultimate authority and control over the security mission and it delegated to NATO (in consultation with non-NATO member states) the power to establish, as well as the operational command of, the international presence, KFOR’ (para. 135). In other words, as explicitly recognized by the Court, the Security Council did not have ‘direct operational command’ over KFOR (para. 136).

It follows that the application of the ILC test of attribution should have led to the conclusion that the detention of Mr Saramati was not attributable to the UN, since the latter did not exercise effective control over that action. This conduct should have been attributed, on the contrary, either to NATO or to the troop-contributing nations (particularly the respondent states in this case), depending on the answer given to the question of which of these entities had exercised effective control over the detention. The Court devoted some analysis to this question, concluding that ‘effective command of the relevant operational matters was retained by NATO’ (paras 135-40), but this did not alter its ultimate finding that the impugned action was, ‘in principle, “attributable” to the UN’ (para. 141).

It is unclear how the decision of the Court should be interpreted on this point. Taking into account that the Court makes explicit reference to the ILC provision, without voicing any criticism to the criterion codified therein, one is tempted to conclude that the decision makes a mistake in its application of the test requiring effective control over the relevant conduct. Alternatively, it could be argued that the Court is applying a different test of attribution (one of ‘ultimate authority and control’), but in this case there is no evidence of any legal analysis by the Court supporting the adoption of such a test.

Besides the matter of attribution, the Behrami and Saramati decision contains another finding regarding international responsibility, namely that the fact that the impugned conduct was, in principle, attributable to the UN implied that the respondent states could not be held accountable for such conduct and thus settled the matter.

The Court did devote some elaboration to the argument, based on its Bosphorus precedent, that a state party to the Convention, which had transferred sovereign power to an international organization in order to pursue co-operation in certain fields of activity, could remain responsible under art. 1 of the Convention for all acts and omissions of its organs (paras 145-51). However, the Court considered that this implied that it needed to determine whether it was competent ratione personae ‘to review the acts of the respondent States carried out on behalf of the UN’ (para. 146), and it disposed of the argument on account of the imperative of not interfering with the fulfilment of the UN key mission in the field of international peace and security (para. 149). The Court also rejected the applicants’ argument that the substantive and procedural protection of fundamental rights provided by KFOR was not ‘equivalent’ to that under the Convention, noting that, in the present instance (contrary to the Bosphorus case), the impugned acts and omissions ‘cannot be attributed to the respondent States’ (para. 150-1).[6]

What the Court did not take into account is the possibility that more than one entity could be held responsible for the same internationally wrongful act.

First of all, the Court did not explore the eventuality that the impugned actions or omissions could simultaneously be attributed to more than one entity, that is, in this case, not only to the UN, but also to the respondent states or NATO. As noted by the ILC in its commentary to the ARIO, dual or even multiple attribution of conduct, although it may not frequently occur in practice, cannot be excluded.[7] The specific question whether dual attribution would be possible where the organ of the state (or of an international organization) is placed at the disposal of an international organization remains open to debate.[8]

Second, and in any event, the Court did not inquire whether the respondent states could be held accountable for the impugned actions or omissions, even if these were only attributable to the UN. In its work, the ILC has indeed envisaged several situations in which a state could engage its responsibility in connection with the conduct of an international organization, namely: the aid or assistance of the state in the commission of an internationally wrongful act of the organization; the direction or control exercised by the state over the commission of an internationally wrongful act of the organization; the coercion of an organization by a state; and the circumvention of international obligations of the state member of an international organization.[9] The latter hypothesis is of particular interest, insofar as it is largely based on the case law of the ECtHR itself, including the Bosphorus precedent referred to above.[10] In this case, according to the ILC, the state could be held responsible if three conditions are met: (i) that the organization has competence in relation to the subject matter of an international obligation of the state; (ii) that there be a significant link between the conduct of the circumventing member state and that of the international organization; and (iii) that the organization commits an act that, if committed by the state, would have constituted a breach of the obligation.[11] [12] [13] [14] [15] Furthermore, a state member of an international organization could also be held responsible for an act of the organization if it has accepted responsibility for that act towards the injured party or it has led the injured party to rely on its responsibility.11 Without prejudice to the question whether one or more of these circumstances were present in the Behrami and Saramati cases, one could have expected the Court to at least consider this eventuality, particularly taking into account that it rejected the applications on the sole ground of inadmissibility.

The Behrami and Saramati decision had a kindling effect on the debate regarding the responsibility of international organizations and their member states, drawing attention to the concrete logistical and legal problems that may arise in the area. It has also left a contrasting legacy.

On the one hand, the Behrami and Saramati decision has had a loyal following in international and domestic case-law. As could be expected from a decision of the Grand Chamber, the precedent was confirmed in subsequent rulings of the European Court itself. In Kasumaj v Greece12 and Gajic v Germany,13 on matters relating to property occupied or used by contingents of KFOR, the Court found the applications inadmissible on the grounds, once again, that KFOR actions were, in principle, attributable to the United Nations. In Beric v Bosnia and Herzegovina14, the Court considered that the impugned action by the High Representative in Bosnia and Herzegovina was also, in principle, attributable to the UN, thus extending the Behrami and Saramati reasoning to the case of acceptance by the respondent state of an international civil administration in its territory. The decision has also influenced other jurisdictions. In the decision of 12 December 2007, R (on the application of Al-Jedda) (FC) v Secretary of State for Defence Judgment (Grand Chamber),[16] [17] [18] [19] [20] which concerned actions by the Multi-National Force in Iraq, the House of Lords of the United Kingdom made reference, with approval, to the test of attribution identified in the Behrami and Saramati decision, while distinguishing the instant case from such precedents. Later, in the Al- Jedda v United Kingdom judgment^ on the same matter, the European Court also referred to this precedent to reach the conclusion that the acts and omissions of foreign troops within the Multi-National Force were not attributable to the UN, because the Security Council had ‘neither effective control nor ultimate authority and control’ over such acts and omissions.

On the other hand, the Behrami and Saramati decision has been widely criticized in the legal literature, which highlighted the ambiguities of its reasoning, its practical and legal implications, and its departure from the rules codified by the ILCd7 In its subsequent work on the responsibility of international organizations, the ILC took note of the fact that the European Court had relied on its draft articles, as preliminarily adopted on first reading, without formulating any criticism, but further noted that it had in fact not used the proposed test in the way that had been envisaged. It observed, in this regard, that ‘when applying the criterion of effective control, “operational” control would seem more significant than “ultimate” control, since the latter hardly implies a role in the act in question?8 On second reading, the ILC decided to maintain its draft article unchanged, reaffirming the rule according to which the conduct of an organ placed at the disposal of an international organization shall be attributable to the latter only if it had effective control over such conduct.

As pointed out by the ILC, other authorities also distanced themselves from the criterion applied by the Court in the Behrami and Saramati decision. In his report of June 2008 on the United Nations Interim Administration Mission in Kosovo, the UN Secretary-General affirmed that ‘the international responsibility of the United Nations will be limited in the extent of its effective operational control?9 Moreover, the District Court of The Hague, in its Mothers of Srebrenica decision, found the respondent state (The Netherlands) responsible for its involvement in the events at Srebrenica on the basis of the criterion of ‘effective control’, closer to the ILC test.[21]

In sum, with respect to the issues of responsibility addressed in the Behrami and Saramati decision, one is faced with the curious situation in which the jurisprudence of international judicial bodies and the United Nations organs involved in the codification of international law and a majority of the legal literature have held different views as to the state of customary international law. The situation of uncertainty that ensues regarding the rules applicable to attribution and joint responsibility is a matter of concern, particularly as it may have a very practical impact on the UN and the accountability of the organization and member states in cases of peacekeeping and peace-enforcement operations conducted by a coalition of the willing. This matter may, of course, resolve itself with the consolidation of a clear practice and opinio juris, but may also (and preferably) be addressed by the General Assembly if it were to decide to follow up on the draft articles submitted by the ILC.[22]

  • [1] The views expressed herein are those of the author and do not necessarily reflect the views of theUnited Nations.
  • [2] If one considers that the quoted passage follows the finding that the establishment of KFOR wasbased on a delegation by the Security Council, the statement, which introduces the section in which theCourt examines the question of attribution of KFOR actions, seems to announce a foregone conclusion,since it affirms that for the delegation to remain compatible with the Charter the acts of the delegatedentity need to be attributable to the United Nations.
  • [3] In the final version of the draft articles, as adopted by the ILC on second reading in 2011 and submitted to the General Assembly, draft art. 3 was split in two (para. 1 became draft art. 3, para. 2 became draftart. 4) and draft art. 5 became draft art. 7, with an identical text. For convenience, reference is made inthe text to the draft article numbers as provisionally adopted on first reading, which are the ones used bythe Court in the decision.
  • [4] Draft art. 4, as provisionally adopted on first reading, became draft art. 5 in the final version of thedraft articles on the responsibility of international organizations.
  • [5] As it results from draft art. 5, as provisionally adopted on first reading, and draft art. 7, in the finalversion of the draft articles.
  • [6] These findings, in themselves, may be subject to discussion in light of subsequent judicial decisions,particularly by the European Court of Justice in the Kadi (I) case, which considered that the protectionof fundamental human rights was to be preserved even when the implementation of the mandate of theUnited Nations in the field of international peace and security is involved.
  • [7] Commentary to Chapter II, para. 4, in Report of the International Law Commission on the work ofits 63rd session (2011), p. 16.
  • [8] In its commentary to draft art. 7, as adopted on second reading, the ILC seems sometimes to assumethat, in such cases, the conduct of the organ placed at the disposal of the organization could be attributedto only one entity, either the state (or organization) or the recipient organization (see commentary to draftart. 7, paras 1 (in fine) or 4, in ibid., p. 20). All would depend on which entity, the state (or organization)of origin or the recipient international organization, had the effective control of the conduct. However, theILC also distinguishes this hypothesis from that of an organ that is ‘fully seconded’ to the organization, thusrecognizing that when an organ is placed at the disposal of an organization, the state (or organization) oforigin retains some degree of control.
  • [9] In the final version of the draft articles, see Part Five (Responsibility of a State in connection with theconduct of an international organization), draft arts. 58-61.
  • [10] The ILC refers, in particular, to the following case law of the European Court: Waite and Kennedyv Germany, Judgment of 18 February 1999, ECHR Reports, 1999-I, para. 67; Bosphorus Hava YollaryTurizm ve Ticaret Anonim Sirketi vIreland, Judgment of 30 June 2005, ECHR Reports, 2005-VI, para. 154;and Gasparini v Italy and Belgium, App. No. 10750/03, Decision of 12 May 2009.
  • [11] ю See commentary to art. 61, paras 6-8, in the Report of the International Law Commission on thework of its 63rd session (2011), p. 95.
  • [12] Draft art. 62 of the final version of the draft articles.
  • [13] ‘2 App. No. 6974/05, Judgment of 5 July 2007.
  • [14] 13 App. No. 31446/02, Judgment of 28 August 2007.
  • [15] App. No. 36357/04, Judgment of 16 October 2007.
  • [16] App. No. 27021/08, Judgment of 7 July 2011.
  • [17] App. No. 27021/08, Judgment of 7 July 2011 (Grand Chamber).
  • [18] For a comprehensive list of scholarly articles on the decision, see: commentary to draft art. 7, para. 10,note 115, in the Report of the International Law Commission on the work of its 63rd session (2011), p. 23.
  • [19] Ibid., p. 23. 19 UN Doc. S/2008/354, para. 16.
  • [20] 20 District Court (The Hague), Judgment of 10 September 2008, Case No. 265615/HA ZA 06-1671
  • [21] (English translation available at http://www.asser.nl/upload/documents/20120905T111510-Supreme%20Court%20Decision%20English%2013%20April%202012.pdf).
  • [22] While the ILC submitted its draft articles on the responsibility of international organizations to theGeneral Assembly in 2011, the Assembly only took note of the draft articles, deciding to postpone to itssixty-ninth session the decision as to the form to be given to them (see Resolution 66/100 of 9 December2011). In 2014, the General Assembly again took note of the articles and, while requesting the Secretary-General to prepare an initial compilation of decisions of international courts, tribunals, and other bodiesreferring to them and inviting Governments and international organizations to submit information ontheir practice in this regard and comments on any future action regarding the articles, postponed onceagain its consideration of the matter to its seventy-second session (see Resolution 69/126 of 10 December2014). The matter will thus be revisited in 2017. Given the hesitation shown by the Assembly, since 2001,on the fate of the articles of state responsibility, it is unlikely that a decision will be made at that time.
 
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