Las Relaciones entre el Clima Organizacional y la Satisfacción Laboral de

State practice so far in connection withNATOpeace support operations is rare. Simply put, the international responsibility of the organization or states does not seem to have been invoked in connection with conduct by peace support operations.

Claims settlement procedures in connection with NATO peace support

operations were established by international agreement and do not necessarily reflect principles of state responsibility. In the case of theUN, the Secretary-

General has expressly stated that claims settlement procedures were established in recognition of international responsibility of the organization for the activ- ities of its forces. Troop contributing states toNATOpeace support operations have not made such statements in connection with claims settlement proced- ures. Claims settlement procedures for SFOR expressly exclude combat-related damage. Troop contributing states that are parties to the Geneva Conventions could not rely on these agreements to absolve themselves from liability in- curred in respect of grave breaches of the conventions.

Proceedings instituted by the Federal Republic of Yugoslavia before the International Court of Justice and byBankovic´and others before the European Court of Human Rights do not concern a peace support operation. Arguments by the applicants in these cases concerning attribution of conduct are neverthe- less instructive because control over forces in Operation Allied Force was governed by an arrangement quite similar to that in peace support operations, except for United States and Russian forces.

In its initial oral arguments in proceedings before the International Court of Justice the Federal Republic of Yugoslavia seems to have denied a separate international legal personality ofNATO, so that military forces remained organs of a state. Despite the integrated military force of the organization the applicant

maintained that member states in the organization act individually and in concert. On the other hand the Federal Republic of Yugoslavia seems to have accepted an international legal personality of the organization at least starting 15 October 1998 when it signed the Kosovo Verification Mission Agreement with the organization. Possibly the argument must be read as meaning that in principle draft article 6 of theILCdraft articles on state responsibility could apply, but that it does not in this particular case because the troop contributing states have retained direction and control over the troops. Insofar as the application in principle of draft article 6 is concerned, this argument is correct. IfNATOis an international legal person, this draft article can apply as much toNATOoperations as it does toUNoperations. Application of the principle also acknowledges better than any other principle from the law of state re- sponsibility that conduct by a peace support operation isprima faciesusceptible of attachment to two distinct legal persons.

At a later moment in the proceedings the Federal Republic of Yugoslavia argued that actions of the command structure are attributable jointly and severally to the member states, an argument that seems similar to the argument by the applicants in the International Tin Council direct action cases that member states remain liable for the conduct of an international organization even if it has separate legal personality. At least one of the respondent states also understood the argument in this sense. If the Court comes to consider this argument at the merits stage, which is unlikely, it may take into account the argumentsde lege ferendaexamined above.254

Interestingly, the Federal Republic of Yugoslavia has not claimed that responsibility of member states flows from the transfer of competences to the organization, even though it claimsinter aliaviolations of the 1949 Geneva Conventions by the respondents. It could have argued that member states had violated their obligation in common Article 1 to ensure respect for the conven- tions. This obligation is as much applicable to troop contributing states inNATO

operations as it is to troop contributing states inUNoperations.255

2.12 CONCLUSION

Some writers make bold statements concerning responsibility of international organizations and their member states under international law. Some even describe a more or less detailed system that they state governs such responsib- ility. This study is primarily concerned with only part of the larger question

254 See § 2.5.5.

of responsibility, responsibility for violations of international humanitarian law by peace support operations.

This part of the larger question is sometimes presented as providing a clear picture, at least concerningUNpeace support operations.256 _{As this chapter}

demonstrated, state practice in connection withUNpeace support operations is relatively lacking,inter aliabecause the domestic case law that some writers treat as evidence of state practice does not meet the standard necessary to be seen as valid evidence. Consequently, caution is required when drawing conclusions with regard to responsibility for peace support operations, and a fortioriwith regard to responsibility of international organizations and their member states in general, as demonstrated by the divergent conclusions by writers based on the same state practice.

At the same time, the need is felt to develop principles of responsibility of international organizations in general, and of responsibility for peace sup- port operations in particular, as recognized by theILC placing the topic of

responsibility of international organizations on its program of work. Such a feeling is connected to an increase in operational activities of international organizations. Peace support operations are no longer deployed only by the

UN.NATOis also deploying peace support operations, as well as the EU. It became clear in § 2.2 that international responsibility is premised on the capacity to possess rights and obligations under international law, in other words on international legal personality. Since theReparations for Injuriescase there is no doubt that theUNhas international legal personality. § 2.3 demon- strated thatNATOdoes as well.

State practice in connection withUNpeace support operations demonstrates that the conduct of national contingents in these operations is attributed to theUNbecause the contingents have been placed at the disposal of the organ- ization. The principle in draft article 6 of the draft articles on state responsibil- ity is appliedmutatis mutandis. Indeed, theILC developed draft article 6 as corresponding to state practice in connection withUNpeace support operations.

Transfer of command and control by a troop contributing state to theUN

establishes a presumption that the contingent in question is placed at the disposal of and that its conduct is attributable to the organization. Paradoxical- ly, the lower the level of command and control (full command being the highest) transferred, the stronger the presumption, because the lower the level of command and control the more detailed direction and control actually is, explaining why conduct of contingents is not a priori attributed to troop contributing states though they the highest level of command, full command. The presumption that a contingent is placed at the disposal of the organization is rebutted if it is established that the troops in question were acting in fact on behalf of a troop contributing state. It is not necessary that the sending state

gave express instructions in this regard, because it is sufficient that troops in question acted under the direction and control of the state. It is difficult to semantically further explicate direction and control, as demonstrated by the discussions in theIDI, and it may be necessary to take diverse elements into account.

State practice in connection withUNpeace support operations also demon- strates that the principle in draft article 7 of the ILC draft articles on state

responsibility is applied. Off-duty conduct of members of peace support operations, that is, conduct in an individual capacity and not attributable to the performance of official duties, is not attributed to theUN. The organization can be responsible for conduct of troops even if the conduct was in excess of authority or contravention of instructions. In that case attribution is justified by the apparent authority of the troops, in other words by the link between the individual or individuals in question and the organization that has con- ferred authority or power that they have abused.

The application of these principles to theUNdemonstrates that in state

practice theILCdraft articles on state responsibility are appliedmutatis mutandis to the organization. Such an application is accepted by writers. More im- portantly, it is in conformity with the common basis for responsibility of states and international organizations: the capacity to possess rights and obligations under international law. In the specific case of peace support operations application of draft article 6 is appropriate because it reflects the plurality of legal persons involved. In contrast to officials of theUNSecretariat, for ex- ample, contingents in peace support operations continue to have a functional connection with their state of nationality.

Lex specialis in Article 3 of Hague ConventionIV and Article 91 of Ad- ditional Protocol I is not applied to peace support operations, which demon- strates that the law of state responsibility is appliedmutatis mutandisto inter- national organizations. The premises on which Articles 3 and 91 rest is not present in the case of peace support operations.

Responsibility of the international organization does not preclude the possibility of piercing the veil of the organization in certain circumstances so that member states are responsible for conduct of the organization. State practice in connection with peace support operations does not contribute to establishing a clear rule of customary international law or general principle of law on this question, which cannot be deduced from practice outside the specific context of peace support operations either. In connection withUN

operations a concurrent responsibility of member states has never been claimed, while the presence of claims settlement procedures may have prevented claims of secondary responsibility being raised. The Federal Republic of Yugoslavia has invoked responsibility ofNATO member states in its application to the International Court of Justice, and a judgment of the Court on the merits in these cases is at least as potentially groundbreaking on the question of member

states responsibility as on the question of the legality of humanitarian inter- vention that pre-occupies most of the commentators to the case.

In the absence of a clear rule oflex lata on member state responsibility, it is important to consider thelex ferendaon the topic. Argumentsde lege ferenda will probably be important for theILCwhen it progressively develops the law of responsibility of international organizations. Writers and courts have formu- lated such arguments primarily in connection with international corporations instead of international organizations that exercise public functions. The argument that those who engage in transactions of an economic nature are deemed liable for the obligations which flow therefrom, for example, does not apply to peace support operations unless such operations are seen as undertaken for economic profit.

On the other hand, the argument that member states will interfere unduly in the affairs of the organization if they are potentially responsible, applies to peace support operations. On one level member state responsibility could collapse the system of peace support operations, because member states could refuse to provide contingents. On another level, member state responsibility could lead national authorities to interfere in command and control in the field. Experience has demonstrated that when command in the field is divided, and military units receive guidance from national as well asUNheadquarters, the difficulties inherent in an international operation are maximized and the risk of casualties arises. One example is theUNOSOM II. The Lessons Learned Unit in the UN Department of Peacekeeping Operations concludes in its report concerning this operation that:

Unity of command and purpose is a critical element if coalition operations such asUNOSOMare to succeed. With regard to the military component, there were at least two types of difficulties related to unity of command. First off, not all the national contingents operating in the area were placed underUNOSOMcommand, and this led to tragic consequences. Secondly, some contingents that were ostensibly part ofUNOSOMwere in fact following orders from their respective capitals; this made them unreliable in the mission area and reduced the mission’s effective- ness.257

A policy argument used to support member state responsibility is the value of the protection of innocent third parties, and this argument also seems applicable toUN andNATO peace support operations. The third parties in question are states and not individuals. International law does not yet give individuals the right to invoke responsibility for a breach of international humanitarian law.

257 Experience with the United Nations operation in Somalia does not support the argument that more control by officers of national contingents leads to more compliance with the law (see Wengler in § 2.9.1), because the most serious reports of unlawful conduct relate to this operation.

Whether or not member states are responsible for the conduct of an inter- national organization, they remain responsible for their own conduct in con- nection with an international organization.

If a national contingent has nominally been placed at the disposal of an international organization but acts in fact on behalf of the troop contributing state, its conduct is attributable to the state. In that case the contingent remains an organ of the troop contributing state and its conduct is attributable to the state. In this case Article 3 of Hague Convention (IV) and Article 91 of Addi- tional Protocol I apply for those states that are parties to the treaties in ques- tion. The conduct is attributed to states that are not parties to these treaties on the basis of draft article 4 of the draft articles on state responsibility.

State responsibility can also derive from the transfer of command and control over a national contingent to theUNorNATO. Such a transfer could be a violation of the duty to ensure respect for the provisions of the 1949 Geneva Conventions in common Article 1 of the conventions. The limited reach of the duty to ensure respect suggests that a state is not automatically re- sponsible if a contingent that has been placed at the disposal of an organization breaches a provision of the conventions, but only if the state has not taken certain steps such as adequately training the contingent in question.

In the Bankovic´case, applicants based their claim of state responsibility inter aliaon the voting by states in the North Atlantic Council. Such a claim of responsibility is based on the attribution of conduct of the state’s represent- atives in a decisionmaking organ of an organization and not on the attribution of conduct of the organization itself to the state.258_{It is an application of draft}

article 16 of theILCdraft articles, which states that a state which aids or assists another state in the commission of an internationally wrongful act by the latter, is internationally responsible.259 _{In this case the state is responsible on the}

basis of the assistance given by its vote permitting an international organization to commit an internationally wrongful act.260 _{In contrast to the theory dis-}

cussed in § 2.9.3, conduct by a state’s representatives within an international organization instead of conduct by state officials outside the organization is attributed to the state. Other differences are that based on application of draft article 16 the conduct of the organization that receives the aid or assistance

258 See also T. Stein,Kosovo and the International Community. The Attribution of Possible Inter- national Wrongful Acts: Responsibility of NATO or of its Member States?, in C. Tomuschat (Ed.), Kosovo and the International Community 181 (2002), at 191.

259 Article 16

Aid or assistance in the commission of an internationally wrongful act

A state which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

That State does so with the knowledge of the circumsatnces of the internationally wrongful act; and

The act would be internationally wrongful if committed by that State. 260 See P. Klein,supranote 76, at 469.

must be an internationally wrongful act itself, in other words the obligation breached must be in force for the state and for the organization, that the state votes with knowledge of the circumstances of the internationally wrongful act and that the aid or assistance is given with a view to facilitating the com- mission of the wrongful act, and must actually do so. Such a basis for respons- ibility was invoked by Miloševic´ in interlocutory injunction proceedings against the Netherlands before the president of the District Court of the Hague.261

Miloševic´ claimedinter alia that the Netherlands acted unlawfully towards him by cooperating in the Security Council’s decision to establish theICTY. Because, according to Miloševic´, the Tribunal cannot be regarded as an in- dependent and impartial tribunal, the Netherlands may therefore be regarded, in a sense, as a co-perpetrator of human rights violations. The President of the District Court held that he did not have jurisdiction, since the subject matter of the complaint fell within the exclusive competence of theICTYwhich was entitled to immunity from jurisdiction in the Netherlands.

It is clear that the attribution of conduct in connection with aUNorNATO

peace support operation is not ana prioriexercise, but depends very much on the specific circumstances of the case. Depending on the circumstances, possible breaches of international humanitarian law by a peace support opera- tion can be a basis of responsibility for troop contributing states, the inter- national organization in question and/or member states.

261 Judgment in the interlocutory injunction proceedingsSlobodan Miloševic´v.the Netherlands, reproduced in 48 Netherlands International Law Review 357 (2001). In fact Miloševic´’s claim went even further by claiming that the Netherlands was responsible for cooperating in decisionmaking rather than voting. The Netherlands could not have voted for the establish- ment of the International Criminal Tribunal for the former Yugoslavia because it was not a member of the Security Council in 1993.