S TATE PRACTICE OF ATTRIBUTION OF CONDUCT OF U NITED N ATIONS PEACE SUPPORT OPERATIONS

operations

2.8 S TATE PRACTICE OF ATTRIBUTION OF CONDUCT OF U NITED N ATIONS PEACE SUPPORT OPERATIONS

2.8.1 Lump sums in the Congo

During the United Nations Operation in the Congo a number of Belgian, Greek, Italian, Luxemburg and Swiss nationals lodged claims for damage to persons and property with the United Nations. The governments of these individuals then exercised diplomatic protection by espousing the claims. TheUNnegoti-

ated agreements with the governments on compensation in the form of lump sums. The governments distributed the lump sums between the individual claimants. The Secretary-General stated in the agreements with the governments that the organization:

would not evade responsibility where it was established that United Nations agents had in fact caused unjustifiable damage to innocent parties. It is pointed out that, under these principles, the United Nations does not assume liability for damage to persons or property which resulted solely from military operations or which, although caused by third parties, has given rise to claims against the United Nations.131

The Soviet Union protested against the compensation provided by the organization. The Soviet Union was of the opinion that Belgium had forfeited its moral or legal basis for making claims against the organization either on its own behalf or on behalf of its citizens, because it had committed aggression against the Republic of the Congo.132 _{The Secretary-General replied to the}

Soviet note that:

130 Seee.g.Goldstar (Panama) S.A. v. United States, 967 F.2d 965 (4th Cir. 1992). See also § 5.5.2.

131 Agreement between the United Nations and Belgium relating to the settlement of claims filed against the United Nations in The Congo by Belgian nationals of 20 February 1965, 535 UNTS 199 (Spaak-U Thant Agreement). See also Exchange of letters constituting an agreement relating to the settlement of claims filed against the United Nations in the Congo by Swiss nationals of 3 January 1966, 564 UNTS 193; Exchange of letters constituting an agreement relating to the settlement of claims filed against the United Nations in the Congo by Greek nationals of 20 January 1966, 565 UNTS 3; Exchange of letters constituting an agreement relating to the settlement of claims filed against the United Nations in the Congo by Luxembourg nationals of 28 December 1966, 585 UNTS 147; Exchange of letters constituting an agreement relating to the settlement of claims filed against the United Nations in the Congo by Italian nationals of 18 January 1967, 588 UNTS 197.

132 Letter of 2 August 1965 from the Acting Permanent Representative of the USSR addressed to the Secretary-General, UN Doc. S/6589.

It has always been the policy of the United Nations, acting through the Secretary- General, to compensate individuals who have suffered damages for which the Organization was legally liable. This policy is in keeping with generally recognized legal principles and with the Convention on Privileges and Immunities of the United Nations. In addition, in regard to the United Nations activities in the Congo, it is reinforced by the principles set forth in the international conventions concerning the protection of the life and property of civilian population during hostilities as well as by considerations of equity and humanity which the United Nations cannot ignore. Accordingly, the claims submitted were investigated by the competent services ofONUCand at United Nations Headquarters in order to collect all the data relevant to determining the responsibility of the Organization. Claims of damage which were found to be solely due to military operations or military necessity were excluded. Also expressly excluded were claims for damage found to have been caused by persons other than United Nations personnel.133

2.8.2 Claims settlement procedures

TheUNhas established procedures for handling third-party claims for claims of a private law character against peace support operations. These procedures concern claims by the government of the host state as well as nationals of the host state.SOFAs provide that claims of a private law character shall be settled by a standing claims commission established for that purpose. The provision used in earlier agreements was reproduced in Article 51 of the ModelSOFA: Any dispute or claim of a private law character to which the United Nations peacekeeping operation or any member thereof is a party and over which the courts of [host country/territory] do not have jurisdiction because of any provision of the present Agreement, shall be settled by a standing claims commission to be established for that purpose. One member of the commission shall be appointed by the Secretary-General of the United Nations, one member by the Government and a chairman jointly by the Secretary-General and the Government.134 The modelSOFAprovides that any appeal that theUNor the host state agree

to allow from the award of the claims commission shall unless otherwise

133Id.

134 See also Report of the Secretary-General on arrangements concerning the status of the United Nations Emergency Force in Egypt of 8 February 1957, UN Doc. A/3526; Exchange of Letters Constituting an Agreement between the United Nations and the Government of the Republic of Cyprus concerning the Status of the United Nations Peace-Keeping Force in Cyprus, 492 UNTS 58, article 38; Agreement between the United Nations and the Republic of South Africa concerning the Status of the United Nations Transition Assistance Group in Namibia (South West Africa), UN Doc. S/20412/Add.1 of 16 March 1989, article 57; Agreement between the United Nations and the Government of the Republic of Rwanda on the Status of the United Nations Assistance Mission for Rwanda, 5 November 1993, United Nations Juridical Yearbook 1993, at 102, article 50.

agreed by the parties, be submitted to an arbitral tribunal. The decisions of the claims commission and the arbitral tribunal shall be binding on both parties.

However, to date, third-party claims of a private law nature have been settled without resort to the establishment of standing claims commissions. Instead, it has been the practice, with respect to most past and presentUN

operations, for a local claims review board established in the mission on the basis of authority delegated by the Controller to examine, approve or recom- mend settlement of third-party claims for personal injury or death and for property loss or damage that are attributable to acts performed in connection with official duties by civilian or military members of the mission. When the claims review board approves a settlement amount within its delegated financial authority, the relevant administrative office of the peacekeeping mission, normally the claims unit, proceeds to offer such a settlement amount to the claimant. In the vast majority of cases, the offer is accepted by the claimant and payment is made.

UNclaims review boards do not accept claims in connection with acts of members of peace support operations committed while off duty. In a 1986 memorandum theUNOffice of Legal Affairs stated thatUNpolicy in regard to off-duty acts of the members of peacekeeping forces is that the organization has no legal or financial liability for death, injury or damage resulting from such acts. The memorandum states that:

A soldier may be considered ‘off duty’ not only when he is ‘on leave’ but also when he is not acting in an official or operational capacity while either inside or outside the area of operations. In this regard, we wish to point out that there have been such off-duty determinations made with respect to previous incidents involving soldiers acting in a non-official capacity in the area of operations. We consider the primary factor in determining an ‘off-duty’ situation to be whether the member of a peace-keeping mission was acting in a non-official/non-operational capacity when the incident occurred and not whether he/she was in military or civilian attire at the time of the incident or whether the incident occurred inside or outside the area of operations.135

The Secretary-General submitted a report in 1995 that discussed the scope of

UN liability for activities of UNforces.136 _{The report was written pursuant}

to a request by the Advisory Committee on Administrative and Budgetary

135 UNJY 1986, 300.

136 Report of the Secretary-General on the the Financing of the United Nations Protection Force, the United Nations Confidence Restoration Operation in Croatia, the United Nations Preventive Deployment Force and the the United Nations Peace Forces headquarters; Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations of 20 September 1996, UN Doc. A/51/389.

Questions (ACABQ) to study the procedures for settling third-party claims.137

The report states that:

The international liability of the United Nations for the activities of United Nations forces is an attribute of its international legal personality and its capacity to bear international rights and obligations. It is also a reflection of the principle of State responsibility – widely accepted to be applicable to international organizations – that damage caused in breach of an international obligation and which is attributable to the State (or to the Organization), entails the international responsibility of the State (or of the Organization) and its liability in compensation.

In recognition of its international responsibility for the activities of its forces, the United Nations has, since the inception of peacekeeping operations, assumed its liability for damage caused by members of its forces in the performance of their duties. In conformity with section 29 of the Convention on the Privileges and Immunities of the United Nations, it has undertaken in paragraph 51 of the model status-of-forces agreement (see A/45/594) to settle by means of a standing claims commission claims resulting from damage caused by members of the force in the performance of their official duties and which for reasons of immunity of the Organization and its Members could not have been submitted to local courts. The undertaking to settle disputes of a private law nature submitted against it and the practice of actual settlement of such third-party claims – although not necessarily according to the procedure provided for under the status-of-forces agreement – evidence the recognition on the part of the United Nations that liability for damage caused by members of United Nations forces is attributable to the Organization.138

The report distinguished between the responsibility of the organization for the ordinary operation of a force and for combat-related activities. The responsibility of theUNfor combat-related activities is determined by the principles and rules of international humanitarian law. The report discusses the principles of attribution of conduct by peace support operations that violates international humanitarian law on the basis of command and control:

The international responsibility of the United Nations for combat-related activities of United Nations forces is premised on the assumption that the operation in question is under the exclusive command and control of the United Nations. Where a ChapterVII-authorized operation is conducted under national command and

137 Advisory Committee on Administrative and Budgetary Questions, Report on the Financing of the United Nations Protection Force (UNPROFOR), the United Nations Confidence Restoration Operation in Croatia (UNCRO), the United Nations Preventive Deployment Force (UNPREDEP), the United Nations Peace Forces headquarters (UNPF), the United Nations Mission in Bosnia and Herzegovina (UNMIBH) and the United Nations Transitional Administration in Eastern Slavonia, Branja and Western Sirmium (UNTAES), UN Doc. A/ 50/903/Add.1.

control, international responsibility for the activities of the force is vested in the State or States conducting the operation. The determination of responsibility be- comes particularly difficult, however, in cases where a State or States provide the United Nations with forces in support of a United Nations operation but not necessarily as an integral part thereof, and where operational command and control is unified or coordinated. This was the case in Somalia where the Quick Reaction Force and theUSRangers were provided in support of the United Nations Opera- tion in Somalia (UNOSOM II), and this was also the case in the former Yugoslavia where the Rapid Reaction Force was provided in support of the United Nations Protection Force (UNPROFOR).

In joint operations, international responsibility for the conduct of the troops lies where operational command and control is vested according to the arrangements establishing the modalities of cooperation between the State or States providing the troops and the United Nations. In the absence of formal arrangements between the United Nations and the State or States providing troops, responsibility would be determined in each and every case according to the degree of effective control exercised by either party in the conduct of the operation.

The principle that in coordinated operations liability for combat-related damage in violation of international humanitarian law is vested in the entity in effective command and control of the operation or the specific action reflects a well-established principle of international responsibility While it would be desirable to make provisions for the attributability of responsibility in the arrangements with the State or States providing troops, absent such arrangements, claims for damage caused by auxiliary troops should be submitted to their Governments for processing and settlement. This, in fact, was the procedure followed in the case ofUNOSOM IIand the forces made available in support of the United Nations operation.139 The Secretary-General also suggested that the General Assembly consider the concurrent responsibility of the state of nationality of the member of a peace support operation that violates international humanitarian law:

Given the exclusive criminal jurisdiction of the State of nationality and its obligation to ensure respect for international humanitarian law by members of its force, the General Assembly may wish to consider recognizing the concurrent responsibility of the State of nationality for violations of international humanitarian law by members of its national contingent and its responsibility in compensation.140 When the Fifth Committee of the General Assembly discussed the Secretary- General’s report it did not consider this suggestion,141_{nor does it seem to}

have been taken up in other organs.

139Id., paras. 17-19. 140Id., para. 44.

2.8.3 National case law

InN.K. v.Austriathe superior provincial court of Vienna decided that Austria was not responsible for damage to the property of a member of the Austrian contingent in the peace support operation in the Golan Heights.142_{The plain-}

tiff sought compensation from the state alleging that Austria was liable for the negligent act of another Austrian soldier in the same contingent that caused the damage. The Court of first instance dismissed the action on the ground that, at the time in question, the negligent soldier had been acting as an organ of theUNand not of Austria. The superior provincial Court dismissed the appeal on the basis of Austrian law, which accepts the so-called ‘organ theory’. According to this theory, in determining which legal entity is liable under the Austrian state liability law, what is decisive is not whose organ (from the organizational standpoint) the person alleged to have caused the damage actually was, but rather in whose name and for whom (from the functional standpoint) that person was acting at the moment when the act occurred. The court, taking this theory as the starting point, decided that the negligent soldier was not acting as an organ of the state. It discussed the agreement between theUNand Austria concerning the contribution of troops and the annexed regulations, which stated that members of the force, whilst remaining in the service of their national state, become, during the period of their assignment to the force, international personnel under the authority of theUNand that

through the chain of command, they are subject to the instructions of the commander appointed The court concluded that:

Starting from the premise that the order at issue in this case was given by the “Commander”, albeit indirectly through a “senior authority”, to a “member of the United Nations Forces in Cyprus” under his command (cf. Point 5c of the Regula- tions), this Court concurs with the view of the court of first instance that the Lance- Corporal, according to the organtheorie explained above, was acting as an organ of the United Nations and not of the Republic of Austria when he caused the damage at issue. The defendant is therefore not capable of being sued.143 InNissanv.Attorney-Generalthe tenant of a hotel in Nicosia, Cyprus, claimed compensation from the United Kingdom for damage resulting from the occupa- tion and possession of the hotel by inter alia British members of the United Nations Force in Cyprus operation after 27 March 1964. The defendant claimed that the members of the force were temporarily servants of the commander and that his master was in turn the United Nations, who were to be treated as equivalent to an independent sovereign state.

142 Austria, Superior Provincial Court (Oberlandesgericht) of Vienna, N.K. v.Austria, 26 February 1979, 77 ILR 470.

The case concerned a number of preliminary questions, including whether the defense by the government that the acts of the soldiers were acts of the

UNand not of the government disclosed a ‘good defense’ in law to the claim of compensation. According to the government:

The British forces operating in the Republic of Cyprus from and after Mar. 17, 1964, were contingents of the United Nations force aforesaid. In the premises no action lies against the Crown in respect of any of the actions of the said forces.144 It was made clear by the government that the last sentence of this paragraph covered three separate contentions, one of which was that the force and its British soldiers were agents of theUN. Judge Stephenson relied on the agree-

ments between the UN and Cyprus, and the organization and the United Kingdom, to decide whether the force occupied the hotel as agents of the state or of theUN. He stated that:

The British troops derived their authority to occupy the hotel no longer from her Majesty but from the United Nations, and occupied it as agents of the United Nations exclusively. From that date, until they were withdrawn from service with the United Nations force, it no longer rested with the British government to say whether they stayed in the hotel or left, and the only authority which their own commander had so long as they remained members of the force to order them in or out of the hotel or any other premises required for their accommodation or the fulfillment of their functions was derived from the commander of the force and through him from the United Nations.145

The Court of Appeal dismissed Nissan’s appeal concerning the decision of Judge Stephenson that the government was not responsible for the British

In document Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations (Page 98-107)