Skip to main content
SpringerLink
Log in

Legal Aspects of the Transfer of Authority in UN Peace Operations

  • Chapter
  • First Online:
Netherlands Yearbook of International Law 2011

Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 42))

Abstract

United Nations Peace Operations and UN mandated Peace Enforcement Operations, which are usually conducted by regional organizations or ad hoc coalitions of States, are wholly dependent upon the voluntary contribution of troops by Member States. This involves transferring parts of command authority to the United Nations or to the regional organization which has undertaken the mission under UN mandate, while other aspects of authority over the troops remain under the control of the State which is contributing its troops. This partial transfer of authority results in complex multilayered command structures which has given rise to certain legal and practical questions relating to the attribution of conduct in relation to allegations of possible violations of international law and the most appropriate remedies in such cases. This article provides an overview of the types of command structures most often used in both UN and UN mandated operations and explores the questions resulting from these in relation to attribution of conduct. It also discusses possible shortcomings in the provision of remedies and offers some suggestions as to how these might be addressed.

Professor of Military Law, University of Amsterdam and Netherlands Defence Academy; Associate Professor Public International Law, Utrecht University

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 109.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 109.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    For a description of the various types of UN (authorized) peace operations see inter alia Findlay 2002, pp. 3–7; White 1993, p. 199 et seq. The official UN typology can be found in the Secretary-General’s Reports ‘An Agenda for Peace’ 1992 and ‘Supplement to an Agenda for Peace’ 1995. The official UN Doctrine for Peace Operations is contained in ‘United Nations Peacekeeping Operations: Principles and Guidelines’ 2008, hereinafter cited as Capstone Doctrine.

  2. 2.

    For a description and explanation of the complex UN command and authority structure see ‘Managing United Nations Peacekeeping Operations’, in Capstone Doctrine, p. 67 et seq. For an analysis of this structure see Cammaert and Klappe 2010, p. 159 et seq. For an analysis of the reasons why the UN command structure is generally not employed in (peace) enforcement operations involving the risk of sustained high intensity combat see Gill 2010, pp. 92–93.

  3. 3.

    See supra, note 1.

  4. 4.

    The fundamental principles of United Nations Peacekeeping Operations are longstanding and are set out in ‘Basic Principles of United Nations Peacekeeping’, Capstone Doctrine, pp. 31–35.

  5. 5.

    ‘The Normative Framework for United Nations Peacekeeping Operations’, Capstone Doctrine, para 1.4; ‘Security Council Mandates’, pp. 16–19. See also Gill 2010, pp. 81–88 (enforcement and peace enforcement characterization and legal basis) and pp. 135–142 (idem. in re. consensual peacekeeping, peace making and peace building operations).

  6. 6.

    For an analysis of the nature of enforcement action see e.g. Simma et al. 2002, pp. 754–759; Franck 2002, p. 20 et seq.; Bowett 1964, pp. 266–267. For a clear distinction between enforcement and peace enforcement operations see Findlay 2002, pp. 6–7; Gill 2010, pp. 86–88.

  7. 7.

    The current UN Operations being conducted by DPKO can be found on the UN Peacekeeping website at http://www.un.org/en/peacekeeping/operations/current.shtml.

  8. 8.

    See supra, note 1. See also ‘The Evolving Role of United Nations Peacekeeping Operations’, in Capstone Doctrine, pp. 17–28.

  9. 9.

    Cathcart 2010, pp. 237–238. See also NATO Glossary of Terms, which has been adopted by all NATO members. The US Department of Defense Joint Publication 1-02 Dictionary of Military and Associated Terms incorporates it along with the standard NATO list of abbreviations and can be found at http://www.bits.de/NRANEU/others/jp-doctrine/jp1_02(05).pdf.

  10. 10.

    Cathcart 2010, pp. 235–238.

  11. 11.

    Ibid., pp. 237–238.

  12. 12.

    Cathcart 2010, p. 238.

  13. 13.

    Ibid., pp. 238–242.

  14. 14.

    ‘Planning a United Nations Peacekeeping Operation’, in Capstone Doctrine, pp. 47–56. For a description and analysis of UN Operational Authority, see Cammaert and Klappe 2010, pp. 159–161.

  15. 15.

    ‘Managing United Nations Peacekeeping Operations’, in Capstone Doctrine, pp. 66–68.

  16. 16.

    Cammaert and Klappe 2010, pp. 159–60; ‘Managing United Nations Peacekeeping Operations’, in Capstone Doctrine, pp. 67–69.

  17. 17.

    Fleck 2010, pp. 146–149.

  18. 18.

    For definition of operational and tactical command and control, see Cathcart 2010, p. 238. For a description of how this functions in the field within the UN command structure, see Cammaert and Klappe 2010, pp. 160–163.

  19. 19.

    Members of Military Contingents assigned to UN Operational Authority are bound by UN Codes of Conduct and Administrative Guidelines and the obligation to respect Host Nation Law. The TCCs which deploy them are bound to investigate and where evidence of criminal activity or misconduct exists, to prosecute members suspected of such misconduct or criminal activity. See Model MOU between the United Nations and Participating States, Article 7 bis-sexiens reproduced in Oswald et al. 2010, pp. 56–59. The authority of the UN to repatriate peacekeepers (or potentially entire contingents) is laid down in the Directives for Disciplinary Matters involving Members of National Contingents is reproduced in ibid., p. 387 et seq.

  20. 20.

    There is no generally applicable definition of ‘accountability’. The notion of accountability in the context of peace and peace enforcement operations was addressed by the International Law Association (ILA) within the broader context of accountability of international organizations. See International Law Association 2004, p. 164 et seq.

  21. 21.

    See Article 2 Articles on Responsibility of States (DARS) and Article 4 Draft Articles on the Responsibility of International Organizations (DARIO) respectively. Both documents can be found inter alia on the website of the International Law Commission, http://www.un.org/law/ilc/.

  22. 22.

    Article 2 DARIO stipulates that responsibility applies to organizations established under international law and possessing international legal personality. Article 4 DARIO provides that responsibility of an organization results from acts and omissions in breach of an international obligation which are imputable to that organization. The standard of effective control has been widely recognized by both the ILC and ILA and is laid down in Article 6 DARIO. For further extensive analysis see e.g. Kondoch 2010, pp. 521–523.

  23. 23.

    The legal personality of the UN was recognized as far back as the landmark Reparations for Injuries Advisory Opinion of 1949; ICJ Reports (1949) 174. Peacekeeping Operations are established as subsidiary organs of the mandating organ, i.e. the Security Council and possess legal personality within the scope of their activities. Likewise, NATO is an international organization possessed of international personality within the scope of its objectives and activities. See Zwanenburg 2004, pp. 66–67; Knoll 2008, p. 435.

  24. 24.

    For the general recognition of the ‘effective control’ standard see Kondoch 2010, p. 523. The ECtHR decision in the Behrami v France and Saramati v France, Germany and Norway, has received critical commentary from inter alia both Kondoch 2010 and Knoll 2008, respectively for applying a standard of ‘ultimate control’ instead of applying the ‘effective control’ standard consistently. See Kondoch 2010, pp. 525–528; Knoll 2008, pp. 443–444. See also Krieger 2009. The Tadic Appeals Chamber decision of the ICTY dealt with individual criminal responsibility, IT 94-I-A, 2 October 1995.

  25. 25.

    Krieger 2009, pp. 173–176.

  26. 26.

    Ibid.

  27. 27.

    Kondoch 2010, p. 524, pointing out that Article 9 of the Model UN MOU excludes UN responsibility for injury resulting from gross negligence or wilful misconduct. See also Oswald et al. 2010, p. 60.

  28. 28.

    Kondoch 2010, p. 524, citing a 1986 Memorandum of the UN Office of Legal Affairs, which is reproduced in the United Nations Juridical Yearbook 1986, p. 300.

  29. 29.

    A general description of the problem of sexual abuse in the context of (UN) Peace Operations is given by Klappe 2010, pp. 497–499. ‘Operational Necessity’ is discussed by Zwanenburg 2004, pp. 305–306. See also Kondoch 2010, p. 525, where he cites the (then) UN Secretary-General ‘the UN’s liability for property loss and damage caused by its forces in the ordinary operation of the Force is subject to the exception of operational necessity’ which is defined ‘as a situation in which damage results from the necessary actions taken by a peace-keeping force in pursuing its mandate. The determination of such necessity remains at the discretion of the force commander.’

  30. 30.

    Kondoch 2010, p. 530 citing the lack of any court decision and the relative lack of State practice to date in relation to joint or several responsibility. See also Report of the International Law Commission 2001, Commentaries, Article 46, para 3, p. 124, where it is stated that ‘notions of joint responsibility derive from internal law and analogies must be applied with care. The principle of independent responsibility reflects the position under general international law in the absence of agreement to the contrary by the States concerned.’ A transfer of authority agreement does not normally include any provision relating to joint or several responsibility.

  31. 31.

    Wolfrum 2002; Goodrich et al. 1969, pp. 25–29.

  32. 32.

    Simma et al. 2002, pp. 445–449; Goodrich et al. 1969, pp. 202–207.

  33. 33.

    For authoritative commentary on Article 103, see inter alia Bernhardt 2002, p. 1292 et seq. The broad interpretation of Article 103 by the ECtHR in the Behrami and Saramati decisions is (rightly) criticized by Krieger 2009, pp. 177–178; Knoll 2008, pp. 445–448.

  34. 34.

    See infra, note 36. For the UN’s acknowledgment of the duty to comply with fundamental legal norms in the conduct of operations, see ‘The Normative Framework for United Nations Peacekeeping Operations’, Capstone Doctrine, pp. 13–15. See also Secretary General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law of 6 August 1999 (ST/SGB/1999/13). In addition, the countries participating in a UN Peace Operation (or UN mandated (peace) enforcement operation) are bound by the human rights and humanitarian law conventions to which they are party in so fat as those are applicable in the context of the mission and will often instruct their troops to observe their principles, regardless whether the conventions are applicable as a matter of law.

  35. 35.

    Goodrich et al. 1969, p. 290 et seq; Simma et al. 2002, pp. 754–755.

  36. 36.

    Simma et al. 2002, pp. 1295–1302; de Wet 2004, pp. 191–215; Gill 1995, pp. 74–79.

  37. 37.

    The key word here is conflict. Only in the case of an actual conflict between an obligation under the Charter and another obligation under international law of a non-peremptory nature does Article 103 set aside the conflicting obligation. In addition to the sources cited above see inter alia Kleffner 2010, pp. 76–77.

  38. 38.

    For a more detailed discussion of the remedies open to other organs of the UN and Member States in the event of a perceived ultra vires decision by the Council, see Gill 1995, pp. 113–126.

  39. 39.

    In addition to the Behrami and Saramati decisions of the ECtHR referred to above, the decisions of national courts have also received attention in the literature. For a discussion of the UK House of Lords decision in Al Jeddah v Secretary of State for Defence (2007), see inter alia Kondoch 2010, pp. 525–528; Sari 2009. For a discussion of the Hague District Court’s decision in relation to a decision by a national court in the Netherlands, see Spijkers 2009.

  40. 40.

    The ECtHR decisions referred to are those in the Al Skeini and Al Jedda cases of 7 July 2011. Especially in the latter case, the issues of attribution of conduct and the application of the effective control standard were squarely before the Court and it determined that notwithstanding the recognition and endorsement of the multinational security force in SC Resolutions 1483 (2003) and 1511 (2003) this did not result in the United Nations exercising any degree of authority or control over the operation. In doing so, the Court accepted the reasoning of the UK House of Lords in 2007 (UKHL 58, 12 December 2007) which had distinguished the factual and legal situation in post-conflict Iraq from that pertaining to Kosovo in relation to the abovementioned Behrami and Saramati cases.

  41. 41.

    The gaps in available remedies and proposals for improvement in accountability have been set out by inter alia Zwanenburg 2004, p. 303 et seq. and Kondoch 2010, pp. 531–533.

  42. 42.

    See e.g. Klappe 2010, pp. 495–499.

References

  • Bernhardt R (2002) Article 103. In: Simma B et al (eds) The Charter of the United Nations: A commentary, vol 2, 2nd edn. Oxford University Press, Oxford, pp 1295–1302

    Google Scholar 

  • Bowett DW (1964) United Nations forces. Frederick A. Praeger, New York

    Google Scholar 

  • Cammaert P, Klappe B (2010) Authority, command and control in United Nations—led peace operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 159–163

    Google Scholar 

  • Capstone Doctrine (2008) Department of Peacekeeping Operations, Department of Field Support United Nations Peacekeeping Operations: principles and guidelines

    Google Scholar 

  • Cathcart B (2010) Command and control. In: Gill TD, Fleck D (eds) The handbook of the International aw of military operations. Oxford University Press, Oxford, pp 235–244

    Google Scholar 

  • de Wet E (2004) The Chapter VII powers of the United Nations Security Council. Hart Publishing, Oxford

    Google Scholar 

  • Findlay T (2002) The use of force in UN peace operations. Oxford University Press, Oxford

    Google Scholar 

  • Fleck D (2010) Status of forces in peace operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 199–200

    Google Scholar 

  • Franck T (2002) Recourse to force. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Gill TD (1995) Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the Charter. Netherlands Yearbook of International Law 26:33–138

    Article  Google Scholar 

  • Gill TD, Fleck D (eds) (2010) The handbook of the international law of military operations. Oxford University Press, Oxford

    Google Scholar 

  • Gill T et al (2010) Enforcement and peace enforcement operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 81–135

    Google Scholar 

  • Goodrich LM, Hambro E, Simons AP (eds) (1969) Charter of the United Nations. 3rd rev.ed. Columbia University Press, New York

    Google Scholar 

  • International Law Commission (2001) Report of the International Law Commission on its fifty third session at Geneva, Switzerland, from 23 April to 1 June and 2 July to 10 Aug 2001

    Google Scholar 

  • International Law Association (2004) Final report of the committee on accountability of international organizations. Report of the seventy-first Conference held in Berlin 16–21 Aug 2004

    Google Scholar 

  • Klappe B (2010) Prevention and repression of (sexual) violence, exploitation and abuse in the context of peace operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 495–500

    Google Scholar 

  • Kleffner J (2010) Human rights and international humanitarian law. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 51–77

    Google Scholar 

  • Knoll B (2008) Rights without remedies: The European Court’s failure to close the human rights gap in Kosovo. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 68:431–451

    Google Scholar 

  • Kondoch B (2010) The responsibility of peacekeepers, their sending states and international organizations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 515–534

    Google Scholar 

  • Krieger H (2009) A credibility gap: the Behrami and Saramati decisions of the European Court of Human Rights. J Int Peacekeeping 13:159–180

    Article  Google Scholar 

  • Oswald B, Durham H, Bates A (2010) Documents on the Law of UN Peace Operations. Oxford University Press, Oxford

    Google Scholar 

  • Sari A (2009) The Al Jeddah case before the House of Lords. J Int Peacekeeping 13:181–196

    Article  Google Scholar 

  • Simma B, Mosler H, Paulus A, Chaitidou E (eds) (2002) The Charter of the United Nations: a commentary, 2nd edn. 2 vol. Oxford University Press, Oxford

    Google Scholar 

  • Spijkers O (2009) The immunity of the United Nations in relation to the genocide in Srebrenica in the eyes of a Dutch Court. J Int Peacekeeping 13:197–219

    Article  Google Scholar 

  • White ND (1993) Keeping the peace: the United Nations and the maintenance of international peace and security. Manchester University Press, Manchester

    Google Scholar 

  • Wolfrum R (2002) Preamble. In: Simma B et al (eds) The Charter of the United Nations: a commentary, vol 1, 2nd edn. Oxford University Press, Oxford, pp 33–44

    Google Scholar 

  • Zwanenburg M (2004) Accountability under international humanitarian law for United Nations and North Atlantic Treaty Organization Peace Support Operations. Martinus Nijhoff, Dordrecht

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. University of Amsterdam and Netherlands Defence Academy, Amsterdam, Utrecht University, Utrecht, The Netherlands

    Terry D. Gill

Authors
  1. Terry D. Gill
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Terry D. Gill .

Editor information

Editors and Affiliations

  1. , Utrecht University, School of Law, Utrecht University, Janskerkhof 3, Utrecht, 3512 BK, Netherlands

    I.F. Dekker

  2. Erasmus University, Burgemeester Oudlaan 50, Rotterdam, 3062 PA, Netherlands

    E. Hey

Rights and permissions

Reprints and permissions

Copyright information

© 2012 Stichting T.M.C. Asser Instituut, The Hague, and the authors

About this chapter

Cite this chapter

Gill, T.D. (2012). Legal Aspects of the Transfer of Authority in UN Peace Operations. In: Dekker, I., Hey, E. (eds) Netherlands Yearbook of International Law 2011. Netherlands Yearbook of International Law, vol 42. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-849-1_2

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation