UN peacekeeping operations: when can unlawful acts committed by peacekeeping forces be attributed to the UN?

Abstract

UN peacekeeping missions operate under the authority of the UN. However, the military personnel that constitute a UN peacekeeping mission remain organs of the states from which they are contributed. Thus, whether unlawful acts committed by peacekeepers can be attributed to the UN is dependent upon whether the peacekeeping force can be regarded as being under the direction and control of the UN. This is a question of fact. According to the ICJ and the International Law Commission, unlawful acts committed by peacekeeping forces will be attributed to the UN only where the UN exercised ‘effective control’ over the commission of the unlawful act. In contrast, the ECtHR has consistently propounded a very different test, asserting that unlawful acts will be attributed to the UN only where the UN retained ‘ultimate authority and control’ over the peacekeeping mission. I argue, however, that neither of these tests provides a suitable legal framework for determining attribution of unlawful conduct in the context of UN peacekeeping missions. After outlining the deficiencies of these tests, I submit that a more suitable approach to determining attribution would be based upon the overall control test as outlined by the ICTY in Tadić.