Responsabilidade Internacional por Conduta das Forças de Paz da ONU: a questão da atribuição
| Autor | Paolo Palchetti |
| Cargo | University of Macerata, Macerata, Itália |
| Páginas | 19-56 |
International Responsibility for Conduct of UN
Peacekeeping Forces: the question of attribution
Responsabilidade Internacional por Conduta das Forças de Paz da ONU: a
questão da atribuição
Paolo Palchetti
University of Macerata – Macerata, Itália
Abstract: The present paper aims at studying
the international rules which have to be ap-
plied for the purposes of determining whether
a certain conduct taken in the context of a UN
peacekeeping operation must be attributed to
troop-contributing states or to the UN. I will
also consider whether, and under what cir-
cumstances, the same conduct may be attrib-
uted to both subjects. It argues that because
of their dual status as organs of both the UN
and the sending state, the formal status of
peacekeeping forces within the UN system
can hardly be regarded as decisive for pur-
poses of attribution.
Keywords: International Law. International
Responsibility. UN Peacekeeping.
Resumo: Realiza-se o estudo das normas interna-
cionais que devem ser aplicadas para determinar
se determinada conduta tomada no contexto de
uma operação de peacekeeping da Organização
das Nações Unidas deve ser atribuída aos Estados
que contribuíram com tropas ou à própria Orga-
nização. Considera-se também se, e sob quais cir-
cunstâncias, a mesma conduta pode ser atribuída
aos dois sujeitos. Defende-se que por conta de seu
duplo status (como órgão da ONU e órgão do Es-
tado emissor de tropas), o status formal das forças
de peacekeeping dentro do sistema ONU dificil-
mente pode ser caracterizado como decisivo para
os propósitos de atribuição de responsabilidade.
Palavras-chave: Direito Internacional. Res-
ponsabilidade Internacional. Forças de Paz.
1 Introduction
Resort to domestic courts to obtain reparation for damages occurred
in the course of multinational peace operations is not a novelty of the last
Doi: http://dx.doi.org/10.5007/2177-7055.2015v36n70p19
Recebido em: 23/03/2015
Revisado em: 14/04/2015
Aprovado em: 19/05/2015
20 Seqüência (Florianópolis), n. 70, p. 19-56, jun. 2015
International Responsibility for Conduct of UN Peacekeeping Forces: the question of attribution
few years. Already in 1969 the House of Lords was called upon to ad-
judge whether the United Kingdom had to pay compensation for acts of
the British forces participating in the United Nations Peace Keeping Forc-
es in Cyprus (UNFICYP)1. Ten years later the Oberlandesgericht Wien
had to rule on a similar claim made against Austria in relation to the con-
duct of a member of the Austrian Contingent participating in the United
Nations Disengagement Observer Force2. It is true, however, that in the
last decade there has been a significant increase in the number of cases
submitted to domestic courts and dealing with claims for compensation
for the damage caused by national contingents employed in the context of
multinational peace operations. This situation probably reflects the more
prominent role played by international organizations, particularly by the
UN, after 1990 in the field of the maintenance of international peace and
security. The expansion of the scope of activities of the UN in the last two
decades may explain the larger number of cases which raise the question
of the responsibility of that organization or of the states participating in
peace operations. At the same time, there is nowadays a greater aware-
ness of the need of designing ways to make international organizations
more accountable3. While a few decades ago the legal regime governing
the responsibility of international organizations (or of states acting within
the framework of an international organization) was regarded as a rather
obscure area of law, things have considerably changed. In this respect, the
recent work of the ILC on the topic of the responsibility of international
organizations has contributed to shedding some light on the matter.
Claims for reparation are sometimes brought directly against the
organization. One may mention, for instance, the case recently filed be-
fore a United States court against the UN for its alleged responsibility for
an epidemic of cholera that had broken out in Haiti in 2010 as a conse-
quence of the presence of Nepalese peacekeepers who were members of
1 House of Lords, Attorney General v. Nissan, 11 February 1969, All England Law
Reports, 1969-I, p. 646.
2 Oberlandesgericht Wien, N.K. v. Austria, 26 February 1979, International Law Reports,
Vol. 77, p. 470.
3 S ee generally J. Klabbers, ‘Controlling International Organizations: A Virtue Ethics
Approach’, 8 International Organizations Law Review (2011), p. 285 et seq.
Seqüência (Florianópolis), n. 70, p. 19-56, jun. 2015 21
Paolo Palchetti
the United Nations Stabilization Mission in Haiti (MINUSTAH)4. In most
cases, however, such claims are directed against troop-contributing states,
on the assumption that such states are to be held responsible for the con-
duct of their troops acting in the context of a multinational peace opera-
tion. The reason why these types of cases are generally submitted against
the troop-contributing state, and not against the organization, is easy to
explain. International organizations enjoy a sweeping immunity before
domestic courts, as a string of recent cases testifies5. Individuals cannot
bring complaints against them before international human rights tribunals
or other monitoring bodies, as they are not parties to human rights con-
ventions. In principle, there might be the possibility of resorting to inter-
nal mechanisms set up by the organization for the purposes of redress-
ing individuals injured by conduct during a peace operation. However,
with rare exceptions,6 mechanisms of this kind are generally lacking. In
every Status of Force Agreement concluded by the UN with states host-
ing peacekeeping operations, it is provided that any dispute or claim of a
private law character to which the UN peacekeeping operation is a party
must be settled by a standing claims commission. In practice, no such
commissions have ever been set up7. Thus, submitting the case against the
4 District Court (Southern District of New York), Georges et al. v. UN, October 2013.
For an assessment of the responsibility of the UN see F. Mégret, ‘La responsabilité des
Nations Unies au temps du cholera?’, 47 Revue belge de droit international (2013), p. 161
et seq.; J. Alvarez, ‘The United Nations in the Time of Cholera’, AJIL Unbound, available
at http://asil.org/remedies-harm-caused-un-peacekeepers.
5 See, for instance, Court of Appeal of The Hague, Mothers of Srebrenica v. Netherlands
and the United Nations, 30 March 2010, 49 International Legal Materials (2010), p. 1021
et seq.; Supreme Court of the Netherlands, Mothers of Srebrenica Association et Al v.The
Netherlands, 13 April 2013, 51 International Legal Materials (2013), p. 1327 et seq.
6 For an analysis of a special and innovative mechanism set up in relation to the activity
of the UN Mission in Kosovo (UNMIK), see P. Klein, ‘Le panel consultatif des droits
de l’homme (Human Rights Advisory Panel) de la MINUK: uneétapedans le processus
de responsabilisation des Nations Unies?’, in Perspectives du droit international au 21e
siècle - Liber Amicorum Christian Dominicé, MartinusNijhoff: Leiden/Boston, 2012, p.
225 et seq.
7 For an examination of the position of the UN on this issue see T. Dannenbaum,
‘Translating the Standard of Effective Control into a System of Effective Accountability:
How Liability Should Be Apportioned for Violations of Human Rights by Member State
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