Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-contributing nations

Abstract

AbstractOn 27 June 2017, in the Stichting Mothers of Srebrenica case, The Hague Court of Appeal applied the effective control test in determining attribution and found that the Netherlands was responsible for the failure of the Dutch battalion (Dutchbat) acting as a part of the UN Protection Force (UNPROFOR) to protect civilians from the Srebrenica massacre in 1995. This judgment is of considerable significance because the court renounced the preventive approach to the effective control test, to which the Dutch courts had repeatedly declared their adherence, and reverted to the traditional (presumptive) approach. The preventive interpretation was originally proposed with a view to justifying much broader attribution to troop-contributing nations (TCNs). However, quite interestingly, the Court of Appeal reached the conclusion that the Dutchbat’s conduct was attributable to the Netherlands without recourse to the preventive approach. The present study argues that the legal framework for the attribution of UN peacekeepers’ conduct has developed in such a manner that the fair allocation of responsibility and the effectiveness of UN peacekeeping operations are in equilibrium. In that sense, the effective control test should be located at the interface between the law of international responsibility and the law of international organizations. It is illustrated that not only does the preventive interpretation fail to strike a fair balance between the institutional considerations and the need to provide remedies for victims of peacekeepers’ misconduct, but also the presumptive approach may lead to effective remedies while having due regard for the institutional considerations.