Dual Attribution of Conduct to both an International Organisation and a Member State

2.4.1 Introduction

To move from the conceptual level to positive law, I will analyse the rules of attribution under current international law in order to demonstrate that they allow for dual attribution – despite some indications to the contrary from the European Court of Human Rights (ECtHR).

2.4.2 The pertinent bases of attribution: organic link and control

In the dual attribution context, two bases of attribution are of particular interest:

It is important to distinguish between organic link and control-based attribution. That is because the scope of the conduct that is attributed to the State/IO varies between these two categories.

Attribution based on an organic link happens en bloc : all the conduct of organs and agents are attributed to the State/IO they belong to.⁴⁴ Even if an organ or agent exceeds its authority or contravenes instructions its conduct is nevertheless attributed to the State or IO.⁴⁵ There is only a very limited exception to this default rule: so-called ‘private’ or ‘off-duty’ conduct is not attributed.⁴⁶ For example, if a UN staff member working in New York City decides to rob a bank while off work, that robbery is not attributable to the UN.

On the other hand, attribution based on control is ad hoc in the sense that control must be exercised over each particular course of conduct.⁴⁷ Attribution based on control must therefore, in principle, be determined on a case-by-case basis. Non-attribution is in other words the default rule; ‘effective control’ over a particular course of conduct must be proven for attribution to happen.⁴⁸

What qualifies as an organ or agent differs slightly between States and IOs. An organ of a State ‘exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit’.⁴⁹ The term ‘organ’ is here understood in a broad sense – as any natural or legal person, including individual officials, departments, executive agencies, and other bodies.⁵⁰ A single police officer is thus an organ, and so is a collective body such as a committee, a court, or a legislature. State organs not only include those that have such status according to the laws of that State, but also de facto organs.⁵¹ Thus, a State ‘cannot evade responsibility … merely by denying [an organ] the status as such under internal law’.⁵² The test for when a person or entity qualifies as a de facto organ is strict: ‘complete dependence’ on the State, in the sense that they are merely an instrument of that State, is required.⁵³ In addition, the conduct of persons or entities that are neither de lege nor de facto organs, but which are empowered by domestic law to ‘exercise elements of the governmental authority’, is attributed to the State under an organic link (en bloc).⁵⁴

An organ of an IO may be defined as any component of the organisation that, according to the rules of the organisation, performs some of its functions.⁵⁵ There is little need to precisely delimit what constitutes an IO organ since the conduct of agents of the organisation is also attributed to it under an organic link (en bloc). The term ‘agent’ must be understood ‘in the most liberal sense’.⁵⁶ Any person or other non-organ entity ‘who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts’ is regarded as an agent.⁵⁷ In exceptional circumstances IO functions may be regarded as given to an organ or agent even if this is not based on the rules of the organisation (de facto organs and agents).⁵⁸

This concept of an agent distinguishes the rules on attribution of conduct to IOs from those applicable to States. There is no parallel to ARS Article 8 (discussed in the next paragraph), which allows for the attribution of the conduct of private persons to IOs if the organisation exercises effective control over that conduct. However, the concept of an IO agent is broad and inclusive, and captures many of the situations that for States are attributed based on ARS Article 8. When private individuals act under the direction or control of an IO, they may usually be regarded as agents of the organisations.⁵⁹ The difference between the two regimes may therefore not be significant with regard to whose conduct may be attributed, but the extent of the conduct that may be attributed is quite different: the conduct of private individuals regarded as agents is attributed to an IO under an organic link (en bloc), while the conduct of private individuals is only attributed to a State when there is effective control over a particular act or omission (ad hoc).⁶⁰

Attribution may also be based on the control exercised by a State or an IO over the conduct of private persons or other entities. The conduct of private individuals is attributed to a State if it exercises effective control over the particular conduct of those individuals.⁶¹ Similarly, the conduct of a State organ placed at the disposal of an IO is attributed to the IO if it exercises effective control over the conduct of that organ.⁶² While the test of control is phrased identically, as ‘effective control’, the field of application of ARIO Article 7 is narrower than ARS Article 8. ARIO Article 7 only envisages the possibility of effective control over the conduct of an organ of a State. In contrast, the conduct of private individuals may be attributed to States if they exercise effective control over them.⁶³

Since ARIO Article 7 applies when IOs control State organs, it must first be distinguished from the organic link rule in ARIO Article 6. The dividing line is the degree to which authority is transferred: if a State organ is ‘fully seconded’ to an IO, it must be regarded as a (de facto) organ of that IO.⁶⁴ Conversely, ARIO Article 7 applies when the organ in question is still a State organ that has merely been ‘placed at the disposal of’ an IO.⁶⁵ The conduct of that State organ will then be attributed to the IO if the latter exercises effective control over the conduct in question.

Whether the control test under ARIO Article 7 has been met must be determined on a case-by-case basis, taking into account the actual exercise of control over the State organ in question.⁶⁶ The threshold is lower than the requirement of effective control under ARS Article 8.⁶⁷ The notion of control in ARIO Article 7 is ‘intimately linked’ to the military notion of operational (command and) control.⁶⁸ When operational control over a State organ is transferred to an IO, there is a presumption that the organ’s conduct is attributed to the organisation.⁶⁹ At least so with regard to the functions of the IO that the seconded State organ exercises on the organisation’s behalf.⁷⁰ This presumption is rebuttable. According to Zwanenburg:

This presumption can be rebutted if it is established that the [State organ] acted under the direction and control of the [seconding] state, the clearest example of which would be specific instructions. The mere provision in agreements between the [IO] and [seconding] states that national administrative matters remain the responsibility of the government of the troop contributing state, or that the orders of the international commander are received by the contingent through the national operational commander of the contingent, do not establish such a situation [ie a rebuttal].⁷¹

2.4.3 The current attribution rules allow for dual attribution

There is nothing in the rules of attribution analysed just above that excludes dual attribution. Attribution is the result of a legal evaluation, and the attribution rules are not mutually exclusive.⁷² Thus, as Boutin puts it: ‘[b]ecause attribution operates individually, parallel attribution of a given conduct can arise if grounds for attribution are found for each entity.’⁷³

Although the attribution rules seem to allow for dual attribution, the European Court of Human Rights (ECtHR) apparently rejected the very notion of dual attribution in its (in)famous 2007 Behrami and Saramati decision.⁷⁴ The facts pertaining to Mr Saramati illustrates the case well: he was first detained for a month on suspicion of attempted murder, but then released after the Supreme Court granted his appeal against the decision to extend his pre-trial detention. Soon after his release, however, Mr Saramati was detained anew by the UN Mission in Kosovo (UNMIK) police on the order of the Commander of the Kosovo Force (KFOR),⁷⁵ who at the time was a Norwegian military officer. This second period of detention was not pre-trial detention, however, but rather security detention – ie preventive detention purely for the purpose of establishing a secure environment in Kosovo.⁷⁶ After just over six months in security detention, Mr Saramati was convicted of attempted murder by the District Court and transferred to the UNMIK detention facilities – thus ending his security detention. The conviction was later quashed by the Supreme Court, and Mr Saramati was released pending a re-trial in the District Court.

Mr Saramati alleged that he had been held in extra-judicial detention by KFOR for over six months without access to a court, and brought a case before the ECtHR against France, Germany, and Norway. The choice of respondents is explained by the fact that the commander of KFOR at the time of his arrest was a Norwegian officer.⁷⁷ A French officer then took over as commander of KFOR while Mr Saramati was still in security detention.⁷⁸ Moreover, Mr Saramati initially alleged that a German soldier had been involved in his second arrest, but later withdrew the case against Germany because he could not put forward any objective evidence in support of the allegation.⁷⁹

The first issue that the ECtHR had to tackle was whether the conduct of the (Norwegian and French) officers was attributable to the UN, to their home States, or both. In its decision, the ECtHR found that the detention of Mr Saramati was attributable to the United Nations, because KFOR was ‘exercising lawfully delegated Chapter VII powers’.⁸⁰ Then – without much real explanation – the Court added that the conduct in question could not be attributed to the respondent States.⁸¹ Although the court never says it explicitly, this hasty conclusion seems premised on the view that attribution is a binary (either/or) question.

The Behrami and Saramati decision was fiercely criticised by scholars on exactly this point.⁸² Larsen described the Court’s approach as ‘difficult to reconcile with’ the ILC’s work on the responsibility of international organisations, with UN practice on responsibility for unlawful conduct in peace operations, and with the ECtHR’s own jurisprudence concerning attribution of conduct.⁸³

Ten years have passed since Behrami and Saramati, and the world has moved on. And it has moved in the direction of accepting dual attribution. First, domestic courts have rejected Behrami and Saramati, and accepted dual attribution in recent rulings. The House of Lords (now: UK Supreme Court) arguably rejected Behrami and Saramati in Al-Jedda, which was decided just months after Behrami and Saramati.⁸⁴ Moreover, Dutch courts have repeatedly confirmed the possibility of dual attribution in cases concerning the acts of Dutch peacekeeping troops in connection with the Srebrenica genocide.⁸⁵ German courts also appear to have recognized the possibility of dual attribution in the MV Courier litigation.⁸⁶

Second, the ILC distanced itself from Behrami and Saramati in the commentaries to ARIO.⁸⁷ The ILC also explicitly recognized the possibility of dual attribution, although it added that ‘it may not frequently occur in practice’.⁸⁸

Third, even the ECtHR itself appears to have moved on, by reversing Behrami and Saramati. The most explicit reversal may be found in its 2011 judgment in the Al-Jedda case.⁸⁹ The case concerned the internment of Mr Al-Jedda in Iraq by British forces. The UK argued, inter alia, that the internment was attributable to the United Nations, and thus ipso facto not to the UK. However, in its judgment, the ECtHR rejected the UK’s argument:

The Court does not consider that … the acts of soldiers within the Multi-National Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations.⁹⁰

This confirms the conclusion reached at the start of this section, namely that dual attribution is indeed possible, lex lata.

2.5.1 Overview

Dual attribution can occur in a multitude of situations. It may be useful to distinguish between situations of dual attribution by virtue of the four possible pairings of organic link and control-based attribution:

Table 1

2.5.2 Double organic link

The classic example of a double organic link is common organs. These are a fairly common occurrence in legal relations between IOs inter se.⁹¹ Common organs are also exceptionally established between States.⁹² When a common organ is established by two States or IOs, that organ’s conduct is attributed to them both, since there is a double organic link.⁹³ The same must apply to an organ that is common to a State and an IO.

In addition, we have the situation briefly mentioned above in section 2.3 where the conduct of two persons is so closely intertwined to be indistinguishable. Consider, for example, a situation where a State official and an IO official perform a collective act or omission.⁹⁴ Generally, the conduct of each of them is attributable to the State/IO under an organic link. Since their conduct is collective, it must be simultaneously attributed to the IO and the State in question. Again, there is a single course of conduct (one act or omission) that is attributed to both a State and an IO, because of a double organic link.

2.5.3 Organic link with an IO and exercise of control by a State

Dual attribution may also occur when a person who is organically linked to an IO is simultaneously being instructed by a State. Such situations of dual attribution typically arise when States interfere with the activities of an IO’s organs or agents.

A hypothetical example of such interference could be that an UNHCR agent handling resettlement applications from refugees is recruited as a spy by a State. The agent in question then copies and transfers sensitive personal data about the refugees whose applications he handles to that State. This irregular collection of personal data is attributable to the UNHCR through the organic link, since the agent is acting under apparent authority, while exercising UNHCR functions.⁹⁵ At the same time, this irregular data collection is attributable to the State, which exercises effective control over the agent performing it. One course of conduct is thus attributable to both an IO and a State.

2.5.4 Organic link with a State and effective control by an IO

A third situation could be when the conduct of an organ is attributable both to a State under an organic link and simultaneously to an IO that exercised effective control over that conduct. For dual attribution to arise in such situations, the attribution rules in ARS Article 4 (cf. Article 7) and ARIO Article 7 must be capable of being applied concurrently. However, the ILC appears to envisage ARIO Article 7 as an either/or attribution rule. At least that is how the commentaries to the provision are phrased: ‘the condition for attribution of conduct either to the contributing State … or to the receiving organization is based … on the factual control that is exercised’.⁹⁶

Moreover, as mentioned above in section 2.4.2, there is no direct equivalent of ARS Article 8 in the ARIO. ARIO Article 7 appears similar, but is more closely related to ARS Article 5, since it concerns control over State organs that are placed at the disposal of an IO. By definition, then, ARIO Article 7 is only applied in situations where the person or entity performing the conduct is a State organ. When ARIO Article 7 applies, it functions as an exception from the general rule that the conduct of State organs is attributable to the State. Instead, as long as the organ is placed at the disposal of an IO that also exercises effective control over it, attribution is exclusive to the IO.⁹⁷ Conversely, in the absence of effective control by the IO over a particular course of conduct, only the organic link rule in ARS Article 4 applies.⁹⁸

That said, it might not be possible to completely rule out dual attribution of conduct in these situations. Palchetti suggests that dual attribution could exceptionally be possible in cases ‘where it is not clear whether the national contingent was acting in the exercise of functions of the sending state or of the organization.’⁹⁹ One example he mentions is where the conduct was the result of instructions given by mutual agreement of the IO and the State.¹⁰⁰ Palchetti also mentions the case of the evacuation of Dutchbat from Srebrenica:

[In] the transition period following the fall of Srebrenica, it was hard to draw a clear distinction between the power of the Netherlands to withdraw Dutchbat from Bosnia and the power of the UN to decide about the evacuation of the UNPROFOR unit from Srebrenica. Since during that period both the Netherlands and the UN appeared to be formally entitled to exercise their respective powers over Dutchbat, and since in fact they both exercised their actual control by issuing specific instructions, dual attribution might be regarded as justified.¹⁰¹

2.5.5 Concurrent effective control

It is difficult to envisage dual attribution resulting from concurrent effective control by an IO and a State. That is because the field of application of the two control rules are different. As mentioned, ARIO Article 7 only allows for the attribution of the conduct of State organs placed at the disposal of, and under effective control of, an IO to that organization. In contrast, the conduct of private persons under the effective control of a State is attributed to that State under ARS Article 8. There does not appear to be any overlap between these two control rules that may give rise to dual attribution.

Still, one must not forget that the notion of agent of an IO is understood quite broadly, as any person through whom the organisation acts.¹⁰² This means that situations that for States would fall under the control rule in ARS Article 8, for IOs would be discussed under the notion of an IO agent, and thus under the organic link rule in ARIO Article 4. This is very similar to the situation where the conduct of a private person is simultaneously attributed to two States due to their concurrent effective control.¹⁰³ However, there is a crucial difference: the attribution to the IO happens due to an organic link – meaning that also ultra vires conduct is attributable. It is thus probably better to categorise such cases as situations where there is an organic link with an IO and effective control by a State (see above, section 2.5.3).