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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

Published online by Cambridge University Press:  25 February 2019

Yohei Okada
Yohei Okada*
Affiliation:
Kobe University, Graduate School of International Cooperation Studies, Rokkodai-cho 2-1, Nada-ku, Kobe, 657-8501, Japan
*
Email: [email protected]
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Abstract

On 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.

Keywords

ability to preventattribution of conducteffective control testStichting Mothers of Srebrenica caseUN peacekeeping operation
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 32 , Issue 2 , June 2019 , pp. 275 - 291
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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Footnotes

*

Associate Professor of International Law, Graduate School of International Cooperation Studies, Kobe University. This article is partly based on my doctoral research conducted at Kyoto University under the thoughtful mentorship of Professor Hironobu Sakai. The author would like to thank Nicolaas Buitendag and the anonymous reviewers for their invaluable comments. All errors remain, of course, the author’s own.

References

1 Responsibility of International Organizations, UN Doc. A/RES/66/100 (2011), annex.

2 As rightly pointed out by Palchetti, ‘neither Article 7 nor the International Law Commission (ILC)’s commentary attempted to give a precise definition of this concept’: Palchetti, P., ‘Attributing the Conduct of Dutchbat in Srebrenica: The 2014 Judgment of the District Court in the Mothers of Srebrenica Case’, (2015) 62 Netherlands International Law Review 279CrossRefGoogle Scholar, at 281. See also Jacob, P., ‘Les définitions des notions d’“organe” et d’“agent” retenues par la CDI sont-elles opérationnelles?’, (2013) 47 Revue Belge de Droit International 17, at 25Google Scholar; Messineo, F., ‘Attribution of Conduct’, in Nollkaemper, A. and Plakokefalos, I. (eds.), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (2014), 60, at 91CrossRefGoogle Scholar; Dannenbaum, T., ‘Dual Attribution in the Context of Military Operations’, in Barros, A.S., Ryngaert, C. and Wouters, J. (eds.), International Organizations and Member State Responsibility: Critical Perspectives (2016), 114, at 117–9Google Scholar.

3 As will be explained in more detail below, the effective control test discussed here fundamentally differs from its namesake for the attribution of private persons’ conduct to states. For the latter, see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 64–5, para. 115.

4 For those which are precedent to (and positively referred to in) the ILC’s work, see, e.g., Ritter, J.P., ‘La protection diplomatique à l’égard d’une organisation internationale’, (1962) 8 Annuaire Francais de Droit International 427CrossRefGoogle Scholar, at 441–4; Hirsch, M., The Responsibility of International Organizations toward Third Parties: Some Basic Principles (1995), at 64–7Google Scholar. See also Seyersted, F., United Nations Forces in the Law of Peace and War (1966), at 92, 204–5Google Scholar. For more recent authorities, see, e.g., Klein, P., ‘The Attribution of Acts to International Organizations’, in Crawford, J., Pellet, A. and Olleson, S. (eds.), The Law of International Responsibility (2010), 297, at 299–301Google Scholar; Häußler, U., ‘Human Rights Accountability of International Organisations in the Lead of International Peace Missions’, in Wouters, J. et al. (eds.), Accountability for Human Rights Violations by International Organisations (2010), 215, at 243–51Google Scholar; Tsagourias, N., ‘The Responsibility of International Organisations for Military Missions’, in Odello, M. and Piotrowicz, R. (eds.), International Military Missions and International Law (2011), 245, at 249Google Scholar; Bothe, M., ‘Peacekeeping’, in Simma, B. et al. (eds.), The Charter of the United Nations: A Commentary (2012), 1171, at 1184–5Google Scholar; Gill, T.D., ‘Legal Aspects of the Transfer of Authority in UN Peace Operations’, (2012) 42 Netherlands Yearbook of International Law 37, at 55CrossRefGoogle Scholar; Larsen, K.M., The Human Rights Treaty Obligations of Peacekeepers (2012), at 111–20Google Scholar.

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10 H.N., supra note 8, paras. 4.14.1–4.14.5.

11 Report of the International Law Commission on the Work of its 61st Session (4 May–5 June and 6 July–7 August 2009), 2009 YILC, Vol. II (Part 2), at 36.

12 Dannenbaum, T., ‘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 Troop Contingents Serving as United Nations Peacekeepers’, (2010) 51(1) Harvard International Law Journal 113.Google Scholar

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14 Stichting Mothers of Srebrenica et al v. the State of the Netherlands and the United Nations, Judgment of District Court in The Hague, 16 July 2014, Case no. 295247/HA ZA 07-2973.

15 Stichting Mothers of Srebrenica et al. v. the State of the Netherlands and the United Nations, Judgment of The Hague Court of Appeal, 27 June 2017, Case nos. 200.158.313/01 and 200.160.317/01.

16 Échange de lettres constituant un accord relatif au règlement de réclamations présentées contre l’Organisation des Nations Unies au Congo par des ressortissants belges [1965] 535 UNTS 197. The UN concluded almost identical agreements with Switzerland ([1966] 564 UNTS 193), Greece ([1966] 565 UNTS 3), Luxembourg ([1966] 585 UNTS 147), Italy ([1967] 588 UNTS 197) and Zambia, though the agreement with the last government is unpublished: Schmalenbach, K., ‘Dispute Settlement (Article VIII Sections 29–30 General Convention)’, in Reinisch, A. (ed.), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary (2016), 529, at 559Google Scholar.

17 R. Ago, Third Report on State Responsibility, 1971 YILC, Vol. II (Part One), at 273.

18 ibid., at 272.

19 Responsibility of States for Internationally Wrongful Acts, UN Doc. A/RES/56/83 (2001), annex.

20 Zwanenburg, supra note 6, at 88–97.

21 ibid., at 100.

22 ibid., at 101–2.

23 G. Gaja, Second Report on Responsibility of International Organizations, 2004 YILC, Vol. II (Part One), at 7.

24 Ibid.

25 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, [1999] ICJ Rep. 62, at 88–9, para. 66.

26 Art. 4(1) of the ASR.

27 Art. 5 of the ASR and Arts. 2(d) and 6 of the ARIO.

28 Art. 8 of the ASR.

29 Report of the International Law Commission on the Work of its 63rd Session (26 April–3 June and 4 July–12 August 2011), 2011 YILC, Vol. II (Part 2), at 56.

30 Report of the International Law Commission on the work of its 53rd session (23 April–1 June and 2 July–10 August 2001), 2001 YILC, Vol. II (Part 2), at 47–8.

31 Gaja, supra note 23, at 14. He observed that ‘[i]t would be going too far to consider that the existence of disciplinary power and criminal jurisdiction on the part of the contributing State totally excludes forces being considered to be placed at the disposal of the United Nations’, ibid., at 12.

32 Ibid., at 14.

33 Palchetti, P., ‘International Responsibility for Conduct of UN Peace-keeping Forces: The Question of Attribution’, in Palchetti, P. et al., Refining Human Rights Obligations in Conflict Situations (2014), 1, at 18Google Scholar.

34 Report of the ILC (2011), supra note 29, at 57. See also Ekanayake, C. and Rimmer, S. Harris, ‘Applying Effective Control to the Conduct of UN Forces: Connecting Factual Complexities with Legal Responsibility’, (2018) 15 International Organizations Law Review 9, at 15–16, 23–4CrossRefGoogle Scholar.

35 de Frouville, O., ‘Attribution of Conduct to the State: Private Individuals’, in Crawford, J., Pellet, A. and Olleson, S. (eds.), The Law of International Responsibility (2010), 257, at 261–4Google Scholar.

36 Palchetti, supra note 33, at 17–18.

37 Behrami v. France and Saramati v. France, Germany and Norway, Decision of the Grand Chamber of the ECtHR of 2 May 2007, Application nos. 71412/01 and 78166/01, para. 143.

38 Responsibility of International Organizations: Comments and Observations Received from International Organizations, UN Doc. A/CN.4/637/Add.1 (2011), at 13–14.

39 Ibid.

40 See, e.g., UNGA Sixth Committee (58th Session), Summary Record of the 14th Meeting, UN Doc. A/C.6/58/SR.14 (2003), para. 46; UNGA Sixth Committee (59th Session), Summary Record of the 21st Meeting, UN Doc. A/C.6/59/SR.21 (2004), paras. 21, 32, 39; Summary Record of the 22nd Meeting, UN Doc. A/C.6/59/SR.22 (2004), paras. 6, 8, 62; Summary Record of the 23rd Meeting, UN Doc. A/C.6/59/SR.23 (2004), paras. 8, 22, 26, 39.

41 Given that ‘[t]he transfer of responsibility from the State whose forces committed the wrongful act to the United Nations means that every member State of the organization is jointly responsible’, the members may be regarded as (specially-)affected states: Yamada, C., ‘Revisiting the International Law Commission’s Draft Articles on State Responsibility’, in Ragazzi, M. (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (2005), 117, at 122Google Scholar.

42 Report of the ILC (2011), supra note 29, at 56. See also Palchetti, supra note 33, at 10–13.

43 Condorelli, L., ‘Le statut des forces de l’ONU et le droit international humanitaire’, (1995) 78 Rivista di diritto internazionale 881, at 888Google Scholar.

44 Ibid., at 896 (translation by the author).

45 Ibid., at 893–7. His view was recently restated: Condorelli, L., ‘De la responsabilité internationale de l’ONU et/ou de l’État d’envoi lors d’actions de Forces de Maintien de la Paix: l’écheveau de l’attribution (double?) devant le juge néerlandais’, (2014) Questions of International Law (Zoom-in 1) 3Google Scholar.

46 Zwanenburg, supra note 6, at 101–2. Although Gaja observed in general terms that ‘conduct does not necessarily have to be attributed exclusively to one subject only’ (Gaja, supra note 23, at 4) and ‘dual attribution of the same conduct cannot be excluded’ (ibid., at 10), neither his report nor the ARIO commentary provides a conclusive answer on this point as far as UN peacekeeping operations are concerned (ibid., at 14; Report of the ILC (2011), supra note 29, at 56–60). It is true that the ECtHR implied that attribution to the UN may be compatible with attribution of the same conduct to TCNs (Al-Jedda v. the United Kingdom, Judgment of the Grand Chamber of the ECtHR of 7 July 2011, Application no. 27021/08, para. 80), but the findings concerned a UN-authorized operation (Palchetti, supra note 33, at 24).

47 De Visscher, P., ‘Observations sur le fondement et la mise en oeuvre du principe de la responsabilité de l’Organisation des Nations Unies’, (1963) 40 Revue de droit international et de droit comparé 165, at 168Google Scholar.

48 De Visscher, P., ‘Les conditions d’application des lois de la guerre aux opérations militaires des Nations Unies’, (1971, t. 1) 54 Annuaire de l’Institut de Droit International 1Google Scholar, at 56 (translation by the author).

49 Comments and Observations, supra note 38, at 14.

50 Palchetti, supra note 33, at 24.

51 Ryngaert, C., ‘Apportioning Responsibility between the UN and Member States in UN Peace-support Operations: An Inquiry into the Application of the “Effective Control” Standard after Behrami’, (2012) 45 Israel Law Review 151CrossRefGoogle Scholar, at 164.

52 In Behrami and Saramati, the ECtHR placed a high premium on the institutional interests in attributing the misconduct committed in the course of the UN-authorized operation in Kosovo to the UN (Behrami and Saramati, supra note 37, paras 132–41) to the point of being criticized for putting too much emphasis on them (see, e.g., A. Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’, (2008) 8 Human Rights Law Review 151, at 164). It is true that the legality under the institutional law of the UN is a different legal issue from attribution, but the institutional considerations should not be disregarded.

53 Gaja, supra note 23, at 15.

54 Salmon, J., ‘Les accords Spaak-U Thant du 20 février 1965’, (1985) 11 Annuaire Francais de Droit International 468CrossRefGoogle Scholar, at 478.

55 Manderlier v. United Nations and Belgium, Court of First Instance of Brussels, Judgment of 11 May 1966, [1972] 45 ILR 446, at 446–7.

56 T. Meron, ‘International Responsibility of States for Unauthorized Acts of Their Officials’, (1957) 85 British Yearbook of International Law 85, at 105–14.

57 United Nations Juridical Yearbook 1986, Memorandum to the Director, Office for Field Operational and External Support Activities, UN Doc. ST/LEG/SER.C/28, at 300.

58 Report of the ILC (2011), supra note 29, at 61. The commentary refers to, as a clear example of an off-duty act, a case where a member of the United Nations Interim Force in Lebanon engaged in moving explosives to the territory of Israel. However, peacekeepers may take advantage of their functions in committing wrongdoings even when they are off-duty. It may happen that a peacekeeper commits a robbery on a day off with a weapon supplied for the purpose of a peacekeeping operation. Thus, as the commentary points out, ‘[o]ne would then have to examine whether the ultra vires conduct in question is related to the functions entrusted to the person concerned’.

59 Report of the Commission of Inquiry Established Pursuant to Security Council Resolution 885 (1993) to Investigate Armed Attacks on UNOSOM II Personnel which Led to Casualties among them, UN Doc. S/1994/653 (1994), para. 243. The ARIO commentary observes that it would be difficult to attribute UNOSOM II members’ conduct to the UN in such a circumstance (Report of the ILC (2011), supra note 29, at 58).

60 Palchetti, supra note 2, at 287–9.

61 Dannenbaum observed that ‘current international practice fails to consider the full complexity of the peacekeeper’s context and, as a result, has developed a legal regime that does not properly and justly attribute responsibility’: Dannenbaum, supra note 12, at 116.

62 Ibid., at 158.

63 Ibid., at 114.

64 Ibid., at 145–7.

65 UN DPKO and DFS, supra note 5, para. 7.

66 Dannenbaum, supra note 12, at 157.

67 Report of the International Law Commission on the Work of its 56th Session (3 May–4 June and 5 July–6 August 2004), 2004 YILC, Vol. II (Part 2), at 51.

68 United Nations Juridical Yearbook 1994, UN Doc. ST/LEG/SER.C/32, at 450.

69 Deen-Racsmány, Z., ‘The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ARIO’, (2016) 13 International Organizations Law Review 341CrossRefGoogle Scholar, at 352–5.

70 Dannenbaum, supra note 12, at 158.

71 Ibid., at 156.

72 Ibid., at 158.

73 Ibid., at 164.

74 Ibid., at 165–7.

75 Ibid., at 167–8.

76 Ibid., at 169.

77 See, e.g., Palchatti, supra note 33, at 20, ft. 57. But see Nollkaemper, A., ‘Dual Attribution Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’, (2011) 9 Journal of International Criminal Justice 1143, at 1148CrossRefGoogle Scholar.

78 Ryngaert, supra note 51, at 155: Ryngaert continued that ‘[t]his is not too revolutionary an idea, as it was already implied by Seyersted in his 1966 monograph’, ibid., at 156. Seyersted was quoted as arguing that ‘if a Force is under national command, the Organization has no legal responsibility for it and does not represent it internationally’ (Seyersted, supra note 4, at 411). However, he continued that ‘[t]hus, the United Nations Force in Korea was under the international responsibility of the United States and, to a lesser degree, of the other participating States. The responsibility for a Force established under the Uniting for Peace resolution would be divided between the State in command and the other participating States in a similar manner’ (ibid., at 411–12). Therefore, given that he placed emphasis on the operational level of authority and control (ibid., at 411), it seems that Seyersted represented the traditional approach rather than foretold the preventive interpretation.

79 Burke, R., ‘Attribution of Responsibility: Sexual Abuse and Exploitation, and Effective Control of Blue Helmets’, (2012) 16 Journal of International Peacekeeping 1CrossRefGoogle Scholar; Perova, N., ‘Disentangling “Effective Control” Test for the Purpose of Attribution of the Conduct of UN Peacekeepers to the States and the United Nations’, (2017) 86 Nordic Journal of International Law 30CrossRefGoogle Scholar. Cf. Deen-Racsmány, supra note 69, at 355–64; Boutin, B., ‘Attribution of Conduct in International Military Operations: A Causal Analysis of Effective Control’, (2017) 18 Melbourne Journal of International Law 154Google Scholar, at 170–1, 174–6; Ekanayake and Harris Rimmer, supra note 34, at 28–37.

80 The court explicitly referred to the 2010 article by Dannenbaum: Nuhanović (Court of Appeal), supra note 13, para. 5.8.

81 Ibid., para. 5.7.

82 Ibid., para. 5.9 (emphasis added).

83 Ibid., para. 5.10.

84 Ibid., para. 5.11.

85 Ibid., para. 5.12.

86 Ibid., para. 5.18 (emphasis added).

87 Ibid., para. 5.20.

88 Kondoch, B. and Zwanenburg, M., ‘International Responsibility and Military Operations’, in Gill, T.D. and Fleck, D. (eds.), The Handbook of the International Law of Military Operations (2015), 559Google Scholar at 564–5.

89 T. Dannenbaum, ‘Killing at Srebrenica, Effective Control, and the Power to Prevent Unlawful Conduct’, (2012) 61 International and Comparative Law Quarterly 713, at 726.

90 Dannenbaum, supra note 2, at 127.

91 Contrariwise, commentators have rarely criticized the judgment: Spijker, O., ‘The Netherlands’ and the United Nations’ Legal Responsibility for Srebrenica Before the Dutch Courts’, (2011) 50 Military Law and the Law of War Review 517Google Scholar, at 522–9; B. Boutin, ‘Responsibility of the Netherlands for the Acts of Dutchbat in Nuhanović and Mustafić: The Continuous Quest for a Tangible Meaning for “Effective Control” in the Context of Peacekeeping’, (2012) 25 Leiden Journal of International Law 521, at 527–32. Interestingly, the ILC in its 2011 report did not go any further than summarizing the Court of Appeal’s judgment along with the District Court’s judgment: Report of the ILC (2011), supra note 29, at 59–60.

92 Nuhanović (Supreme Court), supra note 13, para. 3.11.3.

93 Ibid., para. 3.12.2.

94 Ibid., para. 3.12.3.

95 Stichting Mothers of Srebrenica (District Court), supra note 14, para. 4.46.

96 Dannenbaum, supra note 2, at 128–30.

97 Stichting Mothers of Srebrenica (District Court), supra note 14, para. 4.57.

98 Ibid., para. 4.58.

99 Srebrenica and its surroundings were designated as a safe area by Security Council Resolution 819 (UN Doc. S/RES/819 (1993), para. 1): ‘The mini safe area’ consisted of the Dutchbat’s compound, which was located near the city, and its surrounding areas. Over 20,000 people sought refuge in the mini safe area (Stichting Mothers of Srebrenica (District Court), supra note 14, para. 2.35).

100 Ibid., para. 4.87.

101 Ibid., para. 4.89.

102 Ibid., para. 4.93.

103 Ibid., paras. 4.94–4.115.

104 Stichting Mothers of Srebrenica (Court of Appeal), supra note 15, para. 15.2. Ryngaert observed that the Court of Appeal corrected the District Court’s mistake. Ryngaert, C., ‘Peacekeepers Facilitating Human Rights Violations: The Liability of the Dutch State in the Mothers of Srebrenica Cases’, (2017) 64 Netherlands International Law Review 453, at 455–6CrossRefGoogle Scholar.

105 Stichting Mothers of Srebrenica (Court of Appeal), supra note 15, para. 15.3 (emphasis in original).

106 Ibid., paras. 23.8–24.1.

107 Ibid., paras. 24.2–25.

108 It is said that the Court of Appeal’s judgment in Nuhanović was based on ‘the preventative rationale’: Ryngaert, supra note 51, at 173.

109 Under the current legal system, as Gaja insightfully implied, attribution is not premised on control itself, but the existence of a functional link. Control serves as an indicative factor in establishing the functional link: Gaja, supra note 23, at 7, fn. 28.

110 Deen-Racsmány, supra note 69, at 366–7.

111 Nollkaemper, supra note 77, at 1148; Palchetti, supra note 2, at 287–8; Deen-Racsmány, supra note 69, at 358–64.

112 d’Argent, P., ‘State Organs Placed at the Disposal of the UN, Effective control, Wrongful Abstention and Dual Attribution of Conduct’, (2014) Questions of International Law (Zoom-in 1) 17Google Scholar, at 24–5, 27–8. However, it could be noted that Dannenbaum conceived that this inflexibility has an advantage in terms of protecting vulnerable victims: Dannenbaum, T., ‘Public Power and Preventive Responsibility: Attributing the Wrongs of International Joint Ventures’, in Nollkaemper, A. and Jacobs, D. (eds.), Distribution of Responsibilities in International Law (2015), 192CrossRefGoogle Scholar, at 214–15.

113 Dannenbaum, supra note 12, at 184–7.

114 Ibid., at 178–9.

115 Boutin, supra note 79, at 172–3.

116 As admitted by Dannebaum, even a scenario in which a peacekeeper commits a wrongdoing while acting within their discretion as granted by the UN commander rarely comes about: Dannenbaum, supra note 12, at 165–6.

117 Hessbruegge, J.A., ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’, (2004) 36 New York University Journal of International Law and Politics 265Google Scholar, at 270–1.

118 According to Dannenbaum, a threshold should be high in the case of attribution, whereas whether a state has met the obligation of ‘preventive due diligence’ may be assessed in a less strict manner. For him, the difference between these two norms appears to be a matter of degree: Dannenbaum, supra note 112, at 212–15.

119 Report of the ILC (2001), supra note 30, at 38–9. But see Arangio-Ruiz, G., ‘State Responsibility Revisited: The Factual Nature of the Attribution of the Conduct to the State’, (2017) 100 Rivista di diritto internazionale (Supplement al n. 1/2017) 1Google Scholar.

120 H.N. v. the Netherlands, supra note 8, para. 4.14.1.

121 Bellamy, A.J. and Williams, P.D., ‘Explaining the National Politics of Peacekeeping Contributions’, in Bellamy, A.J. and Williams, P.D. (eds.), Providing Peacekeepers: The Politics, Challenges, and Future of United Nations Peacekeeping Contributions (2013), 417Google Scholar. For Dutch participation in UN peacekeeping operations see van Willigen, N., ‘A Dutch Return to UN Peacekeeping?’, (2016) 26 International Peacekeeping 702CrossRefGoogle Scholar.

122 It might be noted that, however, what matters in terms of the customary law-making process is that the UN, in generating the practice of assuming full responsibility for peacekeepers’ conduct, has consistently retained the perception that attribution to TCNs would have significant repercussions on troop contributions for future operations.

123 Such involvement by TCNs as falls short of interruption of the UN chain of command does not negate attribution to the UN since the functional link between the peacekeeper and the UN is not broken: Palchetti, supra note 33, at 26.

124 Ibid., at 11. See also Ekanayake and Harris Rimmer, supra note 34, at 15, 19–20.

125 Mukeshimana-Ngulinzira, supra note 9, para. 38.

126 Condorelli, supra note 45, at 10–13. See also Messineo, supra note 2, at 88–97.

127 United Nations, Troop and Police Contributors, available at peacekeeping.un.org/en/troop-and-police-contributors.

128 Krieger, H., ‘Addressing the Accountability Gap in Peacekeeping: Law-Making by Domestic Courts as a Way to Avoid UN Reform?’, (2015) 62 Netherland International Law Review 259CrossRefGoogle Scholar, at 275.

129 Dannenbaum, supra note 12, at 121–9.

130 ‘[I]f the United Nations is properly attributed with full and exclusive responsibility for such wrongs, the inadequacy of its remedial mechanisms is not reason enough to attribute responsibility to another actor. However, the current situation emphasizes the importance of carefully considering how responsibility for peacekeepers’ human rights abuses should be attributed’ (ibid., at 128–9). See also Boutin, supra note 79, at 178.

131 For a legal analysis of the event see Y. Okada, ‘Interpretation of Article VIII, Section 29 of the Convention on the Privileges and Immunities of the UN: Legal Basis and Limits of a Human Rights-based Approach to the Haiti Cholera Case’, (2018) 15 International Organizations Law Review 39. See also M. Buscemi, ‘La codificazione della responsabilità delle organizzazioni internazionali alla prova dei fatti: Il caso della diffusione del colera ad Haiti’, (2017) 100 Rivista di diritto internazionale 989.

132 Delama Georges v. United Nations, 84 F. Supp. 3d 246 (SD NY, 9 January 2015); Delama Georges v. United Nations, 834 F. 3d 88 (2nd Cir, 18 August 2016).

133 The UN is under the obligation to provide alternative means for dispute settlement as a counterpart of its immunity under Art. VIII Sec. 29 of the Convention on the Privileges and Immunities of the UN: Okada, supra note 131, at 47–8. It is sometimes contended that ‘states might be held responsible for failing to pressure the organization to institute a robust and transparent claims review system’: Dannenbaum, supra note 112, at 224.