14/06/2011
Comment: Ravi Naik
The International Law Commission’s (ILC) Draft Articles on the Responsibility of International Organisations (Draft Articles) are a critical new development in the law regulating international organizations (IOs). These Articles propose to create a legal framework—although not a forum—to sue International Organisations that commit unlawful acts. The military intervention in Libya highlights the practical application of these principles.
In Resolution 1973, the United Nations Security Council approved the use of "all necessary measures" to protect civilians and civilian populated areas in Libya. NATO took over the implementation of the Security Council’s resolution under ‘Operation Unified Protector’. Several reports have since emerged indicating that pilots have mistakenly bombed civilian targets and caused extensive damage. In those circumstances, the law of responsibility would apply to any actions by NATO or its Member States that violate the laws of war or that exceed the Security Council’s authorization for the use of force in Resolution 1973.
The Draft Articles’ rules of attribution would determine which entity is responsible for the internationally wrongful act: the United Nations, NATO, or the armed forces of the countries carrying out the air strikes. The Articles tell us that because the United Nations is not in command and control over the operation, responsibility would likely be attributed to NATO or to Member States. The Draft Articles anticipate that responsibility can be held jointly and uniquely. As a result NATO could be held responsible in its own right, or it could be responsible along with one or more Member States that were involved in a given incident.
The Draft Articles would then be applied to determine whether NATO or a Member State can invoke any excuses, such as self-defence, to avoid liability. Finally, both the Draft Articles (and potentially the State Responsibility Articles) require full reparations, which suggests that if NATO or its Member States were responsible, they would have separate financial obligations to the victims.
Although the Articles are only a draft, it is to be noted that most states treat the Draft Articles on State Responsibility as representing the lawful position on the obligations of states for internationally wrongful acts. We await with interest to see whether the Articles on the Responsibility of International Organisations will be as welcomed by the General Assembly of the United Nations and to see how the Articles on the responsibility of States and International Organisations will work together in practice. An update will provided on our website in due course.