Autonomy, Attribution and Accountability: Reflections on the Behrami Case

Abstract

Over the course of the last century, international organizations have developed from humble facilitators of intergovernmental cooperation into powerful actors in their own right. Their activities now cover virtually every field of human activity and extend to all corners of the globe. Not only have they become an indispensable instrument of world order in the hands of their member States, but increasingly they seem to be shaping that order in their own image.

The emergence of international organizations as autonomous actors has naturally raised the question of their accountability. The present contribution aims to explore one specific manifestation of the tension between the autonomy and accountability of international organizations - international responsibility in the context of peace support operations - through the lens of the admissibility decision of the European Court of Human Rights in the joined cases of Behrami and Behrami v. France and Saramati v. France, Germany and Norway.

The European Court’s decision in that case has met with widespread criticism for misapplying the relevant rules governing the attribution of internationally wrongful conduct. This paper proposes an alternative reading of the Court’s reasoning and suggests that some of this criticism may have been misdirected. Rather than simply viewing Behrami as legally incorrect and politically undesirable, the decision may provide a useful starting point for enhancing the accountability of international organizations and States engaged in peace support operations.

The debate surrounding the Court’s use of the rules of attribution has focused mainly on rejecting the ‘ultimate authority and control’ test in favour of the ‘effective control’ test as the appropriate standard for proving the existence of an agency relationship for the purposes of determining responsibility for wrongful conduct. Arguably, the far more interesting and pressing question is whether agency is the most appropriate paradigm for holding States and international organizations accountable in the context of peace support operations. Given the complex and multilayered nature of modern peace support operations, in particular the fact that the international organizations and States involved both complement each others’ legal competences and material resources, shared responsibility may offer a more appropriate paradigm.

Keywords: Behrami and Saramati, ECHR, autonomy, accountability, international organizations, jurisdiction, international responsibility