Disentangling ‘Effective Control’ Test for the Purpose of Attribution of the Conduct of UN Peacekeepers to the States and the United Nations

Abstract

Despite the efforts of the United Nations (UN), the world continues to hear news about UN peacekeepers committing crimes in the state where they are deployed. One of the reasons is that the responsibility of the troop-contributing states for the conduct of their peacekeepers is not sufficiently recognised. In order to address the issue, this article advocates for ‘effective control’ to be interpreted as a material ability of a national contingent commander (for troop-contributing states) or UN Force Commander (for the UN) to prevent particular conduct (criminal act). Although representing a minority of academic views, this approach derives from superior responsibility, the International Court of Justice’s jurisprudence, is supported by the International Law Commission and in line with the UN’s position and practice. Following this interpretation, the article concludes that in many instances unlawful conduct of peacekeepers will be attributed to the troop-contributing states and not only to the UN.