Behrami and Ruzhdi Saramati vs France, Germany and Norway

Background

The claimants Agim Behrami and his son Bekir Behrami were living in Kosovo (now it is the Republic of Serbia) had filed the application on behalf of another son Gadaf Behrami who is now deceased. By that time, the territory of Kosovo was guided by several nations which was led by French authority and was mandated by the United Nations of Security Council under the Resolution of 1244, 1991. On March 2000, both Bekim and Gadaf Behrami were playing in the area of Mitrovica and found several undetonated cluster bombs which were dropped during the war of Federal Republic of Yugoslavia by NATO in 1999. Consequently, Gadaf Behrami has been killed and Bekir Behrami was injured. The application brought an action against France that it did not respect the provision of 1244 Resolution, 1991; however, the allegation was rejected due to the fact that mine clearance had been responsible of the UN only starting from 1999.

The applicant, Ruzhdi Sarami was Albanian national, has been arrested by UNMIK police officers and then was detained. Later on he was released but again detained. The applicant stated that he has been taken by two officers to a KFOR camp, one was from KFOR, Germany officer and another was from Norway. KFOR Commander extended the detention of Saramti for thirty more days without presenting legal documents. The Legal Advisor KFOR suggested KFOR authorize the detention under the Resolution 1244 as it was important to protect the KFOR forces and restore a safe environment. The KFOR had the information that Saramti was involved in a group activity between Kosovo and Macedonia and they were ensured that he was a threat to the security of KFOR. On August 2001, the detention of Saramit was extended again. The applicant has been asking the court to release him while the trial was proceeding but the District Court stipulated that his detention was the responsibility of KFOR. Consequently, Ruzhdi Sarami brought an allegation with regard to Article 5 with conjunction of Articles 6 and 13 of the European Convention of Human Rights, claiming that he did not have the access to the court and was subject of illegal detention. The file was brought against two countries Norway and France as the commanders were from these above mentioned countries.

Can the actions of KFOR and UNMIK be attributable to the UN?

The European Court of Human Rights held that the cluster bombs that have killed Behrami children were attributable to the UN Mission in Kosovo, UNMIK but not to KFOR. Here the question arises who can hold liability for KFOR?

States along with international organizations can be held liable for the wrongful acts in international law under Articles on the Responsibility of State for Internationally Wrongful Acts and also international organizations can be responsible under Draft Articles on Responsibility of International Organizations which were adopted by International Law Commission. It is the essential ground for identification of attribution either to a state or international organization particularly during peacekeeping missions. Relying on Chapter II of the Articles on the Responsibility of State for Internationally Wrongful Acts which stipulates that “the conduct of any state organ should be as an act of the State whether it exercises the judicial and other branches under international law” ; therefore, the state forces do fall within the scope of the above mentioned provision.

However, during the peacekeeping operations, the forces do not considered as agents of their home country but they are whether under the control of the United Nations or other international organizations. The responsibility of international organizations for the wrongful actions during the peacekeeping mission has been evaluated as an ad hoc manner, for the first time, the United Nations took over in Congo case where it acquired the responsibility for the injury caused by peacekeepers; however, it lacked its legal ground.  In the case of Behrami and Rizhdi Sarami v. Germany, Netherlands and Norway, the ECtHR did not demonstrate the legal ground of the decision to its future judgement but only referred to the Article 5 of Draft Articles on Responsibility of International Organizations and Article 6 of Articles on Responsibility of State for Internationally Wrongful Acts but we should take into account that in practice, all the wrongful actions which caused by peacekeeping operations hold the responsibility and it is related to the operational command.

There have been different opinions on responsibility of the UN; for instance, Amrallah had stated that the United Nations can be liable for the wrongful actions of forces during the peacekeeping missions even though the forces taking part by states as long as these operations are carried out and controlled by the UN.   Others had argued that “if the force contingents are under national command then international organization does not hold any international responsibility”. Being agree with Shraga opinion and UN , there must be highlighted a difference on legal status of peacekeeping operations as each peacekeeping missions has its legal ground of its establishment.

The ECtHR held that the impugned actions in the case of Hasan Nuhanovic. v. The State of Netherlands was attributable to the UN and also it held the “ultimate authority and control of the armed forces”, as the UN had the power to control and assign such action within a specific mandate.

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