Kirsten Schmalenbach, Die Haftung Internationaler Organisationen im Rahmen von Militäreinsätzen und Territorialverwaltungen (Peter Lang, Frankfurt am Main, 2004) ISBN 3-631-51380-1 (hbk), EUR 95.00 (hbk), 658pp.
States increasingly entrust the conduct of military operations and the administration of territory to international organisations. Even when they take place under peaceful conditions, military operations and territorial administrations of this kind regularly cause damage and injury to third parties, above all to members of the local population. Inevitably, traffic accidents occur, private property is damaged or requisitioned, offences are committed. It is generally accepted that international organisations are responsible under public international law for internationally wrongful acts attributable to them. By contrast, it is not clear how and on what legal grounds international organisations discharge this responsibility towards third parties who have wrongly suffered damage or injury as a consequence of a military operation or territorial administration run by an international organisation. In her book, Kirsten Schmalenbach sets out to answer this question based on a systematic analysis of the actual practice of international organisations. In doing so, Schmalenbach has not only produced a lucid and well-researched piece of legal scholarship, but she has also assembled a treasure trove of information concerning the claims settlement practices of international organisations. This latter aspect makes the book exceptional in its field.
While the principle that international organisations are liable for internationally wrongful acts is uncontested, its application nevertheless raises a number of problems. For example, to what extent can the rules of State responsibility—which, as the author notes, were devised by States for States—be applied by analogy to relations between international organisations and private individuals? Similarly, international organisations do not recruit their own military personnel, but rely on contributions from their Member States. Under what circumstances are international organisations, rather than the contributing States, responsible for the wrongful acts of members of national contingents? Schmalenbach examines these and related matters in part two of her work. Having thus clarified the basic principles and concepts of responsibility, she turns to the analysis of the actual practice of international organisations. Part three of the book is devoted to universal international organisations. A detailed discussion of the League of Nations administration of the Saar territory is followed by a review of how the United Nations has handled non-contractual claims brought against it in the context of its operations in Korea, Egypt (UNEF I and II), the Congo (ONUC), Cyprus (UNFICYP), West New Guinea (UNTEA), and more recently in the former Yugoslavia (UNPROFOR), Somalia, and Kosovo (UNMIK). Individual chapters begin with a brief historical introduction, and then examine the status and nature of the operation under discussion, the law applicable to it, the rules governing the settlement of claims, and the organisation’s actual practice in satisfying these. Where available, the author has relied extensively on internal memoranda, correspondence, reports and other primary sources drawn from the United Nations Archives. Part four of the book considers the practice of regional international organisations, including that of the Arab League, the Commonwealth of Independent States, NATO and the EU. However, due to the limited availability of primary materials, and in some cases the lack of relevant practice, this part of the book is less detailed.
Based on her research, Schmalenbach finds that the military forces employed by international organisations act in a dual-hatted role: while they remain organs of their sending State at all times, they may also become de facto organs of the international organisation. The question whether or not the acts of national contingents and their members are attributable to an international organisation thus depends on whether the latter has assumed effective command or control over the troops in question. Where an international organisation does exercise effective command or control over the armed forces put at its disposal, it is responsible for their official acts. How is this responsibility discharged? States hosting peacekeeping forces regularly grant members of the force immunity from local civil jurisdiction for acts committed in the performance of their official duties. Consequently, whenever peacekeeping operations infringe the rights of private individuals under local law, the immunities granted to foreign troops and to the international organisation commanding or controlling them prevent the injured individuals from seeking redress in the local courts. The UN has reacted to this by setting up Local Claims Review Boards to assess and settle claims of this kind. Claims Review Boards are internal UN bodies, composed of UN staff. Their decisions are guided by a blend of different norms: general legal principles of liability in tort, rules of local law and local standards of compensation, the international mandate entrusted to the organisation, and other relevant rules of international law. Human rights norms, however, have not had a significant impact on their work in the past. Regional organisations, such as NATO, employ similar procedures.
Schmalenbach has produced a detailed and authoritative analysis of the claims settlement practices of international organisations. Given that research in this area is hampered by the lack of publicly available materials, the book was not intended to be a comprehensive treatment of the subject matter. Still, it would have been useful had the author at least outlined the procedures adopted in other pertinent cases, such as the UN operations in Lebanon (UNIFIL) and Mozambique (ONUMOZ), or the Multinational Force and Observers (MFO) established by Egypt and Israel. In describing the basic principles of responsibility, the book would also have benefited from a discussion of the difference between operations conducted by the UN and operations authorised by it. Some may disagree with the author whether, for instance, NATO’s military intervention in Kosovo in 1999 can really be attributed to NATO as an organisation. However, none of this takes away from the fact that the book constitutes an important contribution to the law of international organisations and the law governing the conduct of peacekeeping operations more specifically.
As such, the book is of particular interest to those dealing with the EU’s military and civilian crisis management operations. The speedy and fair compensation of individuals who have wrongly suffered damage or injury as a result of EU missions is crucial in maintaining amicable relations with the host State and the local population. Putting into place effective and transparent arrangements for the attribution of liability and, even more importantly, for the distribution of costs arising from the settlement of third party claims is also key in avoiding disputes within the EU. The claims settlement procedures adopted by other international organisations offer valuable lessons for the EU in this regard, making Schmalenbach’s work essential reading for those working in this area.
Published in (2005) 10 European Foreign Affairs Review 445–446