I. INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT:
LEGAL SOURCES, PRINCIPLES AND ACTORS
the continuing application of both to States participating in United Nations
peacekeeping and peace enforcement operations aims at preventing any
gap in that protection. For the same reason, it is undeniable that States
participating in multinational armed operations approved but not directly
under United Nations command are also bound to respect international
human rights and humanitarian law. This primary responsibility of the State
is in no way affected by the fact that the military operations may have been
approved by the United Nations, including by the Security Council under
Chapter VII of the Charter of the United Nations.32 It could be argued
that the Security Council may derogate from obligations of international
humanitarian law and international human rights law and that obligations
established under such a Security Council resolution would prevail under
Article 103 of the Charter.33 Such derogations would, however, need to
be explicit and cannot be presumed.
On the issue of whether international organizations participating in
an armed conflict have human rights and international humanitarian
law obligations, there is no clearly established practice. International
organizations are not parties to the relevant treaties, but their member
States and States contributing troops to peace operations are. In addition,
it is argued that the customary law applicable in this field to international
organizations is the same as that applicable to States.
While the European Court of Human Rights decided in the case of Behrami
v. France that human rights violations can be attributed to international
organizations, this decision has been highly controversial and may
be revisited by the Court in a series of cases before it. In any event, it
should be recalled that, as regards the United Nations, the Organization
seeks to observe the highest standards of behaviour when conducting
It should be noted that in 2000 the International Law Commission, on the basis of the
recommendation of a working group, decided to include the topic of the responsibility
of international organizations in its long-term programme of work. It further decided to
prepare draft articles on the responsibility of international organizations to be submitted
to Member States for their consideration.
33
See, for example, House of Lords, Al-Jedda v. Secretary of State for Defence, 12
December 2007, paras. 35 and 125.
32
29
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