Discussion

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Can a Coalition Member Be Held Responsible for the Actions of Other Members?

Ruth Wedgwood:

I have a question for Professor Stein on your approach to the problem of the potential responsibility of one coalition member for the actions of other coalition members. This is probably a statement against interest because I'm not sure this is a good line of argument for the United States. Given the manner in which the idea of command responsibility has now been liberalized to include not only direct commanders in a wiring diagram but also responsibility for actors who may be under the effective control of a commander (I have in mind here the Blaskic case1 where the fact that actions may have been taken by a paramilitary was not enough to exculpate Blaskic and indeed the extension of command responsibility to a broad range of civilian officials), don't you think there is some potential liability (I suppose we shall see in the International Court of Justice) by individual coalition members for the actions of others which they might indeed have been able to stop politically? Torsten Stein:

Well, there might be. I take a three-stage approach. Where you have an international organization, States cannot hide behind the organization and say 'we will not be responsible because it's the organization that's acting, not us.' The organization has no penny to pay. You cannot say 'well, this was something where the organization as such acted ultra vires, so we are not responsible.' But if you have a situation like Operation Allied Force where you say NATO is not the 'international tin council,' then you can't use all those rules and say NATO is responsible. You have a group of individual nations. They agree to do something together, and now they are responsible. It would make 1. Prosecutor v. Blaskic, Judgement, I.C.T.Y. No. IT-95-14-T, Mar. 3, 2000.

sense. Also, for political reasons, let not the one who did it stand alone in the rain because the others were not in a position to do it. I don't see a clear rule in international law that says because you are all acting together, we can just choose one out of the coalition. There are little examples for that I think.

That would not be a bad rule.

Ruth Wedgwood:

I would simply issue a note of caution. There are even arguments being made that UN peacekeepers should be responsible for not having prevented the Serbs from acting out. So the command responsibility may be going horizontal as well as vertical and therefore one should be careful.

Wolff H. von Heinegg:

When it comes to NATO operations there are a variety of different instruments in force for the member States of the coalition, but it's never NATO to whom it can be attributed. It's always the national States to whom a possible violation can be attributed. Politically there may be a problem. So what the NATO countries should do, rather than having a variety of rules of engagement (even though they are standardized), they should at least try to find a common denominator as regards their different legal obligations.

Torsten Stein:

We agree that in any given coalition there can be different legal standards, and if there was no pre-existing legal obligation then one will not be held liable even for the actions of coalition partners. But it would be an awkward case indeed if one asked a State to be in the coalition primarily because that State had not ratified certain conventions, such as the one on blinding laser weapons.

The United States and Protocol I

Yves Sandoz:

Has the United States de facto recognized Protocol I? If not, are there concerns remaining that prevent the United States from ratifying Protocol I? David Graham:

I'll answer your second question first. Yes, I think there are still concerns that we have with specific provisions to Protocol I, and I won't go through those specific concerns. I think those have appeared in the public domain on a number of different occasions. Those concerns are essentially of an operational nature.

I think there are inartfully drafted and very subjective provisions of Protocol I. Provisions that lend themselves to subjective judgments and would place commanders in a very tenuous position on the battlefield and subject to second-guessing. Just as various parties of Protocol I have expressed various interpretations of what those provisions mean in the form of statements of understanding and reservations, we have reservations with respect to whether they could ever be applied in an objective manner. I think that includes much of Protocol I given the fact that it was based on compromise and was very inartfully drafted. Those are the types of provisions that we still have reservations about because we think that it places commanders in situations that subject those commanders to subjective judgments. We can't give them...