Writ of summons - Van Diepen Van der Kroef

‘The conduct of an organ of a State (…) that is placed at the disposal of anotherinternational organization shall be considered under international law an act of thelatter organization if the organization exercises effective control over that conduct.’The Explanatory Memorandum of the ILC Commission to these articles shows thatArticle 5 applies in particular to peacekeeping forces of the UN. In that case the Stateproviding troops retains, for example, powers over disciplinary matters and the criminaljurisdiction (see, A/CN.4/L.654/Add.1, commentary article 5, page 11, number 1).350. The actions of peacekeeping forces are according to the ILC Articles accordinglyattributable to the UN, if the UN has exercised effective control over such peacekeepingforces. The UN assumes in principle that it exercises exclusive control (and thusnaturally also effective control) over its peacekeeping forces (see, the 2 nd ILC Reportover the ILC Articles for International Organisations, A/CN.4/L.654/Add.1, page 13,number (5)):‘The United Nations assumes that in principle it has exclusive control of the deploymentof national contingents in a peacekeeping force.’351. The concept of ‘command and control’ is often used when authority over the troops ofthe UN is discussed in the literature. According to the NIOD Report and numerous othersources The Netherlands transferred command and control in principle to the UN. Therewas no written agreement. It was stated at numerous places that Dutchbat was under thecommand and control of the UN. As far as the transfer was concerned the NIOD Reportstates on page 1189 et seq. that:‘The transfer of the operational control to the UN was usually set out in an agreementregarding transfer of authority. The State providing troops must in such case agree toevery change in the operational control. A government can in principle decideindependently to withdraw the unit without any consultation with the UN. What appliedin the case of Dutchbat, however, was that this battalion was placed at the disposal ofthe UN for UNPROFOR without conditions (…). Dutchbat was under the operational© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com150