Writ of summons - Van Diepen Van der Kroef

‘For instance, it would be difficult to attribute to the United Nations conduct of forcesin circumstances such as those described in the report of the Commission of inquirywhich was established in order to investigate armed attacks on UNOSOM II personnel:The force Commander of UNOSOM II was not in effective control over several nationalcontingents which, in varying degrees, persisted in seeking orders from their homeauthorities before executing orders of the Forces Command. Many major operationsundertaken under the United Nations flag and in the context of UNOSOM’s mandatewere totally outside the command and control of the UN, even though the repercussionsimpacted crucially on the mission of UNOSOM and the safety of its personnel.’In explanation of the above quotation Plaintiff notes that the reference to UNOSOMindicated the UN peace mission in Somalia.356. Whether effective control exists is a factual criterion, according to the 2nd Report of theILC for International Organisations (see, page 16, number (8)):‘While it is understandable that, for the sake of efficiency of military operations, theUnited Nations insists on claiming exclusive command and control over peacekeepingforces, attribution of conduct should also in this regard be based on a factualcriterion.’In the final analysis there is attribution to whoever factually exercises effective control.What is determinative is not who officially, but who factually exercises actual controlover the UN troops. In other words, it is not about the presumption who exercisesexclusive control but about the factual establishment of who has exercised effectivecontrol (see, ook M. Zwanenburg, op. cit., page 72).357. That the presumption of attribution to the UN can be rebutted is confirmed expressly inthe literature (see, M. Zwanenburg, op. cit., page 102):© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com152