CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ STATES’ OBLIGATIONS UNDER COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS … decision-making process from the whole operation. 85 When such an obvious possibility to influence the MMO conduct is taken away, the obligated measures will obviously change as well. However, it does not mean that TCSs would not need to attempt to influence the conduct at all. Indeed, even in ISAF and its different target selection procedure, the TCSs have been able to exercise their influence to change the operational conduct in some cases. An example of this can be taken from the Supreme Allied Commander in Europe, US General John Craddock’s guidance stating that ISAF can target Afghanistan’s opium farmers directly without presenting proof that the opium farmers are connected with enemy combatants and are legitimate military objectives. 86 Certain NATO states, among them Germany, challenged the guidance and with their strong opposition managed to get the order withdrawn, showing a prime example of the influence that TCS can have on their MMO partners in military operations. 87 Yet, the examples shown above bring forward the question whether or not the TCS in MMOs are obligated by Common Article 1 to vote in a certain way within the decision- making process of the operation. It is however questionable whether a Member States’ voting practice inside ordinary procedure is attributable to the (troop contributing) Member States or to the international organization itself. Certain authors have argued that the voting in the organs of international organizations, such as the North Atlantic Council, would constitute acts of Member States since they would just act through the international organization and it is an exercise of governmental power in an external domain. 88 However, such an approach is not in line with Article 58(2) of the Draft Articles on the Responsibility of International Organizations (DARIO), which states that “ An act by a State member of an international organization done in accordance with the rules of the organization does not as such engage the international responsibility of that State under the terms of this article. ” 89 In addition, the International Law Commission’s Commentary to the Draft Articles reiterates that normal conduct according to the rules of the organization by itself would not constitute attribution of responsibility to the Member State. 90 Similar approaches have been echoed also in academia 91 and in judicial decisions, such as the Westland helicopters arbitration. 92 On the other hand, when the organization would be overwhelmingly controlled by a member state or multiple member states, they would be jointly responsible over the actions. 93 The international organization would lose its autonomy when controlled by the Member State(s) and therefore the corporate veil should be pierced and the dominating 85 COLE, Alan, Legal Issues in Forming the Coalition. US Naval War College International Law Studies , 2009, Vol. 85, p. 147. 86 ZWANENBURG. op. cit., p. 694. 87 Ibidem. 88 BARROS, Ana Sofia, RYNGAERT, Cedric, The Position of Member States in (Autonomous) Institutional Decision Making: Implications for the Establishment of Responsibility. International Organizations Law Review , 2014, Vol. 11, p. 70. 89 Draft Articles on the Responsibility of International Organizations. 2011 ILC 63 rd session, Art. 58(2). 90 International Law Commission. Draft Articles on the Responsibility of International Organizations, with Commentaries . Sixty-third session, 2011, p. 91. 91 CORTES MARTIN, Jose Manual, The Responsibility of Members Due to Wrongful Acts of International Organizations. Chinese Journal of International Law , 2013, Vol.12, p. 704. 92 Ibidem p. 695. 93 D’ASPREMONT, Jean, Abuse of Legal Personality of International Organizations and the Responsibility of Member States. International Organizations Law Review , 2007, Vol. 4, p. 100.

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