CYIL vol. 8 (2017)

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 8 ȍ2017Ȏ States should not be able to hide behind the separate legal personality of the organization. 94 However, that direction and control should happen outside the formal decision-making process of the organization and would not therefore be applicable in cases such as Security Council permanent members exercising their veto power. 95 Furthermore, the influence exercised must be of a certain threshold, and not all political influence or diplomatic talks outside the formal decision-making process would give rise to Member States responsibility over the conduct. 96 While that would not make NATO Member States responsible over their voting in the North Atlantic Council, it could make the most powerful states of a particular military campaign liable for the decisions of the operation, especially if said decisions are done outside the formal decision-making process. 97 It is a foreseeable consequence in any international organization that when the major powers in the organization would agree to something, smaller states will follow. Especially in NATO’s military campaigns, when the sorties decided by the three major powers were mostly carried out by the same powers, it is understandable that their decisions carry more weight. Similarly, still the final acceptance of the targets was seemingly done in the normal procedure with all the States, 98 and the decisions made between the major powers could be seen as “preliminary works” before the final decisions in order to achieve a higher chance of success. That would not fulfil the higher threshold of direction and control required in the DARIO. Even if the Member States are not responsible over their voting in the organizations decision-making process per se , that does not necessarily mean much regarding TCS obligations under Common Article 1. Common Article 1 and the rules of attribution are separate and independent from each other and Common Article 1 goes further than the rules of attribution regarding aiding and assisting breaches of international law. 99 Since Common Article 1 already imposes an obligation to attempt to influence the conduct of other entities that are not the TCS itself or attributable to the TCS, there is no reason why they should not use all available means to do so, including voting within the structures established in the MMO, resp. within the international organizations’ decision-making procedures relevant to realization of the MMO. Just because the act would not be attributable to the entity does not mean that it is an effective and appropriate way to ensure respect of IHL. Common Article 1 obligates the national governments into using their influence on the international organization’s organs, such as the North Atlantic Council of NATO, to ensure respect of IHL by the international organization itself. In the context of the question delineated above, it is worth exploring briefly the European Court of Human Rights jurisprudence. The ECHR stated in its Behrami and Saramati Case 97 There are claims by the press that it was exactly what happened during the NATO’s Yugoslavian air campaign, where most of the decisions were not done by consensus in North Atlantic Council but merely agreed by the three leading TCS, USA, UK and France, and their leaders (PRIEST, Dana. France Played Skeptic Role on Kosovo Attacks [online] . Washington Post, 20th September 1999 [cit. on 22 May 2017]. Available at< http:// www.washingtonpost.com/wp-srv/national/daily/sept99/airwar20.htm>). In those cases the argument goes that it would be USA, UK and France who would be jointly responsible over the NATO’s conduct by aiding and abetting or directing and controlling the conduct. 98 PETERS. op. cit., pp. 28-29. 99 BOUTRUCHE, SASSÓLI. op. cit., p. 21, HENCKAERTS. op. cit., pp. 40-41. 94 Ibidem. 95 Ibidem p. 110. 96 Ibidem p. 111.

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