Attribution of Conduct in the Framework of CSDP Missions: Reflections on a Recent Judgment by the Higher Administrative Court of Nordrhein-Westfalen

The increase in the EU’s activities in the area of peacekeeping operations gives rise to several legal questions, in particular with respect to the possible consequences attached to the conduct of EU-sponsored troops in their area of deployment. Some of these questions concern the legal responsibility under international law for the conduct of military contingents put at the disposal of an international organisation such as the EU. In recent years, both international and national courts have had to engage with the task of determining which legal entity should bear international responsibility for possible violations of international law committed by troops lent to international organisations. In one of these judgments, the High Administrative Court of Nordrhein-Westfalen (NRW) had to rule on the alleged responsibility of Germany for the transfer of suspected Somali pirates to Kenya, carried out within the framework of the EUNAVFO R Atalanta mission. The purpose of this contribution is to assess the reasoning of the German Court, and to evaluate the extent to which it has followed the prevalent legal rules on attribution of conduct in the framework of multilateral military operations. The analysis will be conducted in light of the work of the International Law Commission (ILC), which has recently adopted a set of Draft Articles on the Responsibility of International Organisations (DARIO ). Next, the practice of national and international courts on the matter will be reviewed. Finally, the facts put before the Higher Administrative Court of NRW will be presented, and the arguments of the Court will be discussed against the background of the relevant legal framework.