The United Nations and International Human Rights Law:
Analysis of the extent to which the UN and UN peacekeeping forces are bound by
international human rights law
Master thesis International and European Law – Public International Law, University of
Amsterdam
The United Nations and International Human Rights Law:
Analysis of the extent to which the UN and UN peacekeeping forces are bound by
international human rights law
Marieke van Zantvoort
[email protected]
Thesis supervisor: Prof. T.D. Gill
2
INDEX
ABBREVIATIONS……………………………………………………………………...….p. 5
INTRODUCTION. ……………………………………………………………………........p. 6
CHAPTER 1
THE INTERNATIONAL LEGAL PERSONALITY OF THE UN……………..............…p. 9
1.1. International legal personality …………………………………………………….......p. 9
1.2. The legal personality of the UN……………………………………………………….p. 10
1.3. The extension of UN legal personality to UN peacekeeping forces ………………….p. 12
1.4. Law applicable to the UN and its peacekeeping operations……………….………….p. 13
1.5. The UN bound by international human rights law……………………………………p. 14
CHAPTER 2
LEGAL BASES ON WHICH THE UN IS BOUND BY INTERNATIONAL HUMAN
RIGHTS LAW……………………………………………………………………….…….p. 16
2.1. The UN bound by customary human rights norms……………………………………p. 16
2.1.1 International human rights norms with a customary status……………..…....p. 17
2.1.2. The relevance of customary human rights norms for UN
Peacekeeping forces ……………………………………………………………....p. 19
2.2. The UN bound by international human rights law via its internal
legal order………………………………………..…………………………………..….....p. 19
2.2.1. The UN-Charter…………………………………………………..………....p. 20
2.2.2. UN resolutions …………………………………………………...………....p. 20
2.2.3. UN Reports…………………………………………………….………..…..p. 22
2.2.4. The Capstone Doctrine…………………………………………...........…....p. 22
2.2.5. Legal sources specifically related to UN peace operations ……............…...p. 23
2.2.6 Alternative approaches of the internal obligations upon the UN………....…p. 24
2.3. The UN bound by international human rights law through its member states……......p. 25
CHAPTER 3
THE LEGAL OBLIGATION TO PROTECT AND THE CONSEQUENCES OF NONCOMPLIANCE………………………………………………………………..……….......p. 27
3.1. Evolution of UN peacekeeping operations and the obligation to protect……………..p. 27
3
3.2. Two situations the UN peacekeepers have a legal obligation to protect
civilians.................................................................................................................................p. 30
Situation I: in the area of operations……………………………………………………....p. 30
3.2.1. Establishing jurisdiction: effective control over the area of
operation ……………………………………………………………………….…..p. 31
3.2.2. UN command and control…………………………………………………...p. 33
3.2.3. Responsibility of the UN…………………………………………………….p. 35
3.2.4. Responsibility of the troop contributing countries…………………………..p. 37
3.2.5. The responsibility of UN peacekeeping operations and case law…………...p. 37
3.2.6. The nature of human rights obligations ………………………………….…p. 39
Situation II: where UN peacekeepers itself violate international human rights law….…...p. 42
CHAPTER 4
UN ACCOUNTABILITY AND THE UN’S SYSTEM TO PROVIDE EFFECTIVE
REMEDIES …………………………………………………………………….……..….. p. 44
4.1. Accountability for human rights abuses and its importance……………….………….p. 44
4.2. UN accountability and its obstacles……………………………………….…………..p. 45
4.3. Alternative mechanism of redress: an Ombudsperson……………………….……......p. 48
CONCLUSION …………………………………………………………………….……...p. 50
BIBLIOGRAFIE …………………………………………………………………….…….p. 53
Literature …………………………………………………………………………….…….p. 53
Cases ……………………………………………………………………………….……...p. 56
Treaties, declaration, conventions etc. ……………………………………………….……p. 57
UN Documents ………………………………………………….…………………………p. 58
4
ABBREVIATIONS
• 1969 VCLT = 1969 Vienna Convention on the Law of Treaties
• 1986 VCLT = 1986 Convention on the Law of Treaties Between States and
International Organisations or Between International Organisations
• CRC = Convention on the Rights of the Child (hereafter CRC)
• DARIO = Draft Articles on the Responsibility of International Organisations
• DKPO = Department of Peacekeeping Operations
• ECHR = European Convention for the Protection of Human Rights and Fundamental
Freedoms
• ECtHR = European Court of Human Rights
• EU/EC European Union/European Community
• FC = Force Commander
• HRC = UN Human Rights Committee
• ICCPR = International Covenant on Civil and Political Rights
• ICESCR = International Covenant on Economic, Social and Cultural Rights
• ICJ = International Court of Justice
• ICISS = International Commission on Intervention and State Sovereignty
• ILC = International Law Commission
• ISAF = International Security Assistance Force
• KFOR = Kosovo Force
• OHCHR = Office of the High Commissioner of Human Rights
• OIOS = Office of Internal Oversight Services
• ONUC = Opération des Nations Unies au Congo
• R2P = Responsibility to Protect
• RoE = rules of engagement
• SOFA = Status of Forces Agreements
• SRSG = Special Representative of the Secretary-General
• Torture Convention = Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
• UDHR = Universal Declaration of Human Rights
• UN = United Nations
• UNAMIR = United Nations Assistance Mission for Rwanda
• UNEF = United Nations Emergency Force (Egypt and Israel)
• UNMIK = the United Nations Mission in Kosovo
• UNOSOM = United Nations Operation in Somalia
• UNTAET = United Nations Transitional Administration in East Timor
5
INTRODUCTION
Over time, peacekeeping operations have developed into one of the main tools of the United
Nations (hereafter UN) in order to maintain international peace and security. Due to a wide
variety in nature and character of conflicts in the world, different responses are required.
Consequently, there are several types of UN peace operations to be distinguished, i.e.
enforcement operations, peace enforcement operations and the traditional peacekeeping
operations. The so-called Capstone doctrine, an authoritative guidance for UN peacekeeping
missions developed by the UN, explained the meaning of peacekeeping as: “a technique
designed to preserve the peace, however fragile, where fighting has been halted, and to assist
in implementing agreements achieved by the peacemakers. Over the years, peacekeeping has
evolved from a primarily military model of observing cease-fires and the separation of forces
after inter-state wars, to incorporate a complex model of many elements – military, police and
civilian – working together to help lay the foundations for sustainable peace.”1 Although in
practice not always possible to distinguish, these types of UN peacekeeping operations are
conceptually and legally distinct.2
In this thesis the focus will be on traditional peace operations, also referred to here as
UN peace support operations or UN peacekeeping operations. Nowadays these missions are
not only for the settlement of traditional conflicts between states, but they are particularly
designed for the solving of non-international conflicts and the restoration of stability in failing
or failed states, for preventing wide-spread human rights violations and for assisting in postconflict situations in order to (re)establish the democracy in a state and to prevent further
conflicts.3 The UN peace operations are characterised by their deployment with the consent of
the parties to the conflict and their limitations of the use of force, except for self-defence and
what is necessary for the execution of the mandate.4 Furthermore, the peacekeeping
operations discussed in this thesis are governed by the rules of impartiality and are carried out
under the authority of the Security Council and Secretary-General and the control of the
1
United Nations Peacekeeping Operations: Principles and Guidelines, Department of Peacekeeping Operations
(hereafter DKPO) International Publication, UN Secretariat, March 2008, p. 18. Available online at
http://pbpu.unlb.org/pbps/Library/capstone_doctrine_eng.pdf accessed 31-1-2011 (hereinafter cited as the
Capstone Doctrine)
2
Gill, T.D. in: Gill, T.D. and Fleck, D. (ed.) (2010) The Handbook of the International Law of Military
Operations, New York: Oxford University Press, p. 135.
3
Ibid.
4
Gill, T.D., Supra Note 2, p. 136.
6
Secretary-General’s designated representatives in the field.5 This means that missions that are
merely mandated by the Security Council or General Assembly and are not placed under its
authority, as for example KFOR in Kosovo and ISAF6 in Afghanistan, will not be discussed
in this thesis.
The increase since the 1990s of non-international armed conflicts where deliberate
human rights violations have taken place on a large scale as for example in the Former
Yugoslavia and Rwanda, has led to the broadening of the range of tasks of UN peacekeepers.7
To be able to protect the local population of the host state, i.e. the state where the mission is
deployed, closer interaction is required between the peacekeepers and the civilian population.
A question that arises is whether UN peacekeeping operations have the obligation under
international human rights law to protect the civilians of the host state. Moreover, due to the
increased interaction, the possibility for peacekeeping forces themselves to cause damage or
injury civilians and violate human rights norms has been grown significantly.8 The main
question which will be scrutinised in this regard is to what extent the UN and its peacekeeping
operations are bound by international human rights law and what the consequences are of this
applicability. This is an important question as the legal framework of UN peacekeeping is still
unclear, because they are not provided for in the UN-Charter as they were not foreseen at the
time drafting the document.9 As a consequence, there is ambiguity about the mandates and
law applicable to the UN forces which can cause difficulties for the functioning and success
of the peacekeeping operations. In the end it is the civil population who suffers from this
ambiguity, if UN peacekeepers do not adequately protect their rights when they are under
imminent threat of physical violence or even become the perpetrators themselves. Obviously,
this is an undesirable effect since the protection of civilians forms the raison d’être of
peacekeeping.10 For this reason it is essential to examine the extent to which UN
peacekeeping operations are bound by human rights obligations, and what the legal
consequences are in case of non-compliance.
5
Katayanagi, M. (2002) Human rights functions of UN peacekeeping operations, The Hague: Kluwer Law
International, p. 43.
6
Respectively the Kosovo Force and the International Security Assistance Force.
7
Wills, S. (2009) Protecting Civilians, the obligation of peacekeepers, Oxford: Oxford University Press, p. XX
and 2.
8
Werzer, J., ‘The UN Human Rights Obligations and Immunity: An Oxymoron Casting a Shadow on the
Transitional Administrations in Kosovo and East Timor’, Nordic Journal of International Law 77 (2008) 105140, p. 24.
9
Katayanagi, M., Supra Note 3, p. 20.
10
Cammaert, P.C. and Klappe, B. in: Gill, T.D. and Fleck, D. (ed.) (2010) The Handbook of the International
Law of Military Operations, New York: Oxford University Press, p. 154.
7
In order to be able to answer this question it is firstly necessary to examine the international
legal personality of the UN as an international organisation. Then it needs to be examined
whether the legal personality of the UN extends to UN peacekeeping forces and which law
consequently is applicable. In the second chapter it will be discussed whether and on what
legal basis the UN and its peacekeeping forces can be bound by international human rights
law, i.e. as an international obligation derived from customary international law, by
examining the UN’s internal legal order and through the UN member states that contribute
troops to the missions. In the third chapter will be examined what the consequences are of
these human rights obligations in practice. It needs to be established what these obligations
entail and what the consequences are in case UN peacekeeping forces do not abide by these
norms. Is there something like a legal obligation to protect for UN peacekeepers? And to
whom can the conduct of the peacekeepers be attributed; the UN or the troop contributing
countries? In the last chapter, the question of accountability will be addressed. A closer look
will be taken to the remedies the UN provides for individuals that have been harmed by a UN
peacekeeping force, the appropriateness of this system and whether there is an alternative
remedy.
Having discussed all the abovementioned issues, one will be able to determine to what extent
UN peacekeeping operations are bound by international human rights law and what the
consequences are of this applicability. This could provide more clarity about the duties of UN
peacekeepers which may benefit the local population of the host state.
8
CHAPTER 1 THE INTERNATIONAL LEGAL PERSONALITY OF THE UN
For answering the question whether UN peacekeeping forces can be bound by international
human rights standards, it is firstly necessary to examine whether the UN possesses
international legal personality and what the scope is of its rights, obligations and capacities on
the international plane. Is it possible to extend this legal personality to UN peacekeeping
forces? Having answered this question, it can be discussed what law is applicable to the UN
and its forces and whether they can be bound by international human rights law.
1.1. International legal personality
An entity in international law is endowed with international legal personality when the law
recognises it as a ‘legal person’ possessing the capacity to have and to maintain certain rights
and being subject to perform certain obligations. The exact scope and nature of the
international legal personality will be determined by the law and differs from subject to
subject as there does not exist a fixed standard for each and every subject.11 The international
legal system knows several different entities that are subjects of international law and are
granted international legal personality, i.e. states, international organisations, regional
organisations, non-governmental organisations, and individuals.12 The extent a certain entity
has international legal personality is determined by the entity’s applicable rights, duties and
competences in a particular case,13 as well as the status and participation of the entity in the
international plane, and the acceptance by the international community.14
Over time international organisations have become significant actors within the
international field.15 According to the International Law Commission (hereafter ILC), the
term ‘international organisation’ refers to “an organisation established by a treaty or other
instrument governed by international law and possessing its own international legal
personality” and which “may include as members, in addition to states, other entities.”16 It is
nowadays well established that international organisations may possess international legal
personality,17 but the International Court of Justice (hereafter ICJ) already came to this
11
Shaw, M. (2008) International Law, Cambridge: Cambridge University Press, 6th ed., p. 195.
Ibid, p. 196.
13
Klabbers, J. (2009) An Introduction to International Institutional Law, New York: Cambridge University
Press, 2nd ed., p. 39.
14
Shaw, M., Supra Note 11, p. 197.
15
Klabbers, J., Supra Note 13, p. 1.
16
Article 2 of the Draft Articles on the Responsibility of International Organisations, Report of the International
Law Commission, 2003, A/58/10, pp. 38 ff.
17
Amerasinghe, C.S., 1996, Principles of the Institutional Law of International Organizations, p. 239.
12
9
conclusion in 1949 in its advisory opinion Reparations for Injuries with regard to the UN.18
According to this case, international legal personality of international organisations can
follow from the will of its creators, but international organisations can also possess objective
legal personality. The first theory holds that international legal personality flows from the
status given by the member states, whether expressly or implicitly. Based on the principle of
international law, the consent of states,19 the second theory is objective international
personality and requires the fulfilment of certain criteria, irrespective of the will of the
member states. The ICJ emphasised in Reparations for Injuries that the UN had objective
international personality by stating that: “(…) fifty states, representing the vast majority of the
members of the international community, had the power (…) to bring into being an entity
possessing objective international personality, and not merely personality recognised by them
alone.”20 The effect of objective personality is that it is not dependent upon prior recognition
by non-members, but that it flows rather from the nature and functions of the organisation
itself. In the Reparations for Injuries case it had the consequence that the UN could bring a
claim against Israel even though it was not a party to the UN-Charter at that time.21 Despite
the two different approaches, the practical effect of both theories is very similar.22
1.2. The legal personality of the UN
As previously mentioned, it has been accepted nowadays that international organisations
possess a distinctive international legal personality from their member states. With regard to
the UN, the ICJ concluded in the Reparations for Injuries case that the UN’s international
legal personality was, according to the Court, ‘indispensable in order to achieve the purposes
and principles specified in the UN-Charter’.23 The ICJ endowed the UN with international
legal personality by virtue of, inter alia, the principles of necessity and functionality.
Moreover, this case emphasised “that its members, by entrusting certain functions to it, with
the attendant duties and responsibilities, have clothed it with the competence required to
enable those functions to be effectively discharged.”24 Besides, the ICJ assumed that the states
18
Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949, p. 174; 16 AD, p.
318.
19
Case of the SS Lotus, [1927] Publ. PCIJ, Series A, no. 10. See Klabbers, J. (2009) An Introduction to
International Institutional Law, New York: Cambridge University Press, 2nd ed., p. 47.
20
Reparations for Injuries, Supra Note 18, p. 330.
21
Shaw, M. Supra Note 11, p. 1298.
22
Zwanenburg, M. (2005) Accountability of Peace Support Operations, Leiden: Martinus Nijhoff Publishers, p.
66.
23
Reparations for Injuries, Supra Note 18, p. 318.
24
Ibid, p. 322.
10
intended the UN to be ‘effective’; the objective legal personality of the UN was a necessary
inference from the functions and rights the organisation was exercising and enjoying.25 The
fulfilment of a broad range of tasks by the UN results in consequences for non-member states
of the UN.26
In the ICJ’s Reparations for Injuries case it was also concluded that subjects of
international law could have different forms and need not to necessarily be ‘identical in their
nature or in the context of their rights’.27 According to Jan Klabbers28, the precise degree of
rights and obligations depends on the extent of the organisation’s personality, which can be
indicated by factors, such as the capacity to enter into international agreements and whether
they can bring and receive claims.29 Regarding the UN, the capacity to conclude treaties
seems to be derived from international law, i.e. from article 6 of the 1986 Convention on the
Law of Treaties Between States and International Organisations or Between International
Organisations (hereafter 1986 VCLT)30 and is necessary for the exercise of its attributed
functions as well as for the fulfilment of its purposes. Furthermore, the fact that several actors
in the international field are prepared to enter into relations with the UN suggests that they
regard the UN as a subject of international law with the ability to conclude agreements.31 The
UN’s right to bring or receive a claim was confirmed by the ICJ in the Reparations for
Injuries case.32 However, this may depend on issues of immunity, as well as on whether they
have standing before the particular court.33
Having established that the UN is endowed with international legal personality, it
needs to be discussed whether this can be extended to its peacekeeping forces.
25
Clapham, A. (2006) Human Rights Obligations of Non-State Actors, Oxford: Oxford University Press, p. 65;
Shaw, M. (2008) International Law, Cambridge: Cambridge University Press, 6th ed., p. 1297.
26
Shaw, M. Supra Note 11, p. 1298.
27
Reparations for Injuries, Supra Note 18, p. 178.
28
Jan Klabber is professor of international organisations law at the University of Helsinki and Director of the
Academy of Finland Centre of Excellence in Global Governance Research. He has served as visiting professor at
the Graduate Institute of International Studies and Development (Geneva) in 2008.
29
Klabbers, J. Supra Note 13, p. 40.
30
Article 6 of the 1986 Convention on the Law of Treaties Between States and International Organisations or
Between International Organisations. This treaty has not yet entered into force, but as draft articles of the ILC it
has high authoritative value. See also Klabbers, J. Supra Note 13, p 253.
31
Examples of agreements between states and the UN are Participating State Agreements setting out the
conditions under which a contingent will be contributed to a peacekeeping mission, or Status of Forces
Agreements (SOFA’s) concluded between the UN and the host state of the peacekeeping mission. See
Zwanenburg, Supra Note 22, p. 37.
32
Reparations for Injuries Suffered Supra Note 18, p. 177.
33
Klabbers, Supra Note 13, p. 44.
11
1.3. The extension of UN legal personality to UN peacekeeping forces
Although peacekeeping has been one of the main tools of the UN to maintain international
peace and security for decades, the UN-Charter does not contain its legal framework as
peacekeeping was not foreseen at the time drafting the document. Establishing peacekeeping
operations, the UN is thus required to take ad hoc measures, which can be taken in
compliance with a number of instruments adopted or concluded to regulate the legal status of
such operations.34 Over time the content of these instruments has become more or less a
uniform pattern, with the result that a peacekeeping mission is established by a Security
Council or General Assembly resolution that sets out the mandate of the mission.35 The power
of these UN organs to establish a peacekeeping operation derives from article 7(2) UNCharter which provides a general authority thereto. Furthermore, when these organs deem it
necessary ‘for the performance of its functions’,36 the UN-Charter also grants specific power
to create subsidiary organs to the Generals Assembly by article 22, and to the Security
Council by article 29 UN-Charter. The ICJ confirmed in the Certain Expenses case that the
UN peace operation in the Congo, ONUC, was a subsidiary organ of the Security Council.37
Thus, the UN peacekeeping operations are subsidiary organs of the main organ by which they
have been established. The legal framework for the actual conduct of peacekeepers reflects
their status as UN organs, and as a result, they are also subject to the law applicable to the UN
as a whole, such as laws concerning the privileges and immunities of UN personnel, and
responsibility.38
The question that arises is whether peacekeeping operations as subsidiary organs of
the UN also enjoy international legal personality. According to Klabbers, organs of
international organisations that perform tasks in name of the organisation usually lack a
separate legal personality, which indicates that they should not be considered as actors in their
own rights.39 However, Marten Zwanenburg40 argues that the legal personality is identified
with that of the UN due to the fact that they are subsidiary organs.41 John Cerone42 supports
this argument by stating that the reasoning of the ICJ in the Reparations for Injuries case can
34
Zwanenburg, M. Supra Note 22, p. 36.
Ibid
36
Klabbers, J. Supra Note 13, p. 163.
37
Certain Expenses of the United Nations, advisory opinion, [1962] ICJ Reports 151, at 176.
38
See the Convention on the Privileges and Immunities of the United Nations, 1946 and Shaw, M. Supra Note
11, p. 1231.
39
Klabbers, J. Supra Note 13, p. 153.
40
Marten Zwanenburg is senior legal advisor with the Ministry of Defense of the Netherlands.
41
Zwanenburg, Supra Note 22, p. 37.
42
John Cerone is Human Rights Co-Chair at America Society of International Law and Professor of Law &
Director at the Center for International Law & Policy at the New England School of Law.
35
12
be extended to subsidiary organs because they may act qua governments, such as the UN
administration in East Timor. Cerone further argues that individual UN peacekeeping
operations may have limited legal personality.43 Julia Werzer44 also supports the extension of
the UN’s legal personality to peacekeeping operations because the forces are its subsidiary
organs. She asserts that since states cannot circumvent their international obligations by
transferring power to an international organisation, UN organs cannot escape its human rights
obligations by creating subsidiary organs.45
Therefore, one can conclude that the international legal personality of the UN can be
extended to UN peacekeeping operations. As peacekeeping forces are subsidiary organs, the
same law is applicable to them as is governing the UN as a whole. Having made this
conclusion, the extent the UN and its peacekeeping forces can be bound by international
human rights law can now be determined.
1.4. Law applicable to the UN and its peacekeeping operations
International organisations are established by states by the means of international agreements
and the ICJ asserts these relationships, as well as international organisations in general, are
governed by international law.46 Besides, subjects of international law can also be bound by
international customary law. This type of law is the result of a state’s general practice which
is accepted and observed as law, i.e. from a sense of legal obligation.47 Although the
application of customary law is to international organisations such as the UN is not as obvious
as it is for states, the UN, as a subject of international law, is certainly subject to ius cogens,48
and as many would argue, to customary norms of human rights as well.49 More about
customary law and ius cogens will be explained in chapter 2. In respect of human rights
treaties, despite its international legal personality, the UN is in most cases not able to become
a party to international instruments, because statehood is frequently a condition for acceding
43
Cerone, J. in: White, N. D. and Klaasen, D., The UN, human rights and post-conflict situations, Manchester:
Manchester University Press, 2005, p. 45, 66.
44
Julia Werzer works at the moment as associate at Binder Grösswang Attorneys at Law in Vienna in its
competition law, European law and public practice.
45
Werzer, J. (2008) The UN Human Rights Obligations and Immunity: An Oxymoron Casting a Shadow on the
Transitional Administrations in Kosovo and East Timor, Nordic Journal of International Law 77 (2008) 105-140,
p. 115.
46
Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt (1980) ICJ Reports 73, at 8990.
47
Meron, T. (1989) Human Rights and Humanitarian Norms as Customary Law, Oxford: Clarendon Press, p. 3.
48
Ius cogens norms are norms with a peremptory character from which no derogation is permitted. For more
details, see chapter 2.
49
P. Sands and P. Klein, Bowett’s Law of International Institutions (London: Sweet & Maxwell, 5th edn, 2001),
pp. 458-9. See White, N. D. and Klaasen, D., ‘An emerging legal regime’ in The UN, human rights and postconflict situations, Manchester: Manchester University Press, 2005, p. 7.
13
to such instruments. Even though the UN sponsored the major human rights treaties and even
adopted the Universal Declaration of Human Rights (hereafter UDHR), it cannot accede to
these instruments. This is the consequence of the fact that the UN is an international
organisation and does not possess juridical or administrative powers to discharge many of the
obligations that are enshrined in international treaties.50 Moreover, the UN lacks the legal and
other structures for dealing with violations of those international instruments.51 The result is
that the UN is not a party to the instruments of international humanitarian law and
international human rights law, which nevertheless form an important framework in the work
of the UN.
Since instruments of international humanitarian law, like the 1949 Geneva
Conventions and its additional protocols, may play a significant role in UN activities as
peacekeeping operations, the then Secretary-General Kofi Annan promulgated the 1999
Bulletin on the Observance by UN forces of International Humanitarian Law.52 This bulletin
acknowledges that international humanitarian law is applicable to UN peacekeeping forces in
situations of armed conflict, although it remains unclear what the obligations deriving from
this field of law precisely entail for the forces.53 Since the UN bounds itself by international
humanitarian law, inter alia, by promulgating the 1999 Bulletin, this could serve as a
precedent for binding the UN by international human rights law by means of enacting a
similar document.
Besides international law, UN peacekeeping operations are also bound by the domestic
law of their sending state and of the host state where they are deployed.54
1.5. The UN bound by international human rights law
International human rights law’s primary purpose is to protect individuals from abuses
committed by their government and is formulated in terms of individuals against the state.
The rights of individuals give rise to obligations for the state to defend those rights through
institutionalised means, i.e. its legislative, administrative and judicial systems.55 The study on
50
Reparations for Injuries Supra Note 22.
Murphy, R. ‘United Nations Military Operations and International Humanitarian Law: What rules apply to
peacekeepers?’, Criminal Law Forum, Volume 14, Number 2, 153-194, p. 154.
52
Secretary-General’s Bulletin on the Observance by UN forces of International Humanitarian Law, 6 August
1999, UN Doc. ST/SGB/1993/13. (hereafter cited as the 1999 Bulletin)
53
Wills, S. ‘Military Interventions on Behalf of Vulnerable Populations: the Legal Responsibilities of States and
International Organisations Engaged in Peace Support Operations’, Journal of Conflict & Security Law, Vol. 9
No. 3, p. 402; Wills, S., Supra Note 7, 101, 102.
54
Fleck, D. in: Gill, T.D. and Fleck D. (ed.) (2010) The Handbook of the International Law of Military
Operations, New York: Oxford University Press, p. 149.
55
Wills, S., Supra Note 7, p. 112.
51
14
customary law by the International Committee of the Red Cross states that it is a principle of
customary law that international human rights law is applicable at all times including armed
conflict, except to the extent of permissible derogations and provided that the state party’s
jurisdiction under the relevant Convention extends to the situation.56 The main international
human rights instruments are the UDHR, the International Covenant on Civil and Political
Rights (hereafter ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (hereafter ICESCR).57
The importance of human rights for the UN follows from the UN-Charter which
places a high emphasis on international human rights standards. Besides the fact that the
preamble to the UN-Charter states that it is one of the purposes of the UN “to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in equal rights of
men and women”, article 1(3) of the UN-Charter expressly refers to the protection and
promotion of a respect for human rights as one of the UN’s purposes. For this reason it can be
concluded that the UN has an obligation to consider and promote human rights in all its work,
thus including UN peacekeeping.58 Besides article 1(3), also article 55 and 56 of the UNCharter explicitly refer to human rights.
56
ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949
(Y. Sandoz et al. eds., ICRC Geneva 1987), 1365-66 [4509 – 45011]. See Wills, S. Supra Note 7, p. 120.
57
The UDHR was adopted on the 10th December 1949 and the ICCPR and ICESCR are both adopted on the 16th
December 1966 in New York.
58
Jennings, R. and Watts, A. (eds.) Oppenheims’ International Law Vol. 1 (9th ed. 1996) at 998.
15
CHAPTER 2 LEGAL FOUNDATIONS ON WHICH THE UN IS BOUND BY
INTERNATIONAL HUMAN RIGHTS LAW
Since the UN is not capable of acceding to international human rights treaties, it appears that
the international organisation is barred from being formally bound by human rights norms.59
However, human rights standards have a prominent position in the work of the UN and as
such it is not surprising that over the last years a development in academic writing took place,
bounding the UN by international human rights law.60 In this chapter I will examine upon
what legal foundations, the UN as a bearer of international rights and duties, can be bound by
international human rights law, i.e. as an international obligation derived from customary
international law, as a result of the UN’s internal legal order and according to some via the
duties of the troop contributing countries.61
2.1. The UN bound by customary human rights norms
Firstly, the UN can be bound due to the fact that international human rights standards can
reach the status of customary international law and thereby become applicable to the UN and
its peacekeeping forces. This perspective starts from the point that the UN has international
legal personality and is therefore a subject of international law.62
Customary international law can be derived from actual state practice and the sense of
a legal obligation.63 Article 38(1)(b) of the ICJ-Statute, which comprises the sources of
international law, describes international custom ‘as evidence of a general practice accepted
as law’.64 The result of a customary norm is that it is binding upon all states. Consequently,
states that are not parties to the legal instrument in which the particular norm is restated are
also bound regardless of whether they have given their consent. It is not the treaty norm itself,
but the customary norm that binds such states.65 Article 38 of the 1969 Vienna Convention on
the Law of Treaties (hereafter 1969 VCLT) confirms third parties can be bound by obligations
contained in a treaty through international custom.66
59
Magret, F. and Hoffman, F. (2003) The UN as a Human Rights Violator? Some Reflections on the United
Nations Changing Human Rights Responsibilities, Human Rights Quarterly, Vol. 25, No.2 May 2003, p. 316.
60
Werzer, J. Supra Note 8, p. 108.
61
Magret, F. and Hoffman, F., Supra Note 8, p. 317, 318.
62
Ibid.
63
See North Sea Continental Shelf, ICJ Reports (1969) 3, at 43-4; Military and Paramilitary Activities and
against Nicaragua (Nicaragua v United States of America), Judgement of 27 June 1986, ICJ Reports, 14, at 106109. (hereafter cited as the Nicaragua case)
64
Article 38(1)(b) of the Statute of the International Court of Justice
65
Meron, T. (1989) Human Rights and Humanitarian Norms as Customary Law, Oxford: Clarendon Press, p. 3.
66
Ibid., 91.
16
It is of importance that human rights standards can be endowed with a customary
character, because states that have not ratified those international human rights treaties can
still be bound. Since the UN is incapable of becoming a party to those treaties, the human
rights norms can be applicable to the UN and its peacekeeping forces due their customary
character.67 The most general accepted method of building international customary law is
through actual practice that must have been followed out of a sense of legal obligation, opinio
iuris.68 Firstly, state practice must be unambiguous and consistent by a state in a particular
field, and can even include the acquiescence of states.69 Factors playing a role with regard to
the nature of the particular practice are the duration, consistency, repetition and generality of
the state practice.70 The proof of state practice in human rights may be found primarily in the
acts of and statements by state representatives to international organisations, and in internal
legislative, administrative and judicial steps implementing international human rights at the
domestic level.71 Secondly, once the existence of a particular state practice has been
established, it is necessary to determine whether this practice results from a sense of legal
obligation, opinio iuris. The process of opinio iuris begins when states behave in a certain
way with the belief that such conduct is law or is becoming law. It then depends upon how
other states react, by either accepting or rejecting this process of law-making.72
2.1.1. International human rights norms with a customary status
Customary rules have evolved primarily from those human rights norms that are considered to
be universal in character and that are proclaimed in various international instruments.
Examples are several provisions of the UDHR that have reached the status of customary law
with the result that they are legally binding upon all states. Despite the fact that it is nowadays
still disputed to what extent the provisions have achieved the status of custom, the right to
life, the prohibition of torture and degrading treatment, the prohibition of arbitrary deprivation
of liberty and the prohibition of systematic racial discrimination are now recognised as rules
67
Clapham, A. Supra Note 25, p. 85, 86.
Nicaragua case, at 106-109;Clapham, A. Supra Note 25, p. 86.
69
Meron, T. Supra Note 47, p. 87.
70
Shaw, M. Supra Note 11, p. 76.
71
Schachter, International Law in Theory and Practice, 178 Recueil des cours 334-5 (1982-V). See Meron p.
100. An example of such a statement is the Restatement of the Law Third of the Foreign Relations Law of the
US, which enlists types of evidence of customary human rights law and forms an appropriate document with
accepted methods of building customary law. See Restatement of the Law Third of the Foreign Relations Law of
the US of 1987, § 701.
72
Shaw, M., Supra Note 11, p. 87.
68
17
of customary international law binding on all states.73 Given the evolution of international
human rights in the last decades, the list as mentioned above should be regarded as openended.74
Currently, it has generally been accepted that the core rights which are directly related
to human existence are to be classified as ius cogens.75 It is defined in article 53 of the 1969
VCLT as ‘accepted and recognised by the international community of states as a whole as a
norm from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character’.76 In the US v. MattaBallestreros case this is confirmed, thereby emphasising that the norms are: “[…]
peremptory, enjoy the highest status within customary international law, are binding upon all
nations, and cannot be pre-empted by treaty.’77 By taking into consideration the
characteristics of ius cogens norms it is nowadays hardly disputed that also the UN is bound
by such norms.78 The ILC confirmed in the context of its commentary to the 1986 VCLT that
international organisations are bound by norms of ius cogens, because states should not
escape from its obligations by creating an international organisation.79
Notwithstanding the fact that it is unclear which norms of international human rights
are considered to form part of ius cogens, the UN Human Rights Committee (hereafter HRC)
has held in its General Comment no. 29 that the following acts would violate ius cogens
norms: arbitrary deprivations of life, genocide, torture and inhuman and degrading treatment,
taking hostages, imposing collective punishments, arbitrary deprivations of liberty, or
deviating from fundamental principles of fair trial, including the presumption of innocence.80
73
See the judgement in Barcelona Traction, Light and Power Company (1970) ICJ Reports 3, at § 34. The court
also mentions the prohibition of genocide as well as the basic rights of the human person, including protection
from slavery. See Tomuschat, C. (2008) Human Rights, Between Idealism and Realism, second edition, New
York: Oxford University Press, p. 37.
74
Meron, T. (1989) Human Rights and Humanitarian Norms as Customary Law, Oxford: Clarendon Press, p. 99.
75
Tomuschat, Supra Note 73, p. 38.
76
Article 53 of the 1969 Vienna Convention on the Law of Treaties.
77
US v. Matta-Ballestreros case 71 F.3d 754, 764 n. 4 (9th circuit, 1995).
78
Reinisch, A. ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the
Imposition of Economic Sanctions’, 95 American Journal of International Law (2001) pp. 851, 859. See Werzer,
Supra Note 8, p. 113.
79
International Law Commission, Yearbook of the International Law Commission (1982) vol. II, Part 2, at 56:
“It is apparent from the draft articles that peremptory norms of international law apply to international
organisations as well as to States, and this is not surprising. International organisations are created by treaties
concluded between States, which are subject to thee Vienna Convention by virtue of article 5 thereof; despite a
personality which is in some respects different from that of the State Parties to such treaties, they are
nonetheless the creation of those States. And it can hardly be maintained that States can avoid compliance with
peremptory norms by creating an organisation.” See Clapham, Supra Note 25, p. 67.
80
HRC, General Comment 29, States of Emergency (article 4), UN Doc. CCPR/C/21/Rev.1/Add.11 (2001), § 11.
Adopted 24 July 2001, UN Doc. HRI/GEN/1 REV.6, 12 May 2003. See also L. Hannikainen, Peremptory Norms
(Ius Cogens) in International Law (Helsinki, Finnish Lawyers’ Publishing Company, 1988) 425-520.
18
2.1.2. The relevance of customary human rights norms for UN peacekeeping forces
Since the UN, like states, is a subject of international law, it must be considered bound by
customary international law and ius cogens norms. Mégret and Hoffmann81 argue that when a
treaty is drafted, representing nearly all states and with the intention of creating universal law,
an international organisation cannot invoke its non-party status, because its “constitutional
roots are in international law”.82Consequently, international organisations such as the UN
have an obligation to protect the customary human rights of every individual under their
control and to the extent that their functions allow them to fulfil such a obligation.83In the
previous chapter it was established that the same law is applicable to UN peacekeeping forces
as is governing the UN as a whole. Since that the UN is bound by customary international law
and ius cogens norms, its peacekeeping forces are consequently bound by these norms as
well. However, the norms that fall precisely within these categories remain unclear and
disputed.84 Also the scope of beneficiaries may be broader with regard to customary law,
while the scope of obligations towards these individuals may be narrower.85 This will be
further explained in the next chapter.
2.2. The UN bound by international human rights law via its internal legal order
Secondly, the UN and peacekeeping forces can be bound by international human rights law by
means of its own internal legal order, i.e. by examining the UN-Charter, the UN resolutions,
UN reports, the Capstone Doctrine, and the different documents with regard to the specific
peace operations. This perspective emphasises that the UN’s internal legal and constitutional
order obliges the organisation to pursue its own purposes and principles, which includes
‘promoting and encouraging respect for human rights and for fundamental freedoms for
all’.86 As one author pointed out: “it is self-evident that the Organization is obliged to pursue
and try to realise its own purpose.”87
81
Frédéric Mégret and Florian Hoffmann are currently research associates at the European University Institute in
Florence.
82
Magret, F. and Hoffman, F. Supra Note 25, p. 317.
83
See also Effect of Awards of Compensation Made by the United Nations Administrative Tribunal ICJ Reports
(1954) 47, at 57. Clapham, Supra Note 25, p. 68.
84
Werzer, J. Supra Note 8, p. 109.
85
Cerone, J. in: White, N. D. and Klaasen, D., (2005), The UN, human rights and post-conflict situations,
Manchester: Manchester University Press, 2005, p. 62.
86
Article 1(3) of the UN Charter. See also Magret, F. and Hoffman, F. Supra Note 50, p. 317.
87
Stavrinides, Z. (1999) ‘Human Rights Obligations under the United Nations Charter’, 3 Int’l J. Hum. Rts. 38,
40.
19
2.2.1. The UN-Charter
The importance of human rights for the UN follows from the UN-Charter which places a high
emphasis on international human rights standards. Starting with the preamble and article 1(3)
UN-Charter which states that the UN should strive for the protection and promotion of respect
for human rights, it can be concluded that the UN has an obligation to consider and promote
human rights in all its work, including UN peacekeeping.88 Additionally, there are other
articles included in the UN-Charter referring to human rights, in particular article 55. Article
55 UN-Charter states in mandatory terms that the UN ‘shall’ “promote a respect for and
observance of, human rights and fundamental freedoms for all without distinction as to race,
sex, language or religion”.89 Consequently, a UN peacekeeping force is obliged to promote
the observance of human rights because it is a subsidiary organ of the UN. The problem
remains however, that the UN-Charter sets not out in detail what is meant by these human
rights.90 Nonetheless, many argue that the UDHR, ICCPR, ICESCR and other UN
instruments on human rights form an elaboration of the Charter’s original vision of human
rights, which the UN is obliged to promote and respect according to article 1(3) of the UNCharter.91
The obligation for UN organs to act in accordance with international human rights can
also be derived from article 2(2) of the UN-Charter which contains the principle of good faith.
Although this article is addressed to member states individually, the article also encompasses
the situation when member states act as an organ of the UN, such as when taking part in the
Security Council.92 Therefore, it can be reasoned that there is a legal expectation that the UN
and its organs will respect and comply with the human rights norms that are created and
monitored under the auspices of the UN.93
2.2.2. UN resolutions
Although the resolutions of the General Assembly are not legally binding, they can certainly
influence the development of international law. Organs of the UN, including the Security
Council and the General Assembly are frequently considered as identifying customary rules
or general principles of international law in resolutions or statements, due to the UN’s
88
Jennings, R. and Watts, A. (eds.) Oppenheims’ International Law Vol. 1 (9th ed. 1996) at 998.
Article 55(c) of the UN-Charter.
90
Boss, B., (2006), Law and Peace: a Legal Framework for United Nations Peacekeeping, Sydney: University
of Sydney Law School, p. 357.
91
Werzer, Supra Note 8, p. 110.
92
De Wet, E., (2004), The Chapter VII Powers of the United Nations Security Council, Oxford-Portland: Hart
Publishing, p. 195. See Ibid, p. 111.
93
Werzer, Supra Note 8, p. 111.
89
20
universality of membership and extensive field of activity and interest.94 Therefore,
resolutions of for example the General Assembly can become evidence of international law.
Nevertheless, not all UN practice will be capable of transmission into customary law;
therefore special care needs to be taken with regard to the opinio iuris.95
The then Secretary-General, Hammarskjöld, recognised that the Secretary-General is
bound to comply with UN resolutions.96 Since peacekeeping operations fall under the control
of the Secretary-General, he is obliged to structure and conduct the operations in accordance
with the UN resolutions. Thus, because the General Assembly has adopted by resolution the
ICCPR, the UDHR and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (hereafter Torture Convention), the Secretary-General is
obliged to conduct peacekeeping operations in compliance with these treaties. This source of
obligation is a compliment to the obligation of the UN to comply with human rights norms
that have passed into customary international law.97 As a result, it is not of relevance whether
it concerns customary international law, because the UN peacekeeping forces are under the
control of the Secretary-General and must therefore be directed to comply.98
The General Assembly made several important resolutions and declarations with
regard to human rights, which called for broad ratification of the treaties and the need for
more compliance and enforcement mechanisms.99 Another relevant resolution in the context
of international human rights law and UN peace operations is the resolution that adopted the
1995 Convention on the Safety of UN and Associated Personnel. This Convention starts its
saving clauses with: “Nothing in this Convention shall affect (a) the applicability of
international humanitarian law and universally recognized standards of human rights as
contained in international instruments in relation to the protection of UN operations and UN
and associated personnel or the responsibility of such personnel to respect such law and
standards”.100
94
Shaw, M. (Supra Note 11, p. 1295.
Ibid
96
Hammerskjöld, D. in Schachter, O. and Joyner, C.C. (eds) United Nations Legal Order Vol. 1 (1995), p. 250.
97
See the 1999 Bulletin, Supra Note 52; See also Boss, B. Supra Note 90, p. 380.
98
UN peacekeeping forces are “in a general sense organs of the United Nations”, Jennings, R. and Watts, Supra
Note 88, at 1164. See also Boss, B. Supra Note 90, p. 379.
99
E.g. see the 1986 Resolution 41/120 Setting International Standards in the Field of Human Rights,
A/RES/41/120; the 1993 Vienna Declaration and Programme of Action, 32 ILM 1661 (1993); and the 1993
Strengthening the Rule of Law Resolution, General Assembly Resolution 48/132 Ref: 50/179, 49/194 of 20
December 1993.
100
GA Res. 49/59, adopted 9 December 1994, Art. 20(a).
95
21
2.2.3. UN Reports
Congruent to the evolution of UN peacekeeping operations, several reports by UN organs
were dedicated to this subject. In 1992, the then Secretary-General Boutros-Ghali emphasised
in the ‘Agenda for Peace’ that one of the core businesses of these operations was to advance
efforts to protect human rights.101 Although the 1995 ‘Supplement to an Agenda for Peace’
highlighted the three important principles for traditional peacekeeping operations, i.e. the
consent of the parties, impartiality and the non-use of force except in self-defence,102 after the
inaction of the UN in Srebrenica and Rwanda it became clear that the approach of traditional
peacekeeping had to be changed. The 2000 ‘Brahimi Report’, argued for more robust
operations and considered that the mandates should specify more on the operation’s power to
use force. 103 The Brahimi report further recommended an increase of the Office of the High
Commissioner of Human Rights (hereafter OHCHR) capacity to support UN peacekeeping
operations for example by developing training materials on human rights. This
recommendation was followed by the Secretary-General Kofi Annan.104 In 2005 Annan
emphasised in its report ‘In Larger Freedom’ that there was a need to implement the concept
of ‘Responsibility to Protect’ in peacekeeping operations through peaceful means; the use of
force was only an ultima ratio measure that, if taken, ought to be carried out by the Security
Council.105
2.2.4. The Capstone Doctrine
In May 2008 the UN developed the Capstone doctrine, an authoritative guidance for all UN
personnel serving in the field and at UN Headquarters on the many tasks that UN
peacekeepers are required to perform.106 It is a framework on the highest level and any
subordinate directives, guidelines, training materials or other documents issued by the
Department of Peacekeeping Operations (hereafter DPKO) or the Department of Field
Support should be in compliance with the principles and concepts that are enshrined in this
101
‘An Agenda for Peace’, UN Doc. A/47/277-S/242111, 17 June 1992, respectively § 17 and 55. See Bell, C.
in: White, N. D. and Klaasen, D., Supra Note 49, p. 258.
102
Boutros-Ghali, ‘Supplement to an Agenda for Peace’, Position Paper of the Secretary-General on the
Occasion of the Fiftieth Anniversary of the UN (New York: United Nations, 1995), § 33.
103
Report of the Panel on United Nations Peace Operations (herafter Brahimi Report), A/55/305 - S/2000/809.
Kondoch, B. in: White, N. D. and Klaasen, D., Supra Note 49, p. 25, 26.
104
Ibid, p. 32
105
Ibid.
106
The Capstone Doctrine, Supra Note 1, p. 6.
22
doctrine. The doctrine builds on the Brahimi Report and other existing sources guiding UN
peacekeepers.107
The Capstone doctrine emphasises that human rights and fundamental freedoms are
universal and guaranteed to everybody. It states that for this reason the UN peacekeeping
forces should respect human rights and should strive for advancing human rights through the
implementation of their mandates. Since nowadays modern conflicts have mostly a noninternational character where the majority of victims is civilian, the protection of human
rights must have priority by all UN personnel, whether military, police or civilian.108
Moreover, the doctrine states that one of the main tasks of UN peacekeepers is to create a
secure and stable environment, while strengthening the ability of the state to provide security,
with respect for the rule of law and human rights.109 The peacekeeping forces must be able to
recognise human rights violations or abuse, and be prepared to respond adequately within
their limits of their mandate and their competences.110 The Capstone doctrine also declares
that where UN personnel commit abuses, they should be held accountable.111
2.2.5. Legal sources specifically related to UN peace operations
The mandate of a UN peacekeeping mission, formulated by the Security Council or the
General Assembly, provides the legal basis and contains the goals and functions of the
operations. The very first mission with an explicit human rights component in its mandate was
ONUSAL in El Salvador from 1991 until 1995. Ever since, the UN has established several
peacekeeping missions with a formal human rights component.112
Apart from the mandate which solely provides for basic details of the UN peace
operation, the UN also concludes agreements with the troop-contributing countries and the
host state. An agreement between the former and the UN is called a participation agreement
and contains the rights and duties of the forces. A Status of Forces Agreement (hereafter
SOFA) is agreed between the UN and the host state and regulates the status of the
peacekeeping force. It usually anchors the consent of the host state and contains amongst
others the basic rights and privileges and immunities of peacekeeping personnel.113 The model
agreements serve as a basis for future agreements with troop contributing countries or host
107
Ibid, p. 10.
The Capstone Doctrine, Supra Note 1, p. 247.
109
Ibid, p. 23.
110
Ibid, p. 27.
111
Ibid, p. 14, 15.
112
White, N. D. and Klaasen, D., Supra Note 49, p. 34.
113
Ibid.
108
23
states. In the past, neither the SOFAs nor the participation agreements or model agreements
contained human rights issues. Whereas the model SOFA provides that UN peacekeeping
forces ‘shall respect all local laws and regulations’,114 there is no reference to international
human rights law.115 With regard to the model participation agreement, it only states that UN
peacekeeping operations ‘shall observe the principles and respect the general international
conventions applicable to the conduct of military personnel’, which includes several
conventions of international humanitarian law.116 However, the list of international
conventions appears not to be exhaustive.117 Many argue that nowadays it is likely that the
scope of the ‘general international conventions’ in this context include human rights
conventions, because they apply to situations wherein peacekeeping forces are deployed.118
These human rights include at least the customary human rights norms and must be
considered to extend to applicable rights in (nearly) universal human rights treaties.119
The rules of engagement form the key document for UN peacekeeping operations as it
provides the parameters within which the operation is allowed to use force during times of
peace or armed conflict. They are operational guidelines, based on international and domestic
law which normally reflect the principles of international humanitarian law. Nevertheless, as
those rules do not apply during peace time this is not sufficient, and therefore should rules of
engagement (hereafter RoE) contain explicit references to human rights obligations as well.120
2.2.6 Alternative approaches of the internal obligations upon the UN
Another way to approach the international human rights norms being applicable to the UN
and its peacekeeping operations is by the so-called ‘axiomatic approach’. This approach is
identified by Andrew Clapham and signifies that the UN is bound to respect human rights
‘because it has unilaterally declared that it expects its personnel to act in accordance with the
UDHR and acts as if it were itself bound’.121 Due to the existence of many official training
manuals and courses on the duty of UN personnel to protect and respect human rights, it
114
Model Status-of-Forces Agreement for Peacekeeping Operations, § 6.
Kondoch, B. in: White, N. D. and Klaasen, D., Supra Note 49, p. 34, 35.
116
Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to
United Nations, § 28. See Clapham, A., Supra Note 25, p. 120.
117
See the 1966 participation agreement with Canada: Exchange of Letters Constituting an Agreement, 21
February 1996, deemed to take effect from 13 March 1964, UNTS 8107, § 11 of the annexed letter of the
Secretary-General.
118
Clapham, A., Supra Note 25, p. 120.
119
Ibid, p. 124.
120
Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to
United Nations, § 28. Kondoch, B. in: White, N. D. and Klaasen, D., Supra Note 49, p. 35.
121
Clapham, A., Supra Note 25, p. 127.
115
24
becomes clear that the UN considers that the organisation, and its personnel, should respect
international human rights.122
Nigel White and Dirk Klaasen123 argue that the UN-Charter and the human rights
instruments approved under the auspices of the UN form a constitution.124 According to them
human rights are mentioned in the UN-Charter and further developed by UN resolutions and
UN-supported instruments that govern the UN practice such as the UDHR, ICCPR, ICESCR,
and the Torture Convention.125 This approach asserts that states cannot create an organisation
to escape from its international obligations and therefore, the human rights derived from
aforementioned instruments form part of a ‘UN constitution’ that not solely applies to the
member states, but also ‘constitutionally’ to the organisation itself.126 Consequently, not only
the conduct of states during a UN peacekeeping operation is regulated by the human rights
norms enshrined in this ‘constitution’, but also those charged with regulating the operation,
i.e. the UN and its programmes and agencies. An advantage is that this approach avoids the
debate about what articles have passed into custom and thus binding upon the organisation.127
2.3. The UN bound by international human rights law through its member states
Some authors, such as Mégret, Hoffmann and Werzer, argue that the UN can also be bound
by international human rights norms as a result and to the extent that its member states are
bound.128 They consider that human rights are applicable to the UN by means of a type of
‘treaty succession’ from the member states to their international organisation. 129 Otherwise
the member states would be able to escape from their international obligations by establishing
international organisations and acting through them.130 This approach has been affirmed by
the European Court of Human Rights (hereafter ECtHR) in the Bosphorus case concerning
member states’ human rights obligations under the European Convention for the Protection of
122
See for example the Code of Conduct for Peacekeepers, the United Nations Civilian Police Handbook and the
Military Observers Handbook, all published in 1995 and which all refer to UN conduct in compliance with
human rights obligations. See Clapham, A., Supra Note 25, p. 113.
123
Dirk Klaasen has been research fellow at the University of Nottingham’s Human Rights Law Centre from
2001-3 and works now for the Dutch Ministry of Foreign Affairs. Nigel D. White is professor of International
Organisations in the School of Law at the University of Nottingham.
124
White, N. D. and Klaasen, D., Supra Note 49, p. 7.
125
Ibid, p. 6.
126
Tondini, M. (2005) UN Peace Operations: the last frontier of the extra-territorial application of human
rights, Mil. L. &L. War Rev. 175 2005, p. 192.
127
White, N. D. and Klaasen, D., Supra Note 49, p. 7.
128
Magret, F. and Hoffman, F. Supra Note 50, p. 318.
129
Ibid.
130
Reinisch, A. (2001) Securing the Accountability of International Organizations, 7 Global Governance at 137,
143.
25
Human Rights and Fundamental Freedoms (hereafter ECHR) and their transfer of sovereign
powers to the European Union/European Community (hereafter EU/EC).131
From this perspective, UN peacekeeping forces are bound by international human
rights norms due to the fact that their sending states are state parties to the human rights
instruments. Although originally the application of these treaties was regarded to be within a
state’s territory only, this is extended since human rights treaties contain articles limiting their
application to situations within a state’s ‘jurisdiction’.132 The HRC confirmed in the Lopez
Burgos v Uruguay case that in certain circumstances jurisdiction could be extended outside
the state’s territory on the condition that it would not infringe on the sovereignty of another
state.133 The extension of the jurisdiction of human rights treaties outside the territory of a
state party is called extra-territorial jurisdiction, or extra-territorial applicability. The result of
this principle is that the obligations of a state to ensure compliance with a human rights
instrument simultaneously are extended to its acts or omissions abroad, for example during
peacekeeping operations. However, it is to be argued that this argument shows the extraterritorial applicability of human rights obligations on the member states rather than that the
UN is bound by these norms.
131
Werzer, J.,Supra Note 8, p. 109.
Jurisdiction ‘concerns essentially the extent of each state’s right to regulate conduct or the consequences of
events.’ in Oppenheim, R. Jennings and A. Watts (eds.), Oppenheims’ International Law (Longman Harlow
1992), p. 456. See for example article 2(1) ICCPR.
133
López Burgos v. Uruguay, HRC 29 July 1981, Communication No. 52/1979, UN Doc. CCPR/C/OP/1, § 12.3.
See Wills, S. Supra Note 7, p. 121.
132
26
CHAPTER 3 THE LEGAL OBLIGATION TO PROTECT AND THE
CONSEQUENCES OF NON-COMPLIANCE
Since it is established that the UN and UN peacekeepers are bound by international human
rights law, it is necessary to examine what these human rights obligations entail. Do UN
peacekeeping forces have a legal obligation to protect the local population of the host state?
And what consequences are there if the forces do not succeed in providing civilian protection?
3.1. Evolution of UN peacekeeping operations and the obligation to protect
Ever since the early deployment of UN peacekeeping operations, peacekeepers have been
expected to protect the local population of the host state from gross human rights
violations.134 However, the notion that such protection might involve the use of force and
involvement in the conflict was not considered until the Congo crisis in 1960 where human
rights abuses took place on a large scale. ‘Traditional peacekeeping operations’ are
characterized by their deployment with the consent of the parties to the conflict and that they
are prescribed from engaging in offensive hostilities, except for self-defence. Furthermore,
they are governed by the rules of impartiality of the troop contributing states and fall under
control of the Security Council or General Assembly.135 These characteristics of traditional
peacekeeping operations are based on fundamental principles of international law enshrined in
the UN-charter, i.e. the prohibition of the use of force and the principle of non-intervention.136
Nevertheless, at the time of the Congo crisis Hammarskjöld authorised ONUC137 to provide
protection through intervention on grounds that the principle of non-intervention could not be
considered to apply to the deliberate killings of civilians.138 The use of force in this case he
described as self-defense, even though the intervention was in practice not distinguishable
from enforcement operations under Chapter VII of the UN-Charter.139 Hereafter, the concept
134
Wills, S. Supra Note 7, p. 8.
M. Katayanagi (2002) Human rights functions of UN peacekeeping operations, The Hague: Kluwer Law
International, p. 43.
136
Article 2(4) UN-Charter: “All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.” and 2(7) UN-Charter: “Nothing contained in the present Charter shall
authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures under Chapter Vll.”
137
UN Operation in the Congo
138
Wills, S. Supra Note 7, p. 9, 18.
139
Ibid.
135
27
of self-defense was broadened to include the use of force to protect the mission.140 However,
the minimum use of force and protection remained essential in UN peace operations in order
to mitigate the effects of violence and to protect the civilian population.141
Since the 1990s, the type of conflicts shifted towards mostly non-international
conflicts with the result that also UN peacekeeping operations came under tension. In
countries as Somalia, Rwanda and the Former Yugoslavia ethnic cleansing and genocide were
used as a means of warfare in order to gain territorial control, and it appeared that UN
peacekeeping forces were not prepared to respond adequately.142 Failing to protect the civilian
population in these countries was the result of, inter alia, inappropriate mandates for the
peacekeeping missions, misunderstandings of the mandates by the forces and a lack of
resources necessary for effective peacekeeping.143 Furthermore, the doctrine set out by
Hammarskjöld that peacekeepers had an obligation to protect civilians, was applied by the
UN only in a very restrictive manner. Rwanda, for example, where the Force Commander
(hereafter FC) of UNAMIR in 1994 demanded an enlargement of its RoE in order to be able
to intervene with the use force and protect the local population against the threat of genocide.
Despite detailed information about the demanding situation, the UN Secretariat kept insisting
on a monitoring role of the UNAMIR without any active role.144 The subsequent months
massive human rights abuses took place in Rwanda and the fact that UN peacekeepers failed
to act and were even involved in some of the abuses was detrimental for the credibility of the
UN peacekeeping operations.145
From this decade onwards, the Security Council has become more willing to regard
non-international conflicts and certain humanitarian disasters as ‘a threat to international
peace and security’ with the result that several UN peace operations were mandated to take
enforcement action under Chapter VII UN-Charter.146 However, it appeared that the
international community did not have an agreed response to gross human rights violations.147
140
Report on the Implementation of Security Council Resolution 340. See Wills, Supra Note 7, p. 19.
Wills, S. Supra Note 7, p. 18, 19.
142
White, N.D. ‘Empowering Peace Operations to Protect Civilians: Form over Substance?’, Journal of
International Peacekeeping 13 (2009) 327-355, p. 338.
143
Barber, R., ‘Reflections on the PK Failure in Darfur: Is there any substance to the ‘R2P’, Journal of
International Peacekeeping 13 (2009) 294-326, p. 298.
144
Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in
Rwanda (n 165), 12.
145
Wills, S., Supra Note 7, p. 30.
146
Article 39 of the UN-Charter. Greenwood, C. ‘International Law and the Conduct of Military Operations ’ in
International Law Across the Spectrum of Conflict, Essays in Honour of Professor LC Green on the Occasion
of his Eightieth Birthday, International Law Studies Vol. 75 ed. Michael N Schmitt, US Naval War College,
(Newport 2000) 178, 185.
147
Wills, S. Supra Note 7, p. 286.
141
28
Awareness grew that human protection was an international concern and consequently the
International Commission on Intervention and State Sovereignty (hereafter ICISS) developed
the concept of ‘responsibility to protect’ (hereafter R2P).148 R2P starts from the point that the
primary responsibility to protect its civilians against human rights abuses lies with the
sovereign state concerned. Only when the state fails to fulfil its primary responsibility will
this responsibility shift towards the broader community of states.149 This means that where a
particular state is unwilling or incapable to stop the harm, or is the perpetrator itself, there are
certain obligations for the international community to act in order to protect the individuals
against human rights abuses. Consequently, R2P legitimises intervention in the domestic
spheres of a state in case the state concerned fails to guarantee the human rights of its local
population. 150 R2P contains three specific responsibilities: the responsibility to prevent, the
responsibility to react and the responsibility to rebuild. However, one of the main problems of
the concept of R2P is its content as none of the UN organs has addressed R2P substantially.151
Since R2P conflicts with principles of international law, most notably the principle of
non-intervention, the concept as a newly emerging norm in international law is highly
contested. 152 Nevertheless, the concept of R2P is endorsed by the Secretary-General’s High
Level Panel on Threats, Challenges and Change in 2004, by the General Assembly in its
Resolution 60/1 of 2005 as a result of the World Summit Outcome and by the Security
Council in the Resolution 1674 of 2006.153 This endorsement signifies a doctrinal shift
towards a stronger protection of the local population against attacks from ‘spoilers’.154 The
Brahimi report confirms that where civilians are being deliberately attacked troops ‘may not
only be operationally justified in using force but morally compelled to do so.’155 The UN
Capstone Doctrine reflects this evolution of peace operations and shows an approach that
respects the traditional principles of impartiality, consent and limited force, but also
acknowledges that the dual needs to deal with spoilers and to protect civilians will require a
148
ICISS Report 2001 The Responsibility to Protect, (Ottowa International Development Research Centre 2001),
p. 49. Hereinafter referred to as ICISS, The Responsibility to Protect. See Wills, Military Interventions, p. 390.
149
ICISS, The Responsibility to Protect, p. 49. See Hassler, S. ‘Peacekeeping and the Responsibility to Protect’,
Journal of International Peacekeeping 14 (2010) 134-183, p. 143.
150
Hassler, S., Supra Note 149, p. 144.
151
Barber, R., Supra Note 143, p. 309.
152
Hassler, S., Supra Note 149, p. 173, 174.
153
Barber, R., Supra Note 143, p. 307.
154
Spoilers are defined by the UN’s High Level Panel in 2004 as ‘factions who see a peace agreement as
inimical to their interests, power or ideology, use violence to undermine or overthrow settlements.’ High Level
Panel Report – Report of the High Level Panel on threats Challenges and Change, ‘A More Secure World: Our
Shared Responsibility’, UN Doc. A/59/565, 2 December 2004, at 222. See also Wills, S. Supra Note 7, p. 86.
155
Brahimi Report, p. 50. See Wills, S. Supra Note 7, p. 43.
29
robust mandate and clear rules of engagement.156 Consequently, traditional peacekeeping has
evolved into a more robust way of peacekeeping with more complex tasks and mandates and
with military, police and civilian elements.157 The UN missions have became multifunctional,
including tasks as restoring the rule of law, monitoring human rights and elections,
demilitarisation and state building.158 However, the power of the Security Council to authorise
a peace operation involving the threat or use of force as a response to ‘a threat to international
peace and security’ is a very broad mandate.159 Thus, it is at the discretion of the Security
Council to decide on the matter, which means that the Security Council is not legally obliged
to act.
The concept of R2P can not yet be considered a norm of customary international law
due to the fact that R2P lacks the necessary opinio iuris of states because the concept conflicts
with fundamental principles of international law.160 Furthermore, whereas R2P is in some
cases applied and the use of force has been included in several mandates of peace operations,
the concept has not yet been adopted as a general rule in practice. An example is the situation
in Darfur, where UN forces were reluctant to ensure the protection of the local population.161
However, since R2P is applied in some cases as for example in Burundi, Congo and Ivory
Coast, one may suggest that a legal norm is emerging that obliges the protection of civilians
against human rights violations.162 Nonetheless, until the establishment of the legal obligation
deriving from R2P, there may be a moral obligation to protect.
3.2. Two situations the UN peacekeepers have a legal obligation to protect civilians
There are two situations to distinguish where UN peacekeepers may have to protect the
human rights of the local population in the host state, namely in the area of operations and in
relation to their own conduct towards civilians. The obligations of UN peacekeepers abroad
derive from international law, in particular human rights law, and a general obligation to
respect the law of the host state and the law of the troop contributing countries. These
obligations apply irrespective of the status of the personnel involved. 163
156
White, N.D. ‘Empowering Peace Operations to Protect Civilians: Form over Substance?’, Journal of
International Peacekeeping 13 (2009) 327-355, p.353.
157
The Capstone Doctrine, Supra Note 1, p. 18.
158
Hassler, S., Supra Note 149, p. 170.
159
Kondoch, B. in: Gill, T.D. and Fleck, D. Supra Note 2, p. 90, 92.
160
Welsh, J.M. ‘From Right to Responsibility: Humanitarian Intervention and International Society’, Global
Governance, vol. 8, 2002, pp. 503-521, p. 506; Breau, S.C. ‘The impact of the Responsibility to Protect on
Peacekeeping’, C&S Law, vol. 11, no. 3. December 2006, pp. 429-464, p. 464; Hassler, Supra Note 149, p. 175.
161
Breau, S.C. Supra Note 160, p. 453.
162
Ibid.
163
Fleck, D. in Gill, T.D. and Fleck, D. Supra Note 2, p. 149.
30
Situation I: in the area of operations
In the case that UN peace operations are deployed in a particular state, they may have an
obligation to protect the local population of the host state against human rights abuses. In
order to establish whether UN peacekeepers have legal obligations derived from international
human rights law towards the local population in their area of operations, three questions need
to be answered. The first is whether the peacekeeping force exercises effective control over (a
part of) the territory of the host state or certain individuals. Second, to the extent effective
control is exercised, to whom can these acts or omissions be attributed; the UN or the troop
contributing countries? Third, in case of jurisdiction it needs to be considered what the nature
is of the positive duties imposed on the UN or the troop contributing countries under the
human rights instrument by which they are bound.164
3.2.1. Establishing jurisdiction: effective control over the area of operation
First, where a UN peacekeeping force is exercising jurisdiction it has an obligation to secure
human rights within that territory.165 This obligation may derive from customary human rights
norms as well as from obligations upon troop contributing countries that may extend outside
their national borders. Who fall within the jurisdiction of a peacekeeping force depends on
whether and to what extent it exercises effective control. There are two situations to be
distinguished in this regard, i.e. territorial control and physical control over certain
individuals.
The first situation is where a state exercises territorial control over a foreign territory,
for example as a result of military occupation. There is consensus that where a state exercises
effective control over foreign territory, the human rights treaty to which this state is a party is
applicable to its conduct in that foreign territory.166 A similar reasoning was used by the ICJ
in the Palestinian Wall case where it held that all human rights treaties to which Israel was a
party were also applicable to Palestine area, except to the extent that Israel formally derogated
from them, as well as the human rights obligations that constituted customary international
law.167 Also the ECtHR affirmed the applicability of human rights to the territory of Northern
Cyprus under the effective control of the state party Turkey in the Loizidou case.168 In the
164
Barber, R., Supra Note 143, p. 310.
Ibid.
166
Coomans, F. and Kamminga, M.T. in: Coomans, F. and Kamminga, M.T. (eds.) (2004) Extraterritorial
Application of Human Rights Treaties, Oxford: Intersentia, p. 3.
167
Advisory Opinion concerning the Legal Consequences of the Construction of a Wall in Occupied Palestinian
Territory (ICJ July 9 2004) ILM 1009 (2004).
168
Loizidou v. Turkey (Merits) 15318/89 (1996) ECHR 70 (18 December 1996), § 52.
165
31
Bankovich v Belgium case, the ECtHR held that it recognises in exceptional occasions extraterritorial jurisdiction, namely where a state “through the effective control of the relevant
territory and its habitants abroad as a consequence of military occupation or through the
consent, invitation or acquiescence of the government of that territory, exercises all or some
of the public powers normally to be exercised by [the government of that territory].”169
The second situation occurs where a state exercises physical power and authority over
a person, for example when UN forces detain certain individuals in a military prison in the
host state. This situation is based on the exception to the territorial principle that certain areas
or properties are recognised and accepted as being under the jurisdiction of the state,
regardless where they are located. Examples are embassies, military bases or prisons
abroad.170 The HRC declared in its 1998 Report about Belgium and its troops in Somalia
under the auspices of the UN Operation UNOSOM II that “the Covenant automatically
applies when it [the State party] exercises power or effective control over a person outside its
territory, regardless of the circumstances such power or effective control was obtained, such
as forces constituting a national contingent assigned to an international peacekeeping force
or peace support operation. The State party should respect the safeguards established by the
Covenant, not only in its territory but also when it exercises its jurisdiction abroad, as for
example in the case of peacekeeping mission or NATO military missions, and should train the
members of such missions appropriately.”171 In the Al-Skeini case, concerning allegations that
British forces serving in Iraq during the occupation of 2004 had violated the United Kingdom
Human Rights Act 1998, the United Kingdom High Court confirmed that a military prison
falls within this category of jurisdiction.172 There exists broad agreement that in such cases the
human rights treaties to which the particular state is a member are similarly applicable.173 The
HRC argued in this regard in the Lopez Burgos v Uruguay case that it would be
unconscionable to interpret the ICCPR in such a way as to permit a state party to perpetrate
violations of the Covenant on the territory of another state that it could not perpetrate on its
own territory.174 Similar approaches were taken by regional courts such as the Inter-American
169
Bankovic v Belgium (2001) 11 BHCR 435, 71.
Wills, S. Supra Note 7, p. 132, 133.
171
Concluding Observations of the Human Rights Committee: Belgium. 19/11/1998, UN Doc CCPR/C/81/BEL
§ 6.
172
R (on the application of Al Skeini and others) v Secretary of State for Defence (hereafter Al Skeini case)
[2007] UKHL 26.
173
Wills, S. Supra Note 7, p. 128, 129; Coomans, F. and Kamminga, M.T., Supra Note 166, p. 4.
174
López Burgos v. Uruguay, HRC 29 July 1981, Communication No. 52/1979, UN Doc. CCPR/C/OP/1, § 12.3.
See Scheinin, M. in Coomans, F. and Kamminga, M.T. Supra Note 166, p. 73.
170
32
Court of Human Rights in the Coard case and the European Commission in the Cyprus v
Turkey case.175
With regard to UN peacekeeping operations it is difficult to argue that a certain force
exercises effective control over a territory or individuals during its deployment other than its
own bases. It can be asserted that forces exercise effective control at particular times over
particular locations, for example where UN forces escorted women on firewood collecting
missions in Darfur. However, this is not sufficient to be able to ensure all fundamental rights
of the relevant human rights instruments.176 It would be a different case with regard to the
effective control of the UN territorial administrations such as in East Timor or Cambodia,
where the UN carried out basically all powers of a sovereign state.177
3.2.2. UN command and control
Secondly, to determine whether a UN peacekeeping force exercises jurisdiction over the
civilians of the host state, one needs to look at the legal status of the particular operation.
Essential are in this regard the UN’s military command and control over the operation,
because the attribution of conduct in international law is based to a large extent on this
concept. The command and control shows the nature of the authority exercised by the military
commanders over its forces.178 As set out in the introduction, there are two different types in
the context of the operational command of the operations. Here the focus will be on
peacekeeping operations that are under UN command and control and not the operations
where the UN has solely political control.
Since the UN does not have its own peacekeeping forces, it is dependent on the
preparedness of its member states to contribute troops. When states are willing to provide
troops, their forces will be transferred to the operational command and control of the UN by
means of a Transfer of Authority Agreement between the UN and the individual troop
contributing countries.179 The forces at the disposal of the UN are for the period of their
deployment considered as international personnel under the authority of the UN.180 This
means that the Security Council, or in some case the General Assembly, will maintain overall
political control and authority over the mission, whereas the executive direction and control
175
Coard et Al v United States Report No 109/99, Case 10.951, September 29,1999 and Cyprus v Turkey,
25781/94 [2001] ECHR 331 (10 May 2001)
176
Barber, R., Supra Note 143, p. 313.
177
Werzer, J., Supra Note 8, p. 106.
178
Zwanenburg, M. C., Supra Note 22, p. 110.
179
Gill, T.D. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 140, 141.
180
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 520.
33
lies with the Secretary-General. On the ground, the forces are subject to the instructions of the
UN Force Commander which is usually appointed by the Secretary-General with the consent
of the Security Council. The FC exercises operational control over the military component
and determines the chain of command.181 However, the level of command and control is
difficult to determine since the UN has no agreed terms to designate this. Therefore, it might
be the case that states use different terms while designating the same.182 According to the UN
DPKO, command is “the authority vested in a commander of the armed forces for the
direction, coordination, and control of military forces.” 183 Operational control is described as
“the FC has the authority to direct forces assigned so that the Commander may accomplish
specific missions or tasks which are usually limited by function, time or location (or a
combination), to deploy units concerned and/or military personnel, and to retain or assign
separate tasks to sub units of a contingent, as required by operational necessities, within the
mission area of responsibility, in consultation with the Contingent Commander and as
approved by the United Nations Headquarters.” 184 The overall control on the ground is in the
hands of the Special Representative of the Secretary-General (hereafter SRSG) which has
authority over not only the military elements but also over the civilian part of the mission. The
SRSG, or the FC in absence of the SRSG, is the Head of Mission and needs to report to the
Secretary-General.185
The level of command and control that is transferred to the UN may be included in the
participation agreements and, or in a memorandum of understanding.186 Despite the fact that
the UN has the assumption that it has in principle exclusive control over the national forces of
the peacekeeping operation, in practice it never exercises full command, i.e. authority and
responsibility on every aspect of the military operation and administration.187 This is also
confirmed by the Capstone Doctrine: “In the case of military personnel provided by member
states, these personnel are placed under the operational control of the United Nations Force
Commander or head of military component, but not under the United Nations command.”188
The Secretary-General Boutros-Ghali explained the term ‘UN command’ in 1994 in its report:
“In general, UN command is not full command and is closer in meaning to the generally
181
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 520.
Zwanenburg, M. C., Supra Note 22, p. 40.
183
UNDPKO, Department of Field Operations, Authority, Command and Control in United Nations
Peacekeeping Operations, 4 February 2008, § 4.
184
Ibid.
185
UN Doc. A/46/185, § 7. See Zwanenburg, M. C. Supra Note 22, p. 39.
186
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 520.
187
Ibid.
188
Capstone Doctrine, Supra Note 1, p. 9, 68; Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 521.
182
34
recognised military concept of ‘operational command’. It involves the full authority to issue
operational directives within the limits of (1) a specific mandate of the Security Council; (2)
an agreed period of time, with the stipulation that an earlier withdrawal requires adequate
prior notification; and (3) a specific geographical range (the mission area as a whole).”189
Thus, the national forces remain organs of their contributing state with the result that the state
retains full and exclusive strategic level command and control of its troops.190 Consequently,
the national forces fulfil a dual role since they have the obligation to act in compliance with
the interests of the UN when they are transferred to the operational command and control of
the UN.
191
Sometimes this forms a problem as troop contributing states do not respect the
agreements relating to command and control, resulting in for example countermanded orders
or the bypassing of the chain of command. Several examples can be mentioned, such as
reports stating that then President Chirac of France bypassed UN commanders during the UN
peacekeeping operation in the former Yugoslavia, and the case in Somalia where some
national contingents during the UN peacekeeping operation first consulted with their national
capitals while taking part in the operation.192
3.2.3. Responsibility of the UN
In order to be able to determine the responsible entity for the conduct of the UN peacekeepers,
one has to show that the national force and its soldiers were under the military command and
effective control of the UN or the troop contributing country. 193
It is nowadays accepted that international organisations can be held responsible for
their internationally wrongful acts due to the fact that they possess international legal
personality.194 The ILC applied the rules on state responsibility by analogy on international
organisations and developed the Draft Articles on the Responsibility of International
Organisations (hereafter DARIO).195 Although so far 66 draft articles have been adopted and
the text is not yet a binding instrument, it is widely accepted that most of these draft articles
189
UN Doc. A/49/681 of 21 November 1994, § 6. See Zwanenburg, M. C. Supra Note 22, p. 40.
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 520.
191
See art. 9 of the Model Agreement between the UN and Member States Contributing Personnel and
Equipment to United Nations Peacekeeping Operations, A/46/185 of 23 May 1991; Ibid; Statement of the
Secretary-General UN Doc. A/49/681 of 21 November 1994, § 7; Zwanenburg, M. C. Supra Note 22, p. 41.
192
Respectively M. Rose, Fighting for Peace 85, 116 (1998) and United Nations, The United Nations and
Somalia 1992-1996 86 (1996).
193
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 522
194
Reparations for Injuries case, Supra Note 18.
195
International Law Commission, Report on the Work of its sixty-first Session (4 May to 5 June and 6 July to 7
August 2009) GA Supplement No. 10 (A/64/10) http://untreaty.un.org/ilc/reports/2009/2009report.htm Accessed
on 31-1-2011
190
35
reflect customary international law. Nevertheless, about the status of article 5 DARIO and the
existence of a rule on dual or joint responsibility has not yet reached consensus 196 According
to article 3 DARIO “Every internationally wrongful act of an international organization
entails the international responsibility of the international organization”. The criteria are set
out in article 4 DARIO which firstly require the breach of an obligation or non-performance
under international law and secondly, that the wrongful act is attributable to the state. 197
With regard to UN peacekeeping operations, the UN can be held responsible if one can
establish that the UN had effective control over the national contingents and its soldiers while
they committed an internationally wrongful act. This can occur by virtue of article 6 DARIO
which states that “the conduct of an organ of a State or an organ or agent of an international
organization that is placed at the disposal of another international organization shall be
considered under international law an act of the latter organization if the organization
exercises effective control over that conduct.” The condition of effective control enjoys the
support of most legal scholars and also the Special Rapporteur Gaja confirmed the important
role of effective control: “the international responsibility of the UN for combat-related
activities of UN forces is premised on the assumption that the operation in question is under
the exclusive command and control of the UN, […] in joint operations, international
responsibility for the conduct of troops lies where operational command and control is vested
according to the arrangements establishing the modalities of cooperation between the state or
states providing the troops to the UN. In absence hereof, responsibility would be determined
in each and every case according to the degree of effective control exercised by either party
in the conduct of the operation.”198 In practice, the effective control test has been used by the
ICJ in the Nicaragua case and the Genocide case199 where it decided on the responsibility in
favour of either the UN or the troop contributing country for the wrongful acts.200 Another
outcome of the effective control test could be that it would lead to dual or joint responsibility,
i.e. where it is impossible to establish if the UN or the troop contributing country exercised
196
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 517.
Zwanenburg, M. C. Supra Note 22, p. 53.
198
ILC, ‘Second Report on Responsibility of International Organisations by Special Rapporteur, Mr. Giorgio
Gaja’ (2004) UN Doc A/CN.4/541, § 41.
199
Respectively Military and Paramilitary Activities and against Nicaragua (Nicaragua v United States of
America), Judgement of 27 June 1986, ICJ Reports, 14, 62-64 and Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro),
Judgement of 26 February 2007, 400-407.
200
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 523.
197
36
effective control during the peacekeeping operation.201 Consequently, neither the international
organisation nor the state can escape from its international obligations. This result is not
undesirable considering that the purpose of international responsibility is to provide effective
remedies for violations of international law.202
3.2.4. Responsibility of the troop contributing countries
In case peacekeeping forces are under command and control of a particular troop contributing
country, the wrongful acts will be attributed to this state, because the forces are regarded as
state organs. As a result the conduct falls outside the chain of command and therefore the state
only can be held responsible.203 Furthermore, the troop contributing country is also
responsible where it aids or assists; directs and controls; or coerces an internationally
wrongful act committed by another troop contributing country or international organisation.
Criteria are that the state does so with the knowledge of circumstances of the act and the act
must also be wrongful if committed by that state itself.204 Whether the troop contributing
country can be held responsible for the conduct of its forces would depend on the facts and
circumstances concerning the alleged acts and omissions, and on whether the troops were
acting pursuant to the orders of their national commanders or to the orders of the UN
commander.205
3.2.5. The responsibility of UN peacekeeping operations and case law
There is only very little case law with regard to UN peacekeeping operations and international
responsibility. However, recently in the Behrami and Behrami v. France and Saramati v.
France, Germany and Norway case206 and the Al Jeddah v. Secretary of State for Defence
case207 organisational control was addressed with the focus on the question under what
circumstances the wrongful acts could be attributed to either an international organisation or a
troop contributing country.
201
See ILC, Second Report, § 48; Krieger, ‘A Credibility Gap: the Behrami and Saramati Decision of the
European Court of Human Rights’, 13 Journal of International Peacekeeping (2009), 159-180, at 170-172.
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 523.
202
Leck, C. ‘International Responsibility in United Nations Peacekeeping Operations: Command and Control
Arrangements and the Attribution of Conduct’, 10 Melbourne Journal of International Law (2009), 346-364.
203
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 528.
204
This is codified in the articles 16-18 ASR and articles 57-59 DARIO. See Kondoch, B. in: Gill, T.D. and
Fleck, D., Supra Note 2, p. 529.
205
Barber, R., Supra Note 143, p. 310.
206
ECtHR, Behrami v. France (Application no. 71412/01), Saramati v. France, Germany and Norway
(Application no. 78166/01), Admissibility Decision of 31 May 2007, 45 EHRR SE10.
207
Al Jeddah v. Secretary of State for Defence (2007) UKHL 58.
37
In the Behrami and Behrami v. France and Saramati v. France, Germany and Norway
case the applicants complained that the forces of KFOR in Kosovo violated their human rights
guaranteed under the ECHR and that this conduct was attributed to the individual states as
KFOR was subject to the exclusive control of these states.208 The ECtHR rejected the claim,
because it decided that the UN had ‘ultimate authority and control’ and therefore the troop
contributing states could not be responsible. The Court concluded that since KFOR lawfully
exercised delegated Chapter VII powers of the Security Powers and UNMIK was a subsidiary
organ of the UN established under Chapter VII, the acts of KFOR and the inaction of UNMIK
were in principle ‘attributable’ to the UN. The Court further noted that the UN possessed
international legal personality separate from its member states and that it was not a party to
the ECHR. Additionally, the operations were established under Chapter VII for the UN
purpose to secure international peace and security which only could be effective with the
support of the troop contributing countries. Consequently the Court decided that the ECHR
could not be interpreted in a manner which would subject the conduct of the parties which
were authorised by Security Council resolutions. For these reasons the conduct of KFOR and
UNMIK could not be attributed to the member states, since it neither took place on their
territory nor by virtue of a decision of their authorities. The ECtHR decided that the alleged
wrongful conduct was directly attributable to the UN and therefore the cases as
inadmissible.209 The ECtHR used in this case a different approach to decide on attribution of
conduct, namely the ‘ultimate authority and control test’, instead of the effective control test
adopted by the ILC, the UN and the majority of legal scholars. Nonetheless, the ECtHR
reiterated its view in following cases.210 The result of the Behrami case is that a different
condition for attribution applies to ECtHR case law than under general international law,
which is according to Special Rapporteur Gaja difficult to accept simply on the grounds of
one case.211
In the Al Jeddah v. Secretary of State for Defence case the applicant complained that
the British forces that were part of the Multinational Force in Iraq held him in detention
without any access to court. The most important question was whether the UK was
responsible for the wrongful detention or whether the UN was responsible as the acts were
208
ECtHR, Behrami v. France (Application no. 71412/01), Saramati v. France, Germany and Norway
(Application no. 78166/01), Admissibility Decision of 31 May 2007, 45 EHRR SE10., § 73-81.
209
Ibid, § 133-140.
210
ECtHR, Kasumaj v Greece, Application no. 6974/05, Judgment of 5 July 2007; Gajic v Germany, Application
no. 31446/02, Judgment of 28 August of 2007; Beric v Bosnia and Herzegovina, Application no. 36357/04,
Judgment of 16 October 2007.
211
Seventh Report of Special Rapporteur Gaja, A/CN.4/610 (2009), § 30.
38
attributable to the UN because Security Council resolutions authorised the Multinational
Force in Iraq. The House of Lords decided that the alleged wrongful acts were attributable to
the UK and not the UN.212
Concluding from the different decisions of the ECtHR on the same topic, one is able
to see the difficulties in determining the attribution of conduct to international organisations
or the troop contributing countries.213
3.2.6. The nature of human rights obligations
Thirdly, provided that the UN peacekeeping force exercises jurisdiction, it needs to be
considered what the nature is of the human rights obligations imposed on the forces.214 The
human rights obligations of UN peace operations derive from international human rights law,
and a general obligation to respect the law of the host state and the troop contributing country.
Also the mandate of the UN mission which contains the goals and functions of the operation
may include a human rights component. 215 Since the peace operation in El Salvador in 1991,
the UN has included the promotion and protection of human rights in several peace operations
mandates.216
The human rights norms that are applicable to UN peacekeeping forces bring along
certain legal obligations. Despite the fact that human rights entail negative legal obligations,
i.e. abstention from certain acts such as mistreating or torturing prisoners, they consist of
positive legal obligations as well.217 This means that the bearer of those obligations is also
obliged to take active steps in order to provide full protection of the human rights. An
example is with regard to the prohibition of torture that a state must take all steps that are
necessary to ensure that all its authorities comply with their obligations.218 Relevant for the
work of UN peace operations, the ICCPR contains important human rights provisions, such as
the right to life, the right not to be subjected to cruel, inhumane and degrading treatment or
punishment, and the right to a fair trial.219 The Committee on Civil and Political Rights
explains in General Comment No. 6 that a state should not only refrain from acts that violate
the right to life, but should also take measures to prevent and punish deprivation of life by
212
Al Jeddah v. Secretary of State for Defence (2007) UKHL 58, § 23.
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 527
214
Barber, R., Supra Note 143, p. 310.
215
Cerone, J. in: White, N. D. and Klaasen, D., Supra Note 49, p. 62.
216
Kondonch, B. in: White & Klaasen, Supra Note 49, p. 34.
217
Vienna Declaration, pt I at 23; Mégret and Hoffmann, Supra Note 50.
218
Kudla v Poland, app 30210/96, 26 October 2000, § 94; Tomuschat, C. (2008) Human Rights, Between
Idealism and Realism (2nd ed.) Oxford: Oxford University Press, p. 53.
219
Respectively article 6,7 and 14 ICCPR.
213
39
criminal acts within its jurisdiction.220 Consequently, one could argue that UN peace
operations have positive legal obligations under article 6 ICCPR to take active steps to
prevent arbitrary killing within its jurisdiction.221 Another example is the Genocide
Convention that requires state parties to ‘undertake to prevent and to punish’ genocide.222 The
then Secretary-General stated after the genocide in Rwanda that the obligation to act is not
limited to cases of genocide but that there is an obligation to act in situations where there are
massive violations of human rights – before they reach the level of genocide.223 Therefore, in
the context of UN peace operations, one can argue that to the extent that forces interfere in the
lives of civilians, they should take ‘measures within the scope of their powers which, judged
reasonably, might have been expected’ to avoid violations of these individuals’ rights.224
However, the exact scope and content of these obligations remains unclear. Since the
endorsement of the concept of R2P by the prominent UN organs, it is acknowledged that a
stronger protection of the local population against attacks from spoilers is necessary during
UN peacekeeping operations.
With regard to UN peacekeeping where forces act abroad, the scope of obligations
towards the individuals that enjoy the rights may be narrower, because international human
rights law starts from a state’s authority and a presumed capacity to control individuals and
territories. Consequently, its human rights obligations would not be as broad as when it acts
on its own territory. The scope of obligations and range of applicable rights may correspond
to the scope of the actions or capacity to act in a particular situation during the mission.225
Besides the scope, it is also difficult to determine whether the legal principles of international
human rights law can be said to apply not only to acts but also to omissions, as for example in
the occasion that UN forces face a threat to genocide.226 The ICJ decided with regard to the
ICCPR in the Palestinian Wall case on the topic of ‘acts and omissions’ and considered that
the ICCPR was applicable outside the territory of a state ‘in respect of acts done by a state in
220
Committee on Civil and Political Rights, General Comment No. 6: The Right to Life (Art 6 of the Covenant),
UN Doc. A/37/40, 1982. See Barber, p. 316.
221
Barber, R., Supra Note 143, p. 316.
222
Article 1 of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948, 78 UNTS
277.
223
Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in
Rwanda, p. 29.
224
In Al-Adsani v the United Kingdom (Appl. No. 35763/97), ECtHR 21 November 2001, § 61; O’Boyle, M. in:
Coomans, F. and Kamminga, M.T., Supra Note 166, p. 106.
225
Cerone, J. in: White, N. D. and Klaasen, D., Supra Note 49, p. 62.
226
Barber, R., Supra Note 143, p. 316.
40
the exercise of its jurisdiction’.227 Unfortunately, the Court did not explain its statement, but it
seems that it only refers to acts and not to omissions. Another case in this respect is the Armed
Activities on the Territory of the Congo case. The court refers here to acts as well as to
omissions as it considers ‘failing to protect, failing to take measures to ensure respect for
human rights’, however, this is in the context that UN peacekeepers were itself the
perpetrators. Also here, the court did not elaborate on the distinction between acts and
omission or whether positive measures ought to have been taken in order to ensure respect for
human rights.228 Probably, the court did not have the intention to imply this. It is difficult to
imagine that merely by including the failure to take active steps, without any elaboration on
what this signifies, the court meant to imply that a state exercising effective control over
territory abroad would be held responsible where the violation was a failure to take
unspecified positive measures to ensure respect for human rights.229
In conclusion, it is difficult to argue that the UN can be held responsible for human rights
violations in the area of operations. Firstly, in most cases peacekeeping operations do not
exercise effective control over a territory or individuals to the extent that jurisdiction could be
established. Furthermore, the UN never has full command over the UN forces, which means
that the UN only can be held responsible in the very unlikely situation that the FC would
explicitly give orders to commit the wrongful acts. In all other cases, the force that commits
the abuses acts ultra vires and breaches as such disciplinary orders which fall under the
national command and control. This is also the case where the UN peacekeeping force
exercises effective control over its bases or prison and violates human rights within this area.
Finally, the concept of R2P is still no legal obligation and it remains unclear what the
positive obligations entail for UN peacekeeping operations. Moreover, from case law it does
not appear that these obligations also include omissions. Nevertheless, it is affirmed by
several authorities that there might be a moral obligation to act in order to protect civilians
against massive violations of human rights. 230
227
Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory [2004] ICJ Rep. 131, § 111; Barber, R., Supra Note 143, p. 316.
228
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda) (Merits) (2006) 45 ILM 271, § 345. Barber, R., Supra Note 143, p. 317.
229
Ibid.
230
Wills, S. (2004) Military Interventions on Behalf of Vulnerable Populations: the Legal Responsibilities of
States and International Organisations Engaged in Peace Support Operations, Journal of Conflict & Security
Law, Vol. 9 No. 3, p. 388.
41
Situation II: where UN peacekeepers itself violate I international human rights law
The UN peacekeeping force should not only protect the human rights of individuals within its
area of deployment, but must also be compliant with human rights during its own activities.231
Unfortunately, several occasions are known where UN peacekeepers were involved with
human rights abuses. Peacekeepers, both military and civilian, have frequently alleged to be
engaged in sexual exploitation and sexual abuse in countries as Burundi and Congo.
232
Another example are the allegations of torture, sexual assaults and killings by UN forces in
Somalia.233 These human rights violations by UN peacekeepers, which are in essence
deployed to protect the local population against human rights abuses, had a detrimental effect
for the credibility of UN peace operations in the maintenance of peace and security.234
As is explained above, in order to determine to which entity the internationally
wrongful act of a force can be attributed, one has to examine who exercised command and
control over the peacekeeping force at the time the abuses were committed. As is seems very
unthinkable that a UN commander gives orders to commit human rights violations, it is more
reasonable to assume that this misbehaviour is a matter of discipline. With regard to
disciplinary matters of the forces it is the troop contributing country that remains
responsible.235 Due to the fact that the force is a state organ, the state remains responsible for
the internationally wrongful acts of its national forces performed on behalf of the state, even
in case they are committed contrary to orders or instructions. Furthermore, this responsibility
also extends to omissions if there was a duty to act.236
With respect to the UN, incurring the international responsibility of the UN for the
wrongful conduct of its peacekeeping forces, the act or omission should be performed in the
official capacity of the individual. Where an organ or agent of the UN acted in excess of its
authority or contravention of instructions, i.e. acted ultra vires, the UN has stated that it does
not accept responsibility.237 Although the UN does not consider itself responsible for ‘off-duty
acts’ of its peacekeeping forces, it does seem to have accepted its responsibility in some cases
231
White, N.D. ‘Empowering Peace Operations to Protect Civilians: Form over Substance?’, Journal of
International Peacekeeping 13 (2009) 327-355, p.343.
232
For example the Report of the Secretary-General to the Security Council on the protection of civilians in
armed conflict’, 28 May 2004, UN Doc. S/2002/431.
233
Wills, S. (2004) Military Interventions on Behalf of Vulnerable Populations: the Legal Responsibilities of
States and International Organisations Engaged in Peace Support Operations, Journal of Conflict & Security
Law, Vol. 9 No. 3, p. 388.
234
Hassler, S., Supra Note 149, p. 151.
235
Cammaerts, P.C. and Klappe, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 160.
236
See articles 2, 7, 8 ASR. Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 528.
237
UN Office of Legal Affairs in a 1986 Memorandum, U.N.J.Y. 1986, at 300; Zwanenburg UN Peace
Operations Between Independence and Accountabilty, Leiden: Martinus Nijhoff Publishers, International
Organisations Law Review 5 (2008) 23-47, p. 31.
42
where civilians were killed by members of peacekeeping forces where no official function or
superior order was given as for example with UNEF and ONUC.238 Another case where the
UN accepted responsibility for conduct of its peacekeeping forces was in Somalia where
Belgian members of UNOSOM committed wrongful acts under apparent authority of the
UN.239
238
See Simmonds, R. Legal Problems Arising from the United Nations Military Operations in the Congo (1968)
at 223. See Zwanenburg, M.C. Supra Note 22, p. 117.
239
Ibid.
43
CHAPTER 4 UN ACCOUNTABILITY AND THE UN’S SYSTEM TO PROVIDE
EFFECTIVE REMEDIES
As is explained in the previous chapter, international organisations bear responsibility for
international wrongful acts imputable to them. In the case that human rights violations
committed by the UN peacekeeping forces took place under the military command and
effective control of the UN, and in the performance of their official capacity, the
internationally wrongful acts or omissions can be attributed to the UN. 240 As a consequence,
the UN bears responsibility for the internationally wrongful acts or omissions committed by
UN peacekeeping forces and it needs to provide for an effective remedy for the individuals
that have been harmed. This chapter will address the UN’s system to provide effective redress
for violations of international human rights law attributable to the UN, the appropriateness of
this system and whether there is an alternative remedy.
4.1. Accountability for human rights abuses and its importance
Where human rights abuses result from the conduct of UN peacekeeping forces and these
abuses can be attributed to the UN, the UN is responsible for the wrongful conduct.
International responsibility forms an element of the broader concept of international
accountability for internationally wrongful acts.241 As international responsibility is by
definition legal, the accountability of international organisations can take different forms,
such as legal, political administrative or financial. Consequently, responsibility can be
implemented by adjudicative means, whereas accountability as a broader concept can also be
achieved through different quasi-judicial or even political or administrative means.242
In order to avoid responsibility one might argue that the UN can invoke circumstances
precluding wrongfulness enlisted by the ILC or the concept of ‘operational necessity’ deriving
from the UN’s own doctrine.243 However, as elaborated in chapter 2, there are some core
norms of international human rights law that have a peremptory character from which no
240
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 520.
Ibid, p. 515.
242
Zwanenburg, M. C., Supra Note 22, p. 65.
243
Articles 19-24 DARIO. ‘Operational necessity’ is defined by the UN as the case where damage results from
necessary actions taken by a peacekeeping force in the course of carrying out its operations in pursuance of its
mandate” and is to be determined at the discretion of the UN force commander. See Secretary-General, Report
of the Secretary-General on Financing of United Nations Peacekeeping Operations, UN Doc. A/51/389 of 20
September 1996, § 13.
241
44
derogation is permitted.244 Consequently, the UN cannot invoke any circumstances precluding
wrongfulness to escape from responsibility for this type of human rights violations committed
by its peacekeeping forces.245
When is established that UN peacekeeping forces have committed a wrongful act, the
responsible entity has the obligation to cease the wrongful conduct and to provide for full
reparation for the injury caused by the wrongful act, which can take the form of restitution,
compensation or satisfaction. Furthermore it has the obligation to guarantee non-repetition.246
The provision of an effective remedy for the harm caused by a peacekeeping operation is of
great importance for the success of the UN mission. Besides that the lack of an effective
remedy would be deplorable for the victim of the violation committed, it could also have a
negative impact on the UN peacekeeping operation. An example is the evaluation of the UN
operation in Somalia, writing: “For the UN to successfully promote respect for human rights
and good governance in collapsed states, as well as gain some measures of credibility, it must
demonstrate a commitment to the principles of accountability and transparency in its own
work. In UNOSOM, no independent oversight existed which could serve as an ombudsman to
consider grievances registered by the local population against the UN.” 247 As restoring the
rule of law is frequently included in the mandate of the peacekeeping operation, the lack of an
effective remedy would negate the confidence of the civilians as the UN itself does not
practice what it demands. This consequently has a negative influence on the credibility and
confidence of the UN, what does not benefit the operation.248
4.2. UN accountability and its obstacles
Despite several developments in international law such as the recognition of a right to a
remedy249 and the importance of credibility in UN peacekeeping operations, there is still no
well functioning system providing effective remedies for victims of human rights violations
by UN peacekeeping forces.250 The problems with regard to accountability of the UN cover a
244
See the list in Hannikainen, I. Preremptory Norms (jus cogens) in International Law (Helsinki:
Lakimkesliiton Kustannus, 1988);Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 531.
245
See chapter 2 of this thesis.
246
Article 29, 30, 33-36 DARIO. See Werzer, J., Supra Note 8, p. 138.
247
The Comprehensive Report on Lessons Learned from United Nations Operation in Somalia (UNOSOM),
§57; Zwanenburg, M. C. Supra Note 22, p. 64, 65.
248
Zwanenburg UN Peace Operations Between Independence and Accountabilty, Leiden: Martinus Nijhoff
Publishers, International Organisations Law Review 5 (2008) 23-47, p. 46.
249
Right to a remedy has been included in the main international human rights treaties, such as article 2(3)
ICCPR; Zwanenburg UN Peace Operations Between Independence and Accountabilty, Leiden: Martinus Nijhoff
Publishers, International Organisations Law Review 5 (2008) 23-47, p. 45, 46.
250
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 532.
45
wide range from political negligence to human rights abuses by the UN peacekeepers itself.
Nevertheless, accountability forms a pivotal element of good governance and is frequently
promoted as such by the UN itself.
251
In 2005, Prince Zeid Ra’Ad Zeid Al-Hussein, the
Permanent Representative of Jordan and a former civilian peacekeeper himself, produced a
comprehensive report with several recommendations on sexual exploitation and abuses
committed by UN peacekeepers.252 Although the UN did not adopt all its recommendations,
the President of the Security Council stated to promote a zero tolerance policy on sexual
exploitation and abuse by UN personnel.253 In accordance with the Zeid Report, troop
contributing countries should investigate the serious misbehaviour of its forces and share its
obtained information with the UN. The responsible peacekeepers will be send home, as well
as the commanders that fail to ensure the proper investigation of alleged sexual exploitation
and abuse by its forces.254 In addition, the UN attempts to persuade the troop contributing
countries to hold on-site courts martial, because this would facilitate access to witnesses and
evidence in the peacekeeping area. A positive side-effect is that it would show the local
population of the host state that there is no impunity for serious misbehaviour by members of
UN peacekeepers.255 Furthermore, the General Assembly should consider the sharing of
information on the state’s investigations of abuses by peacekeepers as “a necessary condition
for the acceptance of an offer by a troop contributing country to supply forces to the UN”.256
Thus, this could be a strong political measure of the UN to ensure that troop contributing
countries investigate and punish their misbehaving forces.
Despite abovementioned attempts by the UN to ensure more compliance by the troop
contributing countries, with regard to its own responsibility it has taken a somewhat
ambiguous attitude. The organisation seems to regard that in case the responsibility for an
internationally wrongful act is attributable to the individual, the UN itself is excluded from
international responsibility. Nonetheless, this leaves aside that the misconduct of UN
peacekeepers is in some case also attributable, at least in part, to failures in recruitment,
training or oversight by the UN.257 Consequently, it is arguable that the UN is bearing
251
Hoffmann, F. and Mégret, F. ‘Fostering Human Rights Accountability: An Ombudsperson for the United
Nations? In Global Governance 11 (2005), 43-63, p. 49.
252
General Assembly, A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United
Nations Peacekeeping Operations, A/59/710, 24 March 2005, hereafter referred to as ‘Zeid Report’.
253
Statement by the President of the Security Council, S/PRST/2005/21.
254
Zeid Report, Supra Note 252, p. 5, 25.
255
Ibid, p. 4, 16.
256
Ibid, p. 6.
257
Hoffmann, F. and Mégret, Supra Note 251, p. 47.
46
responsibility commensurate with its role. Thus, the fact that state responsibility can be
established does not and should not exclude the accountability of the UN for conduct under its
command and control. 258 Nevertheless, there seems to be some changing with regard to the
UN’s accountability. Kofi Annan recognised after the accusations in Somalia during
UNOSOM, that a reporting procedure needed to be established for addressing
accountability.259 An example is the creation of two commissions by the Security Council
after Rwanda and Srebrenica to examine the UN’s role in these tragedies.260
Currently, the UN has an extensive network of organs and mechanisms at its disposal,
nevertheless, this proved not to be sufficient to safeguard and to promote human rights
accountability. Although the promotion of human rights and good internal governance are
present in its framework, the inadequacy lies in their structural separation. With regard to the
UN, its good internal governance institutions are seen as essentially unrelated to human rights,
and human rights are considered not to be related to the UN itself. 261 For instance, an existing
mechanism for internal governance of the UN is the Office of Internal Oversight Services
(hereafter OIOS). It seems to be an appropriate mechanism to address accountability, since its
mandate is “to ensure compliance with the resolutions of the General Assembly, and with
regulations, rules and policies of the UN”.262 But in practice it appears that the OIOS focuses
more on the internal management control as it for example examined management and service
of ration contracts, allegations of fraud travel, financial impropriety and corrupt practices. 263
Thus, the OIOS did not include the monitoring of human rights compliance as meant in the
major human rights treaties and those relevant for this thesis.
The organs that are specifically created for the promotion of human rights appeared
not to speak out on the UN’s accountability in the context of human rights abuses. Frequently,
the misconduct of UN peacekeepers is linked only to the troop contributing countries and not
explicitly to the UN. Since the UN is not a party to the major human rights treaties promoted
under its auspices, none of the treaty bodies was ever requested to examine its behaviour from
a human rights perspective.264 Nevertheless, the HRC and the Committee against Torture had
the opportunity in the case of Somalia to examine the UN’s role indirectly through the reports
258
Ibid, p. 47, 48.
UN press release, 24 June 1997 (UN Doc. SG/SM/6271)
260
Hoffmann, F. and Mégret, F. ‘Fostering Human Rights Accountability: An Ombudsperson for the United
Nations? In Global Governance 11 (2005), 43-63, p. 48.
261
Ibid, p. 51.
262
See A/48/640 (23 November 1993), pp. 2, 4.
263
See for example the investigation of the UN mission in Bosnia, UN Doc. A/53/683 (20 December 1999)
264
Hoffmann, F. and Mégret, F. ‘Fostering Human Rights Accountability: An Ombudsperson for the United
Nations? In Global Governance 11 (2005), 43-63, p. 53.
259
47
of the troop contributing countries that were accused from the wrongdoing while serving
under the UN. However, these bodies did not even mention the potential responsibility of the
UN. The same position was taken in the case of UNTAET where the UN did not allude to the
possibility that the staff might have committed human rights violations. 265
Thus, in order to improve the inadequate accountability system of the UN, firstly the
UN needs to adopt a self-reflexive human rights focus in its internal accountability approach
similarly as its good governance administrative practices already are. Secondly, the existing
accountability mechanisms of the UN need to be modified, or a new mechanism must be
created in order to achieve an internal human rights watchdog that would be truly
independent, capable of receiving complaints about UN activities and empowered to
investigate and to provide effective remedies.266
4.3. Alternative mechanism of redress: an Ombudsperson
According to some scholars, the institution of a permanent ombudsperson could serve as an
alternative mechanism to address accountability of the UN and to provide for an effective
redress. 267 An ombudsperson needs to be independent from the body that created it and the
agencies it oversees. Furthermore, it should have the capacity to receive complaints from the
general public and it needs to be empowered to carry out independent investigations on those
complaints; Finally, an ombudsperson needs to be able to take some form of remedial
action.268 Although it is a non-judicial body that merely gives non-binding advice on
matters,269 it functions well in many national societies and the EU. In addition, the
ombudsperson is regarded as particularly relevant in post-conflict situations, where the
judicial system is weak, politicised, slow or otherwise dysfunctional.270 In the case of Kosovo
where an ombudsperson has been established, the experience is mixed about its successes.
Although it has emerged as a key element in the reconstruction of Kosovo by treating many
complaints covering the whole range of human rights, the most severe sanction the
ombudsperson could impose is to draw the SRSG’s attention to the matter and make a public
statement about it.271 Another problem is that the staff of both UNMIK and KFOR enjoy
265
UN Doc. A/54/660 (10 December 1999); Ibid, p. 53.
Ibid.
267
Kondoch, B. in: Gill, T.D. and Fleck, D., Supra Note 2, p. 533.
268
Hoffmann, F. and Mégret, F. ‘Fostering Human Rights Accountability: An Ombudsperson for the United
Nations? In Global Governance 11 (2005), 43-63, p. 54.
269
Brand, M. in White & Klaasen, Supra Note 49, p. 372.
270
Hoffmann, F. and Mégret, F. ‘Fostering Human Rights Accountability: An Ombudsperson for the United
Nations? In Global Governance 11 (2005), 43-63, p. 54, 55.
271
UNMIK Reg. 38/2000, Section 4.11, of 30 June 2000; Brand, M. in White & Klaasen, Supra Note 49, p. 372.
266
48
immunity from scrutiny. Nevertheless, the ombudsperson has become an important
independent and corrective institution inside Kosovo.272
The creation of an ombudsperson in the context of UN peacekeeping operations would
be the first time and unlike domestic settings to potentially bring the UN itself under the
supervision of such an institution.273 According to Mégret and Hoffman, the establishment of
an ombudsperson is of importance, because it would anchor the idea of UN accountability in
its own framework. Where the institution is a permanent body it would not a ‘simply afterthe-fact corrective’ but a continuous process. 274 Moreover, a permanent ombudsperson with a
suitable mandate would provide accountability the holistic perspective by including
accountability in all UN activities. Finally, by establishing a permanent ombudsperson, the
continuity would both safeguard its independence and develop its know-how and authority.275
However, the permanent ombudsperson should not replace existing ombudspersons
institutions in the context of a peace operation that play a role in the reconstruction of a state
and often provide the impetus for subsequent national institutions. A centralised organ could
take up issues directly related to UN accountability with more authority and confidence and
would also release some of the pressure for national ombudspersons. 276
In the case a permanent ombudsperson will be established, it should be competent to act
on its own initiative, have the broadest possible investigatory powers, recommendations
should be made public and in the case of serious human rights abuses, the ombudsperson
should be able to refer the matter to the relevant UN organs, similarly as the EU
ombudsperson to the European Parliament. With regard to its jurisdiction, the permanent
ombudsperson should be able to treat all allegations concerning adverse human rights impact
of UN activities, at least those rights included in the International Bill of Rights. 277 In order to
guarantee the independence of the institution, the staff should be chosen from outside the UN
system, for instance among national ombudspersons.278
272
Ibid, p. 373.
Hoffmann, F. and Mégret, F. ‘Fostering Human Rights Accountability: An Ombudsperson for the United
Nations? In Global Governance 11 (2005), 43-63, p. 55.
274
Ibid, p. 57, 58.
275
Ibid.
276
Hoffmann, F. and Mégret, F. ‘Fostering Human Rights Accountability: An Ombudsperson for the United
Nations? In Global Governance 11 (2005), 43-63, p. 58.
277
Ibid, p. 58, 59.
278
Ibid.
273
49
CONCLUSION
In this thesis I examined to what extent UN peacekeeping operations are bound by
international human rights law and what the consequences are in case of non-compliance. In
non-international armed conflicts, which in number have increased significantly since the
1990s, ethnic cleansing and genocide were used as a means of warfare in order to gain
territorial control. It became apparent that a different response by the UN was required for
maintaining of international peace and security. As a result, the mandates of UN peacekeeping
operations had to be clarified and extended to be able to protect the local population in the
host state against human rights violations. However, it remains unclear whether there is a
legal obligation to protect and what this obligation should entail.
In order to be able to answer the question whether the UN and peacekeeping forces are
bound by international human rights law, their international legal personality must be
established. In 1949, the ICJ concluded in the Reparations for Injuries case that the UN
possessed international legal personality and that it was a bearer of rights and duties. Since
peacekeeping operations are subsidiary organs of the UN, its legal personality can be
extended to these forces. As a result, the same law that applies to the UN as a whole is
applicable to its peacekeeping operations. Whereas the UN is technically not capable of
becoming a party to international human rights treaties, it is generally accepted that the UN is
bound by these norms because the organisation itself attaches high value to these human
rights standards. The first legal ground is that due to the fact that the UN possesses
international legal personality, it has to comply with customary human rights norms and ius
cogens norms. Another legal basis on which the UN is bound by international human rights
standards is derived from the UN’s its internal legal order. With its contribution to the
promotion of human rights on a large scale it is logical that the UN and its organs should
practice in line with what it propagates. In addition, some argue that the UN is bound by the
human rights obligations of its troop contributing countries by means of a type of ‘treaty
succession’. However, these can also be seen as obligations applicable to the UN
peacekeeping forces, and not so much to the UN as a whole.
Since the atrocities of the 1990s, the Security Council is willingly to regard noninternational armed conflicts as a ‘threat to international peace and security’. As a result,
several UN peace operations were mandated to take enforcement action under Chapter VII of
the UN-Charter. At the same time, the concept of the ‘Responsibility to Protect’ emerged.
Although this is endorsed by the prominent UN organs and fact that it has led to a stronger
50
protection of civilians in theory, R2P is not yet accepted in practice. One of the reasons for
this is the unclear content of the concept, for example whether this obligation extends to acts
as well as to omissions. However, from case law it does not appear that these obligations also
include omissions. Nevertheless, even if there is not yet a legal obligation to protect, one can
argue there is still a moral obligation to provide protection to a local population that faces
human rights abuses.
With regard to UN peacekeeping operations, there are two situations to be
distinguished in which the UN forces have to protect the human rights of the local population
in the host state; in the area of operations and in relation to their own conduct towards
civilians. In the case of non-compliance to human rights norms by UN peacekeeping forces, it
depends on the command and control over the forces to which entity the conduct can be
attributed and who consequently bears responsibility for the internationally wrongful act.
Since UN peacekeeping forces usually do not exercise ‘effective control’ in the area of
operations, it seems unlikely that the UN can be held responsible. This could only occur in a
situation where the FC explicitly gives orders to commit the wrongful acts. Where the UN
force itself commits the human rights abuses against the civilian population, i.e. where it acts
ultra vires, the force violates the disciplinary orders of its national commander with the result
that the troop contributing countries bear the responsibility.
An important feature for the UN’s credibility and the success of UN peacekeeping
operations is that where the wrongful conduct of forces can be imputed to the UN, the UN can
be held accountable. Despite the fact that the UN is obliged to provide an effective redress, it
lacks a well functioning system providing effective remedies for victims of human rights
violations by UN peacekeeping forces. This is mostly due to the organisation’s own attitude
since the UN, where the individual bears responsibility, regards itself as being excluded from
international responsibility. Another reason is that human rights treaty bodies do not exercise
jurisdiction over the UN as it is unable to become a party to the major human rights
instruments. But even in the case where these bodies did have the opportunity to examine the
role of the UN in human rights abuses, for instance in Somalia, they appeared to be reluctant
to address the organisation’s accountability. As a consequence, the UN needs to improve its
inadequate accountability system. First it is of importance that the UN recognises the fact that
it can be held accountable for human rights violations by its peacekeeping forces. A way of
recognition could be the promulgation of an official document that acknowledges the
application of international human rights law to the UN and UN peacekeeping forces, as for
instance the 1999 Secretary-General’s Bulletin did with regard to international humanitarian
51
law. Furthermore, mandates have to be clarified in order for the forces to know their
obligations and to what extent they are allowed to use force. In addition, the existing
accountability mechanisms of the UN need to be modified or a new mechanism must be
created. Necessary is an independent mechanism that is able to receive complaints about all
UN activities and is empowered to investigate all activities and provide effective remedies for
the victims. An alternative mechanism that could fulfil these conditions is the institution of a
permanent ombudsperson.
52
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