Legal Background Guide Dalton Model United Nations IV Saturday, April 23rd, 2016 Table of Contents Letter from the Chair•••••••••••••••••••••••••••••••••••••••••••3 Committee Brief•••••••••••••••••••••••••••••••••••••••••••••••4 Topic A: Targeted Killings in Counter Terrorist Operations••••••••••••••••5 Topic B: Corruption in UN Peacekeeping Forces•••••••••••••••••••••••12 Endnotes••••••••••••••••••••••••••••••••••••••••••••••••••••16 2 Letter from the Chair Dearest Delegates, Welcome to Dalton’s 4th annual Model United Nations Conference, DMUN IV! Since 2012, the Dalton MUN team has worked tirelessly to provide an excellent conference, and in the past three years, we have expanded greatly. This year, it is my pleasure to welcome you to the first Legal Committee in DMUN’s history! I will serve as the chair of this committee alongside my moderators Sonia Epelbaum and Ryan Green. I am currently a junior at the Dalton School and have participated in Model United Nations for the past three years on our high school team and actually had my first MUN experience at DMUN I! Aside from MUN, I enjoy Dalton’s very own glorified scrapbooking club: yearbook! I also enjoy making things look pretty for our school newspaper, The Daltonian, and work as design director, laying out articles and creating graphics. When I’m not studying for standardized tests or snapping pics for Instagram, you can find me letting loose in the downtown area, exploring my concealed passion for karaoke. Our moderators, Ryan Green and Sonia Epelbaum, are both sophomores at the Dalton School. In addition to his love for his height, Ryan also enjoys Model UN! Known by his teammates as “Barracuda,” a nickname given to model his determination with female delegates, towers over most in both dedication and stature. Do not be feared by his height, Ryan is more than happy to help with any questions and can be contacted by email. When Sonia isn’t busting a move on the dance floor she can be seen fawning over a certain chair that may or may not be yours truly. I am incredibly excited for DMUN IV and can’t wait for the impassioned debate that I am sure will follow! It is my first time chairing a committee and I truly hope that everyone becomes as interested about our topics as I am. Feel free to ask me, Sonia, or Ryan any questions you may have about the topics or the conference itself. I am looking forward to meeting everyone and I hope you are as excited as I am! Best, Aly Milich [email protected] 3 Committee Brief The Legal Committee is considered the sixth committee of the General Assembly of the United Nations and addresses problems in the international community through its defining, revising, and refining of international law. As one of the main General Assembly committees in the UN, all 193 UN recognized nations are entitled to representation within this body. The Legal Committee has the capacity to alter treaties, redefine boarders, and build the framework by which international crime will be judged. The Committee often revisits the Geneva Convention as a basis for solutions proposed. Being well-acquainted with the way the 6th Committee has addressed international crises in the past will help you stay within Legal’s capacity in your suggestions. Legal has jurisdiction over courts and international law, but cannot actually create new branches or subcommittees. I strongly encourage you not to limit yourself to just redefining terms or creating legislation, but keep in mind that if you propose the creation of something, you have to delegate the task to another UN body, such as DISEC, SPECPOL, SOCHUM, etc. Procedurally, Legal will function nearly identically to any other General Assembly. We will follow the standard parliamentary procedure used at all Model United Nations conferences and encourage any delegates with questions about the way the committee is being run to come forward at any time. During the course of our committee session, delegates may also be faced with various crisis updates that should stimulate debate, reaffirm the urgency of the matter, and factor into the solutions put forth. You will not be asked to write any directives or any other work other than the standard resolution produced in Model UN. No clauses should be written beforehand, however I strongly encourage that you carefully consider the information given in this guide, including the case studies, and combine it with outside research to develop innovative solutions that you will collaborate in committee to turn into a working paper. Our two topics are Targeted Killings in Counter Terrorist Operations and Corruption in UN Peacekeeping Forces. These are both incredibly pressing topics and strongly impact the way each nation and the international community functions. As the Legal Committee, we will be exploring ways by which we can use legislation to combat these problems along with providing effective solutions to other United Nations bodies. In addition to thoughtfully reading the background guide, I encourage you to do thorough outside research to truly understand the capacity of Legal and your nation’s policy. 4 Topic A: Targeted Killings in Counter Terrorist Operations Overview of the Topic committee “targeted killing” is the word that will be used when referring to the topic. Assassination has been defined by Black’s Law Dictionary as “the act of deliberately killing someone especially a public figure, usually for hire or political reasons.” Assassination has been illegal in international legal terms since 1899, when it was prohibited by Article 23b of the Hague Convention of 1899, and then later on by the Protocol Addition to the Geneva Convention of 1949. Extrajudicial is defined as any act “done in contravention of due process of law”. Therefore, terms such as assassination, extrajudicial killing, and extrajudicial punishment, when applied to killing in counter terrorist operations, already suggests that these killings are illegal. However, the purpose of committee will be to try and answer the question of whether or not targeted killings are justified under international rule of law, and what the implications for the future of international law are based on the international community’s lack of opposition to sources of targeted killings. For example, US continuous drone strikes are used to target terrorist suspects, but result in a plethora of casualties and can result in the direct assault of a certain group of people (2). One of your jobs as a delegate on the legal committee is to consider redefining these terms to punish these acts of violence. Ironically, in an effort to bring justice, targeted killings often fall outside of the scope of due process of the law. The topic of targeting killings includes those which take place as part of the conduct of hostilities in a time of war and that are aimed any person not entitled to protection against direct attack. This topic also includes killing a civilian not directly participating in hostilities, whether within or outside the context of war. Nils Melzer, legal advisor for the International Committee of the Red Cross, states these two as paradigms. He refers to the first as the hostilities paradigm, stating that targets must be “likely to contribute effectively to the achievement of a concrete and direct military advantage without there being an equivalent non-lethal alternative.” This refers to what is more commonly known as “kill or capture”. The second type, the law enforcement paradigm, Melzer believes, must be a preventative act rather than a punitive act; protection of the people from future attack can be its only purpose (1). There are many terms that may appear synonymous to “targeted killing”, such as assassination, extrajudicial killing, and extrajudicial punishment. However, for the purpose of discussion in 5 Topic A: Targeted Killings in Counter Terrorism Operations Targeted Killing under the Law of Interstate Force When discussing this topic there are four main problems that arise. The first is that which falls under the under the purview of the Law of Interstate Force. This addresses the issue of national sovereignty. There is a gener- the killing is taking place, or when authorized by the UN Security Council. It would seem then that an analysis of the concept of extra territorial targeted killings carried out solely under the law of interstate force in the context of the right to self defense granted under Article 51 of Chapter VII of the UN Charter is applicable; however, this interpre- al consensus that the use of targeted killings by a state in another state falls under the prohibition of the Interstate Acts of Force, as laid out in Article 2(4) of the UN Charter. These killings can only be legally accounted for when they are committed as an act of self-defense when authorized by the state in which tation ignores the fact that this law is pertinent only to the regulation of relations between states and not between states and individuals. This means that the laws which should be adhered to are the human rights law in peacetime and the international humanitarian laws in times, because these laws protect the 6 Topic A: Targeted Killings in Counter Terrorism Operations individual from harm at the hands of state actors. Under Article 51 of the UN Charter targeted killing is a response to an armed attack; however, it is widely used to justify the idea of necessity as derived from domestic criminal law. This makes a targeted killing warranted if the harm which would be averted by conducting the targeted killing is greater than the harm of carrying it out in the first place. This proposal to replace the prerequisite of an “armed attack” with a proportionality assessment, ignores the fact that customary law already recognizes an exculpatory concept of necessity which could be used to achieve the same results. This means that the question is not whether or not the law of interstate force needs to be amended with elements of domestic law, but rather, to what extent does Article 2(4) of the UN Charter permit exceptions based on consent, necessity, and distress? What is clear is that the law of interstate force requires revision especially in its adoption of cases of state self defense against non-state actors (3). person? Is capture the ultimate intention, or not? Under this section of international law it is of chief importance to identify whether or not a situation of armed conflict exists. IHL states that targeted killing is justifiable if the individual being targeted is a legitimate military target, such as a combatant or a civilian who is directly participating in hostilities. It then becomes important to ask: what acts qualify as hostile acts and leave an individual open to being attacked? Regarding the first point, the US Supreme Court, in the Hamdan case of 2006, affirmed the notion that the war on terror was a non-international armed conflict. This makes little to no sense given the fact that a non-international armed conflict cannot, by definition, assume a global dimension as the US has claimed the war on terror has. It is absurd and dangerous to declare a global war, meaning the whole world is a war zone, because of its legal ramifications. Addressing the second point, it has been recommended that terrorists occupy an entirely new categorization Targeted Killing under International Humanitarian Law The second problem is with regards to the level of conviction of the targets guilt or their potential for future harm when conducting the targeted killing. The International Humanitarian Law (IHL) deals with the issue of due process of the law. Is it legal to kill this 7 Topic A: Targeted Killings in Counter Terrorism Operations Targeted Killing and its place in Customary International Law (CIL) in the eyes of the law; that of international criminals. This means that they would gain none of the rights of lawful combatants, under international law, nor the rights of other criminals, under domestic law. You by no means should feel an obligation to create this legislation in committee, it is merely an interesting proposal, what should be addressed in committee is a way of providing clarity to this vague language present in IHL (4). Lastly, the implications of the apparent acceptance of the international community, through failing to condemn blatant practice of targeted killing as employed in the war on terror, on the future of customary international law. Currently, CIL permits limited right to pre-emptive self defense, which is dependent on the interpretation of Article 51 of Chapter VII of the UN Charter and Targeted Killing under Human the body of law formulated by the CarRights Law oline Case of 1837, stating that necessity for pre-emptive self-defense must The third area of contention are be “instant, overwhelming, and leaving the civilian casualties that inevitably no choice of means, and no moment for arise from counter terrorism opera- deliberation”. CIL develops without a tions. These deaths fall under Human Rights Law, which consists of the UN Human Rights Council and its Special Rapporteurs, and also in the Universal Declaration of Human Rights, the UN Code of Conduct for Law Enforcement Officials (1979) and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) (5, 6). These conventions state that the use of lethal force under human rights law is governed by the rule of absolute necessity, which means that the use of force centralized law-making body or enforchas to be the sole option available to er, growing from the accepted practices avoid a threat, and the principle of pro- of states and frequently demonstrates portionality, which requires the level of the needs and desire of the most influforce used to be explained in terms of ential nations. CIL is not at all stagnant, the magnitude of the threat presented. rather it is shaped by new assertions of legal rights, especially when other 8 Topic A: Targeted Killings in Counter Terrorism Operations states, albeit reluctantly, accept those assertions. Hence, the reactions of the international community to the policy of targeted killing by the US in the war on terror, for example, might affect the future legality of that policy in international law (7). is that the alternative, capture, would have been a long, complicated path. A fair trial would have been exceedingly difficult for bin Laden, and it would have been impossible to attain international agreement as to where the trial should take place. The US public, and media all around the world, would only be satisfied with a verdict of guilt. Case Studies Many more questions emerge from this situation. The killing of bin Laden brings up the question of Pakistan’s sovereignty for the US did not inform Islamabad of the operation to ensure the secrecy of the operation was maintained. On the other hand, there is the question of the effectiveness of killing terrorist leaders in squashing terrorist groups as a whole. If the effectiveness is minimal are these killings, such as the death of bin Laden, anything more than acts of revenge by a state upon an individual? The justification for the killing could not have been warfare, for it was not announced until mid 2012 by the US Defense Secretary that a US military act within a Pakistani city was to be considered an act of war. It was widely recognized that bin Laden was only a figurehead for the al-Qaeda network with no input on the planning of operations. Both President Bush, in 2002, and President Obama in 2009, declared that there was no longer a need to find bin Laden. It is clear that at the time of the attack any genuine threat posed by bin Laden had ended, and the test of immediacy in order to justify the attack fails in this case. Osama bin Laden, Pakistan, May 2011 Operation Neptune Spear, the SEAL Team 6 raid on Osama bin Laden’s compound in Abbottabad in Pakistan, was supposedly a “kill or capture” mission. The US military has a stated policy that unarmed suspects cannot be killed during an operation, yet several reports of the operation state that bin Laden was unarmed at the time of his death and presented no threat to the special-forces operators confronting him. This means that the intention all along must have been to kill. The problem 9 Topic A: Targeted Killings in Counter Terrorism Operations Aslam Awan, Pakistan, January 2012 On January 10, 2012, Aslam Awan, a Pakistani national from Abbottabad, was killed by a US drone strike in the town of Miramshah in the Pakistan border province of North Waziristan. Killing Awan and 4 other people, the drone strike ended an unofficial eight week hiatus in US drone strikes in Pakistan fol- lowing the NATO air attack of November 2011 which killed 24 Pakistani troops and embittered relations between the Pakistani government and NATO forces. On January 4th, a planned CIA drone strike in the same region had been cancelled after the CIA had informed the Pakistani government of the plan and they had refused to give permission for the strike. The attack elicited several public protests, though reports from the US administration said that top administration officials had met with their Islamabad counterparts and told them that the hiatus on drone strikes would be ending. The reports also emphasized that no promise had been made that the drone campaign in Pakistan would be stopped. 10 Topic A: Targeted Killings in Counter Terrorism Operations A US official described Awan as an important figure in the remaining core of the al-Qaeda leadership: “Aslam Anwar was a senior al-Qaeda external operations planner who was working on attacks against the West. His death reduces al-Qaeda’s thinning bench of another operative devoted to plotting the death of innocent civilians.” US officials describe the attacks that Awan was supposedly engaged in planning as “attacks against the west”. This was the only information released regarding the justification for the attack, although it is claimed that the US administration did provide the Pakistani government with the specifics of why Awan was targeted and we are told that officials in Islamabad granted permission for this strike. Is this hazy explanation for why a certain suspect has been targeted for killing, while the specifics are kept hidden for matters of national security, enough to claim the right to conduct targeted killing for reasons of pre-emptive self-defense. In addition, no evidence was presented of a clear and present danger of immediate attack which is necessary to justify an act of anticipatory self-defense. how they are currently dealing with it. As we are a legal committee, in your research focus on legal solutions and policy points. Please remember to consider previous legislation that has been passed either in the United Nations or in your country. Remember that topics that involve violence can result in polarized policies so please ensure that the solutions you propose reflect the desires of your assigned nation. Questions to Consider • How can the international community guarantee that national sovereignty is not infringed upon in these operations? • How do you define a combatant? How do you define a “civilian who is directly participating in hostilities”? • How much evidence is necessary in order to target a suspect? • How transparent should governments issuing these attacks have to be? • Does a new international framework of legislation have to be developed for the use of targeted killing or does it alResearch and Questions ready exist? If not, what will this new legislation look like and how will it be When researching it is important enforced? that you take into account both your country’s policy and what areas of con- • What responsibility does the internatention surrounding this topic are the tional community have, with regards to most important to your country and reacting to these targeted killings? 11 Corruption in UN Peacekeeping Forces Overview of the Topic response to an uptick in allegations in 2013, the UN commissioned an addi As a representative of peace tional report from the UN Office of Inthroughout the world, UN Peacekeep- ternal Oversight Services (OIOS). ers are a symbol of freedom and tolerance for the stressed residents of wartorn regions. Unfortunately, as human beings subject to temptation, they are also at risk of abusing their positions. Recent events have highlighted the risk of corrupt and criminal activity by UN Peacekeepers (10). After allegations of assault and criminal activity in the 1990s, then UN Secretary General Kofi OIOS made six recommendations Annan commissioned a panel led by Lakhdar Brahimi to evaluate the status in its May 2015 report including: revisof UN peacekeeping efforts and gener- ing the 2007 Memorandum of Underate recommendations (11). This report standing (MOU) among troop/peacewas produced in August 2000 and con- keeper contributing countries (TCCs/ tained recommendations to improve PCCs) to enhance its effectiveness; proUN peacekeeping operations (12). Three posing a funded Comprehensive Strateyears later, in 2003, a study of the suc- gy on Assistance and Support to Victims cess of the Brahimi report was reviewed of Sexual Abuse and Exploitation (SVand while progress had been made, SAE) (15); analyzing differences in dismany recommendations lacked full cipline across uniformed contingents; implementation (13). In response, the strengthening follow-up protocols with UN adopted a three pronged approach TCCs and PCCs; reporting on whether to sexual exploitation and abuse by UN contingent commanders have fulfilled peacekeepers: prevention of miscon- their command responsibilities in preduct, enforcement of UN standards of venting and addressing SVSAE; and clarifying certain provisions within the conduct and remedial action. 2003 Secretary-General’s bulletin relat Despite a stated zero tolerance ing to SVSAE (16). policy from the Secretary General, alA further private report by Profeslegations of abuse have continued. In 12 Topic B: Corruption in UN Peacekeeping Forces sor Bernd Berber of New York University conducted a survey of transactional sex (prostitution) by UN peacekeepers in Liberia; he found that over 50% of women reported incidents of transactional sex, 75% of which were with UN in country personnel. His report concluded: “Our findings raise the concern that the private actions of UN personnel in the field may set back the UN’s broader gender equality and economic development goals.” (17) Legal has been given the task of evaluating UN peacekeeping operations and developing recommendations for further improvement in reducing incidents of abuse by UN peacekeeping personnel. agreements, defuse escalation in wartorn nations and aid in the reintegration of former combatants into a peaceful society. Peacekeepers are drawn from member nations and uniformed with blue helmets or blue berets to distinguish them from other combatants. UN Peacekeeping is organized under the Department of Peacekeeping Operations and tasked as “a unique and dynamic instrument developed by the Organization as a way to help countries torn by conflict to create the conditions for lasting peace.” Operations are categorized as peace building, peacemaking and peace enforcement. (18) History & Relevant International Actions Since 1948, one of the primary responsibilities of the United Nations has been to provide peacekeeping forces to assist in the maintenance of peace In 1988, the UN Peacekeeping Forces received the Nobel Peace Prize for their contribution to world peace by having “played a significant role in reducing the level of conflict even though 13 Topic B: Corruption in UN Peacekeeping Forces the fundamental causes of the struggles was at a school protected by the UN frequently remain.” (19) peacekeeping forces. Captain Luc Lemaire and around 90 other peacekeep The UN Peacekeeping Forces ers were residing in the area when over are only deployed when both parties to a conflict accept their presence. As a neutral party, they can be helpful in helping to avoid having a conflict escalate. While the General Assembly of the UN may vote to deploy the Peacekeeping Forces, they are normally deployed through a Security Council decision. Regardless, operational control is held by the Secretary-General and his secretariat. 2,000 people flooded into the school seeking asylum (22). After several days Since the first deployment to Captain Lemaire was pulled out by UN monitor the Arab-Israeli conflict in command in order to secure foreign1948, Peacekeepers have been deployed ers to bring them safely to the airport. to over 60 conflicts. These deployments There had been warnings of the mass are occurring with accelerated frequen- genocide to the UN and they had been cy – only 13 occurred before the award ignored. As a result the peace keeping of the Nobel Peace Prize in 1988; there forces were not prepared for the mass have been over 48 deployments since onslaught that occurred. Within hours that time. Currently, the UN Peacekeep- of them abandoning the school all of its ers are deployed in sixteen locations occupants were killed by Tutsi extremacross four continents (20). ists (23). Case Study Current Situation Rwanda The failure to protect the civilians in Rwanda is not unique. There have been numerous other failures including a massacre of over 8,000 Muslim men in Srebrenica, a location in Bosnia that was supposedly a “safe zone.” One example of corruption or failure to protect civilians is in Rwanda. The Rwandan genocide, which occurred in 1994, resulted in the death of over 1 million people (21). A particular instance of failure to protect civilians 14 Although the UN has attempted Topic B: Corruption in UN Peacekeeping Forces to address issues of abuse and corruption in the past, recent research suggests that activity has suffered from significant underreporting and have placed unprecedented pressure on the UN to devise a solution. High profile allegations against French soldiers in the Central African Republic and allegations of systematic abuse in Liberia despite a stated zero tolerance policy for such activities have created an environment in which a definitive response is required. to engage in reporting, education, judicial processes and training of peacekeeping personnel. Regardless of what the specific measures look like, the international community has a moral obligation to continue the improvement in UN peacekeeping operations and address issues of corruption and abuse. Questions to Consider • Is there enough being done to solve this problem? Developing Solutions • What is the best way to create additional legislation? What should this To address the challenges of ad- legislation address? dressing corruption and abuse by UN peacekeepers, the international com- • How can the United Nations attempt munity must take a resolute, yet del- to stop corruption in the peace keepicate approach, keeping in mind that ing forces as opposed to only giving out solutions must balance the need for in punishments after the damage has alcountry personnel with the resistance ready been done? of PCCs and TCCs to subject their citizens to foreign or supranational disci- • What are the most serious issues in plinary processes. (26) Less controver- corruption and should they be priorisial measures would address monitoring tized? and compliance, reporting structures and best practice disciplinary process- • How can we best get countries who es. Such measures could be in the form have felt wronged and attacked by the of funded UN task forces, judicial forces, Peacekeeping Forces to begin to trust training processes and reporting proce- them and use them again? dures. Additionally, Legal may encourage the providing of forms of adminis- • Has your country been affected by cortrative aid, ranging from compensation ruption in the peacekeeping forces? If for victims of abuse, to encouraging the so how could that affect your position deployment of more troops from higher on the use of and punishment of peaceincome countries, to providing advisors keeping forces? 15 Endnotes 1. Thurer, Prof. Daniel. Foreword to Targeted Killing in International Law, Nils Melzer, 2010 2. Eichensehr, Kristen. “On the offensive: assassination policy under international law.” Harvard International Review no. 3 (2003): 36. Academic OneFile, EBSCOhost. 3. “Targeted Killings - The Future of the War on Terror?” EInternational Relations. N.p., n.d. 4. Ibid. 5. UNHCR. Code of Conduct for Law Enforcement Officials, 1979. http://www2. ohchr.org/english/law/codeofconduct.htm 6. United Nations. Declaration of Human Rights, 1948. http://www.un.org/en/ documents/udhr/ 7. Greenwood, Christopher. “The Caroline Case”. Max Planck Encyclopedia of Public International Law, 2009. http://www.mpepil.com/sample_article?id=/epil/ entries/law-9780199231690-e261 8. BBC “Bin Laden Documents Released”, BBC News, May 3 2012. http://www. bbc.co.uk/news/world-us-canada-17941778 9. “Pakistanis protest latest US drone strike”, (video) The Washington Post, January 11 2012. http://www.washingtonpost.com/world/pakistanis-protest-latestus-drone-strike-104/2012/01/11/ 10. http://america.aljazeera.com/articles/2015/9/28/sex-abuse-scandals-castshadow-over-un-peacekeeping-summit.html 11. Nguyen, Athena M. “Sexual Exploitation and Abuse on Peacekeeping Operations.” Journal of International Peacekeeping, 2015, 142-73. 12. Ibid. 16 Endnotes 13. http://www.stimson.org/images/uploads/research-pdfs/BR-CompleteVersion-Dec03.pdf 14. Nguyen, Athena M. “Sexual Exploitation and Abuse on Peacekeeping Operations.” Journal of International Peacekeeping, 2015, 142-73. 15. Ibid. 16. http://www.nyu.edu/projects/beber/files/Beber_Gilligan_Guardado_Karim_ TS.pdf 17. Ibid. 18. http://www.un.org/en/peacekeeping/ 19. http://www.nobelprize.org/nobel_prizes/peace/laureates/1988/un-history. html 20. http://www.un.org/en/peacekeeping/documents/operationslist.pdf 21. Ibid. 22. http://survivors-fund.org.uk/resources/rwandan-history/statistics/ 23. http://www.theguardian.com/world/2015/sep/17/un-united-nations-peace/ 24. Ibid. 25. http://america.aljazeera.com/articles/2015/9/28/sex-abuse-scandals-castshadow-over-un-peacekeeping-summit.html 26. Nguyen, Athena M. “Sexual Exploitation and Abuse on Peacekeeping Operations.” Journal of International Peacekeeping, 2015, 142-73. 17
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