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Misconduct by UN Peacekeepers Guiding the Guards

BY

Rama Chilukuri A T H E S I S P R E S E N T E D I N PA R T I A L C O M P L E T I O N O F T H E R E Q U I R E M E N T S O F

The Certificate-of-Training in United Nations Peace Support Operations


MISCONDUCT BY UN PEACEKEEPERS

GUIDING THE GUARDS Thesis Work

In partial completion of the requirements leading to the Certificate of Training in United Nations Peace Support Operations

Submitted by Rama Umamaheswara Sarma Chilukuri Deputy Superintendent of Police Andhra Pradesh, INDIA

Thesis Advisor: Mr. Mark A. Kroeker Former Civilian Police Adviser in the Department of Peacekeeping Operations, United Nations November 2010

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DEDICATION

To all those peacekeepers who breathed their last keeping peace in Haiti and late Sri. Rudra Murthy Chilukuri, my father, who left me midway through this work.

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ACKNOWLEDGMENT My sincere thanks to Mr.Mark A. Kroeker, former Civilian Police Adviser in the Department of Peacekeeping Operations, United Nations, my thesis advisor, for his kind, continuous and valuable guidance, right from zeroing down on the area of research to suggesting newer perspectives on the problem. Sir, I am very grateful to you for taking time off your busy schedule and giving this paper such a thorough read, paying great attention to every detail. Your encouragement has seen this work through. I also thank: - the International Institute of Humanitarian Law, San Remo, Italy and everybody there for enabling me to participate in a classroom course in Refugee Law, - my colleagues and superiors in Andhra Pradesh Police and in AntiCorruption Bureau and - my colleagues in UNMIK, Kosovo.

Santa, Siddhartha, Sindhu and Shravya – happier than I am that it’s done thank you.

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Contents Introduction .......................................................................................................... 7 Research Methodology ....................................................................................... 14 Chapter – I: United Nations Peacekeeping: An introduction .............................. 15 Chapter II: Applicable Law and Immunities enjoyed by the Peacekeeping Forces of the United Nations .............................................................................. 18 2.1. Privileges Convention .................................................................................... 18 2.2. Status of Forces Agreements (SOFA) and Status of Mission Agreements (SOMA) ................................................................................................................ 21 2.3. Safety Convention ......................................................................................... 24 Coverage .............................................................................................................. 26 Providing for Universal Jurisdiction ...................................................................... 27 Safety Convention and International Humanitarian Law ...................................... 28 Provisions dealing with Status of Forces .............................................................. 28 2.4. Law of Armed Conflict/ International Humanitarian Law .............................. 30 Specific Provisions and limitations in application ................................................. 31 2.5. Lex feranda Argument................................................................................... 35 Chapter – III: Prosecuting Impunity .................................................................... 36 3.1.International Humanitarian Law – obligations under Customary International Law ................................................................................................. 38 3.2. Internal efforts and Law within the United Nations ...................................... 40 The Bulletin.......................................................................................................... 40 Zeid’s Report ........................................................................................................ 41 The Brahimi Analysis ............................................................................................ 42 Capstone Doctrine ............................................................................................... 43 Recent developments: The CDU and specific regulations .................................... 44 The official United Nations Strategy..................................................................... 45 3.3. Prosecution under the ICC Statute ................................................................ 46 Chapter IV - The future of Peacekeeping: suggestions for a better future......... 48 5


4.1. Role of good leadership ................................................................................ 48 4.2. Poverty in post conflict society ..................................................................... 50 4.2. The Effective Control Model ......................................................................... 51 4.3. Stricter training in the Home State before deployment as a preventive measure ............................................................................................................... 53 4.4. Setting up of a Screening Body ...................................................................... 54 4.5. Trusteeship Council ....................................................................................... 57 4.6. An International Convention to hold peacekeepers liable or a UNSC Resolution similar to the one on terrorism .......................................................... 59 4.7. A Force under the UNSC where troops no longer represent their home countries .............................................................................................................. 60 Chapter V: Final Question: which law? ........................................................... 62 Conclusion .................................................................................................... 64 Bibliography .................................................................................................. 67

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Introduction “In the corner of the tent where she says a soldier forced himself on her, Helen, a frail fifth grader with big eyes and skinny legs, remembers seeing a blue helmet. . . . In this same eastern outpost, another United Nations peacekeeper, unable to communicate with a 13-year-old Swahili- speaking girl who walked past him, held up a cookie and gestured for her to draw near. As the girl, Solange, who recounted the incident with tears in her eyes the other day, reached for the cookie, the soldier reached for her. She, too, said she was raped.”1 This is a report filed by a New York Times reporter from the Democratic Republic of the Congo (“DRC”), where the United Nations has operated its second most expensive2 peacekeeping force in history, the U.N. Organization Mission in the Democratic Republic of the Congo (MONUC), second only to Darfur. 3 Reference to this anecdotal account is only to be taken as representative of the shameful yet pervasive occurrence of grave misconduct by peacekeepers throughout the world. UN peacekeepers have been accused of being perpetrators and sexual misconduct and other heinous offences like human trafficking and child abuse.4 “Although the peacekeepers are not based here, they have abused girls here. They come here a few days at a time where they stay in a local compound. This compound is near to the water pump where everyone collects water. In the evening hours the peacekeepers come out and stand near to the water pump. Some of the girls from the village will come and collect water. The men call to the girls and they 1

. Marc Lacey, In Congo War, Even Peacekeepers Add to Horror, N.Y. Times, Dec. 18, 2004, at A1 cited from Tom Dannenbaum , “Translating the standard of effective control into a system of effective accountability: how liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113. 2 MONUC's budget for the current financial year (July 2009-June 2010) is $1.35 billion, second only to its peacekeeping operation in Darfur. UNPO Background Note, United Nations Peacekeeping Operations, Background Note 1 (Aug. 31, 2009), available at http://www.un.org/Depts/dpko/dpko/bnote010101.pdf . 3 Tom Dannenbaum , “Translating the standard of effective control into a system of effective accountability: how liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113 (2010). 4 UNHCR & Save the Children-UK, Note for Implementing and Operational Partners on Sexual Violence and Exploitation: The Experience of Refugee Children in Guinea, Liberia and Sierra Leone Based on Initial Findings and Recommendations from Assessment Mission, Oct. 22-Nov. 30, 2001 (2002), http:// www.unhcr.org/cgibin/texis/vtx/news/opendoc.pdf?id=3c7cf89a4&tbl=PARTNERS. cited from Tom Dannenbaum , “Translating the standard of effective control into a system of effective accountability: how liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113.

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go with them into the compound. One of them became pregnant and then went missing. We still do not know where she is. This happened in 2007.”5 In early 2004, abuses by peacekeepers in the UN Mission in the Democratic Republic of the Congo (MONUC) made international headlines and were subsequently the subject of UN Security Council meetings and US Congressional hearings. However, sexual exploitation and abuse by peacekeepers is not limited to the Democratic Republic of Congo (DRC). Charges of sexual exploitation and abuse have dogged UN peacekeeping missions around the world and Refugees International (RI) has found that the UN peacekeeping missions in Liberia and Haiti are equally vulnerable to such abuse.6 “I find them girls in the town. I know which girls have done it before and I go and ask them.When I ask the girls to come they are often keen because of the gifts that are promised, such as mobile phones and food rations…” “The peacekeepers hide it from their supervisors and their friends who are not in their immediate group. Because when this kind of thing happens you have to keep it confidential. Otherwise, if others hear about the activities, then the men will be punished.” “For us, we said to ourselves that even if it is bad, we are gaining something from it too. So we continue because we then get the benefits, such as money, new t-shirts, souvenirs, watches and tennis shoes. They also used their mobile phones to film the girls.”7 Peacekeepers are in a unique position to influence the communities they serve, especially over children and young people. This is largely due to the fact that they are armed and provide the much-needed physical security in an extremely fragile context. Furthermore peacekeeping forces have been alleged to have a significant number of military personnel with discriminatory attitudes towards women8.

“No one to turn to”, Save the Children, UK, p.14. Sarah Martin, “Must Boys be Boys? Ending Sexual Exploitation and Abuse in UN Peacekeeping Missions”, Refugees International, 2005 http://www.refintl.org/policy/in-depth-report/must-boys-be-boys-ending-sexualexploitation-abuse-un-peacekeeping-missions, (visited on 18-05-2010). 7 Supra note 5. 8 This is further explored in Sarah Martin, “Must Boys be Boys? Ending Sexual Exploitation and Abuse in UN Peacekeeping Missions”, supra note 6. 5

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“They go walking around in the same areas every day and they don’t even hide what they are doing.They don’t care about the population; they just go and look for young girls every night.They use the hotel across from them and the school next to their camp.”9 Peacekeeping forces are generally deployed to places where the social fabric has been torn apart by civil strife, where the rule of law is absent, where family structures have disintegrated, and where the local population endures severe economic and psychological hardship. Peacekeepers are viewed by the beneficiary population as wealthier than themselves and, as a result, peacekeepers can exercise enormous power over the local population. Under these conditions, power can be, and sometimes is, abused.

“During the war very many people died.You can still find orphaned children who are at risk of abuse because they have no parents.They are poor and they look to sexual abuse to survive……” Although reports of sexual abuse or misconduct by U.N. peacekeepers or civilian personnel first surfaced more than a decade ago, the international media paid scant attention to such allegations. However, the shocking acts of abuse of the U.N. peacekeepers in Sierra Leone, Guinea, and Liberia were widely reported in the press.This negative publicity, coupled with intensive press coverage of other areas, such as the oil-for-food scandal, has caused the U.N. and many of its Member States to urge reform and increased accountability of U.N. military and civilian personnel implicated in violations of human rights. Sexual abuse and exploitation was first documented in Bosnia, Herzegovina and Kosovo in the early 1990s, [and] then later in Mozambique, Cambodia, East Timor and Liberia. Abuses included sexual exploitation of children, pornography, and sexual assaults, "but it was not until the widespread allegations of abuse emerged in the DRC [Democratic Republic of Congo] in mid-2004 that numerous high-level [U.N.]

officials

responded

to

the

charges."10

Secretary-General

Annan

Supra note 5 at p.16 Global Policy Forum, U.N. Reforms Aim to End Sexual Abuse by Peacekeepers (2005), http:// www.globalpolicy.org/security/peacekpg/reform/2005/0510conduct.htm. In November 2001, a report prepared 9

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acknowledged that acts of gross misconduct had clearly taken place stating: “This is a shameful thing for the United Nations to have to say, and I am absolutely outraged by it. . . . I have long made it clear that my attitude to sexual exploitation and abuse is one of zero tolerance, without exception, and I am determined to implement this policy in the most transparent manner.” The Secretary-General acknowledged that the procedures in place "were manifestly inadequate and that a fundamental change in approach was needed."11 In 2004, Ambassador Zeid Ra’ad Al Hussein was appointed by Secretary-General Annan to investigate and report on possible abuse. In March 2005, he issued the Zeid Report, detailing pervasive abuse and exploitation of women and girls, most of which involved trading sex for money, food, or jobs. Just as disturbing were acts of rape disguised as prostitution, where victims were given gifts after being assaulted in order to give the impression that the sex act was one of prostitution rather than rape. Victims of abuse were often abandoned with children to care for, so-called "peacekeeper babies," without any family to care for them. However, more than a year after the announcement of the widely heralded zerotolerance policy, Ambassador Zeid Ra’ad Al Hussein, in a confidential report obtained by the London Times, said, "the situation appears to be one of 'zerocompliance with zero tolerance' throughout the mission."12

by consultants retained by the Office of the U.N. High Commissioner for Refugees (UNHCR) and Save the Children UK presented allegations of widespread sexual exploitation of female refugees in the UNHCR camps by international and national aid workers in Guinea, Liberia, and Sierra Leone. In response to those allegations, the UNHCR asked the Office of Internal Oversight Services (OIOS) to conduct an investigation into the allegations. Beginning in February 2002, an OIOS Investigation Team undertook to 1) attempt to verify the allegations presented in the consultants' report, which were based on third person accounts, and 2) to determine whether sufficient evidence exists to prove cases of sexual exploitation by aid workers and peacekeepers in either criminal or administrative proceedings. 11 Letter from the Secretary-General to the President of the General Assembly, United Nations, U.N. Doc. A/59/710 (Mar. 24, 2005). The Secretary-General's letter annexed the Zeid Report. 12 Jonathan Clayton & James Bone, Sex Scandal in Congo Threatens to Engulf UN's Peacekeepers, The Times (London), Dec. 23, 2004, at 25; See also Sarah Martin, “Must Boys Be Boys? Ending Sexual Exploitation & Abuse in UN Peacekeeping Missions” Refugees International, (2005), http:// www.refugeesinternational.org/files/6976_file_FINAL_MustBoys.pdf. Martin cites UNSC Resolution 1325 of 2000 on women, peace and security that mandates that the commanders of UN peacekeeping missions must take into account the differential impact of their actions on women and men. She notes that this provides a potential basis for combating the masculine culture within peacekeeping missions. But she feels that the process of incorporating gender perspectives into all areas of work of the missions has yet to truly take hold within the UN missions that Refugees International visited.

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Dag Hammarskjold, the former Secretary-General of the United Nations, called the Peacekeeping Force of the UN, the “front line of a moral force”, intended to uphold the principles of the UN Charter. According to him, the Charter represented binding rules in international law, with national validity, and consequently it was the first step to a truly international organisation. Over a period of time, along with the rise in the number of Missions set up every year to fulfill this objective, also grew the need to confer certain immunities and privileges on those who work in conflict-struck areas with the mandate of the international community. This thesis paper focuses on the present state of immunities that peacekeeping forces enjoy under different international instruments and law. It also goes a step further and discusses the implications of the current legal regime governing the UN Peacekeepers and the contention of some that Peacekeeping Forces are undermining the credibility and tarnishing the image of the noble institution, so much so that it is said, the people they are there to protect often “deem the UN to be hypocritical and unworthy of governing them”.13 Simply put, the idea is to also explore the concept of immunity of UN peacekeepers in the light of allegations of misconduct and the criticism the forces have been subject to that the current system of immunities, protections and privileges the peacekeepers enjoy, either under law or merely because of apathy on the part of the Troop Contributing Nations, Host Countries and even the UN itself, has led to wide spread abuse of power and commission of many atrocities.14 Various suggestions made to redress this situation have been studied and analysed. The idea behind this exercise is not to be mistaken as meaning that the immunities peacekeepers enjoy or something else is the main reason behind peacekeepers

Testimony of David Lamb, former U.N. human rights investigator in Bosnia, “U.N. Peacekeepers' Participation in the Sex Slave Trade in Bosnia: Isolated Case or Larger Problem in the U.N. System?”, Hearing Before the SubCommission on International Operations and Human Rights of the House Committee on International Relations, 107th Cong. 23 (2002), http://commdocs.house.gov/committees/intlrel/hfa78948.000/hfa78948_0f.htm; cited from Jennifer Murray, “Who will police the peace-builders? The failure to establish accountability for participation of United Nations Civilian Police in the Trafficking of Women post-conflict Bosnia and Herzegovina”34 Colum. Hum. Rts. L. Rev. 475. 13

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Jennifer Murray, “Who will police the peace-builders? The failure to establish accountability for participation of United Nations Civilian Police in the Trafficking of Women post-conflict Bosnia and Herzegovina”34 Colum. Hum. Rts. L. Rev. 475; Alexandra R. Harrington, Esq., “Prostituting Peace: the impact of sending state’s legal regime on U.N. Peacekeeper behaviour and suggestions to protect the populations”,17 J. Transnat'l L. & Pol'y 217.

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perpetrating human rights violations with impunity – the purpose behind providing those protections was wide spread attacks on personnel deployed for a noble cause and it is by all counts, necessary and well-deserved. However, the only objective behind going beyond the immunities into the territory of an alleged sense of lawlessness among the peacekeepers is only to address the question as to how we can bring reform in the system and make the forces stand up to what Dag Hammarskjold called them – the “front line of a moral force”, intended to uphold the principles of the UN Charter.15 The paper suggests a healthy amalgamation of immunities, privileges, accountability mechanisms under able leadership that will not only envision the peacekeeper as an epitome of legal and ethical responsibility but also help the UN to bring peace to conflict-torn zones and to restore trust in the Organisation as the vanguard of hope, peace and wellbeing.

The researcher has structured this paper as follows: The first chapter gives a brief introduction of the peacekeeping operations of the United Nations. It touches upon issues of shift from classical “Six and a Half” Peacekeepers to “Six Three Quarters” Peacekeepers, the sharp rise in the number of Missions established after the end of Cold War, the changes in the nature of conflict and the subsequent “doctrinal voids” created by these developments. The second chapter is an overview of immunities and privileges the UN Peacekeepers enjoy under different legal instruments and laws – the Privileges Convention, the Safety Convention, Status of Forces Agreements, Customary International Law, International Humanitarian Law etc. The third chapter raises the issue of lack of accountability that is seen at times in the operation of these forces and criticizes the current legal regime that fails to bring perpetrators to justice. Chapter four explores ways of bringing in reform in the system. It analyses various suggestions made till now regarding this. 15

Manuel Frohlich, “Keeping Track of UN Peacekeeping: Suez, Srebrenica, Rwanda and the Brahimi Report”, 5 Max Planck Yearbook of United Nations Law (2000) 185-248.

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Chapter five is a short note on what the author feels is the most appropriate solution to the present dilemma of protecting peacekeepers while ensuring that their conduct doesn’t jeopardize the Peace Mission itself. It may be noted that this work focuses on various obstacles in appropriately responding to allegations of human rights violations against the UN Peacekeepers due to the many immunities afforded under multiple laws. It is limited by the fact that it tries to steer clear of any one species of allegations in its material presentation. Any instances highlighted in the course of this paper are only to set the broad context for this work and are not be considered as limiting the scope of application to that species of incidents. It is concluded by reiterating the hypothesis that – there is a pressing need to view the two concepts of immunity and impunity together and to take steps that reflect the true commitment of nations to weave a better fabric of world peace, to ensure that the voice of those who feel that “it’s time to bury UN peacekeeping”16 does not gain legitimacy.

16 Michael

Ignatieff; cited from Manuel Frohlich, “Keeping Track of UN Peacekeeping: Suez, Srebrenica, Rwanda and the Brahimi Report”, 5 Max Planck Yearbook of United Nations Law (2000) 185-248.

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Research Methodology Research Objectives: o To give an overview of the atrocities allegedly committed by the United Nations Peacekeepers. o To document limitations in prosecuting United Nations Peacekeepers for these crimes. o

To assess immunities available in legal instruments and in Customary International Law in light of various reports of atrocities committed by Peacekeepers.

o To present the applicable law, both internal and external to the United Nations in light of such reports o To predict the impact of such instances of misconduct on the future of peacekeeping and make suggestions for reform. Methodology: A deductive-explanatory method has been followed. Research Questions: o What are the immunities and privileges Peacekeeping forces of the United Nations enjoy under various international legal instruments and Customary International Law? o How has the provision of these immunities affected the development (or the failure thereof) of accountability mechanisms for addressing allegations of misconduct and abuse? o How can we answer the call for reform in the light of the unintended impunity that is bringing the whole institution of peacekeeping to disrepute?

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Chapter – I: United Nations Peacekeeping: An introduction Privileges and immunities are the handmaidens of international law. - McCormack Crosswell17 While many share Crosswell’s sentiment when it comes to privileges and immunities enjoyed by international organizations, it is also equally true that, like all institutional arrangements and laws governing conduct, they are a product of history and consequences. So, to study their evolution, a brief detour into the origin of peacekeeping operations, (the immunities enjoyed by their personnel being the prime focus of this thesis work), a critique of their functioning, situations threatening the life and security of peacekeepers and problems of “doctrinal void” is essential. The Charter of the United Nations18 (hereinafter referred to the “UN Charter”) does not specifically mention peacekeeping, though Dag Hammarskjöld, the second UN Secretary-General, also fondly remembered as the greatest diplomat of the twentieth century, referred to it as belonging to "Chapter Six and a Half" of the UN Charter. So he placed it between traditional methods of resolving disputes peacefully, such as negotiation and mediation under Chapter VI, and more forceful action as authorized under Chapter VII.19 Evolution of peacekeeping is seen as a “pragmatic solution” when it became evident in the early years of the United Nations that provisions of UN Charter concerning maintaining peace and security could not be implemented as directly envisaged due to Cold War politics. The first peacekeeping operation had the mandate of supervising truce in Palestine – the United Nations Truce Supervision Organisation, set up by United Nations Security Council (hereinafter referred to as “the UNSC”). The General Assembly oversees the financial aspects, and considers it under the agenda item “administrative and budgetary aspects of the financing of United

Nations

Peacekeeping

Operations”,20

peacekeeping

operations

are

Andrew Ladley, “Peacekeeper abuse, immunity and impunity: the need for effective criminal and civil accountability in international peace operations” http://www.kentlaw.edu/faculty/bbrown/classes/IntlOrgSp09/PEACEKEEPERABUSEIMMUNITYANDIMPUN ITY.pdf (visited on February 12th, 2010). 18 Charter of the United Nations, 1945 http://www.un.org/en/documents/charter/ 19 http://www.un.org/en/peacekeeping/ 20 http://www.un.org/en/peacekeeping/ 17

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established by the UNSC, being the organ responsible under the UN Charter for the maintenance of international peace and security21, but it’s day to day functioning is monitored by the Department of Peacekeeping Operations (hereinafter referred to as “the DPKO”).22 As noted above, the first mission was set up to deploy military observers to monitor the Armistice agreement between Israel and the surrounding Arab Nations. Since 1948, there have been sixty three Peacekeeping Operations around the world, helping conflict torn regions achieve lasting peace.23 Further, today, what "peacekeeping" stands for is different from traditional "peace enforcement" operations and observer missions i.e., there is a shift into the realm of transitional international civilian administration.24 It is interesting to note that very few mission mandates today do not explicitly mention Chapter VII - the "classic" interposition mission between Ethiopia and Eritrea and the latest mission in East Timor are such rare examples.25As it will be seen later, the nature of conflict around the world has been changing and hence, a major challenge faced by the UN Peacekeeping operations is evolving to meet the “demands of different conflicts and political landscape”.26 Rising to the occasion, peacekeeping operations have, over the decades, evolved to meet this challenge and initial limited goals of maintaining ceasefires and stabilizing conflict torn areas27 gave way, by the end of Cold War, to operations with multidimensional mandates where peacekeepers perform “wide variety of complex tasks, from helping to build sustainable institutions of governance, to human rights

21

The process can be briefly explained this way – “At each session, this item is allocated to the Fifth Committee, one of the six Main Committees of the General Assembly. The Fifth Committee is allocated all items on the Assembly's agenda with financial implications. It submits a separate report on every agenda item allocated to it. These reports synthesize the Committee's consideration of the items and transmit the final version of draft resolutions/decisions recommended to the plenary for adoption.” http://www.un.org/depts/dhl/resguide/specpk.htm 22 Id. 23 Supra note 6. 24 Tom Dannenbaum , “Translating the standard of effective control into a system of effective accountability: how liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113 (2010). 25 Jaume Saura, “Lawful Peacekeeping: Applicability of international Humanitarian Law to United Nations Peacekeeping Operations” 58 Hastings L.J. 479 (2007). 26 Id. 27Seen

as “traditional” peacekeeping operations; United Nations itself notes that efforts to resolve conflict were made mainly at a political level – i.e., the personnel consisted mainly of military observers, lightly armed troops with monitoring, reporting and confidence-building roles in support of ceasefires and limited peace agreements; cited from note 4.

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monitoring, to security sector reform, to the disarmament, demobilization and reintegration of former combatants.”28 But the main difference between classical and modern peacekeeping is that modern peacekeeping has had to evolve to deal with the problem of intra-state conflict and civil wars as well as inter-state conflict. These new types of conflict challenged traditional notions of peacekeeping and made the UN rethink the political imperatives in peacekeeping as well. As noted by the United Nations itself, although military forces remain the backbone of most peacekeeping operations, “the many faces of peacekeeping” now include administrators and economists, police officers and legal experts, de-miners and electoral observers, human rights monitors and specialists in civil affairs and governance, humanitarian workers and experts in communications and public information.29 So today, UN peacekeeping forces also act as ‘shock absorbers’, as Manuel Frohlich puts it, to prevent conflicts from escalating. However, this has also meant that peacekeeping has become a more risky and dangerous operation than before.30 In the light of these developments, it becomes pertinent to study the legal immunities and privileges these forces enjoy and the repercussions of granting such immunities. The following chapter is an attempt to briefly look at the various instruments and laws conferring such protection.

28

Supra note 4. note 4. 30 Manuel Frohlich, “Keeping Track of UN Peacekeeping: Suez, Srebrenica, Rwanda and the Brahimi Report”, 5 Max Planck Yearbook of United Nations Law (2000) 185-248. 29 Supra

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Chapter II: Applicable Law and Immunities enjoyed by the Peacekeeping Forces of the United Nations 2.1. Privileges Convention The framework for development of privileges and immunities of the United Nations and its officials is provided in Articles 104 and 105 of the UN Charter. To elaborate, the preamble to the Convention on the Privileges and Immunities of the UN expressly invokes these two provisions. Article 104 of the Charter of the United Nations provides that the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes and Article 105 of the Charter provides that the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes and that representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.31The provision of international immunities are said to be “premised on functional necessity as articulated in Article 105(2) of the UN Charter.”32 To fully define and lay down the concept of privileges and immunities enumerated in the Charter, the Convention on the Privileges and Immunities of the UN was adopted by the General Assembly on February 13, 1946. Commentators feel that the “theory of functional necessity is carried to its logical conclusion” in this Convention as the privileges and immunities of UN officials are limited to those that are "necessary for the independent exercise of their functions in connection with the Organization."33

Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly of the United Nations on 13 February 1946 http://www.unog.ch/80256EDD006B8954/(httpAssets)/C8297DB1DE8566F2C1256F2600348A73/$file/Conve ntion%20P%20&%20I%20(1946)%20-%20E.pdf 32Veronica L.Maginnis, “Limiting Diplomatic Immunity: Lessons learned from the 1946 Convention on the Privileges and Immunities of the United Nations” 28 Brook. J. Int'l L. 989 (2003). 33 Article 105, Charter of the United Nations, cited from Veronica L.Maginnis, “Limiting Diplomatic Immunity: Lessons learned from the 1946 Convention on the Privileges and Immunities of the United Nations” 28 Brook. J. Int'l L. 989 (2003). 31

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So the officials cannot abuse the immunities for personal benefit and will be covered only when they are acting in their official capacity.34 Under the Convention, the four groups that receive immunity are: a) high level personnel, such as the Secretary-General and Assistant Secretaries-General, as well as representatives of Member States (they receive diplomatic immunity),35 b) the organization itself, c) officials of the UN, and d) experts on mission. Maginnis notes that, on the reading of the provisions of the Convention, we can conclude that these three groups have functional immunity, rather than diplomatic immunity.36

Under Section 18(a), officials are entitled to "be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity."37 Maginnis also notes that according to UN practice "any act which is performed by (UN) officials, experts or consultants which is directly related to the mission or project, such as driving to and from a project site, would constitute prima facie an official act within the meaning of Section 18(a)."38 Under Article VI, Section 22 experts on mission for the UN are accorded privileges and immunities so they may carry out the work they were hired to perform on behalf of the organization. What constitutes an official act: Under the Convention and also as per the practice of the United Nations, the Secretary-General has the power to determine what constitutes an official act for the purposes of asserting immunity. So it is not within the power of the local authorities. The ICJ also in one of its Advisory Opinions “underscored the Secretary-General's authority to assert immunity in one of its advisory opinions.” The Court held that the decisions of the Secretary-General regarding immunity are to be given a presumption of validity, and that such a finding

Veronica L.Maginnis, “Limiting Diplomatic Immunity: Lessons learned from the 1946 Convention on the Privileges and Immunities of the United Nations” 28 Brook. J. Int'l L. 989 (2003). 35UN Convention art. V, sec. 19; art. IV, sec. 11 (describing the diplomatic immunity of the Secretary-General and Assistant Secretaries-General, as well as the diplomatic immunity of Representatives of Member States). 36 UN Convention arts. I-III, V, VI (describing the functional immunity of the organization, its officials and its experts). 37 Art. V, sec. 18(a), Safety Convention 38 1985 U.N. Jurid. Y.B. 154-55, U.N. Doc. ST/LEG/SER.C/23, cited from Veronica L.Maginnis, “Limiting Diplomatic Immunity: Lessons learned from the 1946 Convention on the Privileges and Immunities of the United Nations” 28 Brook. J. Int'l L. 989 (2003). 34

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on his part can only be "set aside for the most compelling reasons and is thus to be given the greatest weight by national courts."39 Waiver and Settlement of claims: The Convention provides a “two-tiered system” in which those injured by UN officials have recourse – 1) the injured may seek a remedy through national courts if the Secretary-General waives immunity, or 2) s/he may settle under the provisions of the UN settlement policy when immunity has not been waived.40 These are the two mechanisms provided for in the UN Convention that allow the injured to seek compensation and the sending state to prosecute criminal wrongs.41 Article V, Section 20 solidifies the functional approach of the UN Convention by requiring the Secretary-General to waive immunity even when an official of the UN has acted within his official capacity, but where the waiver of immunity is required so as not to impede the course of justice. This authority to waive has been delegated by the Secretary-General to the Legal Counsel of the UN.42 Further, the Convention also deals with settlement of claims. UN is expressly permitted to settle claims under Article VIII, Section 29. This provision is meant to cover situations where the Secretary-General determines that the official was acting in an official capacity and that the interests of the organization do not permit a waiver, the UN has traditionally settled with the claimants.43 Maginnis notes that, although the Convention does not specifically provide a mechanism to deal with claims brought against officials who have acted in an official

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 1999 I.C.J. 62, 60 (Apr. 29, 1999) cited from Maginnis; “As the Court has observed, the SecretaryGeneral, as the chief administrative officer of the Organization, has the primary responsibility to safeguard the interests of the Organization; to that end, it is up to him to assess whether its agents acted within the scope of their functions and, where he so concludes, to protect these agents, including experts on mission, by asserting their immunity. This means that the Secretary-General has the authority and responsibility to inform the Government of a member State of his finding and, where appropriate, to request it to act accordingly and, in particular, to request it to bring his finding to the knowledge of the local courts if acts of an agent have given or may give rise to court proceedings”. 40 Id. 41 Id. 42 In evaluating whether to waive immunity, the Secretary-General, acting through the Legal Counsel "consider(s) . . . whether the immunity of any UN official would impede the course of justice and whether it can be waived without prejudice to the interests of the organization." In the majority of cases reported to the Office of Legal Affairs immunity has been waived where justice so required cited from Maginnis 43 Supra note 19. 39

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capacity, and whose immunity has not been waived, it does state in Article VIII, Section 29 that the UN will make provisions for appropriate forms of settlement.44 Further, she also notes that Article V, Section 21 provides additional guidance on this subject when it states that the UN will "cooperate at all times with the appropriate authorities of Members to facilitate the proper administration of justice, secure the observance of police regulations and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities set out in Article V."45

As a concluding remark regarding the Privileges Convention, it is apt to refer to the Model Status of Forces Agreements (which are dealt with later). Regarding the Privileges Convention, paragraph 4 of the Model Agreement clearly states that “the United Nations peace-keeping operation, its property, funds and assets, and its members, including the Special Representative/Commander, shall enjoy the privileges and immunities specified in the present Agreement as well as those provided for in the Convention, to which [host country] is a party�46 So, the peacekeeping forces are entitled to the privileges and immunities established both in the Convention on Privileges and Immunities of the United Nations and in the SOFA. The SOFA itself contains detailed provisions dealing with facilities and immunities and they may be looked into now.

2.2. Status of Forces Agreements (SOFA) and Status of Mission Agreements (SOMA) To settle the legal status of its peacekeepers in the Host Country, the United Nations enters into various agreements before the actual deployment of forces. It first reaches an agreement with Troop-Contributing Countries (TCCs) and Police Contributing Countries (PCCs), then with the host State as “the very nature of the peacekeeping operation calls for a specific arrangement relating to the privileges and immunities of

Procedures in place for implementation of article 8, section 29, of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly, on 13 February 1946 : Report of the Secretary-General, U.N. GAOR, 49th Sess., at 12 U.N. Doc. A/C.5/49/65 (1995) (hereinafter UN Settlement Policy) cited from Maginnis. 45 Id. 46 Paragraph 4, The Secretary-General, Model status-of-forces agreement for peace-keeping operations, delivered to the General Assembly, U.N. Doc. A/45/594 (Oct. 9, 1990) 44

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the troops on the ground.”47 As noted already, the latter half of the 80s saw a sharp rise in the number of peacekeeping missions set up and as a result, two model agreements were adopted by the General Assembly of the United Nations - the "Model Status-of-Forces Agreement for Peacekeeping Operations"48 and the "Model agreement between the United Nations and Member States contributing personnel and equipment to United Nations peacekeeping operations" ("Model Contributing Agreement").49 Their purpose was to set forth the status of the peacekeeping forces both in the host State and the relationship between the contributing States and the UN. These two model agreements are said to be inspired by past practices of the UN and they are intended to apply “upon concretion and specific signature on a case-bycase basis” and Saura notes that practice shows that SOFAs may apply provisionally, pending the actual conclusion of a treaty between the UN and the host country. 50 As mentioned already regarding the Privileges Convention, paragraph 4 of the Model Agreement clearly states that “the United Nations peace-keeping operation, its property,

funds

and

assets,

and

its

members,

including

the

Special

Representative/Commander, shall enjoy the privileges and immunities specified in the present Agreement as well as those provided for in the Convention, to which [host country] is a party”51 So, the peacekeeping forces are entitled to the privileges and immunities established both in the Convention on Privileges and Immunities of the United Nations and in the SOFA. The SOFA devotes a great deal of attention to the facilities, privileges, and immunities owed by the host State to the operation and its personnel – for instance, paragraphs eight to fifteen deal with issues such as the right to use the UN flag in vehicles, vessels and aircraft, facilities in the field of communications, travel and transport, privileges and immunities of the operation, and its personnel. In fact, paragraph forty six, specifically lays down that “all

47 Supra note 10. 48 The Secretary-General, Model status-of-forces agreement for peace-keeping operations, delivered to the General Assembly, U.N. Doc. A/45/594 (Oct. 9, 1990). 49 The Secretary-General, Model agreement between the United Nations and Member States contributing personnel and equipment to United Nations peace-keeping operations, delivered to the General Assembly, U.N. Doc. A/46/185 (May 23, 1991). 50 He gives examples to support his statement. The Security Council Resolutions which establish the mission clearly state so – for instance regarding Liberia - S.C. Res. 1509, (establishing the UN mission in Liberia) states that "The Security Council requests the Liberian Government to conclude a status-of-force agreement with the Secretary-General within 30 days of adoption of this resolution, and notes that pending the conclusion of such an agreement the model status-of-force agreement dated 9 October 1990 (A/45/594) shall apply provisionally."); Same holds true for Sudan, Burundi, Haiti and Ivory Coast. 51 Paragraph 4, The Secretary-General, Model status-of-forces agreement for peace-keeping operations, delivered to the General Assembly, U.N. Doc. A/45/594 (Oct. 9, 1990).

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members of the UN peacekeeping operation . . . shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity." Paragraph forty seven vests the exclusive jurisdiction to try criminal offenses or war crimes committed by military members in the respective participating States. In fact, both SOFA and SOMA lay down that such States must be prepared to exercise jurisdiction with respect to crimes or offences which may be committed by members of their national contingents serving with the peacekeeping operation.52 Having noted these provisions which form a substantial portion of immunities peacekeepers enjoy, it is to be remembered that the characterization of peacekeeping forces and troops as UN agents is, admittedly, somewhat biased by their military nature i.e. although civilians and police forces are also part of peacekeeping operations, the core of these units is the military. In fact Saura notes that the Model Contributing Agreement acknowledges the dual nature of the troops, and it provides that the personnel "shall remain in their national service but shall be under the command of the United Nations, vested in the Secretary-General, under the authority of the Security Council."53 He feels that this provides several layers of authority in peacekeeping operations - The Security Council establishes the functions and mandate of the mission while the Secretary-General has "full authority over the deployment, organization, conduct and direction" of the operation.54 This authorizes the Secretary-General to issue the regulations of the force or rules of engagement. The Model Contributing Agreement notes that, on the field, the Secretary-General delegates to a Head of Mission who has "general responsibility for the good order and discipline of the operation."55 So till now only the UN, its organs and agents bear responsibility for the actions or omissions of the mission.56 But Saura also notes that one final layer of command for each national contingent remains: the Model Contributing Agreement calls for a national commander who is responsible "for disciplinary action with respect to military personnel made available 52Paragraph

48 of SOFA. This is confirmed by the paragraph 25 of the Model Contributing Agreement, according to which "[The participating State] agrees to exercise jurisdiction with respect to crimes or offences which may be committed by its military personnel�. 53Paragraph 7, Model Contributing Agreement 54 Paragraph 7, Model Contributing Agreement 55 Paragraph 8. Model Contributing Agreement. 56 Supra note 10.

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by the participating State".57 Though in theory, troops are not to seek or accept instructions in respect of the performance of their duties from any authority external to the United Nations, and the TCC or the PCC is also under a duty not to give such instructions,58 in practice, “it has not always been the case, and lack of discipline or tensions between UN direction and, sometimes contrary, national understanding and expectations" have been seen.59 It is suffice to note here that while SOFA and SOMA have provisions conferring immunities upon the peacekeeping forces, there are many complications even after the national contingents are deployed and this further leads to questions of effective monitoring and discipline of the forces. The following chapters deal with possible solutions to fill this lacuna and make the system more efficient.

2.3. Safety Convention Today, there are thousands of peacekeepers and others serving under UN mandates, doing dangerous jobs, often being injured or killed60 because “groups opposing the United Nations' objectives do not hesitate to mistreat or attack them, in blatant disregard of the peacekeepers' status as representatives of the international community.”61 The Convention on the Safety of UN and Associated Personnel (hereinafter referred to as “the Safety Convention”) fills an important need. Combatants are protected by International Humanitarian Law, but non-combatants, including peacekeepers, are not. The presence of peacekeepers in conflict areas, however, necessitates the existence of a legal regime for such protection. The convention achieves this by providing for the prosecution or extradition of offenders. To briefly mention the circumstance under which this Convention was brought into force, on December 9, 1994, the United Nations General Assembly adopted a new 57

Para 8 Model Contributing Agreement Para 9 Model Contributing Agreement. 59 Supra note 1o. 60 Number of “fallen peacekeepers” in operations since 1948 is 2,813. 739 died of malicious acts while 1119 died in accidents and 798 died of illness, besides 157 who died of other causes. Of them, 2074 were military personnel, 82 were Military Observers and 175 were Police officers from many countries of the world. At least eight countries lost more than a hundred of their peacekeepers each. There has not been a single mission or year where there are no fatalities. This is besides the injured in missions, the statistics for which were not available to the researcher. Fatalities in the last few years have also been high, with 136 and 121 peacekeepers losing their lives in 2008 and 2009 respectively and 131 peacekeepers in the first half of 2010, many of them breathing their last in the Haiti Earthquake (“Fatalities in UN Peacekeeping” http://www.un.org/en/peacekeeping/fatalities/). 58

Evan T Bloom, “Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel”, 89(3) AJIL 621-31, JULY 1995. 61

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multilateral convention, which is of special importance to United Nations peacekeeping, the Convention on the Safety of United Nations and Associated Personnel.62 According to Evan Bloom, the then Attorney-Adviser for United Nations Affairs, the treaty addresses a critical gap in international law because, while the conduct of combatants in international armed conflicts was regulated by the Geneva Conventions of 1949 and related norms and principles, no instrument prohibited or provided legal remedies for attacks against forces performing traditional non-combat peacekeeping functions as such.63 The Convention is said to have been brought into force with “a particularly fast pace for an instrument of some complexity and political sensitivity”; the reason behind this was the statistics from the UN Secretariat indicating that peacekeepers and other personnel were being attacked and injured or killed at an alarming rate. 64 As noted already, after the end of cold war, the number of peacekeepers deployed has seen exponential rise and with it, also the extreme risks and casualties within the forces. So the international community felt the immediate need for an arrangement that would create “a regime for prosecution or extradition of persons accused of attacking UN peacekeepers and other persons associated with operations under UN mandates”65.

The Convention was adopted by consensus in General Assembly Resolution 49/59 (Dec. 9, 1994), and was opened for signature at United Nations headquarters in New York on December 15, 1994. Cf Evan T Bloom, “Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel”, 89(3) AJIL 621-31, JULY 1995. 62

63

Supra note 61.

If we look at the number of victims of such violence just before coming into operation of the Convention, the Secretary-General of the United Nations observed that, with respect to attacks against personnel of the organizations of the United Nations system, “there were 33 fatalities in the 24-month period from 1 January 1992 to 31 December 1993. Of the 33 staff members concerned, 16 were killed in areas where no government authorities existed de facto or where such authorities were unable to maintain order and hence to discharge their responsibilities by protecting persons within their jurisdiction. Reference is made to fatalities in Somalia (3), southern Sudan (2), Afghanistan (4), Angola (5) and Bosnia Herzegovina (2). Of the 33 staff members referred to above, 29 suffered gunshot wounds, and there are grounds to believe that at least 6 were deliberately executed....The number of fatalities among United Nations military contingents has also dramatically increased during the past two years. While the grand total for all past and ongoing missions amounts to 1,074 fatalities, in 1993 alone 202 personnel were killed.” Note by the Secretary-General, UNDoc. A/AC.242/1 (1994). 64

65

Evan T Bloom, “Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel”, 89(3) AJIL 621-31, JULY 1995.

25


Coverage The most complex part of the Convention is the scope of its coverage i.e., the personnel it seeks to bring under its protection and the ones it seeks to exclude. Articles 1 and 2 of the Convention, which deal with definitions and scope of application are important. Art. 2(1) provides for the application of the convention to those operations defined in Art. 1. Art. 1 imposes the following requirements: a. The operation must be established by a competent UN Organ acting within its authority under the UNSC. Further, one of two requirements must be met. b. The operation must be for maintaining or restoring international peace and security. This means that all UNSC authorised operations are automatically included. c. The UNSC or UNGA declares the existence of an exceptional risk to the safety of the personnel involved in any mission. This was intended to apply to humanitarian, election monitoring, etc. missions.66

The application of this Convention extends to two types of personnel. a. The core group is UN personnel – persons engaged or deployed by the UNSG as members of UN operations, other persons or experts on mission of the UN or its specialised agencies or IAEA who are present in an official capacity in an area where a UN operation is deployed (requirement is only of official purpose, not purpose related to the operation). b. Associated personnel – personnel assigned by the UNSG or intergovernmental organisations with the agreement of the competent UN organ (eg: NATO forces assisting UNPROFOR), persons engaged by the UNSG, a specialised agency or IAEA (UN contractors) and persons deployed by humanitarian NGOs or agency u/ agreement with the UNSG, specialised agency or IAEA.67 So in addition to peacekeepers, the convention applies to a broad range of associated personnel defined in A 1(b):

66 67

Supra note 49. Supra note 49.

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a. Persons assigned by a government or IGO with the agreement of the competent organ of the UN; b. Persons engaged by the UNSG, or specialised agencies, or IAEA; c. Persons deployed by humanitarian NGOs or agencies under agreement with the UNSG, specialised agencies or IAEA; This restricted definition was contested by many states, international agencies and NGOs which wanted protection for all their employees acting on behalf of the international community. This was rejected as it was felt that this was essentially an exercise in protecting peacekeepers.68

Providing for Universal Jurisdiction The convention creates a universal jurisdiction for offenders. Pertinent provisions are discussed here briefly. Article 9 defines offences69 and requires States to criminalise such conduct. The two important points to note here are, firstly, ‘intentional commission’ incorporates a mens rea requirement (as with Hostages Convention), and secondly, ‘organising or ordering others’ recognises the possibility of superior authorities ordering such attacks. Article 10 mandates States to establish jurisdiction over offenders u/ Art. 9 if the crime has been committed on their territory (including ships, vessels, etc. registered in the state), if the criminal is a habitual resident in that state or is present in the state. Further, as per Article 11, States must make efforts to prevent preparations for crimes specified in Articles 9 in their territories. There is a further duty under Article 12 that if an Article 9 criminal flees the territory of a state, it must, in accordance with its national laws, inform the UNSG. Article 13 requires the State in whose territory the Art. 9 offender is present to take appropriate measures to ensure his availability for prosecution or extradition. There

Evan T Bloom, “Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel”, 89(3) AJIL 621-31, JULY 1995. 68

intentional commission of a murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel, and a violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger their persons or liberty. Also covered are a threat to commit any such attack with the objective of compelling a physical or juridical person to do or to refrain from doing any act; an attempt to commit any such attack; and an act constituting participation as an accomplice in any such attack, or in an attempt to commit such attack, or in organizing or ordering others to commit such attack). 69

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is also provision for requirement of prosecution or extradition under Article 14. This obligation operates independent of extradition requests. Article 15 further provides that where bilateral extradition treaties are applicable, extradition as per this Article is deemed to be included. Under Article 16, States must mutually assist each other in these criminal proceedings, including in attaining evidence, though in accordance with their national laws. Finally, Article 17 deals with the rights of defendants (fair prosecution and trial and protection of rights). Outcomes of trials must be submitted to the UNSG.70

Safety Convention and International Humanitarian Law While IHL does not protect peacekeepers, it does protect UN forces deployed as combatants for enforcement missions. It is necessary, however, to maintain a clear distinction between the convention regime and the IHL regime so that in no instance are both applicable. Thus, the convention is expressly inapplicable to persons engaged in enforcement missions as combatants (Art. 2(2). The reason for this is that the criminalisation of attacks on UN forces will necessarily favour one side or the other, and may reduce compliance with IHL. 71 One problem with this is the difficulty of determining which are enforcement operations, but this is not impossible, and may be determined from a study of the concerned UNSCRs. It is important to remember three points in this regard. First, not all Chapter VII operations are excluded, only enforcement missions are. Second, the personnel must be deployed as combatants in an enforcement mission. Sporadic instances of self defence by peacekeeping missions will not exclude the convention’s application. Finally, if some units of the missions are excluded from the scope of the convention, the same will be true of the other units. The reason for this is to ensure that the applicable legal regime is easily determinable.72

Provisions dealing with Status of Forces The convention also seeks to regulate the relation between the UN and associated personnel and host and transit states. There are almost always situation specific Supra note 52. Supra note 52. 72 Supra note 52. 70 71

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factors in such cases, and these are, as a result, usually issues left for regulation through bilateral agreements. Therefore, the convention employs very flexible terms. Important provisions include Article 3 which stipulates the requirement of UN vehicles, property, etc. bearing distinctive identification and the personnel carrying authorised documentation identifying them as such. This seeks to balance the conflicting concerns of clearly identifying UN personnel and property, and not making them too visible a target. Article 4 requires the conclusion of status of forces agreements between the UN and the host state as expeditiously as possible (SOFAs provide for immunity of foreign forces stationed in that country for a particular purpose from criminal proceedings in that country; jurisdiction is with the host state).This has always been the policy espoused by the UN, but has not been very successful. Now there is a legal requirement to this effect.73 Under Article 5, Transit States are under an obligation to facilitate unimpeded to and fro movement of UN personnel and equipment between destination and home state. This is not a very onerous obligation and it already exists u/ the UN Charter. As per Article 6, without prejudice to their privileges and immunities, UN personnel must respect local laws, and must not act inconsistently with their impartial and international duties. The UNSG is required to take all possible measures to ensure this. Article 7 imposes an obligation to prevent attacks on UN forces and personnel, or in any way preventing them from achievement of their duties. Article 8 stipulates that UN personnel, if captured, once identified, to be released immediately. This obligation is different from the one under the Geneva Convention which only requires release of PoWs after the conflict has ceased. This provision aims to address the problem of kidnapping and detention of UN personnel, as has repeatedly happened in Bosnia and Somalia, for instance.74 Other important provisions are: Art. 20(d) which lays down that nothing prevents a state from withdrawing forces and equipment contributed to UN operations (this includes the interests of the missions, the other forces, the operation, etc.) Further sub-clause (e) of the same Article clarifies that rights of compensation for death, injury or damage remain unaffected. Another significant provision is Article 21 which Evan T Bloom, “Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel�, 89(3) AJIL 621-31, JULY 1995. 74 Id. 73

29


lays down that right of self defence remains unaffected. While this clearly protects the right of peacekeepers to self defence, it may also, controversially, enforce the right of self defence of parties to the conflict with regard to UN personnel. This has been rejected by most states. But the customary and legal right (Art. 51, UNC) of self defence remains preserved and would operate in any case. Finally, Article 22 deals with referral of disputes to the International Court of Justice.75

2.4. Law of Armed Conflict/ International Humanitarian Law As noted already, increase in attacks on peacekeepers, a major source of concern, especially in places like Yugoslavia, Rwanda, Somalia led to the adoption of the Safety Convention (Convention on the Safety of UN and Associated Personnel). But there are still categories of personnel to whom the Safety Convention doesn’t apply to and International Humanitarian Law, often referred to as the Law of Armed Conflict76 continues to govern them. Law of Armed Conflict controls the usage of force in situations of armed conflict. It determines the degree of force acceptable, its legitimate targets, necessity and proportionality of its use, etc. It is contained within the four Geneva conventions of 1949, the two additional protocols of 1977 and assorted conventions on the legality of various types of weapons. There is also a considerable body of customary international law in the field of International Humanitarian Law, which overlaps substantially with the Geneva Conventions.77

Supra note 57. As noted by the International Committee of Red Cross, which has made significant contributions in the area of International Humanitarian Law, with the adoption of the 1977 Protocols to the Geneva Conventions, the two strains of law began to converge. Already before, articles focusing on humanity could be found in the Law of The Hague (i.e. the protection of certain prisoners of war and civilians in occupied territories) articles which were later incorporated into the Law of Geneva in 1929 and 1949. However the Protocols of 1977 relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights aspects Cited from Frits Kalshoven and Liesbeth Zegveld, Contraints on the Waging of War (Geneva: International Committee of Red Cross, 2001) http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0793/$File/ICRC_002_0793.PDF!Open 77 Christopher Greenwood, “Protection of peacekeepers: the legal regime”, 7 Duke Journal of Comparative and International Law 185. 75

76

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The first question we need to ask is whether LOAC applies to UN peacekeepers at all. The opinion of many eminent publicists78 indicates that it does, as does the practice of the UN in the Korean war and the first Gulf war. (The question of UN peacekeepers being bound by rules of IHL in their conduct is dealt with elaborately in the next chapter; here, the focus is to look at only protections peacekeepers enjoy under this branch of law) .

Specific Provisions and limitations in application If UN peacekeepers become embroiled in a conflict to the extent that they become a party to the conflict, and all of LOAC will apply. Thus, UN Prisoners of War will be subjects of protection under Geneva III. Civilian personnel attached to UN forces will be subjects of protection under Geneva IV. A more complicated situation arises when the peacekeepers do not become a party to the conflict, but are still subjected to attacks by one or more sides. There is no express mention of any applicable provisions. One provision that becomes very significant with regard to peacekeepers is Article 37(1)(d), Geneva I79, which prohibits "the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other states not parties to the conflict.". Greenwood feels that this provision clearly envisages that the United Nations and, by extension, U.N. personnel, have some kind of "protected status," or a special status but the nature of that status and the rights and obligations which flow from it are not set out in the Protocol i.e., no further specific mention is made, and no specific rights or duties are enumerated. Thus, reliance must be placed on inferences. i.

UN peacekeepers and attached civilian personnel would not constitute a legitimate military target under Articles 48, 50-52, Geneva I and hence, protected to that extent. These provisions have now achieved the status of Customary International Law.

78For

instance, Greenwood cites Bowett, Schindler, Institute of International Law. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3 (1979), 16 I.L.M. 1391 (1977) [hereinafter Protocol I]. Greenwood notes that it is clear from the travaux prĂŠparatoiresof the Protocol that this provision was not intended to apply to situations in which U.N. forces were engaged as combatants on one side of an armed conflict, but only to genuine cases of peacekeeping. 79

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ii.

Minimum guarantees under Article 75 will protect UN peacekeepers taken prisoner. These too are now a part of Customary International Law.

iii.

UN Conventions on Prohibitions or Restrictions on the Use of certain Conventional Weapons provides some degree of protection from land mines.

iv.

Common Article 3(1) which prohibits use of force against parties taking no active part in the conflict would protect UN forces involved in internal conflicts.

v.

Articles 4 and 5, Protocol II which provide regulation of restrictions of liberty of captured personnel would apply to UN personnel. These provisions have, arguably, now achieved the status of custom.80 There are many limitations in the application of LOAC to peacekeepers. Even in circumstances where peacekeepers are clearly not party to the conflict, and where the parties involved are disposed to compliance with legal norms, there is no clearly ascribable protection for peacekeepers. For instance, many reputed scholars of International Law feel that the applicability of Geneva III and IV to UN Prisoners of War is unlikely. Further, the two most important concerns regarding application of these laws to peacekeepers are that:

i.

Law of Armed Conflict provides no special status for peacekeepers. The responsibility for breaches of LOAC lies with the nation state. This means that in the case of UN forces, the country providing those particular troops bears responsibility.

ii.

LOAC makes no difference between the victim and the aggressor, let alone providing special protection for neutral third parties who are intervening to restore peace.

So the status of peacekeepers is often ambiguous. For instance, in Somalia, once the peacekeepers started operations against one of the factions and started making active attempts to capture its leader, they could no longer be considered persons not active party to the conflict. This would deprive them of the protection of common A 3(1).81

Supra note 77. Christopher Greenwood, “Protection of peacekeepers: the legal regime�, 7 Duke Journal of Comparative and International Law 185. 80 81

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So with regard to the application of Safety Convention or the Law of Armed Conflict regarding immunities to peacekeeping forces, it may be noted that there are still many important concerns raised. They are looked into briefly here. As noted already, under Article 1(c), the convention applies only to operations which are: a. Under the authority and control of the UN; b. Either intended to maintain peace and security or subject to an UNGA or UNSC declaration concerning the exceptional threat to the safety of participating personnel; The first requirement means that operations authorised by the UN but controlled by particular states, such as the French troops in Rwanda, or the forces in Iraq, are excluded. The second requirement is more problematic. It would seem that the requirement of ‘maintenance of peace and security’ because it echoes the language of Article 39 of the UN Charter, would apply only to Chapter VII missions. But this would exclude most traditional operations which are based on the host state’s consent, such as the operations in Cyprus or Lebanon. Bloom suggests that since all missions are based on an intent to maintain peace and security, this requirement should be read expansively. A declaration of exception risk would only be required for election monitoring and humanitarian missions. The problem with this is that the language of resolutions, under Chapter VII, rarely clearly supports such an interpretation (of all missions being based in the goal of maintenance of peace and security). 82 Greenwood, after examining the limits of military engagement permitted under each of these, finds a few aspects of their applicability or otherwise problematic. They are looked into briefly here. Under A 2(2), the convention does not apply in cases of Chapter VII enforcement operations which involve the engagement of UN personnel against organised armed forces, and to which the law of international armed conflict applies, the purpose of such a provision being to maintain exclusivity between LOAC and the convention, so that peacekeepers would fall squarely within one or the other, but never both. Greenwood finds three major problems with this:83

82 83

Id. Supra note 65.

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a. Operations which involve the engagement of UN personnel against organised armed forces will usually be enforcement operations under Chapter VII, but this needn’t always be the case. All UN missions have the right of self defence, whether established under Chapter VII or not. The UN has always adopted an expansive interpretation of self defence, and this right as exercised by UN personnel extends equally to armed resistance preventing the mission from achieving its mandate. Any force employing this broad right of self defence would meet one of the requirements of A 2(2) (engaged with organised armed forces), but not the other (Chapter VII enforcement mission). Therefore, the provision fails in its goal of ensuring mutual exclusivity. b. The second criticism is complex and hence it is explained through the following sequential steps. i.

Because the convention will not apply in cases where LOAC applies, LOAC becomes the upper ceiling for the application of the convention. This means that the lower threshold for the application of the latter, is the upper threshold for the former.

ii.

But there has been a clear attempt in recent years to reduce the threshold for application of LOAC so as to expand the scope of its operation. Effectively, any use of force by parties, irrespective of scale and extent of hostilities (excluding obviously petty border incidents and the like), amounts to a situation of armed conflict, which will allow the application of LOIAC. This is supported by the jurisprudence of the International Committee of the Red Cross as well as American practice in Grenada, Panama, Lebanon, etc.

iii.

This reduction of the threshold for the application of LOIAC has never been indicated to be different for UN forces. But this causes confusion in the law – i.e., what of the UN Mission in Bosnia-Herzegovina? This is conceivably a situation where LOAC would apply. All state practice indicates it was an international conflict, and the existence of armed conflict is equally clear. But that would then mean that the convention wouldn’t apply. And it seems like the convention was expressly written with this conflict in mind. This would then lead to the raising of the threshold of armed conflict in order to apply the convention, rather than LOAC, to this conflict. This, Greenwood feels, in an undesirable development. 34


2.5. Lex feranda Argument Walter Sharp has advanced this argument which is based on an analogy with municipal law. He observes that in Municipal Law, there is no question of attacking a policeman. Resisting arrest or apprehension and attacking a cop is universally criminalised. So he argues that UN Peacekeeping forces should be seen as an international police force. Since they carry with them the weight of international consensus, they should be the subjects of a similar privilege and their equal treatment under current LOAC should be changed into immunity from attack, and criminalisation of the attack if it does occur. This should be extended not only to enforcement missions, but also to missions which are authorised by the UN but not controlled by it, mitigating two important checks currently incorporated in the Safety Convention. In effect, this would mean that the UN forces in Korea or in Iraq could legally attack and kill, but retaliatory attack would be an international crime.84 But this argument has been subject to criticism on many grounds. Firstly, the equal application of LOAC has been repeatedly reaffirmed. Even after WWII and the Vietnam war, the application of LOAC to the perpetrators of aggressive wars was defended and upheld. Further, the analogy between international and municipal law has been seen to be problematic because the UN and its forces do not yet attract the degree of respect that is accorded to organs of a municipal state in the execution of its functions. This privileged status cannot, thus, be blindly transferred. (This is not to say that attacks against UN officials will go unpunished. This is definitely a violation of the UN Charter (for UN members) and individual criminal responsibility may also be imposed upon the leaders responsible for ordering the attack.) Lastly, to invoke the wrath of LOAC against an army because of mere attack upon UN forces would effectively mean the denigration of LOAC in their eyes. They would have no reason to accept the remained of the corpus of LOAC.85 So it is felt that it is unlikely that Sharp’s proposals will be accepted.

Walter Gary Sharp, Sr., “Protecting the Avatars of International Peace and Security” 7 Duke J. Comp. & Int’’l L. 93 (1996). 85 Supra note 65. 84

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Chapter – III: Prosecuting Impunity An examination of immunities enjoyed by peacekeepers in the light of allegations of grave misconduct and abuse of the very people they have vowed to protect; possibility of prosecution of offending peacekeepers under different laws “In the corner of the tent where she says a soldier forced himself on her, Helen, a frail fifth grader with big eyes and skinny legs, remembers seeing a blue helmet. . . . In this same eastern outpost, another United Nations peacekeeper, unable to communicate with a 13-year-old Swahili- speaking girl who walked past him, held up a cookie and gestured for her to draw near. As the girl, Solange, who recounted the incident with tears in her eyes the other day, reached for the cookie, the soldier reached for her. She, too, said she was raped.”86

This is a report filed by a New York Times reporter from the Democratic Republic of the Congo (“DRC”), where the United Nations has operated its second most expensive87 peacekeeping force in history, the U.N. Organization Mission in the Democratic Republic of the Congo (MONUC), second only to Darfur.88 Reference to this anecdotal account is only to be taken as representative of the shameful yet pervasive occurrence of grave misconduct by peacekeepers throughout the world. UN peacekeepers have been accused of being perpetrators of sexual misconduct and other heinous offences like human trafficking and child abuse.89

86

. Marc Lacey, In Congo War, Even Peacekeepers Add to Horror, N.Y. Times, Dec. 18, 2004, at A1 cited from Tom Dannenbaum , “Translating the standard of effective control into a system of effective accountability: how liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113. 87 MONUC's budget for the current financial year (July 2009-June 2010) is $1.35 billion, second only to its peacekeeping operation in Darfur. UNPO Background Note, United Nations Peacekeeping Operations, Background Note 1 (Aug. 31, 2009), available at http://www.un.org/Depts/dpko/dpko/bnote010101.pdf . 88 Tom Dannenbaum , “Translating the standard of effective control into a system of effective accountability: how liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113 (2010). 89 UNHCR & Save the Children-UK, Note for Implementing and Operational Partners on Sexual Violence and Exploitation: The Experience of Refugee Children in Guinea, Liberia and Sierra Leone Based on Initial Findings and Recommendations from Assessment Mission, Oct. 22-Nov. 30, 2001 (2002), http:// www.unhcr.org/cgibin/texis/vtx/news/opendoc.pdf?id=3c7cf89a4&tbl=PARTNERS. cited from Tom Dannenbaum , “Translating the standard of effective control into a system of effective accountability: how liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113.

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Peacekeepers representing their national contingents continue to remain in the service of their home state, being under the authority of the United Nations only during the period of their assignment. Their position is peculiar because they continue to be responsible to their Home State, while the position of the UN has been that, being the enforcers of its mandate, they are under its sole authority.90

So,

peacekeepers are in short national contingents drawn from different Troop Contributing States “owing their allegiance to their national governments," yet at the same time "operating outside the territorial jurisdiction of their parent state under the operational control of the U.N." A symbolic depiction of this peculiar position is reflected even in the attire of the peacekeepers;91 they wear their national military or police uniform, supplemented with “standard United Nations accouterments.”92 The idea behind providing a brief background to the UN Peacekeeping Forces is only this - Peacekeeping has transformed the image of the United Nations from an institution with “heart of gold but arms of clay” to that of one which upholds humanitarianism and brings hope and justice to the troubled humanity across the globe. To quote Harrington, with laws but not humanitarianism, we will end up “with a dusty book of statutes…an ancient relic never used because there was never sufficient societal interest to create a peacekeeping force”; But she also warns us of a scenario of humanitarianism without law – she says, here, we end up with the current peacekeeping system, marred by allegations of abuse and misconduct, coupled with uneven justice for victims of heinous crimes.93 To understand what prompted such observations, we may look into the specificities of the legal regime that is currently applicable to peacekeepers i.e., possible means through which they can be tried and brought to justice. First we may look at their responsibility under International Humanitarian Law.

Umesh Palwankar, “Applicability of International Humanitarian Law to United Nations Peace-Keeping Forces”, 294 Int'l. Rev. of the Red Cross 227 (1993), http://icrc.org/Web/Eng/siteeng0.nsf/html/57JMBH. 91 Supra note 72. 92 The Secretary-General, Draft Model Status of Forces Agreement for Peace-keeping Operations, P 37, U.N. Doc. A/45/594 (Oct. 9, 1990). 90

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3.1.International Humanitarian Law – obligations under Customary International Law After a period of uncertainty regarding whether the Peacekeeping forces are bound by the principles of International Humanitarian Law, because of problem surrounding characterizing them as “belligerents”94, on the occasion of the fiftieth anniversary of the Geneva Conventions, UN Secretary General approved a set of rules and guidelines to govern the Peacekeepers. It was seen as a symbolic yet very significant act of support for what the conventions stand for.95 These rules contain many important norms of the Geneva Conventions and therefore, to the extent that they are incorporated in the Bulletin96, peacekeepers are bound by them. The adoption of this Bulletin was seen as a very significant step, as it constitutes, both internal law within the UN legal system and also because its implementation stems “from the UN’s own obligations under customary international law”97 There are questions regarding the applicability of the Bulletin being narrow in scope as it applies "when in situations of armed conflict [the peacekeeping forces] are actively engaged therein combatants, to the extent and for the duration of their engagement."98 Many authors like Saura point out that this may imply that the Bulletin is only applicable to actual combat and that only "Hague" law on the conduct of hostilities and the use of means and methods of combat would be mandatory. But a closer look at the substantive provisions of the Bulletin contradicts such a narrow view. For instance, paragraphs three and four of section 7 provide special measures of protection for women and children. Weapons prohibited by different treaties, even if not universally ratified, are banned for UN troops. Attacks on cultural property and

they are not belligerents in the traditional sense, as they operate with consent of parties and their mandate doesn’t necessarily include use of force. 94

95“The

United Nations has since modified its position. In the 1993 Agreement on the Status of the United Nations Assistance Mission for Rwanda, the United Nations undertook, for the first time, to ensure that the United Nations forces would conduct operations with full respect for the principles and spirit of the humanitarian conventions applicable to the conduct of military personnel, including the four Geneva Conventions of 1949, their two additional protocols of 1977 and the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict. This was largely because when questions arose concerning the legal status of the detainees held by United Nations peacekeepers and the interrogation methods exercised by them during United Nations operations in Somalia, these concerns demanded a response.” Cited from Daphna Shraga, “UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for OperationsRelated Damage”, 94 Am. J. Int'l L 406 (2000). 96 The Secretary-General, Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999). 97 With its adoption, the UN and the Secretary-General are implementing their own duty as "commanders" of the operation in accordance with article 87 of Protocol I to the Geneva Conventions. Supra note 10. 98 The Secretary-General, Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999).

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on objects indispensable to the survival of the civilian population are also prohibited.99 Further, we may also understand “operations” in a wider sense to “encompass any activity carried out under the mission”. But this ambiguity regarding what is in fact intended is troubling. Who should hold the baton? So the question of “under what law” is answered to some extent. But the more pressing questions still remain to have unconvincing answers – Who is to hold the wrongdoers responsible? Who is the police? Who should hold the baton? Is the U.N. responsible for breach of IHL norms when its peacekeepers are guilty of misconduct? If yes, is the TCC or PCC also accountable for such misconduct? Some authors suggest that there is the aspect of “co-responsibility” of both the UN and the TCC or PCC, though the Bulletin doesn’t mention this. Article 1 common to the four Geneva Conventions reads: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.100 Based on the wording of this provision, it is argued by Bowett that this implies there can be no question of absolving a “State's military forces from the binding force of the laws of war, as a matter of law, simply because they are engaged in fulfilling a United Nations mandate."101 The phrase respect “in all circumstances” implies, even though the troops work within the framework of the U.N., they continue to be bound by the customary norms of IHL and the Conventions. So, the TCCs are said to have a “dual responsibility – both of enforcing the law, and of dissemination of information regarding the relevant norms.”102 Despite this de jure duty the forces have under the Bulletin, the nature of the UN and its present institutional structure makes it near impossible to enforce IHL obligations. So it is argued that “certain obligations derived from IHL [International Humanitarian Law] must be under the responsibility of the contributing states…” The 1999 Bulletin also acknowledges this fact when stating that in case of violations Section 6 of the Bulletin. Boisson de Chazournes, Luigi Condorell, “Common Article 1 of the Geneva Conventions revisited: Protecting collective interests,” International Review of the Red Cross No. 837, p. 67-87 (2000) http://www.icrc.org/Web/eng/siteeng0.nsf/html/57JQCP 101 Cited from Christopher Greenwood, International Humanitarian Law and United Nations Military Operations, 1 Y.B. Int'l Humanitarian L. 3, 10 (1998). 102 Id. 99

100Laurence

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of international humanitarian law, "members of the military personnel of a United Nations force are subject to prosecution in their national courts."103 Further, convincing arguments have also been put forward to look into the aspect of direct responsibility of the TCC or PCC itself for violation of IHL norms by its troops, as certain obligations under the Geneva Conventions and Additional Protocols must necessarily be carried out by the TCCs or PCCs (For instance, disciplinary or penal measures to be imposed on those who violate the Conventions).104 Also, Section 3 of the Bulletin makes a crash course by the UN prior to the deployment of the mission and/or in the country of operations mandatory. However, this will not be good enough if the peacekeepers are not made aware of the complex topic at a deeper level well in advance. This duty of the TCC or PCC was acknowledged by the Model Agreement itself when it says that the national contingent should be “fully acquainted with the principles and spirit of these Conventions”. 105 Lastly, if not anything else, the presence of the “Martens Clause” in the Hague Convention is a stark reminder of the fact that actions that are not expressly covered are neither necessarily exempted nor permitted. Saura argues that this allows UN peacekeeping operations to fit within the normative scope of humanitarian law even though such operations were not originally contemplated by the IHL instruments.

3.2. Internal efforts and Law within the United Nations The Bulletin The 2003 Bulletin of the Secretary General dealing with “Special measures for protection from sexual exploitation and sexual abuse”106 was issued after General Jaume Saura, “Lawful Peacekeeping: Applicability of international Humanitarian Law to United Nations Peacekeeping Operations” 58 Hastings L.J. 479 (2007). 104 Paragraph 25 of the Model Contributing Agreement states that “the participating State agrees to exercise jurisdiction with respect to crimes or offences which may be committed by its military personnel serving with [the United Nations peacekeeping operation”; The Bulletin also notes that"In case of violations of international humanitarian law members of the military personnel of a United Nations force are subject to prosecution in their national courts"). Besides what the law provides, "national sensitivities unavoidably associated with participation in UN military operations render it desirable that contributing states should have and be seen to have disciplinary authority over their own forces." Cited from Saura. 103

105

For this reason, Paragraph 28 of the Model Contributing Agreement states that the"The participating State shall therefore ensure that the members of its national contingent serving with the United Nations peace-keeping operation be fully acquainted with the principles and spirit of these Conventions." 106 Secretary-General’s Bulletin, ST/SGB/2003/13.

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Assembly Resolution on the Investigation into sexual exploitation of refugees by aid workers in West Africa.107 This is incorporated into contracts of all experts, volunteers etc. and it is also signed by the UN personnel once they are in the mission area.108 The UN Office of Internal Oversight Services has to conduct investigations where there are allegations of sexual abuse. 109 While non-military personnel found guilty are punished by the United Nations, punishment for military personnel unfortunately involves informing the respective troop-contributing countries and repatriating the soldiers to their home countries. ‘Repatriation’ here is a form of disciplining the soldiers but the limitations of such action are obvious. However the punishment meted out by the contributing country can vary from casually ignoring the incident that gave rise to such repatriation to court martial, dishonorable discharge and imprisonment. As the 2009 Report of the Secretary General notes, the Task Force on Protection from Sexual Exploitation and Abuse was established in 2005.110 It has been making sustained efforts at coming up with innovative tools to address this problem. In 2008, the Task Force brought together many experts on the area of protection from sexual abuse who came up with an agreement noting that efforts to prevent sexual exploitation Task Force would be under “four pillars: (a) engagement with and support of local populations; (b) prevention; (c) response systems, including victim assistance; and (d) management and coordination.”111

Zeid’s Report After widespread allegations of sexual exploitation and abuse in Congo, Ambassador Zeid Ra’ad Al Hussein112 was asked to investigate the allegations and also do a comprehensive review of the system and come up with recommendations. “Zeid’s 107

General Assembly resolution 57/306 of 15 April 2003/ The Secretary-General, Special measures for protection from sexual exploitation and sexual abuse, U.N. Doc. A/62/890 (June 25, 2008). Also Under-Secretary-General for Management, Administrative instruction amending administrative instruction ST/AI/1999/7, U.N. Doc. ST/AI/1999/7/Amend.1 (Mar. 15, 2006) (discussing general conditions of contracts for the services of consultants or individual contractors) cited from Suara. 109 G.A. Res. 59/287, U.N. Doc. A/RES/59/287 (Apr. 21, 2005). 108

Jointly by the Executive Committee on Humanitarian Affairs and the Executive Committee on Peace and Security, it is said to be an outgrowth of the work of the Inter-Agency Standing Committee on the issue. 111 Special measures for protection from sexual exploitation and sexual abuse Report of the Secretary-General, A/63/720. 112 Jordan’s Ambassador to the United Nations 110

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Report”, as it is commonly known, among other measures, suggested that the Model Agreement should provide that if the DPKO investigation finds the peacekeeper guilty, then the TCC or PCC should agree to forward to the competent judicial or military authority of that country. It should also agree to take action if there is a violation of standards laid down in the bulletin and it must report compliance within 120 days to the Secretary General. Further, financial accountability of those who commit these abuses is also one important suggestion. Provision for DNA and other paternity tests, so that the personnel responsible can be compelled to support the children they have abandoned, was also suggested.113

The Brahimi Analysis Noting the need to evaluate the reasons for flaws and failures of peacekeeping missions

and

to

suggest

comprehensive

reforms,

the

Secretary

General

commissioned the Report of the Panel on United Nations Peacekeeping Operations, more commonly known as the Brahimi Report, after its chairman Lakhdar Brahimi. The Capstone doctrine114 of 2008 and also the Peace Operation 2010 are seen as follow up reform measures to the Brahimi Report. The report dealt with many issues like – recommendations in relation to obligation of peacekeepers to protect the civilians, and regarding issuance of more robust mandates and better equipped forces,115 the need to have in place better consultation and cooperation mechanisms with the TCCs/PCCs etc. But the “commitment gap”116 between what has been undertaken in resolutions by the states and what they are actually prepared to devote so that adequate mechanisms can be up in place, is still a major problem. The report however does not specifically look into the issue of sexual abuse and exploitation by the peacekeeping forces and it has also been criticized for its failure to

113

The Secretary-General, Comprehensive review of the whole question of peacekeeping operations in all their aspects, U.N. Doc. A/59/710 (Mar. 24, 2005) cited from Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127. 114

United Nations Peacekeeping Operations: Principles and Guidelines, http://www.peacekeepingbestpractices.unlb.org/Pbps/Library/Capstone_Doctrine_ENG.pdf 115 James Sloan, “The use of offensive force in the U.N. Peacekeeping: a cycle of boom and bust?” 30 Hastings Int'l & Comp. L. Rev. 385. Christine Gray , Peacekeeping After the Brahimi Report: Is There a Crisis of Credibility for the UN?, Journal of Conflict and Security Law 2001 6(2):267-288. 116

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incorporate gender perspectives into it.117 Some authors feel that nearly a decade after its issuance, some of its proposals for reform still await implementation.118 But it does, while talking about Implications for peace-building strategy, highlight the importance of engagement with the local parties effective peace building. To make a “demonstrable difference” to the lives of people of the mission area, it suggested setting aside a portion of mission funds for some “quick impact projects” to improve the quality of life of people living there and also, “to help establish the credibility of a new Mission”. It also suggested that the chief advisor for these projects should be the resident coordinator/humanitarian coordinator, whose job would be to coordinate this with other development programme and also to ensure efficiency in spending.119 In 2006, five years after the Brahimi Report, the Secretary General, in his report to the general assembly outlined a reform strategy called “Peace Operations 2010”, after reflecting upon tasks, achievements and lessons learnt in the past five years, to achieve “necessary restructuring while continuing to deliver its services and meet its obligations”, sets out policies and procedures to enable the Department of Peacekeeping Operations to support peacekeeping over the next decade”

120

The key

areas slated for reform are – personnel, doctrine, partnerships, resources and organization. It suggested the establishment of conduct and discipline units at Headquarters and throughout peacekeeping operations and it also suggested new policies for selection and preparation of staff, emphasizing on “clear guidance and policies for conduct and discipline.”

Capstone Doctrine More than internal law, Capstone Doctrine is an attempt “to codify the major lessons learned from the past six decades of United Nations peace-keeping experience.”121 It

Jennifer Murray, “Who will police the peace-builders? The failure to establish accountability for participation of United Nations Civilian Police in the Trafficking of Women post-conflict Bosnia and Herzegovina”34 Colum. Hum. Rts. L. Rev. 475. 118 Alexandra R. Harrington, Esq., “Prostituting Peace: the impact of sending state’s legal regime on U.N. Peacekeeper behaviour and suggestions to protect the populations”,17 J. Transnat'l L. & Pol'y 217. 119 "Brahimi" report suggested this - U.N. General Assembly, Report on the Panel of United Nations Peace Operations, Aug. 17, 2000, U.N. Doc. A/55/305 (reviewing comprehensively the whole question of peacekeeping operations in all their aspects). Cited from Susan A. Notar, “Peacekeepers as perpetrators: sexual exploitation and abuse of women and children in the Democratic Republic of Congo”14 Am. U.J. Gender Soc. Pol'y & L. 413 120 “Peace operations 2010” Reform Strategy http://www.un.org/en/peacekeeping/documents/po2010.pdf 121 Foreword by Jean-Marie Guéhenno, Under-Secretary General for Peacekeeping Operations March 2008 117

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is a guidance document which focuses on peacekeeping operations “authorized by the Security Council, conducted under the direction of the United Nations SecretaryGeneral, and planned, managed, directed and supported by the United Nations Department of Peacekeeping Operations (DPKO) and the Department of Field Support (DFS)”. It basically seeks to clearly lay down the doctrinal foundations of these operations, keeping in mind the “shifting nature of conflict, from inter-state to intra-state conflicts” Capstone doctrine recognizes that the legitimacy of UN Peacekeeping operations depends on conduct of its personnel. It places a duty on senior leadership to ensure personnel are fully aware of the high standard of conduct expected of them. They are also to ensure that effective mechanisms are put in place to prevent such misconduct. It reiterated UN’s zero tolerance approach towards sexual and other misconduct because, unless such cases are dealt with firmly, it would undermine the “legitimacy and moral authority of the mission.” It also noted the importance of good conditions of service and other welfare arrangements, which will help keep the morale of the personnel high and also prevents instances of misconduct. It also expects peacekeepers not to become perpetrators of human rights abuses in their dealings with local population, in their public or private lives.

Recent developments: The CDU and specific regulations The Conduct and Discipline Unit (CDU) was established in the Department of Field Support in 2007 following the initial formation of a Conduct and Discipline Team in the Department of Peacekeeping Operations in 2005. It is said to be launched “as part of a package of reforms in United Nations peacekeeping designed to strengthen accountability and uphold the highest standards of conduct.”122 The CDU is responsible for maintaining oversight over all peacekeeping operations regarding disciplinary issues. It is also in charge of formulating effective training and outreach policies and if allegations of misconduct still surface, to handle them

122

Conduct and Discipline Unit, http://cdu.unlb.org/.

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effectively. Further, the Conduct and Discipline Teams (CDTs) function to address allegations of any form of misconduct by peacekeepers. 123

Further there are pocket cards provided to all peacekeepers like “the Ten Rules: Code of Personal Conduct for Blue Helmets”124 and “We Are United Nations Peacekeeping Personnel.” This latter document recognizes that “peacekeepers, representing the United Nations and present in a country to help it recover from the trauma of a conflict, “must consciously be prepared to accept special constraints” in their public and private lives in order to do the work and to pursue the Organization’s ideals. Peacekeeping personnel recognize that “expectations of the world community and the local population will be high” and their actions, behaviour and speech will be closely monitored”.125

The official United Nations Strategy The United Nations also has a “three-pronged strategy” of prevention, enforcement and remedial action specifically with regard to sexual misconduct. Regarding the first aspect, the measures United Nations undertakes are mainly training, awareness-raising activities and other preventative measures at mission level.126 In fact Kofi Annan laid special emphasis on mainstreaming gender perspectives into peacekeeping policies so as to more effectively address the problem of sexual misconduct.127 If we look at the enforcement element, once an allegation is received, the UN the Office of the Internal Oversight Services (OIOS), which is called the “independent investigative arm of the UN”, will be responsible for such investigations. Depending on the category of personnel and the gravity of the allegations, it also has the power

123

Id. This is being circulated since 1998 http://cdu.unlb.org/UNStandardsofConduct/TenRulesCodeofPersonalConductForBlueHelmets.aspx 125We are United Nations Peacekeeping Personnel, http://cdu.unlb.org/UNStandardsofConduct/WeAreUnitedNationsPeacekeepingPersonnel.aspx 126 Prevention, http://cdu.unlb.org/UNStrategy/Prevention.aspx 127 Kofi Annan, Secretary-General, Report of the Secretary-General on gender mainstreaming in peacekeeping activities, 13 February 2003 A/57/731. CF Gender and UN Peacekeeping Operations, http://www.un.org/en/peacekeeping/publications/gender_brochure.pdf . 124

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to refer the allegation to other investigative authorities. Further there is grouping of allegations into Category 1 and Category 2. 128 Lastly regarding remedial action, efforts are being made to provide assistance to victims of sexual abuse and this as agreed in the Statement of Commitment on Eliminating Sexual Exploitation and Abuse by UN and Non-UN Personnel in 2006. The General Assembly also reinforced this commitment.129

3.3. Prosecution under the ICC Statute Sexual abuses such as rape are covered under the ICC statute as both, crimes against humanity and war crimes. But there are many hurdles for prosecution of peacekeepers in the International Criminal Court, besides the viability of the idea itself being questionable. Firstly, ICC is an institution for prosecution of “internationally condemned ideas and beliefs” - it’s to take forward the tradition of prosecuting “political and military-political atrocities”, not a forum to try individual crimes, however reprehensible they are. Secondly, the acts of abuse need to be committed "as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.130 Even if the number of allegations double or triple in number, no one would be ridiculous/absurd enough to believe that there is likelihood of UN being charged of an overall scheme to perpetrate these crimes on local populations. Even if this hurdle is overcome, there are members of the U.N who are not signatories of the Rome Statute and a few countries have “unsigned” it as well, which takes us back to the problem of uneven justice/prosecution, not very different from where we are now. Further, concerns have been raised about the “over-discretion” enjoyed by the Enforcement,http://cdu.unlb.org/UNStrategy/Enforcement.aspx “Allegations of misconduct defined as Category 1 include: all SEA-related offences including rape, transactional sex, exploitative relationships and sexual abuse, cases involving risk of loss of life to staff or to others, abuse of authority or staff, conflict of interest, gross mismanagement, bribery/corruption, illegal mineral trade, trafficking with prohibited goods, life threat/murder, abuse or torture of detainees, arms trade, physical assault, forgery, embezzlement, major theft/fraud, use, possession or distribution of illegal narcotics, waste of substantial resources, entitlement fraud and procurement violations. Allegations of misconduct defined as Category 2 include: discrimination, harassment, sexual harassment, abuse of authority abusive behavior, basic misuse of equipment or staff, simple theft/ fraud, infractions of regulations, rules or administrative issuances, traffic-related violations, conduct that could bring the UN into disrepute, breaking curfew, contract disputes and basic mismanagement.” 129 Remedial Action, http://cdu.unlb.org/UNStrategy/RemedialAction.aspx This commitment is reinforced by the General Assembly resolution on the UN Comprehensive Strategy on Assistance and Support to Victims of Sexual Exploitation and Abuse by United Nations Staff and Related Personnel (2007). 130 Alexandra R. Harrington, “Victims of Peace: Current abuse allegations against U.N. Peacekeeping and the role of law in preventing them in the future” 12 ILSA J. Int'l & Comp. L. 125 (2005). 128

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Prosecutor, and the possibility of he being from the home country of the accused peacekeeper. In addition, ICC has no power to subpoena or compel witnesses testify. Though this spares poor, illiterate populate of mission states from being dragged into court, unfortunately, other military personnel, UN staff or other aid workers can also be not compelled under the statute.131 In conclusion, a brief review of the current legal regime governing the UN Peacekeeping forces shows clear absence of an accountability mechanism to hold the offending personnel liable, either in their Home State or in the host country. This situation gets further aggravated when we look at this situation in the light of privileges the forces enjoy and the near absolute immunity from prosecution ensured by the SOFA and SOMA. So it becomes imperative that we look begin looking for ways in which we can bring reform in the system and this question is looked into in the next chapter.

131

Id.

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Chapter IV - The future of Peacekeeping: suggestions for a better future It may be noted at the outset that some suggestions are meant for long term implementation while some are to be brought into force with immediate effect; some require institutional reform at a very fundamental level and as any textbook on International Institutional Law would tell us, it is not an easy goal to achieve. So other suggestions are also explored here. For instance, a single force under the Security Council argument requires greater debate and thorough overhaul of the current system; a less ambitious and more achievable alternative would be an amendment to the Model SOFA where the TCCs and PCCs agree that their contingents would be bound by USIP Codes and the United Nations acting through CDU or OIOS will be the investigating authority – after which the states will have to just implement the punishment and report compliance. Addition to model agreements has been done in the past, hence there is a precedent to support this suggestion (example - duty of TCC or PCC to train members in IHL).

4.1. Role of good leadership It is said that people are more easily led than driven132; same holds true for UN Peacekeepers. There are some who suggest that there is a need to show interest in and take seriously, the process of selecting the leadership of the Organization itself – for instance, McFerry says we should not take it as “an election that takes places every five years among a group of has-beens or also-rans, or people you don’t have the utmost confidence in.” He suggests that we stop “treating the U.N. as the place to exile people for whom there is no place in your own society or government” and pay attention to who we choose as our leaders.133 More on the issue at hand, effective leadership has been noted as an important factor in the success of the mission itself134 - it is necessary, both to reduce instances of misconduct, and to be able to

David Harold Fink, http://thinkexist.com/quotation/people_are_more_easily_led_than_driven/10584.html Ambassador Donald F. McHenry, “Peacekeeping in the post cold war era” 19 S. Ill. U. L.J. 107. 134 1)Book Review and Notes “The UN Peacekeeping : Building Peace in lands of conflicts after the cold war, by Steven R. Ratner” 90 Am. J. Int'l L. 335; 2) Colonel James P. Terry, USMC “A legal review of U.S. military involvement in peacekeeping and peace enforcement operations” 42 Naval L. Rev. 79; 3) Shane Darcy, Book Review “Ray Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and legal issues in practice, Cambridge University Press 2007” 13 J. Conflict & Security L. 293; 4) Sherene Razack, “Outwhiting the 132 133

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tackle such offences, if they still happen, with a firm hand.135 Sherene Razack, who has written extensively on peacekeeping in Somalia, also notes the importance of good leaders, especially where the peacekeepers are to operate in a different cultural setting.136 Law enforcement in general requires leadership to “disseminate the core values and core mission of their entities” to enable individuals to realize the common vision. In the words of Sara Asplund, “then they[the leaders] can make what would otherwise be empty slogans into a reality that the community can see in action…Those remarkable individuals who stand in the intersections of our society can be made powerful and positive agents for the safety and preservation of the communities to which they have been entrusted.”137 Leadership is said to be a “crucial determinant of police organizational efficacy” (in this context, efficacy of peacekeeping operations), as it helps “engage, motivate, and guide subordinates, community members, and other local officials”.138 We need strong and capable leaders in place, at all levels, with unquestionable integrity, committed to upholding human rights and those who can maintain order and discipline among the peacekeepers. By effective leadership, what is meant here is not micromanaging the affairs of the organization but setting a proper tone, showing how the job is done – in a manner that is fair, disciplined, professional and service oriented.139

white guys: Men of colour and peacekeeping violence” 71 UMKC L. Rev. 331. 5) Mats R. Berdal, “The Security Council, Peacekeeping and internal conflict after the cold war” 7 Duke J. Comp. & Int'l L. 71 – Berdal, who explored the conditions necessary for successful conflict resolution by United Nations, after a study of peacekeeping operations post-Cold War, also emphasizes on quality of personnel and the role of leadership on field (though he focuses on the leaders’ “ability to interpret mandates flexibly and use the available resources effectively”). 135 John Norton Moore, “Toward a new paradigm: enhanced effectiveness in United Nations peacekeeping, collective security, and war avoidance” 37 Va. J. Int'l L. 811. 136 Rod Jensen, Book Review “Sherene Razack, Dark Threats & White Knights: The Somalia Affair,Peacekeeping, and the New Imperialism. Toronto: University of Toronto Press, 2004” 20 NO. 1 Can. J.L. & Soc'y 225. 137Sara

Asplund, “Leadership within law enforcement: A book review on Jim Collins’ “Good to Great”” http://www.saycocorporativo.com/saycoUK/BIJ/journal/Vol1No1/Review_1.pdf. 138

Joseph A. Schafer, “Effective police leadership: experiences and perspectives of law enforcement leaders” The FBI Law Enforcement Bulletin, July 2008 http://findarticles.com/p/articles/mi_m2194/is_7_77/ai_n28002822/. 139

Supra note 138.

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As has been already noted, over the years, peacekeeping missions have become more complex and challenging, “requiring imaginative and dedicated leadership grounded in integrity and competence.”140

The 2010 Challenges Forum, on this issue,141

observed that “effective leadership by the ‘Mission Leadership Team’ (MLT) is arguably the single most important factor for the success of all peacekeeping operations.” It was noted that capable leadership in UN missions can “optimize the use of scarce resources, motivate mission personnel, set proper example for the host nation…and strengthen the credibility and reputation of the Organization.”142 Specifically regarding conduct and discipline, it has been observed by the Forum that all cases of misconduct have a negative impact on the success, image and legitimacy of the mission, “which in turn could erode consent with concomitant security implications for its personnel.” It was also proposed that the ‘MLT’ suggested should set high standards of personal behavior and take proactive measures to prevent misconduct and abuse and must investigate complaints thoroughly.

143

However,

recognizing the role of other players here, it was also observed that while MLT has a key role to play, “close cooperation with OIOS and TCC/PCCs is essential to endure good conduct and discipline”. This brings us to other suggestions. It may be noted that, competent leadership, being a precondition to the success of all missions, has to be taken as complementing all the other suggestions.

4.2. Poverty in post conflict society A long term yet the most significant suggestion, without implementing which the other reform measures lose value is – addressing the issue of poverty in post-conflict societies. What makes local population vulnerable to sexual abuse and exploitation is the fact that they live in abject poverty. Poverty, high unemployment rate, socioeconomic inequalities make these people victims of prostitution and many other Forum Draft, 15 April 2010 “Consideration for Mission leadership in United Nations Peacekeeping Operations” in Leadership, Coordination and Integration http://www.challengesforum.org/cms/images/pdf/Considerations_MissionLeadership_UNPKO_ForumDraft_1 5April2010.pdf 141 “Considerations for Mission Leadership in United Nations Peacekeeping Operations” 142 The draft cites Connie Peck, On Being a Special Representative of the Secretary-General, UNITAR, 2006 while making these observations. Forum Draft, Supra note 140. 143 Sub-section 2.2.3, Forum Draft, Supra note 140. 140

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forms of exploitation. For instance, it is noted by the Bunia Report that some even refused to cooperate with investigation authorities due to fear of losing the only source of income they have.144 Simple theories of supply and demand, higher level of income enjoyed by peacekeepers in mission areas, low education and employment rates in host countries, dire socio-economic conditions the local population suffers from, or even the willingness of parties should not become excuses for letting this exploitation go on with impunity. As it is rightly observed, "organizations in the field need to make sure that selling her body is not the only way a young girl can feed herself or her family."145 It can never be said too often that comprehensive measures to address issues of poverty in post conflict societies is the first step in bringing forth effective reform measures.146 However, as this is not strictly within the mandate of peacekeeping operations, it is not explored further here beyond noting that Mission Authorities can dedicate some funds to small but high impact projects. But it’s imperative to bring a change in a lives of the people before any meaningful reform can be brought about in this area.

4.2. The Effective Control Model There are some authors who argue that current international practice doesn’t punish the offenders as it “fails to consider the full complexity of the peacekeeper's context”, the result being a legal regime that does not properly and justly attribute responsibility on the wrongdoers. So the “effective control” model147 where victims are guaranteed access to justice is proposed to address this situation - a five-category United Nations investigation in Bunia, Office of Internal Oversight Servs., Report of the Office of Internal Oversight Services on its Investigations into Allegations of Sexual Exploitation and Abuse in the Ituri Region (Bunia) in the United Nations Organization Mission in the Democratic Republic of the Congo, P 25, U.N. Doc. A/61/841 (Apr. 5, 2007) cited from Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127. 145 Jasmine Whitebread, Chief Executive of Save the Children UK , Jonas Hagen, Fighting Sexual Exploitation and Abuse by UN Peacekeepers, UN Chronicle Online Edition (2006), http:// www.un.org/Pubs/chronicle/2006/webArticles/121306_unp.htm cited from Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127. 146 Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127. 144

Tom Dannerbaum, “Translating the standard of effective control into a system of effective accountability: How liability should be apportioned for violations of human rights by member state troop contingents serving as United Nations Peacekeepers” 51 Harv. Int'l L.J. 113 (2010). 147

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liability scheme, following the principle of "effective control" is sought to be put in place under which human rights abused by peacekeepers are categorized into (1) committed ultra vires, that is, without authorization from U.N. central command; (2) committed within the authorized sphere of discretion granted by the U.N. central command, but not pursuant to a U.N. order; (3) committed pursuant to an order from U.N. central command where the human rights abuse in question is also a war crime; (4) committed pursuant to an order from U.N. central command where the human rights abuse in question is not also a war crime; or (5) committed as a "forced omission" where the troops were not given the adequate support or resources to avoid the wrongful omission.148 Once this categorization is done, we need to look into the question of which entity was exercising “effective control” when the offence was committed. Tom Dannerbaum proposes an interpretation where the a question different from what has conventionally been asked and looked into is posed, i.e., “the question is not simply "who gave the orders?" but rather, "given the command and control authority and responsibility with which each entity was endowed, and given the de facto actions that each took, which entity was positioned to have acted differently in a way that would have prevented the impugned conduct?"149 He feels that the answer should determine whether the United Nations or the TCC had effective control over the wrongful conduct, and accordingly that entity should be held liable. That is, to summarise his definition, effective control is “held by the entity that is best positioned to act effectively and within the law to prevent the abuse in question.”150Based on, what he feels to be this revised understanding of the prevalent conception of "effective control", he goes on to attribute responsibility either to the TCC/PCC or to the UN, depending on which category the offence falls under.151 The researcher agrees with the conclusion arrived regarding the effective control model that this proposed scheme of liability would reduce the incidence of Id. Supra note 147. 150 He feels that his interpretation of the "effective control" standard as it is applied to the question of liability for peacekeeper abuses is both the interpretation most consistent with principles elaborated in the ILC Commentary and also the interpretation most narrowly focused on ensuring that liability tracks genuine responsibility for the wrongdoing. Defined succinctly, "effective control," for the purposes of apportioning liability in situations of the kind addressed by Draft Article 5, is held by the entity that is best 151 category (1) abuses fall under the sole legal liability of the troop-contributing state(s) in question; categories (2) and (3) abuses fall under the joint and several liability of the United Nations and the troop-contributing state; and categories (4) and (5) fall under the sole legal liability of the United Nations. 148 149

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human rights violations and also, when such violations do occur, by providing better recourse to remedy.

4.3. Stricter training in the Home State before deployment as a preventive measure Institutions generally take up responsibility to train troops to ensure efficiency, high standards of performance and conduct. The feeling is that, responsibility, at least on the proactive side of it, ends there. But it has to be understood that the real duty is to post civilized, sensitive, sympathetic and law-abiding personnel – how that standard of conduct is ensured, either through training or screening or through some other process is a matter internal to the institution itself i.e., the institution itself has to decide. Weak legal and socio-legal systems in the host state and the added extreme vulnerability of local population of the Mission state – both encourage misconduct, especially sexual abuse and exploitation. As one author very aptly noted: “Sexual violence happens during war for the same reasons it happens during peacetime. It is a phenomenon rooted in inequality, discrimination, male domination, poverty, aggression, misogyny and the entrenched socialization of sexual myths. Therefore, the real solution to the problem is the eradication of cultural norms that undermine the dignity of women… At this stage, such a solution is a long-term strategy. In the meantime, we have to deal with the victims of sexual abuse and exploitation in missions and find other possible solutions. The impunity that exists reflects and reinforces the inequality and cultural norms that acquiesce to the inevitability of violence against women.”152 Security Council has adopted Resolution 1325 on Women, Peace and Security in 2000 which is seen as a very progressive and significant step towards the “incorporation of a gender perspective into peace operations”. It recognises the need to uphold human rights and humanitarian law regarding protection of women during conflicts and afterwards. It requested the Secretariat to training guidelines on gender-sensitive peacekeeping and also work on incorporating gender issues in its

152

Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127.

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departments and operations.153 The UN in general and the DPKO in particular have taken various measures in this regard, as discussed in the previous chapter. But unfortunately, allegations of misconduct are still coming to light. As long as such misconduct continues, one inference that can certainly be drawn is that, on the part of the institution, there is clear scope to do more. It is imminent that various alternatives are explored and some more efficient mechanism be put in place. If we take a look at the top five Troop Contributing Countries and Police Contributing Countries – as it can be seen, most of them are from Asia.154 The researcher feels that one such system could be setting up of a regional training institute to have special focus on the troops of this region. This leads us to the next suggestion of having stricter screening procedures and more comprehensive pre-deployment training programmes.

4.4. Setting up of a Screening Body One important step that needs to be taken immediately is thorough screening of all officers – both military and police military, before they are allowed into the mission areas. It has been suggested155 that top financing states to peacekeeping operations or/and members of the Security Council can form the Screening body. Its job is to ensure that adequate provisions exist in TCCs and PCCs to bring accused peacekeepers to book, to make sure sexual violence is a crime which the state gives primacy to in addressing, to verify whether that country’s military has been engaged in perpetration of human rights violations in the past and also whether proper training on sexual misconduct and gender sensitivity has been given to the troops before sending them. Those states that perform poorly in the screening, or whose failure on one of the above counts led to misconduct by its troops, or they failed to take action against

Murray notes that, in contrast, the Brahimi Report failed to incorporate a gender perspective into its review of U.N. peace operations. "The Brahimi Report proved to be yet another example of how gender issues have been treated throughout the history of the organization: so-called 'women's issues' have historically been marginalized from the mainstream activities of the U.N.regardless of the obvious gendered implications." Louise Olsson & Torunn L. Tryggestad, Introduction to Women and International Peacekeeping 1, 1 (Louise Olsson & Torunn L. Tryggestad eds., 2001) cited from Jennifer Murray, “Who will police the peace-builders? The failure to establish accountability for participation of United Nations Civilian Police in the Trafficking of Women post-conflict Bosnia and Herzegovina”34 Colum. Hum. Rts. L. Rev. 475. 153

Alexandra R. Harrington, “Victims of Peace: Current abuse allegations against U.N. Peacekeeping and the role of law in preventing them in the future” 12 ILSA J. Int'l & Comp. L. 125 (2005). 155 Id. 154

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errant peacekeepers, may be suspended till they are willing to undergo stringent review before being allowed to contribute personnel again. There would be periodic revaluation of troops’ behavior and also domestic situation which may adversely affect their conduct. This Body can have offices at every mission head quarters which will monitor and take note of misconduct immediately and take measures to curb such behavior. It is also suggested that these offices can perform victim assistance function, recommended by Zeid’s Report. Further the Screening body may have the right to seek compensation from TCC or withhold payment in case it refuses to cooperate with the ongoing investigations.156 Suggestions which further expand functions of this body have also been made – oversight of all activities of peacekeepers including their interaction with the local population, educating them about improper behavior by peacekeepers and the reporting procedure in case they fall victim/prey to it etc.157 Mandatory collection of DNA samples is also suggested, so that “peacekeeper babies” can be supported and taken care of by the peacekeepers themselves after establishing paternity. Though this may raise privacy issues and will face strong resistance from adherents of libertarian tradition, in the interest of vulnerable population of mission country who are victims of the very same people who pledged to protect them, such measures have to be taken.

158

In addition to this, a DNA sample on file may even

have a deterrent effect as it makes it less likely for peacekeepers to engage in such conduct as to leave behind their offspring in the mission areas and also helps in curbing transmission of HIV and other sexually transmitted diseases. In spite of the hue and cry raised about insufficient training given to the troops before posting them in mission areas, many TCCs and PCCs still continue to be in a state of apathy when it comes to training its troops. They are made to go through nominal training which does not constitute a sincere attempt to sensitize the troops on gender issues. A short survey was conducted among peacekeepers of Haiti in November 2009, primarily on three questions – whether they were informed of UN’s policy on misconduct by peacekeepers as a part of their training before deployment Alexandra R. Harrington, Esq., “Prostituting Peace: the impact of sending state’s legal regime on U.N. Peacekeeper behaviour and suggestions to protect the populations”,17 J. Transnat'l L. & Pol'y 217. 156

157

Alexandra R. Harrington, “Victims of Peace: Current abuse allegations against U.N. Peacekeeping and the role of law in preventing them in the future” 12 ILSA J. Int'l & Comp. L. 125 (2005). 158 Id.

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(if yes, they were asked to provide details like duration of training, content, impact on their attitude, performance etc.); once in mission area, did the Mission authorities impart initial training or conduct specific training subsequently; finally, as a lot of allegations have come to light regarding sexual exploitation and abuse, they were also asked to answer whether any specific gender training module or one training on sexual misconduct was given either by the Home Country or once after they reached the Mission areas. The results showed that except the USA contingent no other country’s troops are given training about gender issues while coming to the Mission. Also U.S. gives training in gender issues for every 6 months.159 The Canadian and French officers also were given more or less the same training but not before the mission but in their regular training. All other countries’ troops listed are not given any specific training regarding gender issues. Once they are deployed in the mission area, though there is a session about gender issues, it is not an elaborate course. But there is online training and an online exam introduced by DPKO, which is must for all the UN staff and some felt that it is exhaustive and comprehensive. Though the scale of the survey is very limited, what is interesting is, it still fits within the different categorizations suggested for screening of TCCs. For instance, Harrington, after studying laws affecting peacekeepers of various countries, came up with a categorization to define the “legal and socio-legal structures of sending states which have contributed to errant peacekeepers”, based on trends in law, justice, societal traits and politics. This, she feels, helps in separating states whose forces do not pose a threat to the people of mission area and also acts as a “predictor” for states who want to contribute forces in the future. Though this system may be unfair on a few nations, she feels that, in the light of what is really at stake – the moral legitimacy of the UN itself, it is justified. She divides contributing nations into three categories – 1) Infrequent offenders160, i.e., states where such misconduct is “abhorrent… on a legal, social and military level”. This category, she notes, going by their history in peacekeeping operations and also their socio-legal structures, should be allowed to continue contributing

(where they will be informed how to respect the female colleagues and also female officers are given training as how to work as police officers with all kinds of jobs like men) 160 Author gives the example of members of NATO who have been contributing troops for many decades. 159

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troops. 2) Frequent or chronic offenders with legal gap,161 i.e., where there is a “marked disparity between law and socio-legal views on law and its application”. As we cannot predict how prosecution will be in these states simply on the basis of statute books, there should be monitoring and supervision both of the troops sought to be send and also further developments taking place in the country. 3) Chronic offenders with little law162 i.e., their current legal system does not protect victims of sexual violence and perpetrators usually have a free hand. It has to be emphasized that this is only one categorization. Also, some indicators used for such classifications can be reexamined (for instance – presence of refugee camps in the state). The idea is to show that such guiding factors do exist and that, with further research and analysis, they can be developed further. Though a strict screening procedure would reduce the number of personnel available for peacekeeping operations initially, placing quality over sheer quantity, this difficulty must be out up till an effective system becomes operational. As it is said, it’s not just about sending “a mass of people to conflict prone areas”. The idea of peacekeeping forces under the mandate of the U.N. is that they will overpower countries by use of force; so emphasis has to be placed on higher principles like legitimacy and moral authority of the United Nations.

4.5. Trusteeship Council After the end of Cold War, UN has also been focusing on “internal state collapse” in addition to interstate conflicts and the nature of peacekeeping has also changed over the decades – the troops now have the additional responsibility of peace-building efforts – helping state recover from the conflict and help them with reconstruction efforts so that recurrence of conflict can be prevented. There are some who find Security Council still remaining in charge of these operations problematic- it raises questions of legitimacy and accountability and hence they suggest splitting of Some characteristics of these countries that are listed out are – reliance on use of military against its own people. Frequent human rights violations within the country, vague military laws which tend to be silent on sexual violence (or just consider it under “conduct unbecoming of an officer”, low social status for women, parallel court systems, both governmental and religious, presence of refugee camps etc. – examples of countries are , Bangladesh, Pakistan, Sri Lanka, Uganda etc. 161

162

Harrington feels that these countries “evince a fundamental lack of primacy for issues involving sexual violence”. They depend upon their military to fight rebel groups within the country on a regular basis and they have many refugee camps within their borders. Examples of countries with fall under this category are Nepal, Benin, Ghana, Guinea, Togo etc.

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responsibility of managing these peace operations. Cogent legal arguments for overcoming hurdles posed by the charter (for eg., Article 78) are also made.163 Some see problems with Security Council authorized and supervised peacekeeping operations. For one, they see these operations blemished with fundamental questions of legitimacy. Further, there’s the question of accountability - its actions are reviewed only by itself. The inputs that go in into its decision making process are felt to be limited. So it is felt that “review by the Trusteeship Council and General Assembly, in contrast, would hold peace-building operations accountable to a greater constituency within the UN”. Also, proponents of Trusteeship Council taking over peace building operations feel that it would promote better accountability for abuses by peacekeepers if command over handed over to the Trusteeship Council.164 Right now, peacekeepers are effectively responsible only to their Home countries. Despite various calls for reform, it has continued to remain so. So it is felt that as an alternative to the Security Council which has “no built-in mechanisms to ensure accountability in peace operations”, the Trusteeship Council could be considered, as there are mechanisms in the U.N. Charter and also in Trusteeship regulations to ensure accountability. For instance, Saira Mohamed points out that, Articles 87 and 88 of the Charter establish oversight mechanisms to ensure proper administration of trust territories and if we make them applicable in case of peacekeeping operations, we can ensure a “more intrusive monitoring of missions and thus more protection for host populations.”165 This is very briefly the argument for revitalizing the Trusteeship Council, as it offers “superior mechanism to manage the governance functions” of peace operations of the United Nations.

Saira Mohamed, “From Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council” Columbia Law Review, Vol. 105, No. 3 (Apr., 2005), pp. 809-840 164 Id. 165 Elaborating on this issue, Mohamed notes that firstly, administering authorities have a duty to submit reports on the trust territories to the General Assembly and Trusteeship Council, which use these as the basis for evaluation of petitions (petitions can be submitted local population of the trust territory or other parties). Both these bodies are bound by law to review it. Further both bodies have the power and authority to make periodic visits to the trust territory. Lastly, she also notes that the Trusteeship Council has to prepare a survey on political, economic, social, and educational advancement and protection of human rights in the trust territory. Based on this survey, the administering authority also has the duty to place an annual report before the General Assembly. 163

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4.6. An International Convention to hold peacekeepers liable or a UNSC Resolution similar to the one on terrorism As we have seen till now, the problem at hand is one which requires to be handled at both domestic and international level. More importantly, the only real solution lies in a long term comprehensive strategy of poverty alleviation, and “eradication of cultural norms that undermine the dignity of women” and providing economic opportunities to vulnerable women. However to tackle with the problem in front of us immediately, we have to make do with other alternatives. As the legal and social structures of conflict struck regions are already often destroyed, it if felt by some authors that one way to deal with the question of how to end impunity is to create “multiple opportunities for prosecution”. For this, what is required is a law in every state to criminalise misconduct by peacekeepers. To ensure such laws are in place and courts have jurisdiction to try such offences, it is suggested that a Security Council Resolution “requiring states to both criminalize prohibited conduct under the Secretary-General's Bulletin and confer such jurisdiction on their courts”. Precedent also exists for such a Resolution – Ndulo gives the example of Security Council Resolution on combating international Terrorism immediately after the 9/11 attacks,

166

under which states have a duty to make terrorist acts serious offences

within their territory. It was also decided under the Resolution that a Committee to monitor implementation of the Resolution will be set up and all states were called to report adoption of the Resolution within three months.167 If the SC passes a similar resolution, it can ensure that all contributing have mechanisms put in place to hold its troops accountable in case they become perpetrators of abuse/violations, as under Article 25 of the U.N. Charter, all member states agree to “accept and carry out decisions of the Security Council…” 166 S.C.

Res. 1373, U.N. Doc. S/RES/1373 (Sept. 13, 2001) cited from Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127. Paragraph 6 states that it has been decided “to establish, in accordance with rule 28 of its provisions rules of procedure, a Committee of the Security Council, consisting of all the members of the Council, to monitor implementation of this resolution, with the assistance of appropriate expertise, and calls upon all States to report to the Committee, no later than 90 days from the date of adoption of this resolution and thereafter according to the a timetable proposed by the Committee, on the steps they have taken to implement this resolution". Cf Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127. 167

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Ndulo argues that under the authority of this resolution, mechanisms can be worked out to reduce impunity, promote uniformity in handling abuse and exploitation, providing at least financial assistance to children of peacekeepers through child support orders, as a part of victim assistance suggested by the Report of the Special Committee on Peacekeeping Operations and its Working Group in 2007168

4.7. A Force under the UNSC where troops no longer represent their home countries To foster greater accountability and coordination between mission commands, suggestions have been made for carrying out peacekeeping operations directly under the command and control of UN Security Council (“joint command premised on the Joint Chiefs of Staff model used by the U.S. military”). Instead of member states volunteering their forces, UN itself would directly recruit both military personnel and civilians as peacekeepers from around the world, who would agree to be governed by a military court. This solves two problems- one, of what has been termed as “uneven” justice problem, and two, will ensure punishment as there will be no question/fear of some peacekeepers escaping punishment in tribunals of home country. The United Nations and the Security Council in specific have the task of “maintaining international peace and security”.169 Arguments have been advanced that the current structure of peacekeeping forces is only from one inference of what the framers of the Charter really intended and a literal reading, i.e., “not a stretch of imagination”, of the language of the Charter points towards creation of a standing military body. Because of the Cold War, it was felt that the idea of a “standing military force under a joint command would not be feasible”170 and hence the current structure is adopted, after re-examining the Charter.

General Assembly, Report of the Special Committee on Peacekeeping Operations and its Working Group on 2007 resumed session, U.N. Doc A/61/19 (Part III) (June 12, 2007) cited from Muna Ndulo “The United Nations responses to the sexual abuse and exploitation of women and girls by peacekeepers during peacekeeping missions” 27 Berkeley J. Int'l L. 127. 169 Alexandra R. Harrington, “Victims of Peace: Current abuse allegations against U.N. Peacekeeping and the role of law in preventing them in the future” 12 ILSA J. Int'l & Comp. L. 125 (2005). 168

170Alexandra R.

Harrington, “Victims of Peace: Current abuse allegations against U.N. Peacekeeping and the role of law in preventing them in the future” 12 ILSA J. Int'l & Comp. L. 125 (2005).

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Reliance for this statement is placed on Article 47 of the Charter which speaks of establishment of a Military Staff Committee which is to advise and assist the Security Council regarding military requirements, employment and command of forces placed at its disposal etc.

171

Further, Article 47 states that the “Military Staff Committee

should consist of the Chiefs of Staffs of permanent members of the Security Council…” This article also makes the Committee responsible under the SC for strategic direction of armed forces placed at the disposal of SC. Proponents of this argument even feel it’s a failure of those with the administrative charge under the Charter to protect both – the intent of the charter itself and also people of mission areas to whom peacekeepers are perpetrators of crimes i.e., victimizers.

171

This works in conjunction with the article 43 provisions requiring that the members of the UNSC provide military forces and other resources to the UNSC for the international peace and security mission.

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Chapter V: Final Question: which law? Proposal regarding Drafting of a Model Code by the U.S. Institute of Peace

A short but very significant question still remains to be answered – which law to apply? Kofi Annan in his address to the General Assembly in late 2004, noted that, “It is by reintroducing the rule of law and confidence in its impartial application that we can hope to resuscitate societies shattered by conflict.”172 It is proposed in this paper that the United States Institute of Peace (USIP) draft a model code for peacekeepers. To briefly provide a background of USIP, it is a body engaged in peace-building efforts worldwide both directly and indirectly through carrying out extensive research and supporting policymakers through coming up with thorough analyses, policy options and advice. One of its main aims is to increase conflict management capacity worldwide which the Institute does through its publications, working groups etc., recent ones being the Iraq Study Group, Task Force on the United Nations, and standing working groups on Afghanistan, Cote d'Ivoire, DRC, Haiti, Iran, Iraq, Korea, Liberia, Syria, and Sudan.173 It has also published Model Codes for Post-Conflict Criminal Justice, which are a “valuable law reform tool” for post conflict societies. Their potential uses are “manifold” depending on the country in question – they can act as platform for discussions, or as inspiration for framing new laws for the post-conflict state. Human rights norms, international treaties and criminal law standards are integrated into the provisions of these Model Codes. To guide police operating in the conflict environment, Police Act, Transitional Law Enforcement Powers Act (more similar to civil law systems), standard operating procedures and also commentaries on the codes were brought out by USIP.174

Keeping in mind the difficulties arising in post conflict societies regarding questions of “applicable law” (a fact noted by the Report of the Secretary-General on “Justice Address of the United Nations Secretary-General, Kofi Annan, to the General Assembly (21 September 2004) (available at www.un.org/apps/sgstate.asp?nid=1088). 173 Model Codes for Post-Conflict Justice, http://www.usip.org/programs/initiatives/model-codes-post-conflictjustice 174 Id. 172

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and the Rule of Law: The United Nations Role” in August 2003, and in the 2000 report entitled “Report of the Panel on UN Peace Operations” (more widely known as the “Brahimi Report”)) and the fact that the existing laws may not comply with minimum international standards of human rights and criminal law or there is a pressing need to reform the discriminatory or outdated laws of the previous regime and also the redundancy/ futility of “effectively re-inventing the wheel each time”.175 Coming up with a Model Code for peacekeepers will hopefully be a less exhausting task, as its scope is limited when compared to the all-encompassing idea of a code for “post conflict justice”.

175

Vivienne O’Connor, “Model Codes for post Conflict Criminal Justice” Workshop 2 organized by the International Centre for Criminal Law Reform and Criminal Justice Policy Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, Thailand, 18-25 April 2005.

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Conclusion “The perceived legitimacy of a United Nations peacekeeping operation is directly related to the quality and conduct of its military, police and civilian personnel. The bearing and behavior of all personnel must be of the highest order, commensurate with the important responsibilities entrusted to a United Nations peacekeeping operation, and should meet the highest standards of efficiency, competence and integrity. The mission’s senior leadership must ensure that all personnel are fully aware of the standards of conduct that are expected of them and that effective measures are in place to prevent misconduct. Civilian, police and military personnel should receive mandatory training on sexual exploitation and abuse; and this training should be ongoing, as troops rotate in and out of peace operations. There must be zero tolerance for any kind of sexual exploitation and abuse, and other forms of serious misconduct. Cases of misconduct must be dealt with firmly and fairly, to avoid undermining the legitimacy and moral authority of the mission.” -Capstone Doctrine176

Today, it is imperative that we should analyse concepts of immunity and impunity together. What we have seen all along till now are the many inconsistencies and challenges to the legal regime of immunities that peacekeeping forces operate within; the author has carefully scrutinized the immunities enjoyed by peacekeeping forces along with its repercussions they have on holding the personnel accountable for human rights abuses and other cases of grave misconduct and has attempted to arrive at a combination of immunities and privileges coupled with efficient accountability mechanisms which will both, help UN to bring peace and harmony to conflict-torn zones around the world, and also, when the peacekeepers become perpetrators, bring them to justice and restore trust in the legitimacy and neutrality of the UN as the vanguard of hope, peace and wellbeing.

176

United Nations, “Capstone Doctrine” http://www.peacekeepingbestpractices.unlb.org/Pbps/Library/Capstone_Doctrine_ENG.pdf

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The author has looked into the debates regarding how the Safety Convention177 would affect the responsibility of the Peacekeepers for misconduct. The Convention was adopted as UN forces and other personnel have often been the victims of hostile action in Mission areas. This expanded and updated the privileges and immunities of UN "agents" under previous treaties.178 They are anyway covered under Article 105 of the UN Charter and also the 1946 Convention on the Privileges and Immunities of the United Nations, being "international agents," i.e., persons who have been "charged by an organ of the Organization with carrying out, or helping carrying out, one of its functions - in short, any person through whom it acts” as held in the Reparation for Injuries case.179 They are thus protected by article 105 of the UN Charter and by the 1946 Convention on the Privileges and Immunities of the United Nations.180 It has also been noted that though they may be considered "civilians" worthy of special protection, “they are not mere passersby… They belong to a public organization with a mandate involving actions in the thin line between war and peace.”181 Further, it has also been noted that most problematic of immunities is those provided by SOFA and SOMA which are no doubt influenced by the general tone and scheme of the Privileges Convention. This paper has attempted to provide suggestions which can address this problem. Most of the submissions looked into here are not in exclusion of one another but they are to complement other suggestions i.e., they have to be read and considered together to make the regime truly comprehensive so as to make the “zero tolerance” approach of the U.N. a reality. They include long term suggestions without implementing which it becomes a half-hearted appeal to propose only short term policies. In addition, some independent proposals which have received support of various academicians like, revitalizing the Trusteeship Council or forming a peacekeeping force directly under the Security Council, are also looked into. Though

177

Convention on the Safety of United Nations and Associated Personnel E.g., Convention on Privileges and Immunities of the United Nations, supra note 28; see also Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167 Cited from Suara. 179 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 177 (Apr. 11). 180 Ray Murphy, :United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?”, 14 Crim. L.F. 153, 159 (2003). 181 Supra note 10. 178

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they are considered neither practical nor feasible in today’s scenario, they are mentioned so as to present the broad range of proposals made till now. Further, the indispensable centrality of able leadership to the success of any peacekeeping mission has also been emphasized. The author, after the review of current literature, suggested that, in addition to implementing other proposals made till now, the United Nations should give serious thought to framing and adoption of Model Codes which will govern the conduct of peacekeeping forces when they are in Mission Areas; he feels that more than any other suggestion made till now, this would be the best guarantee the UN can offer against peacekeepers becoming perpetrators by abusing their immunities.

It is apt to conclude by saying that the special and protected status does not in any way lessen peacekeepers’ obligation to comply with rules. As Professor Greenwood notes regarding peacekeeping operations, “their legal basis is rooted in the consent of the states on whose territory each force operates and not in the provisions of Chapter VII of the Charter."182 If this consent, or more accurately, legitimacy is compromised, a day might come when the world community will in fact regard the UN of unworthy of governing them.

182

Christopher Greenwood, “ International Humanitarian Law and United Nations Military Operations,” 1 Y.B. Int'l Humanitarian L. 3, 10 (1998).

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/chilukuri