Peacekeeping Operations and Accountability

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Introduction

Peacekeeping Operations were established by the United Nations to help maintain international peace and security. This article discusses the founding principles of these operations as well as the application of International Humanitarian Law to peacekeeping missions. Its focus, however, is on accountability for violations committed by peacekeepers analysing in turn Status of Forces Agreements and the law applicable. While the article discusses the merits of peacekeeping missions, it also critically evaluates those conducted in Somalia and Bosnia. It concludes with recommendations to ensure the effective implementation of IHL in peacekeeping missions.

Background to Peacekeeping Operations

According to Article 1(1) of the UN Charter, the maintenance of international peace and security is the duty of the United Nations.¹ To achieve this, in 1956, the United Nations Security Council was delegated the powers of conducting peacekeeping operations throughout the world.² These operations fell under either Chapter VI of the UN Charter, relating to the “Pacific Settlement of Disputes” which directs that to defend collective security, certain mechanisms have to be developed,³ or under Chapter VII of the Charter, which entrusts the Security Council with the power to commence military actions in response to threats to peace, breaches of the peace, or acts of aggression.⁴

Peacekeeping operations are to uphold the rule of law; build security institutions; promote human rights; empower women and vulnerable groups; protect civilians; prevent conflicts, and provide operational support to the conflict-affected countries.⁵ These operations follow three main principles:⁶

consent of the belligerent parties in a written agreement
impartiality
force to be used only in self-defence or for defending the mandate authorized by the United Nations Security Council

The mandates of the Security Council set out the direction and tasks of the peacekeeping mission and these are sometimes based upon the nature and content of the peace agreement⁷ signed by the parties to the conflict.⁸ The Secretary General functions as the head of the peacekeeping forces and appoints the force commander known as the chief military observer or a special representative known as the chief of mission – in charge of the military and political command to select the rest of the troop members. However, such troops will be subject to their national laws as sending states hold disciplinary power against their actions.⁹

Laws that Apply to Peacekeeping Missions

Peacekeeping missions are governed by the Charter of the United Nations, the Universal Declaration of Human Rights, Security Council mandates and International Humanitarian Law.¹⁰ IHL protects civilians, non-combatants, victims of an armed conflict and also safeguards the cultural property and humanitarian organizations. It is therefore applicable in peacekeeping missions which usually take place in conflict-affected zones where civilians are under constant threat of being targeted. Generally, the UN is subject to customary international humanitarian law while Member States are governed by their acceded and ratified IHL instrument.¹¹

On 6^th August 1999, the Secretary-General’s Bulletin: Observance by United Nations forces of International Law¹² was issued. This bulletin set out all fundamental rules and principles of IHL applicable to peacekeepers whilst they are engaged as combatants in situations of armed conflict, or they act as peace enforcers, or in the capacity of peacekeepers they act in self defence. It also states that in case of violations of international humanitarian law, members of the peacekeeping troop will be prosecuted in their national courts. In the year 2000, the Report of the Panel on UN Peace Operations or the Brahimi Report¹³ was issued which also upheld IHL and its application to peacekeeping forces.

Accountability for Peacekeeping Operations

When peacekeeping personnel commit crimes or unlawful acts, the UN can waive their immunity and refer them to Member States for criminal prosecution. However, while this sounds good in theory, practically speaking there have been no emerging cases where the UN has actually waived the immunity of its staff. This is because there is rarely evidence available against peacekeeping forces and access to victims is also limited. Another reason is that the penal codes and their legal interpretations for various crimes differ between states. If peacekeeping forces fail to protect civilians, it is difficult to hold them legally accountable, because there are unclear guidelines on the legal obligation to act for the protection of civilians. For example, in the case of Mothers of Srebrenica which related to the failure of the peacekeepers to protect Bosnian civilians, the UN declined to accept failure on its part and asserted its immunity in Dutch courts.¹⁴

The Status of Forces Agreements (SOFAs) and Status of Mission Agreements (SOMAs)

Status of forces agreements (SOFAs) or status of mission agreements (SOMAs) may also be signed between the United Nations and sending states.¹⁵ These are bilateral or multilateral agreements dealing with the movement of forces, carrying of arms, taxation, settlement of claims, and procedures to exercise civil or criminal jurisdiction over peacekeepers.¹⁶ These agreements also mandate the rules and procedures of cooperation between the sending state and receiving state, and also highlight the privileges and limitations of the peacekeeping forces.¹⁷ The UN signs SOFAs or SOMAs with sending states to deploy peacekeeping forces to a war-torn or disputed territory. In many ways, these agreements are equivalent to diplomatic or consular immunity agreements as they confirm the principle of immunity which is originally derived from customary international law. These agreements also relate to state responsibility, human rights and international criminal law. The content of every agreement is likely to be unique. The UN Model SOFAs or SOMAs are used as a standard procedural document, with necessary changes made for peace operations conducted by the European Union, African Union, North Atlantic Treaty Organization, etc. The SOFAs for peace operations are time-limited but can be renewed.¹⁸ They can be legally binding instruments which must be signed and ratified by the parties. They can also be an expression of political commitment in the form of a Memorandum of Understanding or an Exchange of Diplomatic Notes.¹⁹

Peacekeeping forces enjoy sovereign immunity from legal proceedings in the receiving state to ensure an unimpeded peacekeeping performance. This immunity is derived from the principle of state sovereignty recognized by customary international law. Its immunity does not, however, extend to the crimes or wrongful acts committed by forces of a sending state nor does it limit accountability by the sending state. It only prevents the host state from directly adjudicating against the peackeeping force over its alleged crimes.²⁰ The SOFA and SOMA negotiations identify the extent to which the domestic law of the host state applies to a foreign visiting peacekeeping force.²¹ If peacekeeping members are suspected to have committed an offence or crime, they can be held accountable by the national courts of the sending state. The sending state has the exclusive right to exercise full jurisdiction over its military and civilian personnel. However, if the sending state waives off its member’s immunity, then the host state may exercise its jurisdiction and indict such members. The UN can take administrative actions against such members by repatriating, reprimanding, or terminating them, but the criminal processes are the responsibility of the sending state.²² The UN Model SOFA confirms that the sending state has exclusive jurisdiction in criminal, disciplinary and civil issues in peace operations and this provision has never been waived in practice.²³ In Mothers of Srebrenica et al. v. the Netherlands and the United Nations,²⁴ the Hague Court of Appeal ruled that the UN should not be brought forth in a Dutch court due to the principle of immunity granted to UN personnel and extended this immunity to the Netherlands.

Constructive Criticism on Peacekeeping missions

The UNSC authorized the United Nations Operation in Somalia (UNOSOM I) when a civil war broke out in Somalia in the year 1992.²⁵ The Council then expanded UNOSOM 1’s mandate, which was to protect the cease-fire and deliveries of humanitarian aid, by first creating a unified task force (UNITAF) that delegated powers of enforcing peace to the U.S. Central Command and forces from other States. It also authorized the second stage of UNOSOM – the UNOSOM 2 which enabled peacekeeping forces to prevent violence by seizing arms from all unauthorized armed personnel, protecting humanitarian personnel, and controlling the movement of heavy weapons. The authority granted to the parties to the conflict was mostly unchecked and peacekeeping forces were alleged to have committed violations of IHL. Human Rights Watch criticized the UN for the infringement of IHL by its peacekeeping troops in Somalia. The authorized U.S. Central Command and other peacekeeping observers of the UN refused to share the identity or number of Somali casualties resulting from the intervention by UN forces. Under UNOSOM 2, the Somali police were reestablished to investigate and assist in the prosecution against those who attacked UN troops but the police had no jurisdiction over peacekeeping forces from twenty-one different countries which was then again an unfair implementation of IHL.²⁶ On account of the leaked photographs²⁷ revealing the Belgian paratroopers’ abusing Somalis, fifteen paratroopers were put on trial but many of them were acquitted. These paratroopers were photographed “roasting” a Somali boy over a flaming brazier and were given jail time for only a month and fined a paltry £200 in a military court in Brussels.²⁸ Two Italian generals also resigned when photographs of a peacekeeper raping a Somali woman surfaced in magazines.²⁹ In Canada, however, the convicted Canadian peacekeepers were court-martialed and the entire Canadian airborne regiment was disbanded.³⁰

In 1995, the Dutch peacekeepers in Bosnia failed to stop the massacre of 8000 Muslim men in Srebrenica. Under the watch of UN peacekeepers 350 men were turned away from the Dutch base who came there to find refuge in the so-called ‘safe area’, which resulted in their mass execution. The Bosnian Serbs committed rape, extortion, trafficking, mass executions, dacoits, and acts of terror against the civilians whilst UN peacekeepers failed at protecting them.³¹ HRW urged the international community to investigate the role of UN peacekeeping troops and take disciplinary action against those who destroyed or withheld information that could have provided evidence of human rights abuses.³² The Mothers of Srebrenica is a foundation which represents the interests of the surviving relatives of those who were killed at Srebrenica. This foundation pursued a case against the UN peacekeepers and the sending state – the Netherlands. The UN was not held liable due to its immunity from jurisdiction of the Dutch domestic court. The Netherlands Supreme Court held the Dutch State liable for only 10% of the damage incurred.³³

The Secretary-General’s Bulletin and the Brahimi Report do not address these crucial questions: How can the UN ensure effective compliance of IHL by its peacekeeping forces? And how can contributing states’ national courts guarantee the victims of abuse at the hands of the UN forces their right to redress? Despite the accusations of misconduct against peacekeeping forces, rarely, if ever, are they prosecuted for violating IHL.

Recommendations

It is crucial for the effective implementation of IHL in peacekeeping operations that there exist accountability mechanisms to ensure responsibility for IHL violations by peacekeeping forces.³⁴ As also advised by the HRW, the UN must educate them on the principles of IHL in order to more effectively protect civilians.³⁵ This is to avoid situations like those which arose in the case of Somalia, where there existed no central government that could pursue a claim under state responsibility for violations of IHL.³⁶ Breaches of IHL often take place in destabilized regions with little executive capacity to counter such offences and few legal options available to adjudicate against the offenders in national courts. Also, the peacekeeping forces mostly hail from developing countries, whose legal and executive institutions are still under a process of development, cannot handle such cases of abuses nor provide compensation to the victims as required under Article 3 of the Hague Convention.³⁷ In 1991, the UN established a compensation commission for the damages arising in the armed conflict between Iraq and Kuwait.³⁸ Such commissions, if established, would compensate victims. In 2000, the United Nations Mission in Kosovo (UNMIK) incorporated an ‘ombudsperson’ in its peacekeeping mission to Kosovo.³⁹ The ombudsperson is responsible for “monitoring, promoting and protecting the rights and freedoms of Kosovo residents.”⁴⁰ It receives complaints against infringements of IHL and IHRL⁴¹ conducted by the UN or the states involved and advocate against them. It also makes recommendations in accordance with IHL and publicizes its working in the form of reports. Such ombudspersons could be appointed in order to counter IHL violations. But such an ombudsperson should be free from political influence and should be authorized to ensure compliance of IHL on all individuals and legal entities operating in peacekeeping regions without interference from member states.

Conclusion

There are many procedural deficiencies to peacekeeping operations and the UN should take notice of the lacunae existing in the regulation of peacekeeping forces and remedy them, as they risk subverting the very reason for which peacekeeping operations were established in the first place. The recommendations stated above should be considered to ensure that gross violations of IHL and IHRL do not take place as they did in Somalia and Bosnia. Peacekeeping operations are conducted to put an end to hostilities and conflict. Therefore, to maintain their essence the international community should urge adequate accountability measures for UN peacekeeping forces who are often protected by the sending state which sometimes fails to hold them responsible and penalise them appropriately for IHL violations. IHL implemented in its true essence will not only limit civilian casualties but help transition a conflict-affected region to peace.

Areesha Shahid

Areesha Shahid is a law student currently interning at the Research Society of International Law. She works as a youth advisory board member of Amnesty International and as secretary-general youth council at the Think Tank Pakistan. Miss Shahid has a keen interest in Public International Law, particularly in IHRL and IHL. She can be reached at her Linkedin.