United Nations Peace Operations and Human Rights: Normativity and Compliance [1 ed.] 9789004433090, 9789004409644

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United Nations Peace Operations and Human Rights

Legal Aspects of International Organizations Edited by Niels Blokker

volume 60

The titles published in this series are listed at brill.com/​laio

United Nations Peace Operations and Human Rights Normativity and Compliance By

Sylvia Maus

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Maus, Sylvia, 1982- author. Title: United Nations peace operations and Human Rights : normativity and compliance / by Sylvia Maus. Description: Leiden ; Boston : Brill, [2020] | Series: Legal aspects of international organizations, 0924-4883 ; volume 60 | Based on author’s thesis (doctoral - Technische Universität Dresden, 2018). | Includes bibliographical references and index. Identifiers: LCCN 2020015797 (print) | LCCN 2020015798 (ebook) | ISBN 9789004409644 (hardback) | ISBN 9789004433090 (ebook) Subjects: LCSH: United Nations–Peacekeeping forces. | Peacekeeping forces (International law) | Human rights. Classification: LCC KZ6376 .M38 2020 (print) | LCC KZ6376 (ebook) | DDC 341.4/8–dc23 LC record available at https://lccn.loc.gov/2020015797 LC ebook record available at https://lccn.loc.gov/2020015798​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 0924-​4 883 isbn 978-​9 0-​0 4-​4 0964-​4 (hardback) isbn 978-​9 0-​0 4-​4 3309-​0 (e-​book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents

Acknowledgements ix List of Tables xi Abbreviations xii Introduction 1

1 2

Human Rights in UN Peace Operations: the Institutional Perspective 9 i United Nations Peace Operations 9 1 Definition, Legal Basis and Status 9 2 A (Short) History of Peace Operations 11 3 Peacekeeping –​Peacebuilding –​Peace Enforcement 16 4 Relevant Actors Relating to Human Rights in Peacekeeping Operations 18 ii The Relationship between Human Rights and Peace 20 1 The Point of Departure: Human Rights and Peace as Two Distinct Fields 20 2 An Ever-​Closer Union: Growing Interrelatedness between Human Rights and Peace 22 iii Human Rights in UN Peacekeeping Operations 38 1 Security Council: Strategic Framework for Human Rights in Peacekeeping Operations 38 2 Human Rights in Secretary-​General Reports on Peace Operations: Doctrine 46 3 Department of Peace Operations: Operationalisation and Management 63 4 Office of the High Commissioner of Human Rights: Implementation in the Field  71 5 Critical Evaluation: Framework, Doctrine, Implementation 76 Human Rights Obligations of UN Peace Operations: the Legal Framework 79 i Obligations under General International Law 81 1 The UN as a Bearer of Rights and Duties under International Law 81 2 Obligations Arising from International Human Rights Treaties 83

vi Contents 3

3 Obligations Arising from Customary International Law 85 4 Obligations Arising from General Principles of Law 88 5 Result 90 ii The Charter as Constituent Treaty of the UN 90 1 Programmatic Values or Binding Obligations? 92 2 The Purpose of Promoting Human Rights 96 3 Interpretation of the Charter by Way of Subsequent Practice 99 4 Result 101 iii Obligations Arising from Unilateral Acts by the UN 101 1 Internal Law 102 2 Unilateral Declarations 104 3 Result 107 iv Stumbling Blocs: the “special status” of the Security Council 108 1 The Security Council as a Political Organ: Legibus Solutus? 109 2 Limitations under Article 103 UN Charter 112 3 Derogation from International Law When Acting under Chapter vii 115 4 Result 123 v Obligations of Peace Operations 124 1 Human Rights Obligations in Mandates 124 2 Extraterritorial Application of Human Rights Treaties 143 3 Human Rights Obligations Derived from Peace Agreements 152 4 The Role of Human Rights Obligations of the Host State 160 5 Self-​Commitment by the Peace Operation 163 vi Findings 164 Consequences of Human Rights Violations in Peace Operations 167 i Responsibility for Human Rights Violations 167 1 Attribution of Conduct 169 2 Circumstances Precluding Wrongfulness 177 3 Legal Consequences of an Internationally Wrongful Act: Responsibility 187 4 Invocation of Responsibility 188 ii Accountability for Violations of International Human Rights Law 197 1 Internal Mechanisms 199 2 Litigation 201 iii No Responsibility, Little Accountability 202

Contents

4 5

vii

Human Rights in UN Peace Operations Practice 204 i Human Rights in the United Nations Mission in Kosovo 205 1 About the Mission 205 2 unmik Human Rights Mandate and Structures 208 3 Potential Human Rights Violations 214 4 Reactions and (Lack of ) Consequences 235 5 Results 243 ii Human Rights in the United Nations Transitional Administration in East Timor 244 1 About the Mission 245 2 untaet Human Rights Mandate and Structure 247 3 Potential Human Rights Violations 255 4 Reactions and Consequences 272 5 Results 280 iii Human Rights in the United Nations Stabilization Mission in Haiti 282 1 About the Mission 282 2 minustah Human Rights Mandate and Structure 283 3 Potential Human Rights Violations 286 4 Reactions and Consequences 293 5 Results 303 iv The Three Gaps 304 1 The Protection Gap 304 2 The Accountability Gap 306 3 The Remedy Gap 308 Considerations beyond Lex Lata 312 i The Meaning of Compliance 312 ii Explaining (Non-​)Compliance 314 1 Enforcement Theories 316 2 Liberal Theories 318 3 Constructivist Theories 320 4 The Particular Case of Human Rights Compliance 322 iii UN Compliance 325 1 Reputation as a Factor of IO Compliance 326 2 Member States’ Interest in Compliance during and after Peace Operations 328 3 The UN’s Reputation in the Context of Peace Operations 332

viii Contents

4 Assessing the Reputational Impact of Human Rights Violations in Peace Operations 335 iv A Case for Discourse 342



Findings and Conclusions 346 i Findings 346 1 The Institutional Framework 346 2 The Legal Framework 349 3 Responsibility and Accountability 351 4 Practice: the Protection Gap, the Accountability Gap, and the Remedy Gap 351 5 Explaining (Non-​)Compliance 353 ii Conclusions and the Way Ahead 354 1 Norm Clarification through Mandates Issued by the Security Council 354 2 A Peacekeeping Bill of Rights 355 3 Secretariat Policy Documents 356 4 Courts and Quasi-​Juridical Bodies 357 5 Non-​State Actors and the Academic Community 360



Bibliography 363 Documents 406 Decisions of International Courts and Tribunals 424 Index 428



Acknowledgements This book was originally submitted as a doctoral thesis (s.c.l.) at the Faculty of Law of Technische Universität Dresden. It was awarded the Georg-​Helm-​Preis 2019 (dissertation award) of the Technische Universität Dresden. Sources and literature have been incorporated until summer 2018 and updated and included where needed until fall 2019. Writing a book like this one sometimes is a lonely endeavor, but it can never be achieved all alone. First of all, I would like to express my sincere gratitude to my doctoral supervisor, Professor Dr Ulrich Fastenrath. I became his doctoral student rather unexpectedly, but from the very start, he supported my work with continuous support, motivation and patience, while leaving enough freedom to develop my own ideas and arguments. His comments have been critical and demanding, but always kind and encouraging. Besides my advisor, I would like to thank Professor Dr Dominik Steiger for serving as the second reviewer of my thesis and for engaging in a critical but stimulating discussing during the defence of my thesis. The insightful comments of both reviewers were of tremendous help in preparing the final manuscript. My sincere thanks also go to Professor Dr Dr Sabine von Schorlemer, who paved the way of my academic journey and who has supported me throughout with guidance and mentorship. Many of the essential subtleties of legal academic work I learned from her as a teacher and from working with her at the Faculty of Law at TU Dresden. I had the privilege to learn from, discuss and work with many people whose contributions to this book deserve special mention. My thanks go to Professor Dr Dres hc Rüdiger Wolfrum at the Max Planck Institute for Comparative Public Law and International Law (mpi) in Heidelberg, who agreed to accept me as the institute’s first research intern and to the colleagues at the mpi, especially Dr Christiane Philipp, for welcoming and including me in their various projects. It was the short but vibrant time in Heidelberg that sparked off my fire for international law which has only grown since then. My teachers at the University of Nottingham immensely helped sharpen my legal skills, while Professor Michael O’Flaherty planted the seed of academic interest in peace operations and human rights which would stay with me for so long. I would also like to thank Dr Ekkehard Strauss for sharing his immense UN experience and helping me sort my thoughts at the beginning of this journey. Besides, I would like to thank my interview partners at the UN Secretariat in New York and in the mission in Dili, Timor-​Leste, for their willingness to answer my numerous questions and discuss my thoughts.

x Acknowledgements At TU Dresden, I was immensely fortunate to work with superb colleagues, many of whom have become true friends. Thank you for a great time, Denise Fiedler, Heidrun Groß, Jana Hertwig, Nina Christiane Lück, Kathleen Michalk, Daniela Milkuhn, Kristin Nettelnbrecher, Birgit Rudolph and Antje Urban. For invaluable encouragement, support and valuable input in the various stages of the process, I am indebted to Martin Gerner, Thomas Groh, Ulrike Will, and Constanze Zahm. My special thanks go to Franziska Knur; I  could not have imagined a better teammate to go through the highs and lows of the home stretch of the dissertation. I also want to thank Anke Moerland, Amrei Müller, Ruth Eljalill Tauschinski and Caroline Przybylla for their endless patience in listening to my concerns, their motivation and for providing distraction when needed. I am thankful to Megan Runow and Daniela Milkuhn for their careful assistance with the English language editing, which made this book a lot more pleasant to read. On the way from dissertation to book, I owe gratitude to the anonymous reviewer from Brill who, with his or her most insightful comments and recommendations, forced me to critically question my thoughts and arguments. Most notably, I would like to thank Ingeborg van der Laan from Brill for her huge patience, kindness and valuable assistance throughout the publishing process. I am grateful for the tremendous love and support I have received from my family. In calling the finishing of the dissertation a competition between siblings, Andreas provided me with that little extra bit of motivation that was needed towards the end. Johanna, Felix, Jonathan gave me plenty of reasons to leave my desk and sometimes also to stay there a little longer. Without exactly grasping what this all was about, they wisely showed the greatest patience and encouragement for my project. All of this would not have been possible without the support of Marlies and my parents Elfriede and Walter, who helped out more than I could ever have asked for. I am incredibly thankful to my parents for letting me know from early on that they believed in me and my decisions, and for supporting me wholeheartedly. I am who I am because of them. Finally, I am full of love and gratitude for Jens, who never showed a glimmer of doubt about his endless support and confidence in me. Without complaint, he took his share of work and often much more than that. His love, friendship and backing are what makes everything possible. Dresden, November 2019

Tables 1 2 3 4

Peace operations with a human rights mandate 39–40 Important Secretary-​General reports related to peacekeeping 48 Peace operations implementing a peace agreement 153 Peace agreements with human rights provisions 155

Abbreviations achr American Convention on Human Rights ajil American Journal of International Law ario Articles on the Responsibility of International Organizations ars Articles on the Responsibility of States Art Article asil American Society of International Law AU African Union avr Archiv des Völkerrechts bai Bureau des Avocats Internationaux car Central African Republic cat Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment cavr Commission for Reception, Truth and Reconciliation (Comissão de Acolhimento, Verdade e Reconciliacão de Timor-​Leste) cedaw Convention on the Elimination of All Forms of Discrimination against Women cescr Committee on Economic, Social and Cultural Rights chr&gj Center for Human Rights and Global Justice, New  York University School of Law cnrt National Council of Timorese Resistance CoE Commission of Experts CoE-​Report Report to the Secretary-​General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-​ Leste (then East Timor) in 1999, 26 May 2005, UN Doc. S/​2005/​458 cped International Convention for the Protection of All Persons from Enforced Disappearance cpiun Convention on the Privileges and Immunities of the United Nations crc Convention on the Rights of the Child crpd Convention on the Rights of Persons with Disabilities crps Community Reconciliation Processes (in Timor-​Leste) cup Cambridge University Press ddr disarmament, demobilisation, and reintegration dfs Department of Field Support doj unmik Department of Justice (in Kosovo) dpa Department of Political Affairs dpko Department for Peacekeeping Operations (as of 1 January 2019: dpo) dpo Department for Peace Operations (until 31 December 2018: dpko)

Abbreviations

xiii

ECmHR European Commission of Human Rights ECtHR European Court of Human Rights ejil European Journal of International Law etta East Timor Transitional Administration EU European Union eulex European Union Rule of Law Mission in Kosovo FW Die Friedenswarte GA General Assembly hippo High-​level Independent Panel on Peace Operations hom Head of Mission hpcc Housing and Property Claims Commission (in Kosovo) hpd Housing and Property Directorate (in Kosovo) hpd/​c c Housing and Property Directorate/​Claims Commission hrc Human Rights Committee hroc Human Rights Oversight Committee (for unmik in Kosovo) hrs (minustah) Human Rights Section hrtjs (unmit) Human Rights and Transitional Justice Section hru (untaet) Human Rights Unit HuV-​I Humanitäres Völkerrecht –​ Informationsschriften iccpr International Covenant on Civil and Political Rights icerd International Convention on the Elimination of All Forms of Racial Discrimination icescr International Covenant on Economic, Social and Cultural Rights iciss International Commission on Intervention and State Sovereignty icj International Court of Justice iclq International & Comparative Law Quarterly icmw International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families icrc International Committee of the Red Cross ictj International Center for Transitional Justice ictr International Criminal Tribunal for Rwanda icty International Criminal Tribunal for the Former Yugoslavia idp Internally displaced persons ijdh Institute for Justice and Democracy in Haiti ila International Law Association ilc International Law Commission interfet International Force for East Timor IO International Organization iot Integrated Operational Team jias Joint Interim Administrative Structure (in Kosovo)

xiv Abbreviations jtp

Joint Transition Plan between the Government of the Democratic Republic of Timor-​Leste and unmit kap Kosovo Property Agency kfor Kosovo Force ljil Leiden Journal of International Law micivih International Civilian Mission in Haiti mif Multinational Interim Force (in Haiti) minugua United Nations Verification Mission in Guatemala minujusth United Nations Mission for Justice Support in Haiti minurso United Nations Mission for the Referendum in Western Sahara minusca United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic minusma United Nations Multidimensional Integrated Stabilization Mission in Mali minustah United Nations Stabilization Mission in Haiti miponuh United Nations Civilian Police Mission in Haiti mmp (cases) missing and murdered persons (cases) (before the hrap) mn Marginal number monusco UN Organization Stabilization Mission in the drc mou Memorandum of Understanding mpepil Max Planck Encyclopaedia of Public International Law mpu unmik Missing Persons Unit mpunyb Max Planck Yearbook of United Nations Law nato North Atlantic Treaty Organization ngos Non-​governmental organizations ocha Office for Coordination of Humanitarian Affairs ohchr Office of the High Commissioner for Human Rights onub United Nations Operation in Burundi onuc United Nations Operation in the Congo onumoz United Nations Operation in Mozambique onusal United Nations Observer Mission in El Salvador onuveh United Nations Observer Group for the Verification of the Elections in Haiti orolsi Office of Rule of Law and Security Institutions osce Organization for Security and Co-​operation in Europe oup Oxford University Press pbps Policy and Best Practices Service pcij Permanent Court of International Justice pisg Provisional Institutions for Self-​Government (in Kosovo) R2P Responsibility to Protect

Abbreviations rae Roma, Ashkali and Egyptian scit (unmit) Serious Crimes Investigation Team scu (untaet) Serious Crimes Unit sofa Status of Forces Agreement spsc Special Panels for Serious Crimes (in Timor-​Leste) srsg Special Representative of the Secretary-​General ssr security sector reform tcc Troup contributing country/​countries udhr Universal Declaration of Human Rights UN United Nations unamet United Nations Mission in East Timor unamic United Nations Advanced Mission in Cambodia unamir United Nations Assistance Mission for Rwanda unamsil United Nations Assistance Mission in Sierra Leone unavem United Nations Angola Verification Mission uncro United Nations Confidence Restoration Operation in Croatia undof United Nations Disengagement Observer Force undp United Nations Development Programme unef i United Nations Emergency Force i unficyp United Nations Force in Cyprus unhcr United Nations High Commissioner for Refugees unicef United Nations Children’s Fund unifil United Nations Interim Force in Lebanon unisfa United Nations Interim Security Force for Abyei unitaf United Task Force (US-​led, Somalia) unmibh United Nations Missions in Bosnia-​Herzegovina unmih United Nations Mission in Haiti unmik United Nations Mission in Kosovo unmiset United Nations Mission of Support in East Timor unmiss United Nations Mission in South Sudan unmit United Nations Integrated Mission in Timor-​Leste unmogip United Nations Military Observer Group in India and Pakistan unomil United Nations Observer Mission in Liberia unosal United Nations Observer Mission in El Salvador unosom i United Nations Operation in Somalia i unotil United Nations Office in Timor-​Leste unpredep United Nations Preventive Deployment Force in Macedonia unprofor United Nations Protection Force unsmih United Nations Support Mission in Haiti untac United Nations Transitional Authority in Cambodia

xv

newgenprepdf

xvi Abbreviations untaes untaet untag untmih untso usg vclt vclt-​i o

Vienna Declaration wciu ZaöRV

United Nations Administration of Eastern Slavonia, Baranja, and Western Sirmium United Nations Transitional Administration in East Timor United Nations Transition Assistance Group in Namibia United Nations Transition Mission in Haiti UN Truce Supervision Organization Under-​Secretary-​General Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations Vienna Declaration and Programme of Action, 1993 unmik War Crimes Investigation Unit Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

Introduction Long-​term peace and security cannot exist without human rights for all.1

…

Anyone who does not believe that international law is a discursive practice should be sentenced to spend some time reading the proceedings of the UN or its agencies.2

∵ United Nations (UN) peace operations are deployed around the world in unprecedented numbers and with unprecedented tasks. They serve as buffers between clashing parties, organise and conduct elections, secure refugee camps and enable the distribution of humanitarian aid, and engage in training and education of local actors. All of these and many more tasks and activities without doubt bring a meaningful and measurable peace dividend to the local population. At the same time, UN peace operations have repeatedly been alleged of misconduct, sometimes amounting to violations of human rights. These allegations are not new. Over 20 years ago in Rwanda, the UN peace operation was not able to halt the unfolding genocide; in Srebrenica, the ill-​equipped and under-​staffed unprofor mission stood and watched how Muslim boys and men were abducted and killed. Instances of sexual misconduct and abuse by UN peacekeepers have come to the attention of the wider public mainly in the missions in the Democratic Republic of Congo and the Central African Republic (car). More recently, the cholera epidemic brought into Haiti by a contingent of the peace operation has caused thousands of victims and continues to pose a challenge to the country. All these cases have

1 Former UN Secretary General Ban Ki-​moon, quoted in UN News Centre, UN development agenda seeks to reach “those farthest behind”, Ban tells Human Rights Council, 29 February 2016, http://​www.un.org/​apps/​news/​story.asp?NewsID=53334#.WZ1FTq3qigQ.se 2 A. Chayes and A. Chayes, The New Sovereignty, 1995, at 126.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433090_002

2 Introduction spurred considerable public outrage and intense academic debate in various fields of international law. Interestingly, once the allegations of human rights violations by UN peace operations are out in the world –​be it academic or public –​interest seems to vanish rapidly. Often missing is a detailed examination of the allegations of human rights violations and, more importantly, a closer look at the follow-​up investigation. Questions that usually receive little attention are whether the allegations of human rights violations can actually be substantiated. And, in the affirmative, what are the consequences of such established human rights violations. Furthermore, in what way can the UN be expected to react, both legally and practically? To what extent does the allegation of human rights violations and the usual reactions affect the legitimacy of the operation and the UN as a whole? In international legal scholarship, many works revolve around the issues of legal remedy and other forms of accountability for human rights violations, often with a focus on the topic of UN immunity and its discontents.3 Other essential questions beyond immunity usually remain under-​evaluated. Yet, for an understanding of the whole picture, valuable insights could be gained from exploring how the UN reacts to human rights violations, not only in the form of legal consequences but also concerning a change of policy. This is expected to allow more in-​depth insights into the factors influencing (non-​)compliance with human rights obligations by peace operations. Since compliance with international law is intrinsically linked with the perception of legitimacy,4 the result could contribute to improving accountability of peace operations and increasing their legitimacy. All the points raised call for a closer look at the complex issue of human rights violations by UN peace operations, a look that goes beyond the stage of an allegation of human rights violations and that also considers the steps that follow. Both the applicability of and the compliance with human rights obligations to UN peace operations and the consequences of violations have to be re-​examined. The present book intends to undertake such a re-​examination. It assesses the human rights obligations of UN peace operations with a dual focus on the applicability as well as the scope and content of UN peace operations’ human rights obligations on the one hand and the consequences of potential human rights violations on the other one. It takes a holistic approach to the subject since, for the academic scholar, law is doctrine, practice, and

3 Part of this debate will be traced infra, Chapter 4.III.4.b and Chapter 4.IV.3. 4 See infra, Chapter 5.II.

Introduction

3

theory.5 The purpose is to contribute to a more nuanced understanding of both the human rights obligations of UN peace operations and the factors influencing compliance with these obligations. Throughout this book, UN peace operations are understood as armed forces consisting of national contingents of UN member States that have been brought under the command and control of the UN. These UN-​led forces are considered organs of the UN and thus, the scope of their human rights obligations is strongly related to the human rights obligations of the UN as an organization. In contrast, UN-​mandated forces, i.e. armed forces of a State or a group of States authorised by the Security Council to undertake military crisis management, remain under the full command and control of their State(s) and are not organs of the UN.6 The human rights obligations of these types of missions are different from the human rights obligations of the UN and touch upon many further issues such as the extraterritorial application of human rights obligations of the intervening member States. All these matters are not in the focus of the present study. Further, the analysis is limited to United Nations peace operations and does not consider similar operations conducted by other international organizations such as the European Union (EU) and the African Union (AU). Despite the growing engagement especially of the latter, the UN remains the dominant player in the context of peace operations. In addition, the human rights obligations of international organizations like the EU and the AU have not been spelt out in the same detail as those of the UN, making a meaningful analysis less promising. Human rights violations of peace operations are often lumped together with misconduct by one or more individual peacekeepers that amount to human rights violations. In this context, the notorious –​and still not completely eliminated –​incidents of sexual misconduct and abuse come to mind. This book, however, is not concerned with these forms of human rights violations that result from misbehaviour by individuals and that are sanctioned by way of disciplinary measures.7 In focus here are human rights violations by the peace operation as a whole that arises during the standard operation of a mission.

5 This line is borrowed from I. Ley, Which role for theory in international law? 11(11) German Law Journal (2010), 1306, at 1307 (“for the academic scholar, law is practice, theory, and doctrine.”). 6 See in detail infra, Chapter 1.i.2. 7 See e.g. A.  Rassel, Strafgerichtsbarkeit über Angehörige der Friedenstruppen in UN-​geführten Missionen, 2010 and R. Burke, Sexual Exploitation and Abuse by UN Military Contingents, 2014.

4 Introduction This book proceeds on the assumption that UN peace operations are deployed after the end of violent conflict, once some form of peace is in place. Without explicitly mentioning it throughout, peace operations are hence understood as post-​conflict peace operations.8 Experience throughout the history of peace operations has shown that this peace is mostly fragile and that the lines between armed conflict and peace are often blurred.9 This notwithstanding, human rights obligations applicable during armed conflict are not analysed.10 This study is neither concerned with the applicability of rules of international humanitarian law in the post-​conflict phase in general nor to peace operations in particular.11 In recent years, an old legal theory has woken up from its deep sleep, challenging the traditional and still prevailing bipolar conception of the laws of war/​armed conflict and the laws of peace. The concept of jus post bellum considers with a fresh look the rules that might be relevant and applicable in the post-​conflict phase. Jus post bellum draws on ideas of the just war tradition developed by Saint Augustine and was advanced by thinkers such as Saint Thomas Aquinas, Hugo Grotius and Immanuel Kant, in the attempt to establish a third category of law supplementing jus ad bellum and jus in bello.12 It has found considerable support in legal scholarship.13 For many of its proponents, 8

9 10

11

12 13

A myriad of works has endeavoured to make the distinction between conflict and post-​ conflict, with varying success. For an attempt to structure the various concepts and terminology describing the post-​conflict phase, see e.g. B. Jones, R. Gowan, and J. Sherman, Building on Brahimi, 2009; see also O. Ramsbotham, Reflections on UN Post-​Settlement Peacebuilding, 7(1) International Peacekeeping (2000) 169 (calling post-​conflict a “misnomer” and suggesting the term “post-​settlement”, at 173). In legal terms, a factual cessation of hostilities ends the state of armed conflict, see generally J. Kleffner, Scope of Application of International Humanitarian Law, in: D. Fleck (ed.), The Handbook of International Humanitarian Law, 3rd ed. 2013, 43, at 60 ff. As to the relationship between human rights and international humanitarian law see e.g. T.  Meron, The Humanization of Humanitarian Law, 94(2) AJIL (2000) 239; H.-​J. Heintze, On the Relationship between Human Rights Law Protection and International Humanitarian Law, 86(856) International Review of the Red Cross (2004) 789, at 798. Some authors have argued in favour of an application of the laws of belligerent occupation in the context of peace operations, see ground-​breaking and comprehensively A.  Roberts, What is a Military Occupation?, 55 British Yearbook of International Law (1985) 249. Eyal Benvenisti explicitly applies the concept of occupation to the exercise of power over a territory by States and/​or the UN, E. Benvenisti, The International Law of Occupation, 2nd ed. 2012, at 58 ff.; M. Zwanenburg, Accountability of Peace Support Operations, 2005. R. DiMeglio, The Evolution of the Just War Tradition:  Defining Just Post Bellum, 186 Military Law Review (2005) 116, at 119 f., with further references. See, for instance, M.  Walzer, Just and Unjust Wars, 5th ed. 2015; B.  Orend, War and International Justice:  A Kantian Perspective (2000); R.  DiMeglio, The Evolution of the

Introduction

5

the law of occupation is of great importance as a source of legal standards and rules. Stahn, for instance, calls it “the only body of law which deals explicitly with post-​conflict relations”.14 Thus, for example, the rules of occupation law find their way into a (re-​)emerging regime for the regulation of post-​conflict situations regardless of whether or not the situation can be classified as belligerent occupation in the traditional understanding.15 Human rights law, in contrast, regularly only plays a marginal role in the context of jus post bellum doctrine, often merely invoking “the spirit” or “values” of human rights, instead of their strict application.16 Issues of debate mostly revolve around the question of post-​conflict accountability and the question if and to what extent transitional justice can (and must) be included in jus post bellum. For the present book, ideas advanced by the proponents of jus post bellum are taken up occasionally. Yet, the study does not primarily intend to contribute to the debate around jus post bellum, nor does it accede to all of the underlying assumptions of this concept. The book is divided into five main parts. Chapter 1 sets the scene by outlining the institutional framework within which human rights come to play in UN peace operations. Second, the legal framework with respect to human rights is determined by examining the lex lata applicable to UN peace operations in Chapter 2. Chapter 3 deals with the potential justifications and legal consequences of human rights violations under international law. The fourth chapter consists of three case explorative studies that intend to show how UN peace operations commit human rights violations. Chapter  5 opens up to a broader analysis of the reasons for non-​compliance with human rights obligations by the UN and the role of reputation and legal discourse for compliance.

14

15

16

Just War Tradition: Defining Just Post Bellum, 186 Military Law Review (2005) 116; C. Stahn and J. Kleffner (eds.), Jus Post Bellum, 2008; C. Stahn, J. Easterday, J. Iverson, (eds.), Jus Post Bellum: Mapping the Normative Foundations, 2014. C. Stahn, Jus ad bellum –​Jus in bello … Jus post bellum: Towards a Tripartite Conception of Armed Conflict, ESIL Inaugural Conference, Agora International Security Law (2004), at 3.  See also R.  DiMeglio, The Evolution of the Just War Tradition:  Defining Just Post Bellum, 186 Military Law Review (2005) 116, at 131; D. Fleck, Jus Post Bellum as a Partly Independent Legal Framework, in:  C. Stahn, J.  Easterday, J.  Iverson, (eds.), Jus Post Bellum: Mapping the Normative Foundations, 2014, 43. E.g. A. Roberts, Transformative Military Occupation, 100(3) AJIL (2006) 580, at 619. See also S.  Ratner, Foreign Occupation and International Territorial Administration, 16(4) EJIL (2005) 695; K. Boon, Legislative Reform in Post-​Conflict Zones: Jus Post Bellum and the Contemporary Occupant’s Law-​Making Powers, 50 McGill Law Journal (2005) 3. C. Bell, Peace Settlements and International Law: from lex pacificatoria to ius post bellum, in: N. White and C. Henderson (eds.), Research Handbook on International Conflict and Security Law, 2013, 499, at 539 ff.

6 Introduction In Chapter 1, a short overview of the development of the relationship between human rights and peace within the UN as well as a tour d’horizon about the history of UN peace operations are given. They are necessary to understand the subsequently presented institutional framework of human rights in UN peace operations. A variety of actors are involved in UN peace operations activities, most notably the Security Council, the Secretary-​General, the Department of Peacekeeping Operations (dpko) /​Department for Peace Operations (dpo)17 as part of the Secretariat, and the Office of the High Commissioner for Human Rights (ohchr). Each of them is presented in turn, with a particular focus on their respective approaches and contributions to human rights in peace operations. This allows us to understand who does what and under which internal rules and policies. This part thus dissects how human rights have found entry into the strategic framework of each peace operation as set by the Security Council, into peace operations doctrine as developed by the Secretary-​General, into operationalisation and management undertaken by dpo and into implementation under the aegis of ohchr. Chapter 2 deals with the legal framework for human rights in peace operations. It starts with a determination of the UN as a bearer of rights and duties under international law, which is the prerequisite for examining potential obligations arising from the traditional sources of international law, namely international human rights treaties, customary international law, and general principles of international law. Subsequently, human rights obligations as derived from the UN Charter as the constituent document are examined more closely, before discussing the relevance of the wealth of institutional practice for the determination of human rights obligations. Some special attention is devoted to the unique role of the Security Council in order to address the different stumbling blocks regularly brought forward concerning the human rights obligations of the Security Council. Even though all of the aspects just mentioned have already been treated to some extent in academic literature, this part brings together and structures the different and sometimes contradicting arguments brought forward in this context, to establish the basis of the case studies that follow. The second part of Chapter 2 then focuses on the human rights obligations, particularly of peace operations. Such an investigation is necessary to understand to what extent the human rights obligations of peace operations are different from those of the UN as the mother organization. This

17

As of 1 January 2019, the Department of Peacekeeping Operations has become the Department of Peace Operations (dpo). The old acronym dpko will be used for all activities of the department that took place before 31 December 2018.

Introduction

7

requires a discussion of the human rights obligations as provided for in the mandates, the role of human rights in peace agreements, the status of forces agreements (sofas) and voluntary commitments by the peace operation itself. Besides, the scope and contents of human rights obligations are examined by asking not only which rights are applicable to the peace operation, but also to what extent. Chapter 3 assesses the legal consequences of human rights violations by UN peace operations. First of all, potential justifications are put under scrutiny, which requires a discussion of attribution and possible circumstances precluding wrongfulness. Secondly, consequences under the law of responsibility are considered and put into the broader context of other forms of accountability. Chapter 3 concludes that the lack of any significant action on the part of the UN concerning responsibility and accountability indicates the limits of purely doctrinal approaches to international law and calls for further reflections. Chapter 4 sets out to support the previous general analysis with explorative case studies. The first one discusses the United Nations Mission in Kosovo (unmik) and the allegations of human rights violations by unmik brought before the Human Rights Advisory Panel in Kosovo. The second case study focuses on the United Nations Transitional Administration of East Timor (untaet) as the “twin” operation in the form of an international territorial administration. The third and last case study discusses the human rights record of the UN’s activities in Haiti, most notably during the United Nations Stabilization Mission in Haiti (minustah). All case studies start with first presenting the human rights mandates and structures of the mission before analysing a set of human rights problems. The critical part of each case study is the determination of the legal character of these human rights problems and their qualification as actual human rights violations by the respective peace operation. Also, all three case studies devote special attention to the reactions to the human rights violations by the respective UN organs on the ground and in headquarters, and potential consequences thereof. Especially the latter aspect has so far received little attention in legal scholarship. Structured enquiry about and analysis of the reactions to allegations of human rights violations remain largely unavailable. The case studies intend to fill this gap since they can provide valuable insights into the UN’s understanding of human rights obligations and the underlying reasons for non-​compliance. Chapter  5 offers some considerations beyond lex lata. It attempts at explaining the lack of compliance with human rights obligations. This entails the introduction of legal theories beyond positivism and a closer look at compliance theories in general and at human rights compliance in particular. The

8 Introduction discussion of reputation as a factor for compliance and the role of legal discourse form the core of this part. The last part recapitulates the main findings and offers some concluding thoughts and inspiration for further investigations.

­c hapter 1

Human Rights in UN Peace Operations: the Institutional Perspective i

United Nations Peace Operations

UN peacekeeping is one of the most well-​known activities, if not the “flagship activity”1 of the organization. When it comes to describing what peacekeeping is, it “is not an exaggeration to state that today there are as many types of peace-​keeping operations as there are types of conflict.”2 What was true in 1993, when then-​Secretary-​General Boutros Boutros-​Ghali made this statement, is even more accurate today. 1 Definition, Legal Basis and Status The complex and evolving nature of peacekeeping operations prevents a one-​size-​fits-​all definition and evades any attempt of clear-​cut categorisation. Besides, peacekeeping activities have significantly changed over time.3 Still, they share some common features: (1) they are established by Security Council resolutions,4 (2) in accordance with the basic principles –​the “holy trinity”5 of peacekeeping –​namely consent of the parties involved, impartiality (not neutrality!)6 and the non-​use of force except in self-​defence and in defence of 1 2 3

4 5 6

dpko/​d fs, A New Partnership Agenda: Charting a new Horizon for UN Peacekeeping, 2009, at 2. Report of the Secretary-​General on the Work of the Organization, Supplement No. 1, 10 September 1993, UN Doc. A/​48/​l, para. 293. For a comprehensive account of the history of peacekeeping, see, amongst others, M.  Bothe, Peacekeeping, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1171, at 1176 ff, MN 6 ff; M. Bothe, Peacekeeping Forces, mpepil, August 2016; M.  Goulding, The evolution of United Nations peacekeeping, 69(3) International Affairs (1993), 451; S.  Ratner, The New UN peacekeeping, 1995; using the concept of generations, e.g. B. Kondoch, Human rights law and UN peace operations in post-​conflict situations, in:  N. White and D.  Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 19, at 22 ff. Note that early peacekeeping operations were established by the General Assembly, see infra, next section. This term is used by many, see e.g. A. Bellamy and P. Williams, Understanding Peacekeeping, 2010, at 174. “United Nations peacekeepers should be impartial in their dealings with the parties to the conflict, but not neutral in the execution of their mandate.”, United Nations Peacekeeping,

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433090_003

10 

Chapter 1

the mandate, and (3) aim at providing a transitional security presence with the support of –​as deemed necessary –​political, police or civilian components.7 The functions of peace operations range from transparency and confidence-​ building (observer groups) over the separation of parties in conflict (interposition forces) to complex post-​conflict tasks that include the maintenance of order; verification; disarmament, demobilisation and reintegration; demining; and assistance in the re-​establishment of State functions (e.g. elections).8 Since peacekeeping does not have an explicit legal basis in the UN Charter, the second Secretary-​General Dag Hammarskjöld, famously penned down that peacekeeping falls under “Chapter vi and a half” of the Charter; somewhere in between traditional methods of peaceful dispute resolution under Chapter vi and more forceful action under Chapter vii.9 In legal terms, peacekeeping operations are established as organs of the Security Council (on rare occasions by the General Assembly),10 as a measure under its powers vested in it for the maintenance for international peace and security under Article 24 UN Charter. In its early years, the Security Council commonly acted under Chapter vi since it refrained from specifying that a given situation was a threat to the peace and did not mention that it was, therefore, acting under Chapter vii. More recent resolutions, in contrast, have explicitly been adopted under Chapter vii.11 Contrariwise to what was initially intended by Article 43 of the UN ­Charter,12 military and civilian personnel are voluntarily contributed to the

7 8 9 10

11

12

Principles of Peacekeeping, https://​peacekeeping.un.org/​en/​principles-​of-​peacekeeping. For an explanation of both concepts see M. Bothe, Neutrality, Concept and General Rules, mpepil, October 2015. Summarised e.g. by dpko/​d fs, A New Partnership Agenda: Charting a new Horizon for UN Peacekeeping, 2009, at 2. E.g. M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 26 as but one example how peace operations functions can be summarised. S. Chesterman, Article 99, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 2009, at 2013, MN 18. The first peacekeeping operation ever, the First United Nations Emergency Force (unef i) was established by the first special emergency session of the General Assembly by Resolution 1000 (ES-​I) on 5 November 1956. Since 1963, all peacekeeping operations have been exclusively been established by the Security Council, see M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 35. Bothe argues that the exact provision is of little practical relevance, since the decision is binding either as binding decision under Article 25 or has to be considered binding because the parties concerned have consented to consider it as binding, see M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 34. N. Krisch, Article 43, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1351.

Human Rights in UN Peace Operations: Institutional Perspective

11

operation by UN member States on a case-​by-​case basis. Since Article 43 has never been brought to life, the concept of peace operations emerged as “improvised and practical response to the failure of the United Nations Charter System of collective security.”13 As a consequence, peace operations are not staffed with UN armed forces but with national contingents contributed by member States. Coming under “command and control”14 of the UN, these troops are considered organs of the UN.15 In contrast to these UN-​led operations, the Security Council has also authorised the use of armed forces of a State or a group of State as a specific form of military crisis management. The latter, UN-​mandated, operations remain under full command and control of their home State(s) and do not become organs of the UN.16 This kind of operations is not in the focus of the present book and will only be treated where required. 2 A (Short) History of Peace Operations Starting in 1948 with the UN Truce Supervision Organization (untso), the goal of the early “traditional” peacekeeping operations was the monitoring and securing of ceasefires and helping create conditions for nonviolent conflict resolution, i.e. negotiation for a settlement.17 Subsequent operations, such as the United Nations Emergency Force i (unef i) and the United Nations Operation in the Congo (onuc) introduced armed forces into the concept of

13 14 15 16

17

M. Zwanenburg, Accountability of Peace Support Operations, 2005, at. 11. See further infra Chapter 3.i.1. E.g. M. Bothe, Peacekeeping, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1171, at 1187, MN 25. The first example of this type of operation was the US intervention in Kuwait to enforce the withdrawal of Iraqi forces (1990, 1991 respectively). Later, such missions with the mandate to “use all necessary means” (and thus not limited to self-​defence, see M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 19 f.) were sent to Somalia (the US-​ led United Task Force, unitaf, Security Council Resolution 794 (1992) of 3 December 1992)  and to the former Yugoslavia, most notably the NATO-​led Kosovo Force (kfor, Security Council Resolution 1244 (1999) of 10 June 1999). In 1999, the Australian-​led International Force for East Timor (interfet, Security Council Resolution 1264 (1999) of 15 September 1999, UN Doc S/​RES/​1264 (1999)) intervened during the violent upheavals to restore order. See Supplement to an Agenda for Peace, Position Paper of the Secretary-​General on the Occasion of the Fiftieth Anniversary of the United Nations, 3 January 1995, UN Doc. A/​50/​ 60 –​S/​1995/​1, para. 20. For an overview of the early missions, see for instance, M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 8. A succinct summary with reference to relevant documents is further provided by S. Chesterman, I. Johnstone, D. Malone, Law and Practice of the United Nations, 2nd ed. 2016, at 317–​367.

12 

Chapter 1

peacekeeping. They were intended to provide buffer zones between conflicting parties and to help maintain order.18 After a series of limited observer missions and interposition forces in the 1960s and 1970s, including the still running United Nations Force in Cyprus (unficyp),19 new types of peacekeeping operations evolved by the end of the 1980s. A new (second) generation of often called “complex” peace operations was deployed in the aftermath of violent, mostly internal, conflicts, with the mandate to support the implementation of a peace agreement or another comprehensive settlement the parties to the conflict had negotiated.20 Their regular tasks included training of police forces or the exercise of police functions; protection of human rights including investigation of human rights violations; organization and supervision of elections;21 and disarmament, demobilisation, and reintegration (ddr). Notable examples of this kind of operations are the missions in Namibia,22 Angola,23 El Salvador,24 Cambodia,25 and Mozambique.26 These and other missions of this type have in most cases been, as the Secretary-​General noted, “conspicuously successful”.27

18 19 20 21

22 23

24 25 26 27

M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 9. Security Council Resolution 186 (1964) of 4 March 1964. For further examples see M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 13–​14. See e.g. M.  Doyle and R.  Higgins (eds.), Second-​Generation Peacekeeping, 1995, 275. See comprehensively on this “new” type of peace operation, S.  Ratner, The New UN peacekeeping, 1995. This was the central focus of the United Nations Mission for the Referendum in Western Sahara (minurso), Security Council Resolution 690 (1991) of 29 April 1991; and the United Nations Stabilization Mission in Haiti (minustah), Security Council Resolution 1542 (2004) of 30 April 2004, UN Doc S/​RES/​1542 (2004). United Nations Transition Assistance Group in Namibia from 1989–​90 (untag), Security Council Resolution 632 (1989), 16 February 1989. United Nations Angola Verification Missions (unavem):  unavem i 1989–​91, Security Council Resolution 626 (1988) of 20 December 1988; unavem ii 1991–​95, Security Council Resolution 696 (1991) of 30 May 1991; unavem iii 1995–​97, Security Council Resolution 976 (1995), 8 February 1995; and United Nations Observer Mission in Angola (monua) 1997–​99, Security Council Resolution 1118 (1997) of 30 June 1997. United Nations Observer Mission in El Salvador (onusal), 1991–​95; Security Council Resolution 693 (1991) of 20 May 1991. United Nations Advanced Mission in Cambodia (unamic), Security Council Resolution 717 (1991) of 16 October 1991, and the United Nations Transitional Authority in Cambodia (untac), Security Council Resolution 745 (1992) of 28 February 1992. United Nations Operation in Mozambique from 1992–​94 (onumoz), Security Council Resolution 797 (1992) of 16 December 1992. Supplement to an Agenda to Peace, A/​50/​60 –​S/​1995/​1, 3 January 1995, para. 20.

Human Rights in UN Peace Operations: Institutional Perspective

13

The 1990s saw a series of difficult peace operations for the UN, most notably in the context of the numerous peace operations in Former Yugoslavia,28 i.e. in Croatia, Bosnia-​Herzegovina, and Macedonia. The perceived failure of the UN to protect the local population in designated safe areas and horrendous events like the massacre of Srebrenica under the eyes of unprofor, as well as the genocide in Rwanda that was able to unfold despite the presence of unamir, put the UN peacekeeping efforts into a serious crisis. One of the answers was the establishment of a more “robust” (third generation) form of peacekeeping which allowed for limited use of force beyond self-​defence. While already unprofor and the United Nations Operation in Somalia ii (unosom ii)29 included robust elements under Chapter vii,30 missions such as the United Nations Mission in South Sudan (unmiss)31 and the United Nations Interim Security Force for Abyei (unisfa)32 belong to this category of peace operations. A parallel development was the creation of a so-​called “double-​track approach” in which a UN-​mandated force complements the traditional UN-​led peace operation. These forces are not limited to self-​defence but are usually authorised by the Security Council “to use all necessary means”. They remain under full command and control of their home State(s) and do not become organs of the UN.33 The UN-​mandated US intervention in Kuwait to enforce 28

United Nations Protection Force (unprofor), Security Council Resolution 743 (1992) of 21 February 1992. unprofor was initially established in Croatia to ensure demilitarisation of designated areas. The mandate was later extended to Bosnia and Herzegovina to support the delivery of humanitarian relief, monitor “no fly zones” and “safe areas”. It saw further extension to the former Yugoslav Republic of Macedonia for preventive monitoring in border areas deployed to territories in Bosnia-​Herzegovina and Croatia, see https://​ peacekeeping.un.org/​sites/​default/​files/​past/​unprofor.htm. In 1995, unprofor was split up into three distinct peace operations: United Nations Confidence Restoration Operation in Croatia 1995–​96 (uncro), Security Council Resolution 981 (1995) of 31 March 1995, UN Doc. S/​RES/​981 (1995); the United Nations Preventive Deployment Force in Macedonia 1995–​99 (unpredep), Security Council Resolution 983 (1995) of 31 March 1995, UN Doc S/​ RES/​983 (1995); and the United Nations Missions in Bosnia-​Herzegovina from 1995–​2002 (unmibh), Security Council Resolution 1035 (1995) of 21 December 1995, UN Doc S/​RES/​ 1035 (1995). In the same region, the UN established, from 1996–​98, the temporary United Nations Administration of Eastern Slavonia, Baranja, and Western Sirmium (untaes), Security Council Resolution 1037 (1996), 15 January 1996, UN Doc. S/​RES/​1037. 29 Security Council Resolution 814 (1993) of 26 March 1993. 30 Bothe argues that already the authorisation to protect safe areas by unprofor in Bosnia-​ Herzegovina was an indirect way to overcome the limitation of the use of force to cases of self-​defense, see M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 19. 31 Security Council Resolution 2155 of 27 May 2014, UN Doc. S/​RES/​2155 (2014). 32 Security Council Resolution 1990 of 21 June 2011, UN Doc. S/​RES/​1990 (2011). 33 See infra Chapter 2.i.1.

14 

Chapter 1

the withdrawal of Iraqi forces (1990–​1991) was the first operation of this kind. In Somalia, the US-​led multinational United Task Force (unitaf) followed the little successful United Nations Operation in Somalia i (unosom i).34 The nato-​led Kosovo Force (kfor) as military counterpart to the UN Interim Administration in Kosovo (unmik)35 and the Australian-​led International Force for East Timor (interfet), that helped secure order as the necessary condition for the start of the temporary United Nations Transitional Administration in East Timor (untaet),36 are further cases in point. unmik and untaet are furthermore representatives of a select category of UN peace operations, namely international territorial administrations (or fourth generation).37 They have been deployed in rare instances with the mandate to take over the temporary authority of the territory to provide transitional administration and to establish provisional democratic self-​governing institutions (unmik)38 or to prepare for self-​government and independence (untaet).39 34

35 36

37

38 39

United Task Force, unitaf, Security Council Resolution 794 (1992), 3 December 1992 and United Nations Operation in Somalia i (unosom i), Security Council Resolution 751 (1992), 24 April 1992 UN Doc S/​RES/​751 (1992). With United Nations Operation in Somalia ii (unosom ii), the Security Council authorised another UN-​led peacekeeping operation in Somalia, which operated in parallel with unitaf. kfor was authorised as “international security presence” by Security Council Resolution 1244 (1999), para. 7. The same resolution spells out the mandate of the “international civilian presence”, unmik, paras. 10 ff. International Force for East Timor (interfet), Security Council Resolution 1264 (1999) of 15 September 1999, UN Doc S/​RES/​1264 (1999) and United Nations Transitional Administration in East Timor (untaet), Security Council Resolution 1272 (1999) of 25 October 1999. In Afghanistan, the International Security Assistance Force (isaf), authorised by Security Council Resolution 1386 (2001) of 20 December 2001, UN Doc. S/​RES/​ 1386 (2001) and active until 31 December 2013 (Security Council Resolution 2120 (2013) of 10 October 2013, UN Doc. S/​RES/​2120 (2013)), was assisted by the civilian UN Assistance Mission Afghanistan (unama), Security Council Resolution 1401 (2002), 28 March 2002. unama, which is not a peacekeeping operation but a special mission, is still active as of today. Literature is abundant on territorial administrations, see, most notably C.  Stahn, The Law and Practice of International Territorial Administration, 2008; see also M. Ruffert, The Administration of Kosovo and East-​Timor by the International Community, 50(3) International and Comparative Law Quarterly (2001), 613; C.  Stahn, International Territorial Administration in the former Yugoslavia, 61 ZaöRV 2001, 107; M.  Matheson, United Nations Governance of Postconflict Societies, 95 AJIL (2001), 76; R. Wilde, From Danzig to East Timor and Beyond, 95(3) AJIL (2001), 583. unmik, S/​RES/​1244 of 10 June 1999, para. 10. See also untac as belonging to the group of territorial administrations, Security Council Resolution 745 (1992), 28 February 1992.

Human Rights in UN Peace Operations: Institutional Perspective

15

Since 1999, peace operations have featured a stronger focus on the protection of civilians,40 for instance, in Sudan,41 the DR Congo,42 Côte d’Ivoire,43 Darfur44 and others.45 Convinced of the moral imperative not to stand by when civilians are attacked, the mandate of protecting civilians has become one of the central tasks of peace operations, generating high expectations of the local population and the international community while at the same being scarcely staffed and resourced.46 Somewhat associated with the concept of the Responsibility to Protect (R2P), the protection of civilians has mainly gained currency as a result of the peace operations reform process.47 Subsequently, the distinction or similarity between human rights on the one hand and the protection of civilians on the other one has spurred some debate but seems to have lost most of its 40

The issue of protection of civilians was identified as fundamental for the central mandate of the UN in the 1999 Report of the Secretary-​General on the Protection of Civilians in Armed Conflict, 8 September 1999, S/​1999/​957, para. 68. The first peace operation with a protection of civilians-​mandate was the UN Assistance Mission in Sierra Leone (unamsil), Security Council Resolution 1270 (1999) of 22 October 1999, S/​RES/​1270 (1999), para. 11. For a presentation of the concept by dpo see Protecting Civilians, https://​peacekeeping.un.org/​en/​protecting-​civilians. See, for a comprehensive analysis and detailed case studies, V.  Holt and G.  Taylor, Protecting Civilians in the Context of UN Peacekeeping Operations, 2009. A useful guide to the normative development of the concept is provided by ocha Policy Development and Studies Branch, Aide Memoire. For the consideration of issues pertaining to the protection of civilians in armed conflict, UN 2016, http://​ www.unocha.org/​sites/​unocha/​files/​dms/​Documents/​Aide%20Memoire%202016%20II. pdf. 41 United Nations Mission in Sudan (unmis), Security Council Resolution 1590 (2005), 24 March 2005, UN Doc. S/​RES/​1590 (2005). 42 United Nations Organization Stabilization Mission in the DR Congo, Security Council Resolution 1925 (2010), 28 May 2010, UN Doc. S/​RES/​1925 (2010). 43 United Nations Operation in Côte d’Ivoire (unoci), Security Council Resolution 1528 (2004) of 27 February 2004, UN Doc. S/​RES/​1528 (2004). 44 African Union/​United Nations Hybrid Operation in Darfur (unamid), Security Council Resolution 1769 (2008), 31 July 2007, UN Doc. S/​RES/​1769. 45 E.g. United Nations Mission in the Republic of South Sudan (unmiss), Security Council Resolution 1996 (2011), 8 July 2011, UN Doc. S/​RES/​1996 (2011); the protection mandate of unmiss was reinforced by Security Council Resolution 2155 of 27 May 2014, UN Doc. S/​RES/​2155 (2014); United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (minusca), Security Council Resolution 2149 (2014), 10 April 2014, UN Doc. S/​RES/​2149 (2014). 46 E.g. dpko/​d fs, A New Partnership Agenda: Charting a New Horizon, 2009, at 19 f. 47 The concept has been brought to the fore in the Brahimi report, paras. 62 ff. As to the relationship between the Responsibility to Protect and the protection of civilians, see M.  Fröhlich, The Responsibility to Protect, in:  Fabian Klose (ed.), The Emergence of Humanitarian Intervention, 2015, 299, at 323. See also comprehensively C.  Foley, UN Peacekeeping Operations and the Protection of Civilians, 2017; S.  Wills, Protecting Civilians, 2009.

16 

Chapter 1

vigour.48 Other cross-​cutting issues that have been assigned to peace operations include women, peace and security,49 and children in armed conflict.50 Overall, the 15 currently deployed missions range from long-​standing, traditional observer missions (untso, unmogip) and interposition forces (unficyp, undof, unifil) (first generation) to post-​conflict integrated missions (e.g. Sudan) (second generation), increasingly with robust mandates (third generation), e.g. monusco in DR Congo, the United Nations Multidimensional Integrated Stabilization Mission in Mali (minusma),51 United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (minusca),52 or unmiss in South Sudan.53 3 Peacekeeping –​Peacebuilding –​Peace Enforcement As the historical overview has shown, peacekeeping activities have evolved tremendously and are diverse. The exact scope and content of peacekeeping functions is somewhat blurred at the margins and has also developed over time. It is crucial to distinguish peacekeeping operations from other activities such as peace enforcement and peacebuilding.54 48 49

50

51 52 53 54

Cp. A. Gilmour, The Future of Human Rights, 28(2) Ethics & International Affairs (2014), 239, at 241. Security Council Resolution 1325 of 31 October 2000, UN Doc. S/​RES/​1325 (2000); Security Council Resolution 1820 of 19 June 2008, UN Doc. S/​RES/​1820 (2008); Security Council Resolution 1888 of 30 September 2009, UN Doc. S/​RES/​1888 (2009); Security Council Resolution 1889 of 5 October 2009, UN Doc. S/​RES/​1889 (2009); Security Council Resolution 1960 of 16 December 2010, S/​RES/​1960 (2010); Security Council Resolution 2106 of 24 June 2013, UN Doc. S/​RES/​2106 (2013); Security Council Resolution 2122 of 18 October 2013, UN Doc. S/​RES/​2122 (2013); Security Council Resolution 2242 of 13 October 2015, UN Doc. S/​RES/​ 2242 (2015); Security Council Resolution 2467 of 23 April 2019, UN Doc. S/​RES/​2467 (2019). dpko/​d fs, Policy on Mainstreaming the protection, rights and well-​being of children affected by armed conflict within UN Peacekeeping Operations, 1 June 2009, Ref. 2009.17. A list and description of cross-​cutting issues see dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January 2015, at 73 ff. United Nations Multidimensional Integrated Stabilization Mission in Mali (minusma), Security Council Resolution 2100 (2013), 25 April 2013, UN Doc. S/​RES/​2100 (2013). United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (minusca), Security Council Resolution 2149 (2014), 10 April 2014, UN Doc. S/​ RES/​2149 (2014). United Nations Mission in the Republic of South Sudan (unmiss), Security Council Resolution 1996 (2011), 8 July 2011, UN Doc. S/​RES/​1996 (2011). Already in the 1960s, peace researcher Johan Galtung distinguished between Peacekeeping, Peacemaking and Peacebuilding, J. Galtung, Three Approaches to Peace: Peacekeeping, Peacemaking and Peacebulding, in: J. Galtung (ed.), Peace, War and Defense: Essays in Peace Research Vol. 2, 1976, 282. Boutros Boutros-​Ghali’s 1992 Agenda for Peace and subsequent Secretary-​General reports draw on this work.

Human Rights in UN Peace Operations: Institutional Perspective

17

The object of this book are peacekeeping operations authorised by a resolution the Security Council.55 They are deployed in a country in the immediate aftermath (sometimes even before the end) of violent conflict. As a fundamental principle of peacekeeping, these operations are established with the consent of the main parties to the conflict,56 notwithstanding whether the Security Council acts under “Chapter vi ½” or under Chapter vii, and despite the fact that it could, as a binding resolution under Article 25 of the UN Charter, also impose a peacekeeping operation.57 This is the main difference from peace enforcement operations: since the UN “does not wage war”,58 enforcement action is usually entrusted to coalitions of the willing, i.e. UN-​mandated forces authorised by the Security Council acting under Chapter vii and led by one or more member States. However, in the recent past, the Security Council has taken steps towards the authorisation of a stronger use of force. In 2013, the Security Council authorised a so-​ called intervention brigade within the UN Organization Stabilization Mission in the drc (monusco) with the task to carry out offensive operations (i.e. beyond self-​defence) in order to neutralise those armed groups that threatened State authority and civilian security in eastern drc.59 This enhanced use of force clearly represents a new quality of peace operations, the consequences of which will only be evident in the future.60 Peacebuilding, by contrast, takes place once the immediate post-​conflict phase is over and aims at furthering and strengthening positive peace that goes well beyond the mere absence of violent conflict. Whereas peacekeeping 55 56

57 58 59 60

In rare occasions, also the General Assembly can authorise peacekeeping operations, as it has done by invoking the Uniting for Peace Resolution and establishing the United Nations Emergency Force (unef) in 1956, unga Res 1000 (ES-​I), 5 November 1956. This, of course, only is the basic rule. In practice, this does not mean that consent can be guaranteed on a local level, especially if the parties are internally divided or if non-​state actors are involved, like in Mali or in the DR Congo, see UN, Principles of Peacekeeping, https://​peacekeeping.un.org/​en/​principles-​of-​peacekeeping. More critically, describing consent as “constructive, even fictive”, see R. Wedgwood, The Evolution of United Nations Peacekeeping, 28 Cornell International Law Journal (1995), 631, at 636. See M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 27. Report of the Panel on United Nations Peace Operations, 21 August 2000, UN Doc. A/​55/​ 305-​S/​2000/​809 (“Brahimi report”), para. 53. Security Council Resolution 2098 of 28 March 2013, UN Doc. S/​RES/​2098 (2013), para. 10. T. Pietz and F.  Sandt, Novum im UN-​Peacekeeping. Was steckt hinter der neuen Interventionsbrigade von MONUSCO im Kongo?, ZIF kompakt, 18 April 2013; Security Council Report, In Hindsight:  Changes to UN Peacekeeping in 2013, 31 January 2014; S. Sheeran and S. Case, The Intervention Brigade, 2014. Mateja Peter calls this new kind of peacekeeping “enforcement peacekeeping”, M. Peter, Between Doctrine and Practice: The UN Peacekeeping Dilemma, 21 Global Governance (2015), 351.

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operations also include early peacebuilding components (e.g. strengthening the rule of law through security sector reform, police training and judicial reform; human rights monitoring and investigation; conflict resolution and reconciliation activities; reintegration of former combatants),61 peacebuilding as such is a long-​term process. Peacebuilding operations can be deployed as successor missions to peacekeeping operations and are usually led by the UN Department of Political and Peacebuilding Affairs (dppa)  –​the former Department of Political Affairs (dpa) –​and assisted by the 2005 established UN Peacebuilding Commission.62 In this book, peacekeeping operations established by the Security Council and led by dpo will be discussed. The terms peacekeeping operation and peace operation will be used interchangeably. Relevant Actors Relating to Human Rights in Peacekeeping Operations To evaluate to what extent the respective organs and organisational entities have an impact on human rights in peacekeeping operations, it is essential to understand the general division of work in the context of peacekeeping operations. Given the widely ramified and complex structure of the UN, a structured presentation of the tasks and responsibilities of the relevant actors in the field of human rights in peacekeeping missions is warranted.63 First of all, the main organ creating the peacekeeping operation, i.e. the Security Council in the majority of cases, sets the strategic framework of the operation by adopting the mandate. Secondly, executive direction and overall control lie with the Secretary-​General. In addition to managing peacekeeping operations individually, the Secretary-​General also helps to develop and disseminate a system-​wide vision of the underlying principles of peacekeeping, including the aspect of human rights. Thirdly, the overall operationalisation and management take place in dpo, which is part of the UN Secretariat. Here, strategic decisions for peacekeeping activities as a whole, but also for each mission specifically are taken. Fourthly, for the human rights issues in a 4

61 62

63

See e.g. Brahimi report, para. 13. See also O.  Ramsbotham, Reflections on UN Post-​ Settlement Peacebuilding, 7(1) International Peacekeeping (2000), 169. UN Peacebuilding Commission, established by GA Resolution 60/​180 and SC Res 1645 (2005) of 20 December 2005, UN Docs. A/​RES/​60/​180 and S/​RES/​1645 (2005), for more information see the webseite of the Peacebuilding Commission, https://​www.un.org/​ peacebuilding/​commission. For a general overview how peace operations are established see United Nations Peacekeeping, Forming a new operation, https://​peacekeeping.un.org/​en/​forming-​new-​ operation. See also M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 27 ff.

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peacekeeping operation –​usually institutionalised in a human rights component –​ ohchr is responsible for the implementation of the mandate. In the following, the role and approach to human rights of each of these actors will be scrutinised. For reasons of completeness, a short note should be made on the Special Committee on Peacekeeping Operations (C-​34). The Special Committee was established by the General Assembly in 1965 and provides updates and advice to the General Assembly on all peacekeeping operations. In 1989 informally named after the number of Member States participating in the Committee (C-​34), it kept the name but currently comprises 147 Member States, which are mostly past or current troop-​and/​or police-​contributing countries. Other organizations and entities, such as the African Union, the European Community, the Organization of Islamic Cooperation, the International Committee of the Red Cross (icrc), and the International Criminal Police Organization (Interpol) act as observers.64 The Committee provides a forum for the member States to discuss concerns and reforms, to give advice and direction, and to formulate policy recommendations, which are submitted to the Secretariat, Security Council, and member States. The Committee also closely collaborates with dpo and the Department of Field Support (dfs), which offer informal briefings and provide information as requested by the C-​34.65 In the past, the Special Committee requested the Secretary-​General and the dpo to develop a thorough policy for human rights screening of all (UN and non-​UN) security personnel.66 Apart from that, in recent years the Special Committee has not contributed much with respect to human rights concerns.67 Therefore, it will only be treated marginally here.

64 65 66 67

General Assembly and Peacekeeping, https://​peacekeeping.un.org/​sites/​default/​files/​ sites/​ctte/​CTTEE.htm. dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January 2015, at 95. Report of the Special Committee on Peacekeeping Operations and its Working Group, General Assembly Official Records Sixty-​first Session Supplement No. 19, 2008, A/​61/​19/​ Rev.1, para. 58 and subsequent reports. In its 2013 report, for instance, the term human rights is not mentioned a single time, Report of the Special Committee on Peacekeeping Operations, 2013 substantive session (New  York, 19 February-​15 March, 27 March and 6 September 2013), General Assembly Official Records Sixty-​ seventh Session Supplement No. 19, A/​ 67/​ 19. Other reports only generally refer to the importance of human rights within the work of the UN, e.g. Report of the Special Committee on Peacekeeping Operations, 2015 substantive session (New  York, 17 February-​13 March 2015), General Assembly, Official Records Sixty-​ninth Session Supplement No. 19, A/​69/​19, para. 300.

20  ii

Chapter 1

The Relationship between Human Rights and Peace

The promotion and protection of human rights in peace operations can only be understood against the backdrop of the relationship between human rights and peace. Before exploring the role of human rights in the peace operations framework as set by the Security Council (iii.1), doctrine developed by the Secretary-​ General (iii.2), operationalisation through the Department for Peacekeeping Operations (dpko, as of 1 January 2019 Department for Peace Operations, dpo) (iii.3), and implementation under the lead of the Office of the High Commissioner for Human Rights (ohchr) (iii.4), a few moments should be taken to ponder on the evolving link between human rights and peace within the UN as an organization (ii). The focus of the following chapter is an essentially institutional one which aims at carving out the significance and the role the UN –​represented by its organs and entities –​attributes to human rights in peace operations. It will briefly trace the major stages in the development over the past decades before addressing the current state of affairs. 1 The Point of Departure: Human Rights and Peace as Two Distinct Fields The respect for human rights and the maintenance of international peace and security are two of the main purposes of the United Nations, as provided for in Article 1 of the UN Charter.68 Reference to peace and security is furthermore to be found among the principles of the UN in Article 2, which obliges member States to settle disputes with peaceful means (para. 3) and to refrain from threatening or using force in their international relations (para. 4). Human rights are referred to in the preamble and in Articles 13(1) (b), 55, 56, and 62.69 Overall, human rights clauses are, as Theodor Meron points out, “few in number and modest in content.”70 The “values”71 of peace and security and human 68

69 70 71

Article 1(1) reads: “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;” Article 1(3) provides: “To achieve international co-​operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. Article 55 (c) calls on the UN “to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” T. Meron, The Humanization of International Law, 2006, at 483. N. White, The United Nations System, 2002, at 47 ff.

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rights form, together with international co-​operation and development, the pillars upon which the organization is built.72 But instead of standing next to each other like silos, the Charter already recognises the interrelatedness between human rights and peace. In the early days of the UN, however, activities in the field of human rights on one hand and peace and security on the other hand had to a great extent taken place without much reference to one another, not least because human rights were deemed “too controversial, delicate and political”73 to be included in the work of the UN. According to Meron, they were, in former times, largely considered as programmatic and inspirational and not so much as legal obligations.74 Without downplaying the work of bodies and agencies working in other fields, peace and security have quickly become the dominating and most visible preoccupation within the UN system.75 The UN Charter does not establish any legal or other hierarchy between the purposes and principles of the UN. Neither does any other instrument of the UN. Still, the power of the Security Council in the field of peace and security, which is unrivalled by any other body, and the circumstances of the Cold War determining the work in the UN, are only two possible explanations, why peace and security was often regarded as the prime goal of the UN. This is not to say that the UN did not engage in standard-​setting and promotion of human rights. To the contrary, starting from the so-​called “bill of human rights” –​the 1948 Universal Declaration of Human Rights (udhr) as well as the 1966 International Covenant on Economic, Social and Cultural Rights (icescr) and the 1966 International Covenant on Civil and Political Rights (iccpr) and its Optional Protocols –​dozens of international declarations and treaties in the field of human rights have been passed and entered into force, often under the auspices of the UN. Today, a great number of the nine “core” human rights ­treaties76 72

73 74 75 76

Yet, these three pillars are not necessarily of equal strength, as Darrow and Arbour have pointed out: while the pillar of peace and security is made of steel and the pillar of development consists of concrete, the human rights pillar is the weakest, it is made of glass, M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 497. T. Meron, The Humanization of International Law, 2006, at 473. Ibid., at 483. The current understanding of the scope of legal obligation stemming from the Charter is discussed infra Chapter 2.ii. See for instance N. White, The United Nations System, 2002, at 54. International Convention on the Elimination of All Forms of Racial Discrimination (icerd), 21 December 1965; International Covenant on Civil and Political Rights (iccpr), 16 December 1966; International Covenant on Economic, Social and Cultural

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Chapter 1

and their Optional Protocols77 have achieved universal or almost universal application. The monitoring of human rights obligations took place mainly within the two main branches of treaty-​based bodies and Charter-​based bodies.78 Other bodies of the UN, such as the Security Council, were only marginally concerned with human rights issues.79 An Ever-​Closer Union: Growing Interrelatedness between Human Rights and Peace In the last decades, the attitude has changed, and today human rights form a central part of the work of the UN and all its organs. The establishment of various bodies and institutions for the promotion and protection of human rights is one indicator of the growing importance of human rights. In 1982, the Secretary-​General stated that “[i]‌n the contemporary world, the relationship between human rights and questions of peace and security is emerging 2

77 78

79

Rights (icescr), 16 December 1966; Convention on the Elimination of All Forms of Discrimination against Women (cedaw), 18 December 1979; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat), 10 December 1984; Convention on the Rights of the Child (crc), 20 November 1989; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (icmw), 18 December 1990; International Convention for the Protection of All Persons from Enforced Disappearance (cped), 20 December 2006; Convention on the Rights of Persons with Disabilities (crpd), 13 December 2006. For a list of the Optional Protocols refer to ohchr, The Core International Human Rights Instruments and their monitoring bodies, https://​www.ohchr.org/​EN/​ProfessionalInterest/​ Pages/​CoreInstruments.aspx. The treaty-​based bodies are committees of independent experts established by the human rights treaties, mandated with the monitoring of the implementation by their respective States parties. Six of these treaty bodies are also allowed to hear, under certain conditions, claims of human rights violations by individuals in an individual claims procedure (ccpr, cerd, cat, cedaw, crpd, and ced). The second branch included the Charter-​ based bodies, namely the Human Rights Council (hrc), and Special Procedures. The hrc replaced the Commission on Human Rights and held its first session on 19 June 2006. It is composed of 47 elected government representatives of UN member states. “Special Procedures” refers to mechanisms established by the Commission on Human Rights and assumed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world, see http://​www.ohchr.org/​EN/​HRBodies/​Pages/​ HumanRightsBodies.aspx. Only in some instances did the Security Council adopt resolutions with human rights references, e.g. on the situation in Hungary in 1956 and in the Congo in 1961, as well as on decolonialization, and, in particular on South Africa, see e.g. Security Council Report, In Hindsight: The Security Council’s Ever Evolving Relationship with Human Rights, 30 November 2016.

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into sharper focus.”80 Almost 20 years later, the Millennium Declaration of the General Assembly explicitly listed human rights among the main fields of activity.81 Furthermore, the mutual influence of peace and human rights has now become undisputed. In the Millennium Declaration, the international community affirmed the commitment to “spare no effort to free our peoples from the scourge of war, whether within or between States”, and therefore resolved to “ensure the implementation, by States Parties, (…) of international humanitarian law and human rights law”.82 In the following, the background of this development will be summarised to give an overview of the current state of discussion within the UN and to set the scene for the subsequent analysis of human rights in peacekeeping operations. a

Grave Violations of Human Rights as a Threat to Peace and Security Since the founding of the UN and during the period of the Cold War, human rights violations were primarily considered as belonging to the realm of internal affairs of the State concerned. Article 2(7) of the UN Charter prevents the UN from intervening in matters “which are essentially within the domestic jurisdiction of any state”.83 Against the backdrop of this non-​intervention principle, governing the relations between the UN and its member States, one can argue that the Security Council is barred from intervening in cases of internal human rights violations since they belong to the domestic jurisdiction of a State.84 Indeed, this narrow view was the interpretation favoured by the majority of States at the San Francisco Conference in 1945, who undertook to strengthen the principles of non-​intervention and its counterpart sovereignty

80

81 82 83 84

The Effects of Gross Violations of Human Rights on International Peace and Security, Note by the Secretary General, 9 June 1982, UN Doc. E/​CN.4/​SUB.2/​1982/​18, para. 1 (quoted from B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, at 2 f.). For examples of an early account of the relationship between human rights and peace and security see B. Ramcharan, The Security Council and the Protection of Human Rights, 2002, at 18. 55/​ 2. United Nations Millennium Declaration, Resolution adopted by the General Assembly, 8 September 2000, UN Doc. A/​55/​L.2, especially para. i.4. Ibid., para. ii. 9. Article 2(7) UN Charter. The scope and content of Article 2(7) has been subject of extensive debate, especially in the context of the right to humanitarian intervention, the discussion of which goes beyond the scope of this work. See as but one example J.  Delbrück, A  Fresh Look at Humanitarian Intervention Under the Authority of the United Nations, 67 Indiana Law Journal (1991–​1992) 887, at 891 ff.

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Chapter 1

as well as to limit the powers of the Security Council.85 But, as remarked by the Permanent Court of International Justice: The question whether a certain matter is or is not solely within the jurisdiction of a State is an essential relative question; it depends upon the development of international relations.86 And indeed, over the last decades, the increasing regulation of issues by international law has considerably diminished the domaine resérvé of a State. In the words of former UN Secretary-​General Boutros Boutros-​Ghali, the “time of absolute and exclusive sovereignty (…) has passed.”87 Especially concerning human rights, the practice of the UN, based on the human rights provisions in the Charter as well as law-​making efforts resulting in a large number of human rights treaties and declarations, have led to an internationalisation of the concept of human rights. As Thomas Buergenthal states: Despite their vagueness, these provisions and subsequent UN practice forced the membership of the UN gradually to accept the proposition that the UN Charter had internationalized the concept of human rights […]. This did not mean that as soon as the UN Charter had entered into force, all human rights issues were ipso facto no longer matters essentially within the domestic jurisdiction of States. But it did mean that the Member States were deemed to have assumed some international obligations relating to human rights.88 Also, the Security Council, as well as the General Assembly, have through consistent practice opposed the view that human rights were part of the matters which essentially lie within the domestic jurisdiction by pointing to the human rights provisions applicable to member States in Articles 1(3) and 55.89 This view reflects the state of present international law and has been

85 86 87 88 89

See F.  Ermacora, Art. 2 Ziff. 7, in:  B. Simma (ed.), Charta der Vereinten Nationen. Kommentar, 1991, 100, at 102 ff., MN 5 ff. Permanent Court of International Justice, Nationality Decrees Issued in Tunis and Morocco (French Zone), Advisory Opinion of 8 November 1921, pcij Series B, no. 4 (1923), at 16. An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-​keeping: Report of the Secretary General, 17 June 1992, UN Doc. A/​47/​277. T. Buergenthal, Human Rights, mpepil, March 2007, MN 8. J. Delbrück, A  Fresh Look at Humanitarian Intervention Under the Authority of the United Nations, 67 Indiana Law Journal (1991–​1992) 887, at 893.

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confirmed by the International Court of Justice (icj) as well as other organs of the UN.90 In the light of this development, human rights violations have come to the fore of attention of the Security Council who has shown increasing willingness to determine grave violations of human rights as a threat to international peace and security according to Article 39 of the Charter.91 In doing so, the Security Council triggers the exception to the principle of non-​intervention in Article 2 (7), which provides that “this principle shall not prejudice the application of enforcement measures under Chapter vii”. The term threat to peace is neither defined in the UN Charter, nor is it a term of art.92 Accordingly, the Security Council disposes of some leeway as to what is considered a threat to peace and security. Traditionally, the conception used to be that only situations of international, i.e. interstate, conflicts could trigger Chapter vii powers.93 The Security Council, however, has increasingly regarded internal situations, most notably civil wars, but also more and more egregious violations of human rights as a threat to peace and security.94 The earliest example was the use of Chapter vii measures in the situation of Southern Rhodesia in 1966, where the white minority regime of Ian Smith pursued a discriminatory apartheid rule.95 Similarly, the Security Council determined the apartheid regime in South Africa as a threat to peace and security, after widespread violence broke out and South Africa was on the brink of owning nuclear weapons. It can be discussed to what extent the declaration of independence of Southern Rhodesia and the repressive regime in South Africa truly were a threat to international peace and security.96 Instead, it has been 90

91 92 93 94 95 96

Ibid. See also A. Verdross and B. Simma, Universelles Völkerrecht, 3rd ed. 1984, at 302 f., § 494 with further references. See, with further references, also Georg Nolte, Article 2 (7), in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, at 280–​311, MN 38–​44 (“In recent times, sweeping arguments can often be found, according to which human rights no longer belong to the domestic jurisdiction of States.”, MN 41). C. Greenwood, International Law and the nato Intervention in Kosovo, 49 International & Comparative Law Quarterly (2000) 926, at 930. E. de Wet, Threat to Peace, mpepil, June 2009, MN 4. Instead of many, refer to N. Krisch, Article 39, in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1272, at 1282, MN 19. For a general overview see T. M. Franck, The Security Council and “Threats to the Peace”, in: R.-​J. Dupuy (ed.), The Development of the Role of the Security Council, 1993, 83. Security Council Resolution 217, 20 November 1965, UN Doc. S/​RES/​217. E.g. A. Verdross and B. Simma, Universelles Völkerrecht, 3rd ed. 1984, at 144, § 234 (“Wie der Fall Rhodesien zeigt, können auch innere Zustände in einem Staat, z.B.  massive Verletzungen der Menschenrechte, eine objektive Bedrohung des Weltfriedens bilden”).

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Chapter 1

argued that the Security Council explicitly used Chapter vii in these situations to fight racial discrimination as one of the most serious human rights violations. As Michael Matheson concludes: Indeed, it is fair to say that the Council’s use of Chapter vii for Rhodesia and South Africa was less a reflection of a desire to deal aggressively with threats to the peace as such than a determination to eradicate odious racial discrimination and oppression.97 Although this could be seen as a first step toward the use of Chapter vii to achieve human rights objectives, these two examples do not serve as proof for a general acceptance of the view that grave human rights violations were to be determined as a threat to international peace and security at this time.98 After the end of the Cold War, the Security Council considered human rights violations more frequently. At first, during the crisis in northern Iraq in 1991, the Security Council based its determination, albeit without invoking Chapter vii of the UN Charter, on cross-​border effects of an internal situation, namely the large-​scale flow of displaced Kurds in Iraq towards and across the border to Turkey.99 On the second occasion in 1992, this time invoking Chapter vii, it was the humanitarian crisis in Somalia which prompted the Security Council to underline a possible threat to peace and security in the region in the form of spill-​over of the internal conflict into neighbouring States,100 which it later 97

M. Matheson, Council unbound, 2006, at 46. Nico Krisch is more cautious with his interpretation and argues that the Security Council was not only driven by its concerns for human rights, but also by a potential danger for the region of Southern Africa, N. Krisch, Article 39, in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1272, at 1286 f, MN 25. 98 J. Delbrück, A  Fresh Look at Humanitarian Intervention Under the Authority of the United Nations, 67 Indiana Law Journal (1991–​1992) 887, at 894. 99 Security Council Resolution 688 (1991) of 5 April 1991. As Lillich points out, it is still disputed to what extent Resolution 688 can be considered a precedent in the practice of the Security Council. While some argue that this resolution showed that the Security Council had the power to take action under Chapter vii and determine a threat to international peace and security because of internal human rights violations, others question the resolution’s quality as precedent for wide-​spread yet purely internal human right violations as a threat to international peace and security, see R. Lillich, The Role of the UN Security Council in Protecting Human Rights in Crisis Situations: UN Humanitarian Intervention in the post-​cold War World, 3 Tulane Journal of International and Comparative Law (1995), 1, at 6 f., with further references. Note also the careful considerations made by P. Kooijmans, The Enlargement of the Concept “Threat to the Peace”, in: R.-​J. Dupuy (ed.), The Development of the Role of the Security Council, 1993, 111, at 114 f. 100 Security Council Resolution 733 (1992) of 23 January 1992.

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confirmed.101 This recognition of a human tragedy as a threat to international peace and security was, as Neil MacFarlane and Yuen Foong Khong point out, “a striking development”.102 With the case of Rwanda in 1994, the Security Council went a step further and noted that the “continuation of systematic and widespread killing of the civilian population”103 within the country constituted in the magnitude of the humanitarian crisis a threat to peace and security in the region. In its resolution 955 establishing the International Criminal Tribunal for Rwanda (ictr), the Security Council concretised this determination by stating that “the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda”104 constituted a threat to international peace and security. The establishment of the International Criminal Tribunal for the Former Yugoslavia (icty) is a related example of Security Council action as a response to grave violations of human rights.105 In the cases of Haiti and Sierra Leone, the reestablishment of the respective democratically elected governments was the primary objective of Security Council action.106 Even though the events in Sierra Leone might well have been a threat to regional stability, the protection of human rights

101 In Security Council Resolution (1992) 794 of 3 December 1992, the Council reiterated its determination that the “magnitude of the human tragedy (…) constitutes a threat to international peace and security.” 102 S. MacFarlane, Y. Khong, Human Security and the UN: a Critical History, 2006, at 168. See also generally T. Franck, The Security Council and “Threats to the Peace”: Some Remarks on Remarkable Recent Developments, in R.-​J. Dupuy (ed.), The Development of the Role of the Security Council, 1993, 83. 103 Security Council Resolution 929 (1994) of 22 June 1994, UN Doc. S/​RES/​929 (1994). 104 Security Council Resolution 955 of 8 November 1994, UN Doc. S/​RES/​955 (1994). 105 The preamble of Resolution 827 reads:  “Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ‘ethnic cleansing,’ including for the acquisition and the holding of territory,” and “Determining that this situation continues to constitute a threat to international peace and security”, Security Council Resolution 827 of 25 May 1993, UN Doc. S/​RES/​827. 106 The question on the scope of the right to self-​determination, often coupled with a potential right to democratic government has been spurred by these instances. See e.g., R. Rich, Bringing Democracy into International Law, 12(3) Journal of Democracy (2001), 20; see also more generally on the topic T. Franck, The Emerging Right to Democratic Governance, 86 American Journal of International Law (1992), 46; J. Donnelly, Human Rights, Democracy and Development, 21 Human Rights Quarterly (1999), 608; W. Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL (1990), 866.

28 

Chapter 1

in the country seems to be the driving reasoning behind Resolution 1132.107 In Haiti, where there was an only limited risk of the conflict destabilising the region, the situation is even clearer.108 Further, the continued denial of the right to self-​determination of the people of Timor-​Leste together with large-​ scale violence and displacement was determined as a threat to international peace and security, again without any noteworthy danger of a spreading of the conflict.109 The violent events in Darfur with their “ongoing humanitarian crisis and widespread human rights violations, including continued attacks on civilians”110 also fit into this pattern.111 More recently, the Security Council explicitly referred to and condemned the “gross and systematic violation of human rights”112 in Libya as well as the “widespread human rights violations and abuses”113 in the Central African Republic, in Yemen,114 and in South Sudan.115 As this brief overview has shown, the Security Council has increasingly determined internal human rights violations as a threat to international peace and security. In a lot of cases, the real risk of a spread of the conflict beyond the borders of the country concerned was comparably small. This leads to the conclusion that the Security Council was ready to use its leeway given by a lack of 107 Security Council Resolution 1132 of 8 October 1997, UN Doc. S/​RES/​1132 (1997) (“Gravely concerned at the continued violence and loss of life in Sierra Leone”, preamble). 108 Resolution 940, 31 July 1994: “the goal of the international community remains the restoration of democracy in Haiti and the prompt return of the legitimately elected President”. See also Resolution 841, 16 June 1993. 109 Security Council Resolution 1272 of 25 October 1999, UN Doc. S/​RES/​1272. 110 Security Council Resolution 1556 of 30 July 2004, UN Doc. S/​RES/​1556. The Security Council further condemned “all acts of violence and violations of human rights and international humanitarian law by all parties to the crisis, in particular by the Janjaweed, including indiscriminate attacks on civilians, rapes, forced displacements, and acts of violence especially those with an ethnic dimension, and expressing its utmost concern at the consequences of the conflict in Darfur on the civilian population, including women, children, internally displaced persons, and refugees”. 111 For the purpose of completeness, it needs to be added that the situation in Kosovo has also been qualified as threat to international peace and security, not least because of the grave violations of human rights, cp. Security Council Resolution 1199 of 3 September 1998. The inaction of the Security Council in the face of veto by its members and the military intervention by nato triggered heated debate over the right to humanitarian intervention, see, instead of many, L. Henkin, Kosovo and the Law of Humanitarian Intervention, 93(4) AJIL (1999), 824. The intervention of ecowas forces in Liberia is also regularly mentioned in this respect. 112 Security Council Resolution 1940 of 26 February 2011, UN Doc. S/​RES/​1940, preamble. 113 Security Council Resolution 2127 of 5 December 2013, UN Doc. S/​RES/​2127, para. 17. 114 Security Council Resolution 2140 of 26 February 2014, UN Doc. S/​RES/​2140, paras. 27 and 29. 115 Security Council Resolution 2223 of 28 May 2015, UN Doc. S/​RES/​2223.

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definition of the term to address grave violations of human rights with its powers under Chapter vii. By the same token, in December 2014 for the first time and in the following years, the situation in the Democratic People’s Republic of Korea (dprk) was placed on the agenda of the Security Council by a procedural vote, solely because of the human rights violations in that country.116 Thus, the strict distinction of issues of peace and security on the one hand and human rights on the other hand, has eroded over the last decades and today, the Security Council is increasingly ready to consider human rights violations as an issue that falls within its primary responsibility for the maintenance of the peace and security even without an immediate cross-​border impact.117 b

Paradigm Shift in the Perception of Security and the Concept of Human Security This development has only been possible against the backdrop of a changing understanding of security that has taken place within the UN. For much of the twentieth century, security had a clear focus on the State and was equalled with national security. Thus, threats to security regularly affected questions of threats to State sovereignty or, in graver cases, the survival of the State as such. As a result of this understanding, the Security Council found a threat to peace and security in instances of war between States or internal armed conflict. In the last decades, the emphasis has shifted from a State-​centred perspective to a more individual-​centred one.118 Indeed, security is no longer perceived as strictly limited to national or State security but also includes elements of individual security. This is how the concept of human security has gained considerable impact within the UN.119 116 Security Council Report, Human Rights and the Security Council  –​An Evolving Role. Research Report, 2016, No. 1, 25 January 2016, at 8; China and Russia voted against. 117 See also a concept paper of the US, circulated to the members of the Security Council in 2017, quoted in Security Council Report, What’s in Blue. Insights on the Work of the Security Council. Human Rights Briefing, 17 April 2017, https://​www.whatsinblue.org/​ 2017/​04/​human-​rights-​briefing.php. 118 Cp. N.  Krisch, Article 39, in:  B. Simma et  al (eds.), The Charter of the United Nations. A  Commentary, 3rd ed. 2012, 1272, at 1284, MN 22. See also G.  Oberleitner, Human Security: A Challenge to International Law?, 11 Global Governance (2005) 185, at 197. 119 Literature on human security is abundant and cannot be comprehensively reflected here. Refer e.g. to G. Oberleitner, Human Security: A Challenge to International Law?, 11 Global Governance (2005), 185; B. Ramcharan, Human Rights and Human Security, 2002; W.  Benedek and M.  Kettemann, Menschliche Sicherheit und Menschenrechte, in:  C. Ulbert and S.  Werthes (eds.), Menschliche Sicherheit. Globale Herausforderungen und regionale Perspektiven, 2008; T. Debiel and S. Werthes (eds.), Human Security on Foreign Policy Agendas: Changes, Concepts and Cases, inef Report 80/​2006. For a comprehensive overview on the early traces of the concept as well as the role of the UN in promoting

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The first explicit reference to human security is to be found in Boutros-​ Boutros Ghali’s 1992 Agenda for Peace,120 but it was the 1994 United Nations Development Programme (undp) Human Development Report that prominently elaborated upon the concept and broadly defined it as “freedom from fear” and “freedom from want”.121 With this understanding, the notion of security was both broadened horizontally by adding new dimensions to the element of military security and widened vertically by including the individual –​in addition to the State –​as the object of security.122 As a response to Kofi Annan’s call at the 2000 UN Millennium Summit to achieve the twin objectives of “freedom from fear” and “freedom from want”, the independent Commission on Human Security was established under the co-​ chairmanship of Sadako Ogata, former UN High Commissioner for Refugees, and Amartya Sen, Nobel Economics Prize Laureate. The commission presented its final report Human Security Now in 2003.123 To institutionalise human security at the UN, the Human Security Unit was established at the UN Secretariat in 2004.124 The concept was further developed in the report of the UN Secretary General’s High-​level Panel on Threats, Challenges and Change, which highlighted that threats in the contemporary world were not limited to affecting State security but were strongly related to human security.125 In the 2005 World Summit Outcome, the Heads of State and Government recognised that “all individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential” and agreed to discuss and define the notion of

120

1 21 122 1 23 124

125

it, see S. MacFarlane, Y. Khong, Human security and the UN: a critical history, 2006 and, summarising the development and current status at the UN, T.  Owen, The uncertain future of human security in the UN, in:  M. Goucha and J.  Crowley (eds.), Rethinking Human Security, 2008, 113. An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-​keeping: Report of the Secretary General, 17 June 1992, UN Doc. A/​47/​277 (He argues that each organ of the UN has “has a special and indispensable role to play in an integrated approach to human security.”, para. 16). undp Human Development Report 1994, New Dimensions of Human Security. M. Fröhlich, The responsibility to protect, in:  Fabian Klose (ed.), The Emergence of Humanitarian Intervention, 2015, 299, at 307. Commission on Human Security, Human Security Now, 2003. The Human Security Unit also provides information on the history and content of the concept, see United Nations, Human Security Unit, Human Security in Theory and Practice. An Overview of the Human Security Concept and the United Nations Trust Fund for Human Security, http://​www.un.org/​humansecurity/​sites/​www.un.org.humansecurity/​files/​human_​security_​in_​theory_​and_​practice_​english.pdf. A more secure world: Our shared responsibility, Report of the High-​level Panel on Threats, Challenges and Change, 2004.

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human security in the General Assembly.126 In its follow-​up report, the General Assembly described human security as “an approach to assist Member States in identifying and addressing widespread and cross-​cutting challenges to the survival, livelihood and dignity of their people”.127 It followed a broad understanding that included the “right of people to live in freedom and dignity, free from poverty and despair.”128 More important than the exact scope and content of the concept of human security is, for the present book, the plain but crucial realisation that “security, human rights and development are interdependent and mutually reinforcing conditions for sustainable peace”.129 Therefore, as a consequence of this broader understanding of security, a “greater emphasis on international humanitarian, criminal, refugee and human rights law, as well as the incorporation of human rights dimensions in all United Nations activities” is required.130 Under this conception then, human rights have to play a significant role in peacekeeping activities, not only as an accessory to traditional security tasks but as a vital element for the fulfilment of the fundamental goal of peacekeeping, which is not limited to international –​i.e. State –​security but rather also encompasses human security.131

126 2005 World Summit Outcome, 24 October 2005, UN Doc. A/​RES/​60/​1, para. 143. See further the Report of the Secretary-​General, Human Security, 8 March 2010, UN Doc. A/​64/​ 701; and General Assembly, Follow-​up to paragraph 143 on human security of the 2005 World Summit Outcome, 6 September 2012, UN Doc. A/​66/​L.55/​rev. 1. 127 Ibid., para. 3. 128 Ibid., para. 3 (a). A  narrower approach limits human security to security from fear, i.e. from violence. For an overview of the different dimensions of human security see e.g. H.  Owada, Human Security and International Law, in:  U. Fastenrath et  al. (eds.), From Bilateralism to Community Interest, 2011, 505, at 509ff. 129 Securing peace and development: the role of the United Nations in supporting security sector reform, Report of the Secretary-​General, 23 January 2008, UN Doc. A/​62/​659–​S/​ 2008/​39, para. 1.  The relationship between human security and human rights is outlined by W. Benedek, Human security and human rights interaction, in: M. Goucha and J. Crowley (eds.), Rethinking Human Security, 2008, 7; and B. Ramcharan, Human security and human rights, 2002. 130 Securing peace and development: the role of the United Nations in supporting security sector reform, Report of the Secretary-​General, 23 January 2008, UN Doc. A/​62/​659–​S/​ 2008/​39, para. 7. 131 Cp. S. Peou, The UN, Peacekeeping and Collective Human Security: From An Agenda for Peace to the Brahimi Report, 9 International Peacekeeping (2002) 51, at 54; W. Benedek, Mainstreaming human security in United Nations and European Union peace and crisis management operations:  policies and practice, in:  W. Benedek, M Kettemann and M.  Möstl (eds.), Mainstreaming Human Security in Peace Operations and Crisis Management, 2011, 13.

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c

Security and Human Rights in the Context of the Responsibility to Protect The shift from State security to individual or human security is strongly related to the rise of the emerging norm of the responsibility to protect (R2P).132 It builds upon a redefined understanding of State sovereignty that conceives of the State as “the servant of its people and not vice versa”133 while putting the protection of the individual at the centre.134 R2P as a concept was introduced by the report The Responsibility to Protect of the International Commission on Intervention and State Sovereignty (iciss) in 2001.135 It rests on two basic ­principles: A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-​intervention yields to the international responsibility to protect.136

132 It is impossible here to provide a complete overview on the ever-​growing literature on the topic. For an introduction see e.g. I. Winkelmann, Responsibility to Protect, mpepil, October 2010; and M. Fröhlich, The responsibility to protect, in: Fabian Klose (ed.), The Emergence of Humanitarian Intervention, 2015,  29. A  further selection of works may include M. Fröhlich, Responsibility to Protect: Zur Herausbildung einer neuen Norm der Friedenssicherung, in: J. Varwick and A. Zimmermann (eds.), Die Reform der Vereinten Nationen, 2006, 167; E. Strauss, The Emperor’s New Clothes? The United Nations and the Implementation of the Responsibility to Protect, 2009; C. Verlage, Responsibility to Protect. Ein neuer Ansatz im Völkerrecht zur Verhinderung von Völkermord, Kriegsverbrechen und Verbrechen gegen die Menschlichkeit, 2009; A.  Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities, 2009; G. Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, 2009; A. Hehir, The Responsibility to Protect:  Rhetoric, Reality and the Future of Humanitarian Intervention, 2012. The International Coalition for the Responsibility to Protect offers another list of selected readings, including the Global Responsibility to Protect Journal http://​www.responsibilitytoprotect.org/​index.php/​component/​content/​article/​628. 133 Secretary-​General Presents his Annual Report to General Assembly, Speech by Kofi Annan, 20 September 1999, UN Doc. SG/​SM/​7136. 134 See M.  Fröhlich, Responsibility to Protect:  Zur Herausbildung einer neuen Norm der Friedenssicherung, in: J. Varwick and A. Zimmermann (eds.), Die Reform der Vereinten Nationen: Bilanz und Perspektiven, 2006, 167. 135 International Commission on Intervention and State Sovereignty (iciss), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, 2001. 136 Ibid., p. xi.

Human Rights in UN Peace Operations: Institutional Perspective

33

The report further spelt out the criteria which must be fulfilled for an intervention to be justified.137 In cases in which the territorial State is not willing or not able to fulfil its responsibility –​or is itself the perpetrator –​the responsibility to protect is passed on to the international community.138 The High-​level Panel on Threats, Challenges and Change took up the idea of R2P and endorsed “the emerging norm that there is a collective international responsibility to protect.”139 Kofi Annan, in his 2005 report In Larger Freedom underlined that the responsibility to protect “lies, first and foremost, with each individual State”, but “shifts to the international community” if the national State is unwilling or unable to protect its citizens.140 Remarkably, as some authors find,141 R2P managed to make it into the 2005 Outcome Document,142 albeit with some transformation compared to the original iciss R2P143 and, in the view of a majority of international legal scholars, without adding new binding obligations on States, neither unilaterally nor collectively.144 The inclusion of R2P, as an originally 1 37 Ibid., p. xii. 138 Ibid., p. 17, para. 2.29. 139 A more secure world:  our shared responsibility, Report of the High-​level Panel on Threats, Challenges and Change, 2 December 2004, UN Doc. A/​59/​565, para. 203. On its legal character see most notably C.  Stahn, Responsibility to Protect:  Political Rhetoric or Emerging Legal Norm?, 101 AJIL (2007), 99; and A. Zimmermann, The Obligation to Prevent Genocide: Towards a General Responsibility to Protect?, in: U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, 2011, 629. See further A.  Peters, The Responsibility to Protect: Spelling Out the Hard Legal Consequences for the UN Security Council and its Members, in: U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, 2011, 297. 140 In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-​General, 21 March 2005, UN Doc. A/​59/​2005, para. 135. 141 E.g. M. Fröhlich, The responsibility to protect, in: Fabian Klose (ed.), The Emergence of Humanitarian Intervention, 2015, 299, at 319. 142 General Assembly Resolution 60/​1, World Summit Outcome Document (2005), 24 October 2005, UN Doc. A/​RES/​60/​1, paras. 138–​139. 143 See M. Fröhlich, The responsibility to protect, in: Fabian Klose (ed.), The Emergence of Humanitarian Intervention, 2015, 299, at 313, for a detailed account of the transformation process. 144 See, most notably, J.  Brunnée and S.  Toope, The Responsibility to Protect and the Use of Force:  Building Legality?, 2(3) Global Responsibility to Protect (2010), 191, at 192; E.  Strauss, A  Bird in the Hand is Worth Two in the Bush, 1(3) Global Responsibility to Protect (2009), 291, at 296–​299; and C. Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?, 101(1) AJIL (2007), 99; A. Kapur, Humanity as the A and Ω of Sovereignty: Four Replies to Anne Peters, 20(3) EJIL (2009), 560, at 562. Arguing in favour of a new obligation created by the responsibility to protect, A. Peters, Humanity as the A and Ω of Sovereignty, 20(3) EJIL (2009), 513. Cp. further L. Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’ 34(3) Review of International Studies (2008), 445.

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Chapter 1

academic concept, into a political resolution of the General Assembly marked an important step, but by no means the end of the debate about its scope and content.145 Two points are worth mentioning. First, it is essential to note that the emergence of R2P can only be understood against the background of a historical evolution of human rights, including the recognition of obligations erga omnes and the already presented reconceptualisation of sovereignty and security.146 Consequently, R2P marks the shift in the debate from a State-​centred right to intervene (under the heading of humanitarian intervention) to a people-​ centred responsibility to protect.147 The link between R2P and human rights is an immediate one: The trigger of R2P, namely large-​scale loss of life or large-​ scale ethnic cleansing,148 goes hand in hand with massive violations of human rights. In fact, genocide, war crimes, ethnic cleansing and crimes against humanity, the starting points of R2P as understood in the Outcome Document,149 are all most severe forms of human rights violations. 145 For a summary of the activities of the General Assembly and other UN bodies, see e.g. the International Coalition of the Responsibility to Protect, Key developments on the Responsibility to Protect at the United Nations from 2005–​2014, http://​www.responsibilitytoprotect.org/​index.php/​about-​rtop/​the-​un-​and-​rtop#GA. M.  Vashakmadze gives an overview on instances of application of R2P, Responsibility to Protect, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1201, MN 29 ff. For examples on the implementation of R2P see, among many, E. Strauss, The Emperor’s New Clothes?, 2009; A. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities, 2009; S. Chesterman, Leading from Behind: The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention after Libya, 25 Ethics & International Affairs (2011), 279; M. Fröhlich, The responsibility to protect, in: Fabian Klose (ed.), The Emergence of Humanitarian Intervention, 2015, 299; M.  Fröhlich, Der Fall Libyen und die Norm der Schutzverantwortung, 21(1) Zeitschrift für Politikwissenschaft (2011), 135; T. Dunne and K. Gelber, Arguing Matters. The Responsibility to Protect and the Case of Libya, 6(3) Global Responsibility to Protect (2014), 326 and disagreeing A. Hehir, The Dog That Didn’t Bark? A Response to Dunne and Gelber’s Analysis of RtoP’s Influence on the Intervention in Libya, 7(2) Global Responsibility to Protect (2015), 211. Critically see also F. Abiew and N. Gal-​Or, Libya, intervention and responsibility, in: C. Stahn and H. Melber (eds.), Peace Diplomacy, Global Justice and International Agency, 2014, 536. 146 Similarly, I.  Winkelmann, Responsibility to Protect, mpepil, October 2010, MN 3.  The iciss also underlines the link between human security and R2P, see iciss, at 15, paras. 2.21 ff. 147 International Commission on Intervention and State Sovereignty (iciss), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, 2001, at 11, para. 2.4. 148 Ibid., p. xii. 149 General Assembly Resolution 60/​1, World Summit Outcome Document (2005), 24 October 2005, UN Doc. A/​RES/​60/​1, para. 138.

Human Rights in UN Peace Operations: Institutional Perspective

35

Secondly, R2P, in its original conception, has put the international community under an obligation to act when the national State is unable or unwilling to do so. This action includes preventive measures but also coercive measures, even involving military intervention.150 This means that under R2P, instances of severe violation of human rights amounting to large-​scale loss of life or ethnic cleansing can lead to an actual situation in which the international community is ready (or under an obligation) to compromise on the value of “peace” in order to save the population from most severe forms of human rights violations. Using R2P as an explanation (or justification) for intervention continues to resonate.151 In this context, drawing on the developments in Libya, Abiew and Gal-​Or rightly point to the need for a careful and ongoing re-​assessment, refinement and adjustments of modes of engagement in interventions in the face of the “nagging question” whether the cost of human lives was “worth it”.152 These considerations introduce yet another layer to the relationship between peace and human rights. d Peace as a Human Right When discussing the relationship between human rights and peace, the idea of peace as a human right is evident. While neither the UDHR nor any other human rights treaty asserts a human right to peace,153 such a right has been brought forward inter alia by the UN Commission on Human Rights (predecessor of the UN Human Rights Council). In its Resolution 5 (xxxii) of 27 February 1976, it stated that “everyone has the right to live in conditions of international peace and security and fully to enjoy economic, social and cultural rights and civil and political rights.”154 150 International Commission on Intervention and State Sovereignty (iciss), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, 2001, p. xi. 151 Instead of many, and with a rather positive turn to it, A. Orford, From Promise to Practice? The Legal Significance of the Responsibility to Protect Concept 3 Global Responsibility to Protect (2011), 400, at 424. 152 F. Abiew and N. Gal-​Or, Libya, intervention and responsibility, in: C. Stahn and H. Melber (eds.), Peace Diplomacy, Global Justice and International Agency, 2014, 536, at 560. 153 E.g. J. Donnelly, Peace as a Human Right, in: J. Mertus and J. Helsing (eds.), Human Rights and Conflict, 2006, 151, at 152 (“In fact, none of the approximately one hundred human rights instruments listed by the United Nations High Commissioner for Human Rights asserts the existence of a right to peace”). 154 United Nations Commission on Human Rights, Resolution 5 (xxxii) on Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of a Long-​Term Programme of Work of the Commission, (escor 32nd Session Supp 3, 60), UN Doc. E/​5768, at 61, para. 1. For subsequent activities by the Human

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Further efforts to develop the concept of a human right to peace have been made by the General Assembly155 and the Human Rights Council,156 even though these efforts belong to “the world’s best kept secrets”.157 The idea of a human right to peace merits attention in that it highlights the interdependence of peace and human rights –​an acknowledgement that has not always been self-​evident. Beyond this, however, it has not much to offer for the present purposes.158 As things stand, a right to peace, notwithstanding whether it is conceived of as an individual or as a group right,159 does not create a legal basis for additional rights and duties.160 The same holds true for the “right to enjoy peace such that all human rights are promoted and protected and development is fully realized”, as proclaimed by the General Assembly in 2016.161 Rather, the right to peace serves as a focal point that brings together and strengthens existing responsibilities, in the sense of a “political organizational principle” (politisches Gestaltungsprinzip) or a “structural principle of international law” (völkerrechtliches Strukturprinzip).162 As such, the

155

156 157 158

1 59 160 161 162

Rights Council see Human Rights Council Advisory Committee, Right to Peace, http://​ www.ohchr.org/​EN/​HRBodies/​HRC/​AdvisoryCommittee/​Pages/​RightToPeace.aspx. Note, for instance, UN General Assembly, Declaration on the Right of Peoples to Peace, 12 November 1984, UN Doc. A/​RES/​39/​11, para. 1: “the peoples of our planet have a sacred right to peace.” In December 2016, the General Assembly adopted, with a vote of 131 in favour, to 34 against and 19 abstentions, the Declaration on the Right to Peace, Resolution adopted by the General Assembly on 19 December 2016, UN Doc. A/​RES/​71/​189. E.g. Human Rights Council, Promotion of the right of peoples to peace, 20 June 2010, UN Doc. A/​HRC/​RES/​14/​3. Douglas Roche, quoted in D.  Keane, unesco and the right to peace, in:  D. Keane and Y. McDermott (eds.), The Challenge of Human Rights, 2012, 74, at 74 f. Therefore, the various arguments in favour and against the right to peace do not need to be replicated here. Refer, for an overview, to D. Tehindrazanarivelo and R. Kolb, Peace, Right to, International Protection, mpepil, December 2006, with further references; in favour of a human right to peace, see, e.g. A. Said and C. Lerche, A Human Right to Peace, in: J. Mertus and J. Helsing (eds.), Human Rights and Conflict, 2006, 129; responding critically, J.  Donnelly, Peace as a Human Right, in:  J. Mertus and J.  Helsing (eds.), Human Rights and Conflict, 2006, 151. Concisely summarised by H. Henninger, Menschenrechte und Frieden, 2013, at 157 ff. E.g. D. Tehindrazanarivelo and R. Kolb, Peace, Right to, International Protection, mpepil, December 2006, MN 23. General Assembly, Declaration on the Right to Peace, Resolution adopted by the General Assembly on 19 December 2016, UN Doc. A/​RES/​71/​189, Article 1. E. Riedel, Menschenrechte in der dritten Dimension, EuGRZ (1989), 9, at 19 f.  (“Als politisches Gestaltungsprinzip, als völkerrechtliches Strukturprinzip, das die wichtigste Zielbestimmung der UN-​Charta bezeichnet, kommt der Friedenssicherung eine zentrale Rolle zu. Als konkrete Menschenrechtsforderung (…) bleibt das Recht auf Frieden hingegen m.E. zu abstrakt, zu konturenlos und letztlich ohne Konseqzenzen.”, emphases in the original).

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conception of peace as a human right does not provide any additional insight for the purpose of this book. e Result: Human Rights and Peace as Intrinsically Linked Concepts In the preceding sections, it has been established that the originally dominant distinction between human rights on the one hand and peace and security on the other one has eroded over the last decades. The increasing willingness of the Security Council to determine human rights violations as a threat to international peace and security, combined with the paradigm shift in the conception of security, have been crucial in this development. Statements of the Secretary-​Generals support these findings. All Secretary-​ Generals since the end of the Cold War have stated unequivocally that the protection of human rights was central to peace and security.163 For instance, Secretary-​General Javier Perez de Cuellar wrote in 1991 that the “protection of human rights has now become one of the keystones in the arch of peace”.164 Boutros Boutros-​Ghali called the respect for human rights “clearly important in order to maintain international peace and security”.165 Kofi Annan has been quoted repeatedly with his appeal that: “we will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights.”166 And finally, Ban Ki-​moon’s efforts to bring human rights to the centre of attention167 reflect his conviction that “[l]‌ong-​term peace and security cannot exist without human rights for all”.168 As a consequence, it bears no wonder that human rights have come to play a significant role in peacekeeping activities, even though this was quite different at the start of the peacekeeping enterprise. In the remainder of this part, 163 Ove Bring shows that Dag Hammarskjöld was one of the early ones to acknowledge the immanent link between peace, security and human rights, even though the idea gained momentum only much later, O.  Bring, Hammarskjöld’s dynamic approach to the UN Charter and international law, in: C Stahn and H. Melber (eds.), Peace Diplomacy, Global Justice and International Agency, 2014, 142. 164 Report of the Secretary-​General on the Work of the Organization, UN Doc A/​46/​404 (1991), 45 UNYB 3 (1991), at 7. 165 Report of the Secretary-​General on the Work of the Organization, UN Doc GA/​47/​407 (1992), 46 UNYB 3 (1992), at 16, para. 109. 166 In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-​General, 21 March 2005, UN Doc. A/​59/​2005, para. 17. 167 See infra, iii.2.e et seq. 168 UN Secretary General, quoted in UN New Centre, UN development agenda seeks to reach ‘those farthest behind,’ Ban tells Human Rights Council, 29 February 2016, http://​www. un.org/​apps/​news/​story.asp?NewsID=53334#.WZ1FTq3qigQ.

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a closer look will be shed on this development to understand the status of human rights in peace operations today. iii

Human Rights in UN Peacekeeping Operations

By evaluating the role of human rights in the different instances of the peace operation strategic framework, doctrine, operationalisation, and implementation, the institutional setting will be analysed in some detail given the variety of actors that have a say in the context of peace operations. To structure the debate, the respective approaches to human rights in peace operations by the Security Council, the Secretary-​General, the Department of Peace Operations (dpo) and the Office of the High Commissioner for Human Rights (ohchr) are discussed in turn. Security Council: Strategic Framework for Human Rights in Peacekeeping Operations It may sound surprising, but the biggest share of the Security Council’s work is devoted to the mandating and oversight of the UN’s peace operations.169 The Security Council is responsible for the authorisation and strategic170 direction of peace operations. The respective mandate predetermines the overall political course of each peacekeeping operation. It is, therefore, necessary to take a closer look at the mandating process and to what extent human rights find entry into peace operations mandates. 1

a Human Rights in Mission Mandates Nowadays, human rights provisions are a standard element of peace operations mandates. The first mission with human rights provisions was the United Nations Observer Mission in El Salvador (unosal), established in 1991.171 While all the resolutions establishing the currently deployed missions since 1991 include provisions on human rights,172 overall roughly two-​thirds of the 169 Security Council Report, The Security Council and UN Peace Operations:  Reform and Deliver, Research Report No. 2 2016, 5 May 2016, at 2. 170 “Strategic”, in the context of the UN means the “high level political decision-​making and management of a UN peacekeeping operation at UN Headquarters.” Management further takes places at operational and tactical levels, see dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January 2015, at 90. 171 United Nations Observer Mission in El Salvador (onusal), Security Council Resolution 693, 20 May 1991. 172 See Table 1. For a list of all currently deployed operations see United Nations Peacekeeping, Where we operate, https://​peacekeeping.un.org/​en/​where-​we-​operate.

Human Rights in UN Peace Operations: Institutional Perspective table 1

39

Peace operations with a human rights mandate (current operations highlighted)

Name of the peace operation

Date established

Resolution No.

United Nations Observer Mission in El Salvador (unosal) United Nations Protection Force (unprofor) United Nations Transitional Authority in Cambodia (untac) United Nations Observer Mission in Liberia (unomil) United Nations Angola Verification Mission iii (unavem iii) United Nations Mission in Bosnia and Herzegovina (unmibh) United Nations Transitional Authority in Eastern Slavonia, Baranja and Western Sirmium (untaes) United Nations Verification Mission in Guatemala (minugua) United Nations Observer Mission in Angola (monua) United Nations Observer Mission in Sierra Leone (unomsil) United Nations Interim Administration Mission in Kosovo (unmik) United Nations Mission in Sierra Leone (unamsil) United Nations Transitional Administration in East Timor (untaet) United Nations Organization Mission in the Democratic Republic of the Congo (monuc) United Nations Mission in Ethiopia and Eritrea (unmee) United Nations Mission of Support in East Timor (unmiset)

20 May 1991

S/​RES/​693 (1991)

21 February 1992 28 February 1992 22 September 1993 8 February 1995

S/​RES/​743 (1992) S/​RES/​745 (1992) S/​RES/​866 (1993) S/​RES/​976 (1995)

21 December S/​RES/​1035 (1995) 1995 15 January 1996 S/​RES/​1037 (1996) 20 January 1997 S/​RES/​1094 (1997) 30 June 1997

S/​RES/​1118 (1997)

13 July 1998

S/​RES/​1181 (1998)

10 June 1999

S/​RES/​1244 (1999)

22 October 1999 S/​RES/​1270 (1999) 25 October 1999 S/​RES/​1272 (1999) 30 November 1999

S/​RES/​1279 (1999)

15 September 2000 17 May 2002

S/​RES/​1320 (2000) S/​RES/​1410 (2002)

40  table 1

Chapter 1 Peace operations with a human rights mandate (current operations highlighted) (cont.)

Name of the peace operation

Date established

Resolution No.

United Nations Mission in Liberia (unmil) United Nations Mission in Côte d’Ivoire (minuci) United Nations Operation in Côte d’Ivoire (unoci) United Nations Stabilization Mission in Haiti (minustah) United Nations Operation in Burundi (onub) United Nations Mission in Sudan (unmis) United Nations Integrated Mission in Timor-​Leste (unmit) African Union/​United Nations Hybrid operation in Darfur (unamid) United Nations Mission in the Central African Republic and Chad (minurcat) United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (monusco) United Nations Organization Interim Security Force for Abyei (unisfa) United Nations Mission in the Republic of South Sudan (unmiss) United Nations Supervision Mission in Syria (unsmis) United Nations Multidimensional Integrated Stabilization Mission in Mali (minusma) United Nations Multidimensional Stabilization Mission in the Central African Republic (minusca) United Nations Mission for Justice Support in Haiti (minujusth)

19 September 2003 13 May 2003

S/​RES/​1509 (2003)

27 February 2004 30 April 2004

S/​RES/​1528 (2004)

21 May 2004

S/​RES/​1545 (2004)

S/​RES/​1479 (2003)

S/​RES/​1542 (2004)

24 March 2005 S/​RES/​1590 (2005) 25 August 2006 S/​RES/​1704 (2006) 31 July 2007

S/​RES/​1769 (2007)

25 September 2007 28 May 2010

S/​RES/​1778 (2007)

27 June 2011

S/​RES/​1990 (2011)

8 July 2011

S/​RES/​1996 (2011)

21 April 2012

S/​RES/​2043 (2012)

25 April 2013

S/​RES/​2100 (2013)

10 April 2014

S/​RES/​2149 (2014)

13 April 2017

S/​RES/​2350 (2017)

S/​RES/​1925 (2010)

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41

almost 50 peace operations established after 1991 have included a human rights mandate.173 The mandates of peace operations are as diverse as the underlying conflicts and countries they are sent to. Accordingly, human rights mandates given to peace operations do not follow a predetermined blueprint and vary greatly. An analysis of the scope and content of the respective human rights mandates will be done further below.174 At this point, it can be noted that the constant inclusion of human rights objectives is generally to be welcomed. It reflects the apparent recognition of the promotion and protection of human rights as a precondition for sustainable peace175 –​an idea that has evolved in the overall practice of the Security Council during the last decades. Moreover, it seems to be understood that human rights considerations have to be addressed already in the early phases of conflict resolution and peacekeeping and should not be postponed until later peacebuilding activities. b Shortcomings in Mandate Drafting At the same time, the inclusion of human rights tasks into peace operations mandates does not follow the rule of “the more, the merrier”. To the contrary, commentators have continuously lamented an ever-​increasing list of tasks (while financial and personnel resources stagnate) as well as an obvious gap between ambitious human rights mandates on the one hand and difficult circumstances in the implementation on the other one.176 Indeed, mission tasks have proliferated in recent years (the mandate for the UN mission in drc, for instance, lists no less than 45 tasks).177 Mandates have not only become more and more lengthy and detailed but also at times less realistic or manageable –​a 173 See Table 1. For some comments on the relationship between the nature of the conflict and the inclusion of human rights mandates, see S. Maus, Institutionalising human rights in United Nations peacekeeping operations, in: W. Benedek, M. Kettemann, and M. Möstl, Mainstreaming Human Security in Peace Operations, 2010, 57, at 59 f. 174 See infra Chapter 2.v. 175 See e.g. J. Mertus and J. Helsing, Introduction: Exploring the Intersection between Human Rights and Conflict, in: J. Mertus and J. Helsing (eds.), Human Rights and Conflict, 2006, 3; and E. Lutz, Understanding Human Rights Violations in Armed Conflict, in: J. Mertus and J. Helsing (eds.), Human Rights and Conflict, 2006, 23. 176 K. Månsson, Integration of Human Rights in Peace Operations, 13(4) International Peacekeeping (2006), 547 (“The gap between ambitious human rights mandates in Security Council resolutions and the difficulty of operationalizing them implies that any examination of the integration of human rights in peace operations must consider the integration processes unfolding at both the macro (decision-​making) and micro (operational) levels and the (lack of) synergy between the two.”, at 547 f.) 177 dpko/​d fs, A New Partnership Agenda: Charting a New Horizon, 2009, at 10.

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finding that was also put forward by the High-​level Independent Panel on Peace Operations (hippo).178 Instead of working towards “clear, credible and achievable mandates” as was already called for in the 2000 Brahimi report179 and repeated in subsequent reports and guidelines by the Secretary-​General,180 the lack of strategy and guidance in mission mandates persists,181 despite more recent efforts to improve mandates.182 The reasons for this are diverse. The first one relates to the mode of decision-​ making within the Security Council.183 Even though majority decisions are possible, the Security Council, being a political body, focuses on consensus-​ building. Such consensus among the members of the Security Council requires compromises which often lead to less specificity and more ambiguity.184 As a 178 The panel was appointed of 14 experts under the chairmanship of José Ramos-​Horta to undertake a comprehensive review of UN peace operations. The results were submitted in the report Uniting Our Strengths for Peace –​Politics, Partnership and Peace. Report of the High-​level Independent Panel on United Nations Peace Operations, 16 June 2015, http://​peaceoperationsreview.org/​wp-​content/​uploads/​2015/​08/​HIPPO_​Report_​1_​June_​ 2015.pdf, para. 173. The report was forwarded to the General Assembly and the Security Council on 17 June 2015, UN Doc. A/​70/​95–​S/​2015/​446. The Secretary-​General responds to the recommendations by hippo in his report The future of United Nations peace operations: implementation of the recommendations of the High-​level Independent Panel on Peace Operations, 2 September 2015, UN Doc. A/​70/​357–​S/​2015/​682. 179 Brahimi report, A/​55/​305, S/​2000/​809, paras. 56 ff. For a succinct elaboration on this recommendation of the Brahimi report see C. Gray, Peacekeeping after the Brahimi Report, 6 Journal of Conflict and Security Law (2001), 267, at 281 ff. 180 E.g. No Exit Without Strategy: Security Council Decision-​Making and the Closure or Transition of United Nations Peacekeeping Operations, Report of the Secretary-​General, 20 April 2001, UN Doc. S/​2001/​394, at 8: “A good exit strategy results from a good entrance strategy. In this connection, the Security Council is expected to reach agreement on a clear and achievable mandate based on a common understanding of the nature of the conflict.” (emphasis added). The ‘Integrated Missions Planning Process (impp)’, Guidelines endorsed by the UN Secretary-​General, 13 June 2006, calls for a common strategy and strategic planning. Putting the impp in context, see R. Gowan, The Strategic Context: Peacekeeping in Crisis, 2006–​08, 15(4) International Peacekeeping (2008), 453. 181 Cp. also B. Jones, R. Gowan, and J. Sherman, Building on Brahimi, 2009 (“the UN’s ‘integrated missions’ model displaces a focus on integration of strategy by a focus on integration of organizations”, at 27 (emphasis in the original)). 182 See infra, iii.2.f and g. 183 The dynamics inherent in this process have been analysed in detail by political scientists, their findings are nonetheless instructive for the present work, see e.g. N. Goede, Der UN-​Sicherheitsrat als Organisierte Anarchie, 2014; as to the relationship between flexibility in mandates and political interests of the P5 see S.  Allen and A.  Yuen, The Politics of Peacekeeping: UN Security Council Oversight Across Peacekeeping Missions, 58 International Studies Quarterly (2014), 621. 184 Brahimi report, para. 56. Similarly, R. Gowan, The Strategic Context: Peacekeeping in Crisis, 2006–​08, 15(4) International Peacekeeping (2008), 453, at 465 f. Secretary-​General Ban

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43

second reason, the Brahimi report criticised that mission requirements outlined to the Security Council by the Secretariat had been set according to what was presumed to be politically acceptable by the Security Council.185 In a famous line, the Secretariat was urged to “tell the Security Council what it needs to know, not what it wants to hear, when formulating or changing mission mandates”.186 15 years later, also the hippo report observed that mission tasks appear in mandates not specifically tailored to support a specific strategy, but rather as a result of lobbying of Security Council members or internal inter-​ departmental arbitrage by the Secretariat.187 The result often is the inclusion of template language for many tasks, a phenomenon that has come to be known as the “Christmas tree mandate dilemma”.188 Further reasons for shortcomings in mandate drafting relate to a lack of understanding of the local context and the situation on the ground as well as a lack of consultation between the Security Council, the Secretariat and troop-​contributing countries.189 To improve the quality of mandates, the hippo report called for a setting of priorities through sequencing of tasks in the mandates with the intention to avoid that missions try to do everything at once and fail.190 This call, as one of four “essential shifts” advocated for by hippo, had already been brought forward from within the UN, namely by dpko and dfs in their non-​paper A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping.191 It is hence

1 85 186 187 188 189 190 191

Ki-​moon warned the Security Council that “when there is limited consensus –​when our actions come late and address only the lowest common denominator –​the consequences can be measured in terrible loss of life, grave human suffering and tremendous loss of credibility for this Council and our institution.”, Secretary-​General’s remarks to Security Council open debate on Conflict Prevention, 21 August 2014. But see also the assessment of J. van der Lijn and X. Avezov, New Geopolitics of Peace Operations, International Peace Institute, 2 February 2016. Brahimi report, para. 59. Ibid., para. 64(d). Uniting Our Strengths for Peace –​Politics, Partnership and Peace. Report of the High-​level Independent Panel on United Nations Peace Operations, 16 June 2015, para. 175. See also Security Council Report, Research Report 2016, at 9 f. Uniting Our Strengths for Peace –​Politics, Partnership and Peace. Report of the High-​level Independent Panel on United Nations Peace Operations, 16 June 2015, para. 174. Security Council Report, The Security Council and Peace Operations: Reform and Deliver, 5 May 2016, at 10. Uniting Our Strengths for Peace –​Politics, Partnership and Peace. Report of the High-​level Independent Panel on United Nations Peace Operations, 16 June 2015, at viii. dpko/​d fs, A New Partnership Agenda: Charting a New Horizon, 2009. This paper was part of the New Horizon initiative that has been set up to assess the major policy and strategy dilemmas of current and future UN peacekeeping and to engage in ongoing dialogue with stakeholders. In addition to the dpko/​d fs non-​paper, two progress reports

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not a new insight.192 In response to the hippo report, the Security Council assured in a presidential statement that it “will consider sequenced and phased mandates, where appropriate, when evaluating existing UN peace operations or establishing new United Nations peace operations.”193 Still, identifying mission tasks to be implemented with priority has only taken place occasionally194 and without any visible methodological strategy.195 As a result, an overall strategy for the mission, which would be expected to be apparent from the respective mandates, is lacking in most cases. c Shortcomings with Respect to Human Rights in Mandates The lack of strategy has implications for the human rights tasks in the mandates on two levels.196 First of all, the implementation of human rights tasks is often perceived to compete with security-​related tasks.197 In the alleged trade-​ off, commentators tend to attribute priority to security task to the detriment of human rights tasks.198 The mandates do not give much guidance as to the

192

193 194

195 196

197 198

have been issued in October 2010 (The New Horizon Initiative: Progress Report No. 1) and in December 2011 (The New Horizon Initiative: Progress Report No. 2). See also B. Jones, R.  Gowan, and J.  Sherman, Building on Brahimi, 2009, who point out that “[f]‌ormally, strategy is embedded in the mandate, although mandates are closer to goal-​statements than to strategy documents.”, at 22. For a similar diagnosis from the academic perspective see e.g. Stedman, who points out, that the overall success of a mission does not mainly depend on the accomplishment of all goals and subgoals, “but rather on prioritizing among them.”, S. Stedman, Introduction, in: S. Stedman, D. Rothchild, and E. Cousens (eds.), Ending Civil Wars, 2002, 1, at 21. Statement by the President of the Security Council, 25 November 2015, S/​PRST/​2015/​22, at 3. E.g. in the car for which SC Resolution 2149 (2014) provides that “the mandate of minusca shall initially focus on the following priority tasks”, para. 30 (emphasis added) and that it “shall include the following additional tasks as conditions permit” para. 31 (emphasis added). SC Resolution S/​RES/​2039 (2012) establishing the peace operation in Mali speaks of “priority elements” defined in the mandate, paras. 11 and 34. An earlier example for prioritisation of mission tasks is SC Res 1856 (2008), extending the mandate of monuc in the DR Congo, stating “that monuc shall, from the adoption of this resolution, have the mandate, in this order of priority to …”, para. 3 (emphasis added). Security Council Report, The Security Council and Peace Operations: Reform and Deliver, 5 May 2016, at 10. Part of the following issues have been analysed in detail in an earlier work of the present author, S. Maus, Institutionalising human rights in United Nations peacekeeping operations, in: W. Benedek, M. Kettemann, and M. Möstl, Mainstreaming Human Security in Peace Operations, 2010, 57. See for instance M. Kelly, The UN, security and human rights, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 118, at 145: “[W]‌hat is the correct balance between security and human rights?” E.g. M. Kelly, The UN, security and human rights, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 118.

Human Rights in UN Peace Operations: Institutional Perspective

45

sequencing of tasks to be implemented. In the vast majority of mandates, human rights provisions are to be found in the second part of the mandate, after other tasks such as monitoring of ceasefires, ddr, elections, security sector reform etc. The mere position of the various tasks does not make a difference legally speaking. Nevertheless, the order of tasks may hint at a lower (political) significance of human rights tasks compared to other mission goals. Secondly, mandates lack strategy concerning the implementation of different human rights tasks. Given the indivisibility of human rights, no mandate provides for only a specific set of human rights to be implemented. At the same time, most mandates highlight particular human rights aspects, such as ending human rights violations against women and girls or fighting impunity and ensuring accountability. Any indication about the order of implementation is missing overall, despite the fact that it is virtually impossible to implement all tasks at once, especially in a difficult post-​conflict environment.199 As a result, the personnel on the ground is concerned with issues of priorities and therefore choice. While in the peace agreement phase, choices about human rights were made on the basis of politics, in the immediate post-​accords period, choices are dictated by issues of immediacy and priority. What human rights should be guaranteed in this period, given the practical impossibility of guaranteeing all?200 The lack of strategy and prioritisation, coupled with ambitious human rights mandates, can have detrimental consequences. A former UN human rights officer criticised the UN and other organizations for articulating “aspirational human rights goals that have no hope of actually being implemented in the real world” with the result that “[t]‌he moral authority of the message [is] neutered”.201 It is open to debate whether such a grim conclusion can and should be drawn for all 199 Cp. H. Hannum, Peace versus Justice: Creating Rights as well as Order out of Chaos, 13(4) International Peacekeeping (2006), 582, at 588. See also the statement of a former human rights officer in Timor-​Leste who stated that “it should have been expected, articulated and accepted that there would be some derogation of human rights standards in a situation that equated to a state of emergency.”, M. Kelly, The UN, security and human rights, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 118, at 145. 200 N. White and M.  Odello, The Legal Base for Human Rights Field Operations, in:  M. O’Flaherty (ed.), The Human Rights Field Operation, 2007, 47, at 61. 201 K. Cain, The Rape of Dinah: Civil War in Liberia and Evil Triumphant, 21(2) HRQ (1999), 265, at 297.

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peace operations. Still, the lack of strategy undoubtedly further complicates the situation of the human rights personnel on the ground and forces them to set priorities on an ad hoc basis instead of following a consistent strategy.202 As a consequence, the chances of successful and sustainable human rights implementation are severely limited. d Result Human rights have acquired a firm place within peace operations mandates. However, due to the dynamics present in the mandate drafting process, the latter do –​in the majority of cases –​not serve as strategic guidance for the missions. Instead, mission tasks have proliferated and template language seems to prevail. For human rights in mission mandates, clear guidance as to the role of human rights and the level of priority attributed to them, also in comparison to other mission tasks, is lacking. Equally missing is a reference to actual mission capacities and resources in order to guarantee a practical possibility of fulfilling the mandated tasks. As a consequence, the effect of the per se laudable development of regularly including human rights into peace operations mandates is diminished because of a lack of strategic guidance for the implementation of the mandate and a lack of attention to the realities on the ground. Human Rights in Secretary-​General Reports on Peace Operations: Doctrine The role of the Secretary-​General concerning peace operations is twofold.203 On the one hand, the Secretary-​General serves as the main coordinator of peace operations.204 While the overall political direction belongs to the Security Council, the Secretary-​General is entrusted with the responsibility for executive direction and control205 by the Security Council (or the General Assembly) according to Article 98 unc.206 The Secretariat, under the lead of 2

202 This ad hoc functioning of many aspects of peacekeeping operations generally has already been brought forward by the Brahimi report, see General Assembly/​Security Council, Report of the Panel on United Nations Peace Operations, 21 August 2000, UN Doc. A/​55/​305, S/​2000/​809. 203 As to the different roles of the Secretary-​General between administrative and political functions cp. J. Conrady, Wandel der Funtionen des UN-​Generalsekretärs, 2009, at 149 ff. See further R. Thakur, The United Nations, Peace and Security, 2nd ed. 2017 (esp. Chapter 13 “The political role of the United Nations Secretary-​General”, at 357–​383). 204 S. Kinloch-​Pichat, A UN “Legion” –​Between Utopia and Reality, 2005, at 257. 205 Supplement to an Agenda for Peace, 3 January 1995, UN Doc. A/​50/​60–​S/​1995/​1, para. 38. 206 S. Chesterman, Article 98, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 2002, at 2005 f., MN 16 f.

Human Rights in UN Peace Operations: Institutional Perspective

47

the Secretary-​General, takes over the practical realisation of the peacekeeping operation and translates the goals laid out in the mandate into operational mission tasks. This is mainly done by the dpo.207 Furthermore, the Secretary-​ General entrusts the command in the field to the head of mission, who acts as the Special Representative of the Secretary-​General (srsg). The Secretary-​ General is also responsible for preparing reports and providing assessment and suggestions to the Security Council in preparation of the mandate drafting.208 On the other hand, the Secretary-​General functions as an agenda-​setter and innovator for the evolution of the conceptual framework governing the UN’s activities, also on peace and security.209 He issues reports on cross-​cutting issues relating to peace operations such as protection of civilians,210 the rule of law in post-​conflict societies,211 security sector reform212 or the closure of UN peacekeeping operations.213 Last but not least, he is the driving force behind reform initiatives not only in relation to the functioning of the UN in general, but also in the field of peace operations in particular, taking account of the ever-​changing and expanding challenges of peace operations (see table 2).214 The following short reflection of the main Secretary-​General reports will highlight the importance of human rights in the respective stages of peacekeeping doctrine. a An Agenda for Peace and Supplement to an Agenda for Peace The first seminal report on the question of peacekeeping in the face of the new world order after the end of the Cold War was Boutros Boutros-​Ghali’s Agenda 2 07 See infra, iii.3. 208 S. Chesterman, Article 98, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 2002, at 2007, MN 20 f. 209 T. Rensmann, Reform, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A  Commentary, 3rd ed. 2012, 25, at 53 f., MN 95 ff. see also J.  Conrady, Wandel der Funktionen des UN-​Generalsekretärs, 2009, at 149 ff., who considers the establishing of the dpko and dpa by the Secretary-​General as a result of the growing institutionalisation of the political functions of the Secretary-​General, at 225. 210 Report of the Secretary-​General on the Protection of Civilians in Armed Conflict, 8 September 1999, UN Doc. S/​1999/​957. 211 The rule of law and transitional justice in conflict and post-​conflict societies, 23 August 2004, UN Doc. S/​2004/​616; Uniting our strengths: Enhancing United Nations support for the rule of law, 14 December 2006, UN Doc. A/​61/​636–​S/​2006/​980. 212 Securing peace and development: the role of the United Nations in supporting security sector reform, 23 January 2008, UN Doc. A/​62/​659–​S/​2008/​39. 213 No exit without strategy: Security Council decision-​making and the closure or transition of United Nations peacekeeping operations, Report of the Secretary-​General, 20 April 2001, UN Doc. S/​2001/​394. 214 T. Rensmann, Reform, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 25, at 53 f., MN 95 ff.

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table 2

Important Secretary-​General reports related to peacekeeping

Year

Report

1992

An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-​keeping: Report of the Secretary-​General, 17 June 1992, UN Doc. A/​47/​277 Supplement to an Agenda for Peace, Position Paper of the Secretary-​General on the Occasion of the Fiftieth Anniversary of the United Nations, 3 January 1995, UN Doc. A/​50/​60–​S/​1995/​1 Renewing the United Nations –​A Programme for Reform, 14 July 1997, UN Doc. A/​51/​950 Report of the Panel on UN Peace Operations (Brahimi Report), 21 August 2000, UN Doc. A/​55/​305-​S/​2000/​809 and subsequent implementation reports of the Secretary-​General in 2000 and 2001 No exit without strategy: Security Council decision-​making and the closure or transition of United Nations peacekeeping operations, 20 April 2001, UN Doc. S/​2001/​394 Strengthening of the United Nations: An Agenda for further Change, Report of the Secretary-​General, 9 September 2002, UN Doc. A/​57/​387 In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-​General, 21 March 2005, UN Doc. A/​59/​2005 Report of the Secretary-​General on Strengthening of the Capacity of the Organization on Peacekeeping Operations (creating dfs, restructuring dpko) Uniting Our Strengths for Peace –​Politics, Partnership and Peace. Report of the High-​level Independent Panel on United Nations Peace Operations (hippo), 17 June 2015, UN Doc. A/​70/​95–​S/​2015/​ 446 (“four essential shifts”) The future of United Nations peace operations: implementation of the recommendations of the High-​level Independent Panel on Peace Operations, 2 September 2015, UN Doc. A/​70/​357–​S/​ 2015/​682

1995 1997 2000

2001 2002 2005 2007 2015

2015

Human Rights in UN Peace Operations: Institutional Perspective49

for Peace.215 The report intended to elaborate on ways of strengthening and making the UN capacity more efficient in the fields of preventive diplomacy, peacemaking and peacekeeping. In addition to these three existing instruments, the Secretary-​General appended the concept of post-​conflict peacebuilding, which complemented the set of instruments of UN involvement in the different stages of a conflict –​starting from conflict prevention, continuing with resolution and emergency assistance and reaching, after reconstruction and rehabilitation, sustainable social and economic development.216 Unsurprisingly, the Agenda for Peace featured a traditional understanding of peacekeeping as the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, normally involving United Nations military and/​or police personnel and frequently civilians as well.217 There is no reference to human rights in the peacekeeping section. Rather, the importance of human rights forms part of the underlying mindset of the report, which acknowledges them as essential in tackling the sources of conflict.218 As insignificant as it may seem, this acknowledgement is noteworthy against the hitherto prevailing isolation of the human rights programme from other activities at the Secretariat level.219 Only three years later, in the Supplement to An Agenda for Peace,220 the Secretary-​General pointed to the changing role of peacekeeping missions from military operations to multifunctional operations with an “unprecedented variety of functions.”221 These include, together with supervision of ceasefires, 215 An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-​keeping: Report of the Secretary General, 17 June 1992, UN Doc. A/​47/​277 (“An Agenda for Peace”). 216 Cp. The Blue Helmets, A Review of United Nations Peace-​keeping, 3rd ed., UN Department of Public Information, New York, 1996, at 5. 217 An Agenda for Peace, 17 June 1992, UN Doc. A/​47/​277, para. 20. 218 Ibid., para. 5:  “The sources of conflict and war are pervasive and deep. To reach them will require our utmost effort to enhance respect for human rights and fundamental freedoms, to promote sustainable economic and social development for wider prosperity, to alleviate distress and to curtail the existence and use of massively destructive weapons.” See also para. 81. 219 T. van Boven, The Role of the United Nations Secretariat in the Area of Human Rights, 24 New York University Journal of International Law and Politics (1991–​1992), 69, at 71. 220 Supplement to an Agenda for Peace, Position Paper of the Secretary-​General on the Occasion of the Fiftieth Anniversary of the United Nations, 3 January 1995, UN Doc. A/​50/​ 60–​S/​1995/​1. 221 Ibid., para. 21.

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ddr activities, de-​mining programmes, the return of refugees and displaced persons, the provision of humanitarian assistance, the establishment of new police forces, constitutional and judicial reform, elections, and support for economic rehabilitation and reconstruction, also the verification of respect for human rights.222 Even though undertaken by peacekeeping operations, the measures referred to are categorised as peacebuilding measures that are intended to help to heal the wounds after conflict and to ensure sustainable peace and development.223 Nevertheless, the Secretary-​General underlined that this does not mean that peacekeeping operations cannot or should not undertake such activities: “In a country ruined by war, resumption of such activities may initially have to be entrusted to, or at least coordinated by, a multifunctional peace-​keeping operation”.224 Hence, human rights activities are recognised as forming part of a peacekeeping operation. b Renewing the United Nations: Integrated Missions In 1997, the concept of integrated missions was born.225 In an attempt to make the UN more efficient and responsive to the growing demands of peacekeeping and peacebuilding, Secretary-​General Kofi Annan called for more coherence and integration at both headquarters and in the field. In his report Renewing the United Nations –​a Programme for Reform,226 he introduced the integration of all operating UN entities in one country in the “UN House” under the authority of the Resident Coordinator/​s rsg.227 The integration included human rights activities, now under the auspices of the ohchr.228 Annan reiterated the connection between human rights and peace and security and called human rights a key element in peacemaking and peacebuilding.229 In his later Decision on Human Rights in Integrated Missions230 and his 2006 Note of Guidance on Integrated Missions the Secretary-​General called for a full integration of human rights into peace operations since they represented a “cross-​cutting 2 22 223 224 225 2 26 227 228 2 29 230

Ibid., paras. 21 and 22. Ibid., para. 47. Ibid., para. 53. Cp. E. Eide, A. Kaspersen, R. Kent, and K. von Hippel, Report on Integrated Missions, May 2005, at 12. Renewing the United Nations –​A programme for reform, 14 July 1997, UN Doc. A/​51/​950. Ibid., para. 51. Ibid., para 79. Human rights are considered as cross-​cutting issue, integral to the promotion of peace and security, para. 78. Ibid., para. 199. UN Secretary-​General’s Policy Committee on Human Rights in Integrated Missions (October 2005), Decision No. 2005/​24.

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concern for both the mission and the UN Country Team”.231 To this day, there is no unified definition of an “integrated mission”.232 But there does not seem to be any doubt that human rights form part of the “shared vision among all UN actors” regarding the objective of the mission and must be included in the “in-​depth understanding of the specific country setting”.233 c

The Report of the Panel on United Nations Peace Operations (Brahimi Report) In 2000, Kofi Annan convened a high-​level panel to review the peace and security activities of the UN and to make recommendations for improvement. The result, the Report of the Panel on United Nations Peace Operations,234 also known as Brahimi report, gave an in-​depth analysis of existing UN activities and presented comprehensive suggestions for reform. Concerning human rights, the report is based on the premise that it is of essential importance for the UN to adhere to and promote international human rights instruments and standards “in all aspects of its peace and security activities”.235 This means, firstly, that the Security Council should only mandate a peacekeeping operation tasked with the implementation of a ceasefire or peace agreement if that agreement is consistent with international human rights standards.236 Secondly, the report considered human rights as “indeed critical to effective 231 Secretary-​ General’s Note of Guidance on Integrated Missions, clarifying the Role, Responsibility and Authority of the Special Representative of the Secretary-​ General and the Deputy Special Representative of the Secretary-​ General/​ Resident Coordinator/​Humanitarian Coordination, 17 January 2006, para. 16; see also Uniting our strengths: Enhancing United Nations support for the rule of law, 14 December 2006, UN Doc. A/​61/​636–​S/​2006/​980, para. 42. 232 Eide et al. define it as “an instrument with which the UN seeks to help countries in the transition from war to lasting peace, or address a similarly complex situation that requires a system-​wide UN response, through subsuming various actors and approaches within an overall political-​strategic crisis management framework.”, E. Eide, A. Kaspersen, R. Kent, and K. von Hippel, Report on Integrated Missions, May 2005, at 15. 233 Integrated Missions Planning Process (impp). Guidelines Endorsed by the Secretary-​ General’s Policy Committee, 13 June 2006, at 3.  See also generally for the Strategic Assessment which “provides a general strategic framework for how the UN system will address its political, security, humanitarian, human rights and development dimensions”, at 6. 234 Report of the Panel on United Nations Peace Operations, 21 August 2000, UN Doc. A/​55/​ 305-​S/​2000/​809 (“Brahimi report”). 235 Ibid., para. 6 (e). 236 Ibid., para. 64 (a). The goal is “clear, credible and achievable mandates”, which not only includes the human rights minimum standard but also practicability of specified tasks and timelines, see paras. 58 ff. and 63 (a).

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peacebuilding.”237 Therefore, a lot of elements in the report’s peacebuilding strategy (which can be conducted not only by peacebuilding operations but also by peacekeeping missions) bear human rights implications. These elements include free and fair elections, civilian police monitors, and disarmament, demobilisation and reintegration.238 Thirdly, the report highlighted the critical importance of a human rights component in a peace operation as such and called for human rights training for relevant actors, such as military, police and civilian personnel.239 In this respect, the need for increased capacity and resources of the ohchr to plan and support human rights components was mentioned.240 In his report on the implementation of the recommendations,241 the Secretary-​General fully agreed with “the Panel’s conclusions on the centrality of human rights to United Nations peace activities”242 and underlined the need to integrate human rights more effectively into prevention, peacekeeping and peacebuilding strategies. Two years later, in his report Strengthening the United Nations: An Agenda for further Change, he called the promotion and protection of human rights the “bedrock requirement for the realization of the Charter’s vision of a just and peaceful world.”243 The Brahimi report furthermore brought, in what was called a “doctrinal shift”,244 another concept to the centre of attention:  the rule of law. Slowly gaining currency within the international community since the end of the 1990s,245 the Brahimi report underlined the importance of the rule of law in the context of peacekeeping. It called for measures reflecting the increased focus on strengthening rule of law institutions and improving respect for human rights, especially with regard to civilian police components.246 One of the reasons for this emphasis on the rule of law was the realisation that peacekeeping 2 37 238 239 240 241 2 42 243 2 44 245

246

Ibid., para. 41. Ibid., paras. 38 ff. and 42 f. Ibid., para. 41. Ibid., para. 234 f. On the ohchr see infra, iii.4. Report of the Secretary-​General on the implementation of the report of the Panel on United Nations peace operations, 20 October 2000, UN Doc. A/​55/​502. Ibid., para. 144. Strengthening of the United Nations:  an agenda for further change, Report of the Secretary-​General, 9 September 2002, UN Doc. A/​57/​387 para. 45. Brahimi report, para. 40. The Heads of State and Government for instance pledged in the Millennium Declaration “spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development.”, United Nations General Assembly, 55/​2. United Nations Millennium Declaration, UN Doc. A/​55/​L.2, para. 24. Brahimi report, para. 47 (b).

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operations cannot be successful, i.e. their efforts sustainable, if there is no system for law and order in place when the mission leaves.247 In response, the Secretary-​General acknowledged the need for improving co-​operation between civilian police, human rights experts and other specialists.248 After a Security Council meeting at ministerial level on the topic,249 the Secretary-​ General in 2004 devoted an entire report on the issue of The Rule of Law and Transitional Justice in Conflict and Post-​Conflict Societies. For the first time, this “cornerstone document in peace-​building theory”250 presented a comprehensive, single and nationally-​owned rule of law strategy and underscored its importance, not only as a long-​term goal but also as a means to achieve consolidation of peace in the immediate post-​conflict period.251 According to its comprehensive definition, the rule of law refers to a principle of governance in which all persons and entities are accountable to existing laws and which requires that principles such as supremacy of law, equality before the law, accountability, fairness, separation of powers, participation in decision-​making, and procedural and legal transparency are adhered to.252 This broad understanding stands in contrast to the rather narrow definition of dpo, which focuses on the security aspects of the rule of law such as mine action, police, ddr, security sector reform, criminal law and corrections.253 In spite of vast academic debate and the continued use of the term in practice, no agreed scope and content of the issue is to be seen on the horizon.254 Partly 247 H. Corell, Challenge to the United Nations and the World, 18 Temple International and Comparative Law Journal (2004), 391, at 396. But see also in a more nuanced analysis, B. Jones, R. Gowan, and J. Sherman, Building on Brahimi, 2009, at 26 ff. (“On the one hand, research shows that neither the articulation of the rule of law nor security sector reform nor resumption of economic activity nor the delivery of social services are necessary conditions for stability. On the other, progress on any one of those fronts can aid political stability, and lack of progress on any of them can undermine it, increasing the risk of relapse into conflict”, at 26 f.). 248 Report of the Secretary-​General on the implementation of the report of the Panel on United Nations peace operations, 20 October 2000, UN Doc. A/​55/​502, para. 27. 249 Secretary-​General, The Rule of Law and Transitional Justice in Conflict and Post-​Conflict Societies, 23 August 2004, UN Doc. S/​2004/​616. 250 S. Vig, The Conflictual Promises of the United Nations’ Rule of Law Agenda, 13 Journal of International Peacekeeping (2009) 131, at 139. 251 See ibid., at 140 (discussing inter alia the aspect of local ownership and potential conflicts with international legal norms). 252 Secretary-​General, The Rule of Law and Transitional Justice in Conflict and Post-​Conflict Societies, 23 August 2004, UN Doc. S/​2004/​616, at 4. 253 https://​peacekeeping.un.org/​en/​building-​rule-​of-​law-​and-​security-​institutions. 254 See, for instance, R. Peerenboom, The Future of Rule of Law: Challenges and Prospects for the Field, 1 Hague Journal on the Rule of Law (2009) 5, at 5.

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because of this lack of clarity, precision and research to shore it up, also operationalisation and implementation still leave room for improvement.255 All in all, it remains true that “[r]‌ule of law assistance (…) tends to over-​promise and under-​perform.”256 In consequence, the relationship between the rule of law and human rights is also diffuse. The udhr proclaims that it is “essential (…) that human rights should be protected by the rule of law”.257 By the same token, some see the rule of law as a prerequisite for human rights and other objectives,258 but it might just as well be argued the other way around, that rule of law depends on the protection of and respect for human rights. In practice, assistance in (often more a strong push towards) ratification or accession to international human rights treaties is part of the UN’s rule of law activities.259 It follows from the requirement to base UN rule of law assistance on international norms and standards, of which international human rights law is a source. That being said, the mere formal adoption of international treaties does not automatically lead to true implementation and thus stronger protection for the population concerned.260 Especially social and economic rights tend to be overlooked.261 Therefore, it seems necessary to include active promotion and protection of 255 See, as but one proponent of such an assessment, A. Hurwitz and K. Studdard, Rule of Law Programs in Peace Operations, August 2005. 256 V. Taylor, Frequently Asked Questions About Rule of Law Assistance (And Why Better Answers Matter), 1 Hague Journal on the Rule of Law (2009) 46, at 48. Other commentators print a more optimistic picture by pointing to its great attraction for “the best and brightest among each year’s new crop of university graduates, lawyers, and others” and the vast engagement of many governmental and non-​governmental organizations on a national and international level, see J. Goldston, The Rule of Law Movement in the Age of Terror, 20 Harvard Human Rights Journal (2007) 15, at 20. 257 udhr, preamble. 258 See for instance, The World Bank, Rule of Law as a Goal of Development Policy, http://​ web.worldbank.org/​WBSITE/​EXTERNAL/​TOPICS/​EXTLAWJUSTINST/​0,,contentMDK:20763583~menuPK:1989584~pagePK:210058~piPK:210062~theSitePK:1974062,00. html:  “the protection of human rights, and other worthy objectives are all believed to hinge, at least in part, on ‘the rule of law’.” In the report Renewing the United Nations –​ A programme for reform, 14 July 1997, UN Doc. A/​51/​950, rule of law is presented as one of the “areas that have a bearing in human rights”, para. 200. 259 R. Sannerholm, Legal, Judicial and Administrative Reforms in Post-​Conflict Societies, 12 Journal of Conflict and Security Law (2009) 65, at 79. Liberia is a good example for comprehensive ratification, see ibid., at 80. 260 See, for instance, D. Tolbert, with A. Solomon, United Nations Reform and Supporting the Rule of Law in Post-​Conflict Societies, 19 Harvard Human Rights Journal (2006) 29, at 32 f. 261 A. Hurwitz and K.  Studdard, Rule of Law Programs in Peace Operations, August 2005, at 10. Instead, the focus mainly lies on transitional justice mechanisms to address past human rights abuses and fight impunity.

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human rights into rule of law activities in order to bridge potential gaps between international norms and domestic realities.262 Even though the rule of law belongs to the “indispensable foundations for a more peaceful, prosperous and just world”,263 no consolidated strategy amongst UN actors involved in the rule of law exists. Instead, it seems that the heydays of the rule of law as standard-​setting concept are over and that the focus on the rule of law has given way to new cross-​cutting issues (such as the protection of civilians) that now shape the debate. d In Larger Freedom The first decade of the 21st century again witnessed a surge in the demand for peace operations and in 2005, the Secretary-​General issued his new report In Larger Freedom –​Towards Development, Security and Human Rights for All.264 As a follow-​up to the Millennium Summit of 2000, the report treated the activities of the UN with respect to “freedom from want”, “freedom from fear”, and “freedom to live in dignity” and thus brought human rights to the same level as the more traditional fields of security (“fear”) and development (“want”). The understanding of human rights as one of the three UN pillars was highlighted.265 While development certainly has human rights implications, it is mainly in the second and third category that the Secretary-​General brought forward human rights issues. In the realm of security, Kofi Annan highlighted the respect for human rights in peacekeeping operations. Against the backdrop of several incidents of sexual misconduct by peacekeepers,266 the

262 This is where the aspect of local ownership comes back into play, see S. Quast, Rule of Law in Post-​Conflict Societies, 39 New England Law Review (2004–​2005), 45, at 46 ff.; S. Vig, The Conflictual Promises of the United Nations’ Rule of Law Agenda, 13 Journal of International Peacekeeping (2009), 131. Cp. D. Marshall and S. Inglis, The Disempowerment of Human Rights-​Based Justice in the United Nations Mission in Kosovo, 16 Harvard Human Rights Journal (2003), 95. 263 Declaration of the High-​level Meeting of the General Assembly on the Rule of Law at the National and International Levels, 30 November 2012, UN Doc. A/​RES/​67/​1, para. 1. 264 In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-​General, 21 March 2005, UN Doc. A/​59/​2005. 265 E. Eide, A. Kaspersen, R. Kent, and K. von Hippel, Report on Integrated Missions, May 2005, at 34. 266 The Secretary-​General has responded to allegations of sexual misconduct and exploitation in the DR Congo with the appointment of Prince Zeid Ra’ad Zeid al-​Hussein as the Secretary-​General’s Special Advisor. The latter submitted his report A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations on 24 March 2005, UN Doc. A/​59/​710. In 2017, the Secretary-​General presented Special measures for protection from sexual exploitation and abuse:  a new approach, 28

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Secretary-​General underlined the responsibility of the latter to respect international law and fundamental human rights.267 In the section on human rights proper, placed under the heading of freedom to live in dignity, the Secretary-​General pointed out that “[i]‌t would be a mistake to treat human rights as though there were a trade-​off to be made between human rights and such goals as security or development.”268 He also noted that the increasing assistance of the High Commissioner of Human Rights sought by the Security Council showed the greater importance attributed to human rights when debating issues of peace and security.269 The concept of mainstreaming human rights, he continued, had to be implemented more consistently in all major decisions on policy and resources.270 Hence, this report made clear that, in the view of the Secretary-​General, human rights do not only serve as a normative baseline against which actions are measured but also as a cross-​cutting issue which has to be taken into account in all activities of the UN.271 e

Due Diligence, Human Rights Screening and Human Rights Up Front A set of internal human rights initiatives launched by Annan’s successor Ban Ki-​moon deserve mention, namely the Human Rights Due Diligence Policy on Support to non-​UN Security Forces,272 the Policy on Human Rights Screening of UN Personnel,273 and the Human Rights Up Front Action Plan.274

267 2 68 269 270 271

272 273 274

February 2017, UN Doc. A/​71/​818. See also the selection of UN documents, including codes of conduct, posters and fact sheets at https://​conduct.unmissions.org. In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-​General, 21 March 2005, UN Doc. A/​59/​2005, para. 113. Ibid., para. 140. Ibid., para. 144. Ibid. The importance of human rights in peacekeeping operations was further underlined in the Secretary-​General’s Decision No. 2005/​24, in which he made clear that “[a]‌ll UN entities have a responsibility to ensure that human rights are promoted and protected through and within their operations in the field” (Decision No. 2005/​24 Human Rights in Integrated Missions (26 October 2005), lit. a, cited in M. O’Flaherty, An Introductory Analysis, in: M. O’Flaherty (ed.), The Human Rights Field Operation, 2007, 1, at 9). Human rights due diligence policy on United Nations support to non-​United Nations security forces, 5 March 2013, UN Doc. A/​67/​775 S/​2013/​110. Policy on Human Rights Screening of UN Personnel (Decision No. 2012/​ 18), 11 December 2012. Information on the initiative can be found at UN Secretary-​General, Human Rights Up Front Initiative. It was “launched” through a commitment statement by the

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The Due Diligence Policy which is the result of an inter-​agency process led by dpko and ohchr, sets out measures to ensure that all support given to non-​UN security forces is consistent with the purposes and principles of the UN and with the responsibility to respect, promote and encourage respect for humanitarian, human rights and refugee law.275 Responsibilities include risk assessment concerning human rights compliance, reporting and oversight, and identification of mitigating measures. The idea behind the Due Diligence Policy is that successful implementation not only positively influences the behaviour of receiving local forces, but also maintains the credibility of the UN as a whole and of the military contingents on the ground who are protected from accusations of collaborating with human rights violators.276 The Policy on Human Rights Screening of UN Personnel intends to ensure that –​in line with Art. 101 UN Charter –​the highest standards of efficiency, competence and integrity applies to all its personnel. Therefore, all UN personnel have to be screened for human rights violations before selection or ­deployment. Last but not least, Ban Ki-​moon made an effort to strengthen human rights with another internal initiative, the Human Rights Up Front Action Plan launched in 2013. The initiative bears in mind the failures of the UN to prevent serious human rights violations as in Rwanda, Srebrenica and Sri Lanka and aims at a “cultural change within the UN system” by calling upon all staff and UN entities to conduct their work “with an awareness of their wider responsibility to support the UN Charter and overall UN mandates.”277 This includes the readiness to take a principled stance to prevent serious human rights violations. Given that serious human rights violations were allowed –​for various reasons –​to unfold despite the presence of peace operations on the ground, this clear appeal to all staff and UN entities is an important signal emphasising the UN’s existing responsibility to act in order to prevent human rights violations. It also makes clear that human rights responsibilities concern everyone

Secretary-​General sent to all UN staff in November 2013, A.  Gilmour, The Future of Human Rights, 28(2) Ethics & International Affairs (2014) 239, at 241. 275 Human rights due diligence policy on United Nations support to non-​United Nations security forces, 5 March 2013, UN Doc. A/​67/​775 S/​2013/​110, para. 1. 2 76 dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January, 2015, at 73 f. For a more detailed assessment including the legal status of the hrddp, see H. Aust, The UN Human Rights Due Diligence Policy, 20(1) Journal of Conflict and Security Law (2015), 61. 277 UN Secretary-​General, Human Rights Up Front Initiative.

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and cannot simply be left to the human rights office.278 According to the Director of Political, Peacekeeping, Humanitarian, and Human Rights Affairs in the Executive Office of the UN Secretary-​General, Andrew Gilmour, the first practical results of the initiative are already visible in the much stronger human rights wording of recent reports of the Secretary-​General to the Security Council and the primacy of human rights in the UN’s response, as for instance on the Central African Republic (car).279 The three documents just commented on show a strong effort of former Secretary-​General Ban Ki-​moon to bring human rights to the centre of UN activities, both internally as well as in relation to external partners. The language in these documents is unequivocally strong and leaves no doubt as to the applicability of human rights standards to all UN entities. This represents a noteworthy development. f hippo Report and Uniting Our Strengths for Peace The latest review of UN peace operations was undertaken by the High-​level Independent Panel on Peace Operations (hippo), appointed by the Ban Ki-​moon on 31 October 2014 under the chairmanship of the former president of Timor-​ Leste, José Ramos-​Horta. In the report Uniting Our Strengths for Peace –​Politics, Partnership and Peace, the hippo called for “four essential shifts”: (1) primacy of politics that acknowledges the importance of political solutions for lasting peace, (2) the use of the full spectrum of peace operations, equipped with prioritised mandates, to enable more responsive operations matching the respective context, (3) stronger, more inclusive peace and security partnerships that includes better consultation and co-​operation with partners and troop-​and police-​contributing countries, and (4)  a more field-​focused UN Secretariat and people-​centred peace operations.280 The Secretary-​General responded to the recommendations by the hippo in his report The future of United Nations 278 A. Gilmour, The Future of Human Rights, 28(2) Ethics & International Affairs (2014) 239, at 242. 279 Ibid., at 243. Another example is the designation of the human rights component in South Sudan as “critical” with the effect that it is not subject to relocation but can stay on the ground, ibid., at 244. 280 Uniting Our Strengths for Peace –​Politics, Partnership and Peace. Report of the High-​ level Independent Panel on United Nations Peace Operations, 16 June 2015, paras. 37 ff. The report was forwarded to the General Assembly and the Security Council on 17 June 2015, UN Doc. A/​70/​95–​S/​2015/​446. As to the importance of the hippo report in a historical context see J. Arnault, A Background to the Report of the High-​level Panel on Peace Operations, in:  Global Peace Operations Review, Center on International Cooperation (cic), 6 August 2015.

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peace operations: implementation of the recommendations of the High-​level Independent Panel on Peace Operations and endorsed many of the recommendations of the hippo by highlighting, inter alia, the need for early, preventive action, the importance of global and regional partnerships, and of tailored peace operations.281 Concerning human rights, the Secretary-​General underlined the significance of advancing human rights in the struggle for political settlements that are the fundamental objective of peace operations. He stressed that they are “not a lofty ideal”, but “make hard practical sense”.282 Secondly, human rights formed part of the values that a peace operation promoted and to which it should be held accountable.283 Thirdly, the Secretary-​General put particular emphasis on child protection and conflict-​related sexual violence and planned to consolidate a dedicated capacity for these functions within the human rights components of each mission.284 While the hippo report, the first major external review of UN peacekeeping since the Brahimi report, opened up a window for significant change within the peacekeeping enterprise,285 the implementation of its recommendations falls into the tenure of the new Secretary-​General António Guterres. g Action for Peacekeeping (A4P): Our Core Agenda for Peacekeeping In 2018, Secretary-​General António Guterres launched the initiative Action for Peacekeeping (A4P) and called on all actors involved –​member States, the Security Council, host countries, troop-​and police-​contributing countries, regional partners and financial contributors –​to renew their collective engagement with UN peacekeeping.286 In the Declaration of Shared Commitments on UN Peacekeeping Operations, to date endorsed by over 150 States, stakeholders undertook to implement a set of 45 mutually-​agreed commitments. It focusses on seven key issues: 1) enhancing the political impact of peacekeeping; 281 The future of United Nations peace operations: implementation of the recommendations of the High-​level Independent Panel on Peace Operations, 2 September 2015, UN Doc. A/​ 70/​357–​S/​2015/​682. 282 Ibid., para. 10. 283 Ibid., para. 16. Reference is also made to the human rights screening and human rights due diligence policies effective since 2011, ibid., para. 126. 284 Ibid., para. 66. 285 A. E. Abdenur, UN Peacekeeping in a Multipolar World Order: Norms, Role Expectations, and Leadership, in: C. de Coning and M. Peter (eds.), United Nations Peace Operations in a Changing Global Order, 2019, 45, at 46. For a discussion of the hippo’s various recommendations see also the other contributions in the volume by de Coning and Peter (eds.), United Nations Peace Operations in a Changing Global Order, 2019. 286 Action for Peacekeeping (A4P), https://​peacekeeping.un.org/​en/​action-​for-​ peacekeeping-​a4p.

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2)  strengthening protection provided by peacekeeping; 3)  safety and security; 4) performance and accountability; 5) peacekeeping impact on sustaining peace; 6)  partnerships; 7)  the conduct of peacekeeping operations and personnel.287 Instead of being a strategic or policy document, the A4P intends to “reassert the need for political leadership to fulfil commitments that remain unimplemented.”288 During the five thematic consultations that took place in June 2018, a call was not only made for fact-​based public human rights reporting in peacekeeping operations but also for “better sequenced, streamlined and prioritized mandates that nevertheless preserve protection and human rights responsibilities.”289 In the Declaration of Shared Commitments, member States commit to support pre-​deployment preparations of peacekeeping personnel and to the existing human rights screening policy.290 Both the Secretariat and member States are committed to the implementation of the UN Human Rights Due Diligence Policy291 for all UN support to non-​UN security forces.292 The recommendation of better human rights reporting has, however, not found entry into the Declaration of Shared Commitments. The human rights issues raised in this document focus rather on individual conduct instead of the human rights responsibilities of the UN and its peacekeeping operations as a whole. h Result: an Ever-​Stronger Role of Human Rights The development of human rights in peace operations is a remarkable one, as the previous tour d’horizon has shown. Human rights have increasingly found entry into peacekeeping doctrine as formed and developed by the respective Secretary-​Generals with the help of several independent expert panels. The importance of human rights in the context of peace operations is no longer disputable. This, in itself, is a laudable advance.

287 Secretary-​General, Action for Peacekeeping (A4P), Declaration of Shared Commitments on UN Peacekeeping Operations, 2018, https://​peacekeeping.un.org/​sites/​default/​files/​ a4p-​declaration-​en.pdf. 288 David Haeri, Naomi Miyashita, and Salvator Cusimano, Action for Peacekeeping: Making Good on Shared Commitments, ipi Global Observatory, 25 September 2018, https://​ theglobalobservatory.org/​2018/​09/​action-​for-​peacekeeping-​making- ​good-​on-​shared-​ commitments/​. 289 Action for Peacekeeping (A4P), https://​peacekeeping.un.org/​en/​action-​for-​ peacekeeping-​a4p. 290 Action for Peacekeeping (A4P), Declaration of Shared Commitments on UN Peacekeeping Operations, https://​www.un.org/​en/​A4P/​, para. 14. 291 See infra, 4.b. 292 Action for Peacekeeping (A4P), Declaration of Shared Commitments on UN Peacekeeping Operations, https://​www.un.org/​en/​A4P/​, para. 22.

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Less obvious, however, is the role human rights are intended to play, but a tendency seems to be discernible. The early references to human rights merely acknowledge their somewhat relevance for long-​term peace. In that respect, human rights rank as one task among many in the long list of peace operations functions. With the appearance of the concept of integrated missions, human rights have increasingly been referred to as cross-​cutting issue relevant to all mission tasks and all mission components. This mainstreaming of human rights has been the leading paradigm for several years. Apart from the rhetorical importance attributed to human rights with the concept of mainstreaming,293 however, a definition, as well as strategic and doctrinal clarity as to the role of human rights, is still lacking.294 Do human rights serve as a normative baseline, as a standard for accountability or do they have to be incorporated into mission tasks because of their assumed positive influence on other mission goals? To what extent do human rights have an action-​guiding function and are obligations following from human rights? How do human rights tasks relate to other tasks, especially in case of (actual or perceived) conflict between them? Can and should their implementation serve as a performance indicator of the whole peace operation? These questions remain unanswered by the idea of mainstreaming human rights. Therefore, an attempt for a more structured approach is made here. First of all, for much of the still short history of human rights in peace operations, human rights seem to be considered as a means to reach the goals of a peacekeeping mission. To begin with, the main purpose of a mission is the support of a successful and sustainable peace process. To achieve sustainable 293 Darrow and Arbour succinctly frame mainstreaming as strategy to “bring an important or ‘cross-​cutting’ issue from the periphery to the center of policymaking or programming.” It hence is “a strategy for bringing about desired change, rather than an end in itself”, M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 448. 294 E.g. H. Alizadeh, A Proposal for How to Realize Human Rights at the National and Regional Level, 33(3) Human Rights Quarterly (2011) 826, at 827 (“ohchr’s role in mainstreaming human rights issues within the UN system still needs to be defined more precisely. Other crucial elements that require a clearly defined policy and strategy include the issue of protection and the role of each UN agency in translating human rights protection principles into effective protection measures on the ground”). Critical on the concept of integrated missions, K.  Månsson, Integration of Human Rights in Peace Operations, 13(4) International Peacekeeping (2006), 547, at 553 ff, as well as other titles in that volume of International Peacekeeping. O’Flaherty and Davitti observe already some distancing from the concept of integrated missions, see M. O’Flaherty and D. Davitti, International Human Rights in Field Operations, in: S. Sheeran and N. Rodley (eds.), Routledge Handbook of International Human Rights Law, 2013, 169, at 173.

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peace, the root causes of a conflict, often strongly related to human rights violations, have to be addressed.295 The Secretary-​General points out that the biggest deterrent to violent conflict is the promotion of sustainable human development and a healthy democratic society based on strong rule of law and civic institutions, including adherence to all human rights  –​ economic, social, political and cultural.296 Furthermore, the protection of human rights is a precondition for the voluntary return and reintegration of refugees and internally displaced persons (idps),297 especially the restoration of property, land and housing rights.298 Also to achieve other peacekeeping objectives (e.g. the consolidation of internal and external security, the strengthening of political institutions and good governance as well as the promotion of economic and social rehabilitation and transformation), technical assistance in human rights is one of the proposed measures.299 Last but not least, the protection of civilians strongly depends on the developing and strengthening of national human rights protection systems.300 Secondly, the promotion and protection of human rights must also be considered an end in itself, as provided for in the UN Charter. First indications of such an understanding appear in early Secretary-​General reports. The Brahimi report, for instance, envisioned a country that can, after the mission had left, build and hold onto peace, find reconciliation, strengthen democracy and secure human rights.301 Kofi Annan’s acknowledgement of human rights as one 295 See among others, The rule of law and transitional justice in conflict and post-​conflict societies, 23 August 2004, UN Doc. S/​2004/​616, para. 4. See also Securing peace and development: the role of the United Nations in supporting security sector reform, 23 January 2008, UN Doc. A/​62/​659–​S/​2008/​39, para. 6. 296 Report of the Secretary-​General on the implementation of the report of the Panel on United Nations peace operations, para. 15, emphasis added. 297 Report of the Secretary-​General to the Security Council on the protection of civilians in armed conflict, 28 May 2004, UN Doc. S/​2004/​431, para. 25. 298 Ibid., para. 54. 299 No exit without strategy: Security Council decision-​making and the closure or transition of United Nations peacekeeping operations, Report of the Secretary-​General, 20 April 2001, UN Doc. S/​2001/​394, para. 20. 300 Report of the Secretary-​General to the Security Council on the protection of civilians in armed conflict, 28 May 2004, UN Doc. S/​2004/​431, para. 52. 301 Brahimi report, 2000, at xv. Another of the few examples is the 2008 report on security sector reform, in which the development of effective and accountable security institutions was considered to “contribute to international peace and security, sustainable

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of the three UN pillars in his In larger freedom report accentuated this understanding. Thirdly, Ban Ki-​moon has taken an even more explicit stance in his approaches to human rights and the future of peace operations. Both his Human Rights Up Front Action Plan and the most recent reform process under the Future of Peace Operations Initiative (with the hippo report and the Secretary-​General’s implementation report), give priority to human rights, not only as an end or value per se but also as a normative baseline and standard for accountability. Both the allegations of misconduct by peacekeeping personnel and the ever-​ increasing tasks and powers assumed by peace operations make accountability a central issue of peacekeeping doctrine. Human rights serve as a normative framework to achieve accountability, and thus the strict adherence to human rights is part and parcel thereof.302 To conclude, the role of human rights has undergone some evolution in the doctrine of peace operations as developed by the respective Secretary-​ Generals. Their understanding has evolved from a means to achieve sustainable peace to a stronger focus on human rights as an end in themselves. Notwithstanding any still existing academic disagreement as to the applicability of human rights norms to the UN,303 human rights are considered, by the respective Secretary-​Generals, as universally applicable standards that have been adopted under the auspices of the United Nations and must, therefore, serve as “the normative basis for all United Nations activities”.304 Department of Peace Operations: Operationalisation and Management The Department of Peace Operations (dpo), until 31 December 2018 called Department of Peacekeeping Operations (dpko),305 headed by the 3

development and the enjoyment of human rights by all”, Securing peace and development:  the role of the United Nations in supporting security sector reform, 23 January 2008, UN Doc. A/​62/​659–​S/​2008/​39, para. 45(a). 302 See infra, Chapter 3. 303 See in detail infra, Chapter 2. 304 E.g. The rule of law and transitional justice in conflict and post-​conflict societies, 23 August 2004, UN Doc. S/​2004/​616, para. 9. See also the Staff Regulations for UN staff: “Staff members shall uphold and respect the principles set out in the Charter, including faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.”, Regulation 1.2 (a), Staff Regulations of the United Nations in Status, basic rights and duties of United Nations staff members, ST/​SGB/​2002/​ 13, 1 November 2002, https://​conduct.unmissions.org/​sites/​default/​files/​keydoc3.pdf. 305 The old acronym dpko will be used for all activities of the department that took place before 31 December 2018.

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Under-​Secretary-​General and part of the UN Secretariat, is responsible for the practical operationalisation306 and management of peace operations. Since 2007, the peacekeeping architecture within the Secretariat has also included the Department of Field Support (dfs) which provides support in the areas of finance; logistics; information, communication and technology; human resources; and general administration.307 To begin with, dpo itself does not have capacities for human rights activities, nor does it have an explicit human rights mandate. Still, human rights components have become an integral part of most major UN peacekeeping operations.308 Therefore, human rights do play a role in the planning, preparing, managing, and directing peacekeeping operations, both as a normative framework and as a core function of peacekeeping operations, as will be shown in the following. a The Role of Human Rights in dpko/​d po Peacekeeping Doctrine The Handbook on United Nations Multidimensional Peacekeeping Operations lists a series of tasks that may be part of the human rights component’s mandate. These include reporting, investigating and verifying abuses, promoting and protecting human rights, capacity-​building and training.309 But, as pointed out in the Handbook, human rights are not a task to be fulfilled by the human rights component only, but they should be “central to every activity undertaken by the UN.”310 Similarly, the central reference document on principles and guidelines of UN peacekeeping operations, the so-​called Capstone Doctrine, considers, in recognition of the fact that human rights violations are both cause and consequence of most modern conflicts, the promotion and protection of human rights as the responsibility of all UN entities, including peacekeeping operations.311 306 “Operational” in the context of the UN means the “field-​based management of a peacekeeping operation at the Mission Headquarters”. Above the operational level is the strategic management on the high-​level political decision-​making level; tactical management takes place a level under the operational one, i.e. within a peace operation, see dpko/​ dfs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January, 2015, at 90. 307 Report of the Secretary-​General, Comprehensive report on strengthening the capacity of the United Nations to manage and sustain peace operations, 13 April 2007, UN Doc. A/​61/​ 858. 308 dpko, Handbook on United Nations Multidimensional Peacekeeping Operations, December 2003, at 101. 309 Ibid. 310 Referring back to the Secretary-​ General’s report Renewing the United Nations:  A Programme for Reform: Report of the Secretary-​General, 14 July 1997, UN Doc. A/​51/​950. 311 dpko, United Nations Peacekeeping Operations –​Principles and Guidelines, approved on 18 January 2008, at 27 (“Capstone Doctrine 2008”).

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Concerning the role of human rights, they are first and foremost regarded as “an integral part of the normative framework for United Nations peacekeeping operations.”312 This understanding is laid down not only in Capstone Doctrine but is also part of the norms of conduct given out to peacekeepers in the booklets We are United Nations peacekeepers313 as well as in the Ten Rules Code of Personal Conduct for Blue Helmets.314 It is worth mentioning that the Capstone Doctrine explicitly points out that considering human rights as normative framework does not only include a negative obligation in the sense that all peacekeeping personnel must abide by and act in accordance with human rights law, but also a positive duty for peacekeeping operations to “seek to advance human rights through the implementation of their mandates”.315 In addition to serving as a normative baseline, human rights also belong to the main functions of a peacekeeping operation. The Capstone Doctrine summarises the “core functions” of a multidimensional peacekeeping operation as follows: a) Create a secure and stable environment while strengthening the State’s ability to provide security, with full respect for the rule of law and human rights; b) Facilitate the political process by promoting dialogue and reconciliation and supporting the establishment of legitimate and effective institutions of governance; c) Provide a framework for ensuring that all United Nations and other international actors pursue their activities at the country-​level in a coherent and coordinated manner.316 All three core functions have a strong impact on human rights concerns. In fact, the accompanying explanatory figure in the Capstone Doctrine lists human rights as one of the “indicative post-​conflict tasks” together with elections, political process, security operations, ddr and the rule of law. Especially for peacekeeping operations deployed after internal conflicts, the Capstone 3 12 Ibid., at 14. 313 10 Rules/​ Code of Personal Conduct for Blue Helmets “We are United Nations Peacekeepers”, UN General Assembly Report of the Special Committee on Peacekeeping Operations and its Working Group on the 2007 Resumed Session, UN Doc. A/​61/​19 Part iii, Annex H, at 45. 314 Ten Rules Code of Personal Conduct for Blue Helmets, https://​conduct.unmissions.org/​ ten-​rulescode-​personal-​conduct-​blue-​helmets, Rule No 5. 315 Capstone Doctrine, 2008, at 14. 316 Ibid., at 23.

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Doctrine regards efforts to strengthen respect for human rights as a fundamental element to accompany the deployment of troops and police.317 This impression is reinforced by a more recent agenda for peacekeeping reform, launched by dpko and dfs. In 2009, almost ten years after the Brahimi report and against the backdrop of an unprecedented scale and variety of peacekeeping operations paired with strained resources and ambiguous political will, UN peacekeeping efforts had reached their limits. Based on a report by the New York University Center on International Cooperation,318 dpko and dfs gave recommendations for reform in the fields of doctrine, field support and capacity in a non-​paper called A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping.319 The section on peacebuilding tasks is of particular interest for the present analysis. Given the reality of integrated missions and “one UN”, it is the peacekeeping mission that is responsible for the coordination and support of peacebuilding tasks.320 At the same time, peacekeeping operations are faced with substantial and often unrealistic expectations. Repeating the Secretary-​General’s report on peacebuilding,321 the New Partnership Agenda listed the immediate peacebuilding tasks that are recurrently part of peacekeeping mandates, such as support to basic safety and security, to political processes, to the provision of basic services and to restoring core government functions.322 It is evident that all these tasks have a strong bearing on human rights. However, human rights language is lacking altogether. This is a remarkable difference to the Capstone Doctrine, which explicitly mentions human rights among peacebuilding tasks. Instead, dpko and dfs rather clearly offer their expertise and capacity in the field of basic safety and security and emphasise tasks such as mine action, ddr, and security sector reform (ssr).323 The absence of any reference to human rights in this section reinforces the 317 Ibid, at 87. Other elements listed are efforts to restore the State’s monopoly over the legitimate use of force; re-​establish the rule of law; foster the emergence of legitimate and effective institutions of governance; and promote socio-​economic recovery. 318 B. Jones, R. Gowan, and J. Sherman, Building on Brahimi, 2009. 319 dpko/​d fs, A New Partnership Agenda: Charting a New Horizon, 2009. dpko and dfs point out that the non-​paper is an unofficial consultation document for discussion purposes only and not as expression of any official UN policy or Secretary-​General commitment. 320 The Progress Report No 2 of the New Horizon Initiative offers some insights on the early peacebuilding tasks of peacekeepers and the nexus between peacekeeping and peacebuilding, dpko/​d fs, The New Horizon Initiative: Progress Report No 2, December 2011, at 9 ff. 321 Report of the Secretary-​General on peacebuilding in the immediate aftermath of conflict, 11 June 2009, UN Doc. A/​63/​881–​S/​2009/​304. 322 dpko/​d fs, A  New Partnership Agenda:  Charting a New Horizon, 2009, at 23. See also B. Jones, R. Gowan, and J. Sherman, Building on Brahimi, 2009. 323 dpko/​d fs, A New Partnership Agenda: Charting a New Horizon, 2009, at 23.

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impression that dpko not only has neither means nor mandate for implementation of human rights tasks but also pays little attention to the latter in the development of peacekeeping doctrine. As has been shown above, human rights have gained more prominence in recent years within the peacekeeping doctrine established by the Secretary-​ General.324 In contrast, the Capstone Doctrine has remained unchanged since 2009, and the two progress reports to the New Horizon Initiative issued so far do not mention human rights at all.325 It may be said, however, that one of the main training documents handed to new staff at headquarters, the e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, features a very similar list of peacebuilding tasks carried out by peacekeepers like the New Partnership Agenda but does include the promotion and protection of human rights. It further stresses that “[a]‌ll peacekeeping operations are expected to uphold human rights standards, ensure that they do not adversely affect human rights through their operations, and advance human rights through the implementation of their mandates.”326 It is conceivable that this training document reflects the current state of dpo understanding of human rights and that future updated versions of the Capstone doctrine or similar documents will equally take up the issue of human rights more prominently. Last but not least, dpo considers human rights issues as valuable benchmarks in determining the point of hand-​over to other actors and withdrawal of the peacekeeping operation.327 The Handbook points in the same direction by stressing that the success of an integrated multidimensional peacekeeping operation is more than the absence of conflict. Equally important measures of success are strong democratic institutions, the respect for the rule of law and of human rights.328 For the human rights component, in particular, the best 3 24 See supra III.2. 325 dpko/​d fs, The New Horizon Initiative: Progress Report No 1, October 2010, and dpko/​ dfs, The New Horizon Initiative: Progress Report No 2, December 2011. 326 dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January, 2015, at 39 f. 327 Examples of such benchmarks include the absence of violent conflict and large-​scale human rights abuses, and respect for women’s and minority rights; completion of the ddr of former combatants; the ability of the national armed forces and the national police to provide security and maintain public order with civilian oversight and respect for human rights; the establishment of an independent and effective judiciary and corrections system; the restoration of State authority and the resumption of basic services throughout the country; the return or resettlement and reintegration of displaced persons; the formation of legitimate political institutions following the holding of free and fair elections, see Capstone Doctrine 2008, at 88 f. 328 Ibid., at 70.

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exit strategy is to help establish and leave behind strong institutions for the promotion and protection of human rights.329 Until today, however, the issue of benchmarks and targets remains vague.330 As the New Partnership Agenda correctly states, benchmarks “should guide a mission throughout its lifetime and help it to identify and adapt to changing conditions on the ground.”331 But therefore they not only have to be well-​ defined and understood but also distinguished from broader mission targets in the short, medium and long-​term. dpko and dfs announced the development of benchmarks for every mission after deployment in order to assess progress in mandate implementation.332 However, it seems that the issue has not been further followed up upon.333 b Human Rights in the Institutional Structure of dpko/​d pko Before its restructuring and renaming into dpo, which became effective as of 1 January 2019, dpko consisted of four main offices: Office of Operations (provided political and strategic policy and operational guidance and support to the missions), Office of the Rule of Law and Security Institutions (coordinated the Department’s activities in the areas of police, justice and corrections, mine action, the disarmament, demobilisation and reintegration of ex-​combatants and security sector reform), Office of Military Affairs, and Policy Evaluating and Training Division (as shared capacity with dfs).334 The institutional design of dpko mirrored the focus on security tasks and the little relevance of human rights issues. At the Office of Operations, for instance, Integrated Operational Teams (iots) provided guidance and support to peace operations on cross-​cutting issues. They consisted of officers with expertise in relevant fields such as political affairs, military, police, rule of law and security institutions, logistical and administrative support, to be

3 29 Ibid., at 112. 330 For a critical view on benchmarks and results-​based management of peace operations see U. Garms, Promoting Human Rights in the Administration of Justice in Southern Sudan, 6 International Organizations Law Review (2009) 581, at 596. 331 dpko/​d fs, A New Partnership Agenda: Charting a New Horizon, 2009, at 15. 332 Ibid., at 16. 333 While Progress Report No 1 refers to benchmarking for impact, success and transition (at 5), Progress Report No 2 does not mention benchmarks at all. 334 For an assessment of the former dpko structure, see T.  Benner and P.  Rotmann, Operation Blauhelmreform. Ban Ki-​moons umstrittener Umbau der Hauptabteilung Friedenssicherungseinsätze, 55(5) Vereinte Nationen (2007) 177. For a short overview of the development of UN peacekeeping structure see T. Pelz and V. Lehmann, The Evolution of UN Peacekeeping (2): Reforming dpko, November 2007.

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supplemented with expertise from other dpo offices on further issues (e.g. justice, corrections, ddr, security sector reform, mine action, civil affairs, gender, child protection, hiv/​a ids, partnerships).335 dpko did not mention human rights as a further relevant topic. It was ohchr that, while not genuinely part of the iots, provided human rights support to the iots concerning mission concepts and the definition of strategic priorities.336 The Office of Rule of Law and Security Institutions (orolsi) was intended to provide an integrated approach to UN activities in the fields of the rule of law and security, which are arguably strongly related to human rights.337 orolsi was composed of five units responsible for police, mine action, criminal law and judicial advisory, ddr, and security sector reform.338 Even though human rights were mentioned in the context of rule of law activities, human rights were not institutionally represented by a unit.339 Within the respective units, human rights considerations were referred to mainly as a general normative baseline. United Nations Police forces, for instance, contribute “to the protection of civilians and human rights” and help “maintain public order and safety in adherence to the rule of law and international human rights law”.340 Similarly, the Security Sector Reform unit aims at building “effective and accountable security institutions, that operate … within a framework of the rule of law and human rights.”341 The Policy and Best Practices Service (pbps) aimed at improving the efficiency and effectiveness of peace operations through the exchange of good practices, development of guidance material and thematic policy support. Different teams covered the areas of gender, hiv/​a ids, civil affairs, protection of civilians and child protection.342 While there was no human rights team, the 335 dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January, 2015, at 5 f. 336 ohchr, Annual Report 2016, http://​www2.ohchr.org/​english/​OHCHRreport2016/​allegati/​Downloads/​6_​o hchr_​in_​the_​%20field_​2016.pdf, at 158 f. 337 Renewing the United Nations –​A programme for reform, 14 July 1997, UN Doc. A/​51/​950, para. 200 (rule of law is one of the “areas that have a bearing in human rights”). See also supra iii.2.b. 338 dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January, 2015, at 6 ff. 339 Peacekeeping Information Management Unit, United Nations Peacekeeping Group:  Capacities to Ensure Integration (dpko/​d fs Organizational Chart), last updated: November 2017, https://​peacekeeping.un.org/​sites/​default/​files/​visio-​dpko-​dfs_​ integratedorgchart_​public_​nov2017_​0.pdf. 340 United Nations Police, https://​police.un.org/​en. 341 Security Sector Reform, https://​peacekeeping.un.org/​en/​security-​sector-​reform. 342 dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January, 2015, at 26 ff.

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Policy Planning Team provided conceptual and policy advice on human rights relevant topics, including the peacekeeping-​peacebuilding nexus and human rights screening.343 As part of a broader reform effort undertaken by Secretary-​General António Guterres dpa and dpko underwent significant restructuring which became effective as of 1 January 2019.344 Instead of four main offices, dpo now consists of three:  the Office of Rule of Law and Security Institutions (orolsi), Office of Military Affairs (oma), and the Policy, Evaluation and Training Division (dpet). Instead of its own Office of Operations, dpo now shares with the restructured and renamed Department of Political and Peacebuilding Affairs (dppa) eight regional divisions that are managed by three Assistant Secretaries-​Generals covering the Americas, Europe, Africa, Asia and the Pacific, respectively.345 Human rights have not gained any visible prominence in the new dpo. The tasks of orolsi, for instance, remain similar to their predecessors and still do not make an explicit reference to human rights. Since, at the time of writing, the reform process is still unfolding, the role of human rights issues in new structures such as the regional divisions will have to be seen.346 For the time being, there does not seem to be a significant change in human rights in the institutional design of dpo. c Result dpko/​d po peacekeeping doctrine conceives of human rights as a part of the catalogue of tasks to be fulfilled by a peacekeeping mission. The priority defining the order of different tasks, however, remains underspecified. The role of human rights is mainly understood as a means to serve the overall goal of sustainable peace and, as a more recent development, as a normative baseline for all peace operations activities. The idea that human rights can also serve as benchmarks for evaluation of mission success and potential exit strategies was brought up by dpko but does not seem to be followed up upon. In the 3 43 Ibid., at 27. 344 Report of the Secretary-​General on restructuring of the United Nations peace and security pillar, 13 October 2017, UN Doc. A/​72/​525; GA Resolution, Restructuring of the United Nations peace and security pillar, 20 December 2017, UN Doc. A/​RES/​72/​199. 345 Department of Peace Operations, https://​peacekeeping.un.org/​en/​department-​of-​peace-​ operations; see also the Organizational Chart, https://​peacekeeping.un.org/​sites/​default/​ files/​dppa-​dpo-​org-​chart-​2019.pdf. 346 For an early assessment see e.g. T. Bernstein, Reforming the United Nations’ Peace and Security Pillar, zif Policy Briefing December 2017, https://​www.zif-​berlin.org/​fileadmin/​ uploads/​analyse/​dokumente/​veroeffentlichungen/​ZIF_​Policy_​Briefing_​Bernstein_​UN_​ Reform_​Dezember_​2017.pdf.

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institutional structure of dpo, human rights are virtually invisible. This may result from the institutionalised division of work between dpo and ohchr.347 While this arrangement bears certain advantages regarding the efficient use of resources and expertise, it also carries the danger of completely outsourcing and thus marginalising human rights issues from peace operations planning. Office of the High Commissioner of Human Rights: Implementation in the Field As shown in the previous section, dpo does not have dedicated expertise in the field of human rights. It instead relies on the Office of the United Nations High Commissioner of Human Rights (ohchr). 4

a dpo-​o hchr Co-​Operation ohchr is the principal UN human rights office, mandated to promote and protect human rights. It is responsible for the mainstreaming of human rights within the UN, including in peace operations. ohchr supports, according to recent numbers, nearly 800 human rights officers and other staff in the human rights components of UN peace operations with expert advice, guidance and support.348 The basis of the co-​operation between ohchr and dpko is the Secretary-​ General’s decision on Human Rights in Integrated Missions (2005/​24).349 The institutional relations between ohchr and dpko are further governed by the Policy on Human Rights in Peace Operations and Special Political Missions of 2011 (“2011 Policy”).350 As lead entity on human rights issues,351 ohchr works closely with dpko, dpa and dfs on all aspects of establishing and staffing human rights components of peace operations and political missions, creating benchmarks for success, as well as providing guidance

3 47 See infra, next section. 348 ohchr, ohchr Report 2016, http://​www2.ohchr.org/​english/​OHCHRreport2016/​allegati/​Downloads/​1_​The_​whole_​Report_​2016.pdf, at 16. 349 Secretary-​General’s Decision on Human Rights Integrated Missions No. 2005/​24. See also supra, iii.2.b. 350 ohchr/​d pko/​d pa/​d fs, Policy on Human Rights in Peace Operations and Special Political Missions, 1 September 2011, Ref. 2011.20 (“2011 Policy”). The Policy replaced the Memorandum of Understanding Between the Office of the High Commissioner for Human Rights and the Department of Peace-​Keeping Operations, 5 November 1999. 351 Within the UN system, a designated lead entity assumes clearly defined coordination and other responsibilities for specific areas of activity, see 2011 Policy, at 5.

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and support on human rights-​related issues and activities of peace operations and political missions.352 This comprises co-​operation at headquarters level on issues like mandates’ definition; assessment, planning and early deployment; transition, drawdown and liquidation; information sharing and consultation; guidance development; and human rights training for mission personnel.353 At mission level, the Head of Mission (hom) is responsible for upholding human rights law in the implementation of the mandate and “for ensuring that the promotion and protection of human rights is instilled as a fundamental principle of the peace operations”.354 The head of the human rights component advises the hom as representative of the High Commissioner for Human Rights, takes care of relevant policy and operational issues and is responsible for the work plan of the human rights component. He or she has a dual reporting obligation vis-​à-​vis the hom and the High Commissioner for Human Rights.355 As concerns the tasks of a human rights component, the 2011 Policy enumerates inter alia the following tasks: monitoring and investigation; assessment; reporting; advocacy and intervention; capacity building, advice and assistance to other components as well as to state institutions; and support to human rights mechanisms.356 Advancing equality and non-​discrimination as well as the prevention of sexual and gender-​based violence, the protection of individuals at risk, combating impunity and facilitating remedy for human rights violations form the core functions of the human rights component.357 Importantly, the 2011 Policy also spells out in some detail the human rights responsibility of other components.358 Given the brevity with which human rights concerns are treated on the part of dpko and the respective units, the 2011 Policy fills an important gap and adds crucial input for all mission components. Last but not least, the 2011 Policy foresees a strong influence of ohchr in the recruiting process of human rights component staff and of the head of the human rights component.359 Funding of the human rights component is

3 52 353 354 355 356 357 358 359

Ibid., para. 11. Ibid., paras. 12 ff. Ibid., para. 37. Ibid., para. 41. Ibid., paras. 48 ff. Ibid., para. 50. Ibid., para. 81 ff. Ibid., paras. 119 ff.

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provided from the assessed contributions to the peace operation.360 The latter is a notable change of policy that has taken place in the last years. Formerly, the High Commissioner for Human Rights had to rely entirely on regular budget and voluntary contributions for the support to peace operations,361 which led to serious financial and staffing strains and hampered the work of ohchr.362 Still, financial and structural shortcomings remain, especially concerning the recruitment and deployment of human rights specialists to field missions. As things currently stand, resources for human rights officers are not routinely included in the initial commitment authority for new missions, which leads to delays in deployment.363 Moreover, back-​stopping of human rights components equally lacks reliable funding, despite the commitment in the 2011 Policy.364 In this respect, more efforts need to be made for the implementation of these crucial elements of the 2011 Policy. b ohchr’s Contribution to Peace Operations The engagement in support and guidance for peace operations is visible in the institutional structure of ohchr. With the Field Operations and Technical Cooperation Division, ohchr devotes one of its four divisions365 to its engagement in the field. Next to five geographical branches, the Emergency Response Sections and the National Institutions, Regional Mechanisms and Civil Society Section, it is the New York-​based Peace Mission Support Section which is responsible for ohchr’s support of human rights components.366 In addition to being responsible for the human rights components and ensuring that they can implement their tasks in an impartial and independent 3 60 Ibid., para. 134. 361 Implementation of the recommendations of the Special Committee on Peacekeeping Operations and the Panel on United Nations Peace Operations, Report of the Secretary-​ General, 1 June 2001, UN Doc. A/​55/​977, para. 246. 362 E.g. E.  Eide, A.  Kaspersen, R.  Kent, and K.  von Hippel, Report on Integrated Missions, May 2005, at  12; K.  Månsson, Integration of Human Rights in Peace Operations, 13(4) International Peacekeeping (2006), 547, at 547 ff., quoting former human rights staff members; T.  Howland, Peacekeeping and Conformity with Human Rights Law, 13(4) International Peacekeeping (2006) 462, at 467 ff. 363 hippo Report, paras. 246 ff.; The future of United Nations peace operations: implementation of the recommendations of the High-​level Independent Panel on Peace Operations, 2 September 2015, UN Doc. A/​70/​357–​S/​2015/​682, para. 74. 364 hippo Report, para. 246. 365 The other three being the Research and Right to Development Division, the Human Rights Treaties Division, Human Rights Council Mechanism Division. 366 ohchr, ohchr Report 2016, http://​www2.ohchr.org/​english/​OHCHRreport2016/​allegati/​Downloads/​1_​The_​whole_​Report_​2016.pdf, at 155.

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manner,367 one of the central fields of activity of the ohchr is human rights mainstreaming into all aspects of the work of a peace operation.368 Documents such as Human Rights Up Front Action Plan, the Human Rights Due Diligence Policy (hrddp) and the Policy on Human Rights Screening of UN Personnel369 represent the basis for ohchr’s mainstreaming efforts. At the same time, ohchr admits that the meaningful implementation of these instruments, such as guidance on the implementation of the hrddp in several missions,370 poses new challenges to the capacity of ohchr.371 The activities of ohchr regarding human rights mainstreaming in peace operations further include conducting lessons learned reviews; engage with the Security Council to ensure due consideration of human rights in mandates; to support mission planning in order to ensure adequate capacity and resources of human rights components; provide human rights training and develop policy and guidance materials; support human rights components in strategic planning and implementation of their mandates.372 Substantively, ohchr has most recently focused its attention on the realisation of specialised protection functions within human rights components, such as the protection of civilians or conflict-​related sexual violence.373 c Result In 2000, the Brahimi report complained that the

367 ohchr, ohchr Management Plan 2014–​2017 –​Working for your rights, http://​www2. ohchr.org/​english/​OHCHRreport2014_​2017/​OMP_​Web_​version/​media/​pdf/​0_​THE_​ WHOLE_​REPORT.pdf, at 87. 368 Human rights mainstreaming within the United Nations is one of eleven expected accomplishments, i.e. results identified to be achieved by ohchr by 2017, according to its latest strategic management plan, ohchr, ohchr Management Plan 2014–​2017  –​ Working for your rights, http://​www2.ohchr.org/​english/​OHCHRreport2014_​2017/​OMP_​ Web_​version/​media/​pdf/​0_​THE_​WHOLE_​REPORT.pdf, at 11. 369 See supra, iii.2.e. 370 E.g. in Central African Republic, the Democratic Republic of the Congo, Libya, Somalia and South Sudan, see ohchr Annual Report 2016, at 159. 371 ohchr, ohchr Management Plan 2014–​2017 –​Working for your rights, http://​www2. ohchr.org/​english/​OHCHRreport2014_​2017/​OMP_​Web_​version/​media/​pdf/​0_​THE_​ WHOLE_​REPORT.pdf, at 87. 372 Ibid., at 94 f. 373 ohchr, ohchr Report 2016, http://​www2.ohchr.org/​english/​OHCHRreport2016/​allegati/​Downloads/​1_​The_​whole_​Report_​2016.pdf, at 158; The future of United Nations peace operations:  implementation of the recommendations of the High-​level Independent Panel on Peace Operations, Report of the Secretary-​General, 2 September 2015, UN Doc. A/​70/​357 S/​2015/​682, para. 66.

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human rights components within peace operations have not always received the political and administrative support that they require, however, nor are their functions always clearly understood by other components.374 Two decades later, significant progress has been made to improve these problems: especially the 2011 Policy has spelt out clearly and thus contributed to a better understanding of the role of the human rights component in peace operations. It has also reiterated the importance of human rights mainstreaming in all aspects of peace operations. Still, challenges remain. First, public reporting on human rights as well as briefing and reporting to the Security Council on human rights developments are not yet fully institutionalised and should in the future follow a regular schedule for all relevant actors such as senior mission leadership on the one hand and Secretariat staff on the other one.375 Secondly, it may be questioned whether human rights can be adequately promoted and protected within the current structure of dpo. While ohchr does provide support to the work of dpo, co-​ operation seems to be established on an ad hoc basis as needed. This can offer flexibility, but also bears the risk of marginalising human rights issues structurally. Given the overall management of peace operations by dpo, the lack of institutionalised human rights representation within dpo may continue or even reinforce potential marginalisation of human rights issues in the field –​despite policy assertions pointing into the other direction. Commentators criticise that even after the adoption of the 2011 Policy, human rights considerations are still “unacceptably subordinated … to political considerations” and the autonomy and resources of human rights components are restricted.376 Hence, structural 3 74 Brahimi report, para. 41. 375 hippo Report, para. 246. The dpko-​d fs Standard Operating Procedure on Integrated Reporting from dpko-​led Missions to unhq requires reporting on significant events of human rights importance, including human rights violations involving UN personnel or allegations of sexual exploitation or abuse by UN personnel, see dpko-​d fs Standard Operating Procedure on Integrated Reporting from dpko-​led Missions to unhq, effective 1 March 2012, para. 17. This reporting, however, takes place internally and is not tantamount to public reporting on human rights. On recommendations for public reporting see the ohchr/​d pko/​d pa Policy directive on public reporting by human rights components of United Nations Peace Operations, 1 July 2008, Ref. 2008.25. 376 M. O’Flaherty and D. Davitti, International Human Rights in Field Operations, in: S. Sheeran and N. Rodley (eds.), Routledge Handbook of International Human Rights Law, 2013, 169, at 173. Criticism of this kind has already been brought forward earlier, see e.g. K. Månsson, Integration of Human Rights in Peace Operations, 13(4) International Peacekeeping (2006), 547; T. Howland, Peacekeeping and Conformity with Human Rights Law: How minustah Falls Short in Haiti, 13(4) International Peacekeeping (2006) 462, at 471.

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reform of the Secretariat and dpo may be necessary to fully implement the increased role of human rights in peace operations.377 The currently unfolding reform process initiated by António Guterres may offer a window of opportunity in this regard. Furthermore, ohchr also acknowledged the need for stronger engagement with political decision-​makers in the fields of budget allocation and mission design to ensure better integration of human rights. Given the sometimes-​ difficult constellations in the Security Council, a stronger focus on the Special Committee on Peacekeeping Operations could be an option.378 5 Critical Evaluation: Framework, Doctrine, Implementation Human rights are part and parcel of today’s UN peace operations. Usually within a human rights component, they have come to play an indispensable role: as a means to achieve sustainable peace, as an end per se and as normative baseline and standard for accountability. The Security Council includes human rights language in virtually all new mission mandates. The Secretary-​ Generals, most notably Ban Ki-​moon, have brought human rights to the centre of attention of UN activities and peace operations. dpo collaborates with ohchr to operationalise and implement the human rights mandates on the ground and does so with growing expertise and success. However, shortcomings remain. For each of the actors analysed above, doctrinal clarity as to the role of human rights is only partly discernible. Major steps in the development of human rights in peace operations like the creation of integrated missions and the concept of mainstreaming human rights have succeeded in increasing the visibility of human rights but have added little to an enhanced understanding of the concrete function of human rights in peace operations. As benchmarks, human rights can serve as one of several indicators for when a peace operation is ready for “exit”. As means, successful promotion and protection of human rights can help create the basis for sustainable positive peace. As a normative framework, human rights can spell out the standard against which peace operations can be held accountable. As things stand, all of these conceptions of human rights have found entry into peace operations 377 Cp. The future of United Nations peace operations: implementation of the recommendations of the High-​level Independent Panel on Peace Operations, 2 September 2015, UN Doc. A/​70/​357–​S/​2015/​682, para. 75. 378 ohchr, ohchr Management Plan 2014–​2017 –​Working for your rights, http://​www2. ohchr.org/​english/​OHCHRreport2014_​2017/​OMP_​Web_​version/​media/​pdf/​0_​THE_​ WHOLE_​REPORT.pdf, at 94 f.

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doctrine at one or the other instance. What is lacking, however, is an overall institution-​wide coherent strategy for human rights in peace operations. The consequences are essentially two-​fold: The first one relates to the practical effects. The lack of human rights strategy combined with a general lack of strategic guidance both generally and for each peace operation individually leads to uncontrollable and unpredictable ambiguities in the implementation of the mandate. It is quite obvious that peace operations cannot fulfil all the mandated tasks immediately and at once. In fact, different mission functions (implementation of a peace agreement, border protection and upholding a buffer zone, or mitigation of a humanitarian crisis) call for different priorities.379 As we have seen, the development of tailored priorities for each peace operation still is a challenging task for mission planning and mandating. With Secretary-​General Guterres’ Action for Peacekeeping (A4P) initiative,380 the idea of sequencing and prioritisation of mandates may gain further impact.381 For the time being, priorities are set on an ad hoc basis, with the risk of human rights being considered of lower priority than other, e.g. security-​related tasks.382 Such a juxtaposition of human rights versus security is not only in contrast with a broad, individual-​centred understanding of security, but also underestimates the importance of human rights for the attainment of security and sustainable peace.

3 79 See in detail, B. Jones, R. Gowan, and J. Sherman, Building on Brahimi, 2009, at 26. 380 See supra, 2.g. 381 Action for Peacekeeping (A4P), Declaration of Shared Commitments on UN Peacekeeping Operations, 2018, https://​peacekeeping.un.org/​sites/​default/​files/​a4p-​declaration-​en.pdf, paras. 5 and 6. 382 Indications for such predictions can be found in dpko documents such as the Capstone doctrine which warns that in integrated mission planning, “a balance must be struck between the need to ensure that developmental, human rights, gender and other perspectives are fully taken into account, and the need to deliver a timely and effective humanitarian and security response”, United Nations Department of Peacekeeping Operations  –​Peacekeeping Best Practices Section, United Nations Peacekeeping Operations  –​Principles and Guidelines, approved on 18 January 2008, at 54; usg Guehenno, remarks to GA 4th committee, October 2006, http://​www.un.org/​Depts/​ dpko/​dpko/​articles/​article191006.html. See also Karin Landgren, stating that “some mission strategies have been overly-​focused on security”, K.  Landgren, Nailing Down the Primacy of Politics in UN Peacekeeping: An Insider Perspective, ipi Global Observatory, 16 August 2018, https://​theglobalobservatory.org/​2018/​08/​nailing-​down-​primacy-​of-​ politics-​un-​peacekeeping-​an-​insider-​perspective/​. For further examples and references see S. Maus, Institutionalising human rights in United Nations peacekeeping operations, in: W. Benedek, M. Kettemann, and M. Möstl, Mainstreaming Human Security in Peace Operations, 2010, 57, at 66 ff.

78 

Chapter 1

In a similar vein, there are signs that the lack of strategy and guidance leads to an actual prioritising of civil and political rights over economic, social and cultural rights.383 This hypothesis will be put to the test in the case studies in Chapter 4. At this point, it needs to be noted that notwithstanding the indubitable importance of security in a post-​conflict environment, the neglect of economic, social and cultural rights implementation may be detrimental to the achievement of lasting peace.384 The second consequence is a more fundamental one: One of the most significant flaws of the UN peace operation enterprise is the lack of a universal overarching legal framework,385 combined with the lack of strategy and doctrinal clarity provided by the Security Council. This has become evident throughout this chapter. Thus, from an institutional perspective, uncertainties persist concerning the scope and content of obligations of peace operations. As a consequence, clarity concerning the accountability of peace operations remains wanting. Nevertheless, it represents one of the most pressing topics of debate.386 The following part will therefore analyse more closely the legal framework for human rights in peace operations. Given the level of uncertainty, this will be done in some detail in order to prepare the ground for the subsequent case studies. 383 Richard Gowan has linked this bias with the liberal peace paradigm, see R. Gowan, The Strategic Context:  Peacekeeping in Crisis, 2006–​08, 15(4) International Peacekeeping (2008), 453, at 463. As to the role of human rights ngos in this context see J.  Oloka-​ Onyango, Reinforcing Marginalized Rights in an Age of Globalization, 18(4) American University International Law Review (2003) 851, at 852. On the liberal peace paradigm, see for instance M.  Duffield, Global Governance and the New Wars (Zed, 2001); O. Richmond, Transformation of Peace, 2007; and critically R. Paris, At War’s End, 2004; and O. Richmond and J. Franks, Liberal Peacebuilding in Timor Leste, 15(2) International Peacekeeping (2008), 185. 384 E. Pförtner, Menschenrechte in Friedensmissionen, 3 Journal of International Law of Peace and Armed Conflict (2005) 182, at 186. H. Hannum, Peace versus Justice: Creating Rights as well as Order out of Chaos, 13(4) International Peacekeeping (2006), 582 (“Finally, although the focus in the immediate post-​agreement period is usually on physical security and political rights, the rapid implementation of economic, social, and cultural rights will tend to support any peace accord”, at 589). 385 Cp. R. Freedman, A Legal Framework for UN Peacekeeping, 3 March 2016. 386 This issue will be treated in detail infra in Chapter 3.

­c hapter 2

Human Rights Obligations of UN Peace Operations: the Legal Framework The increasing significance of human rights in UN peace operations is, first of all, to be welcomed, especially because of the symbolic value it attributes to human rights in the institutional framework and daily practice of peace operations. However, since UN peace operations lack an overall legal framework, the exact scope and content of human rights obligations of peace operations –​or the UN in general –​remains far from clearly established. A closer look at the international legal framework is thus warranted. The quest for finding the UN accountable under human rights law is not a new one. To the contrary, a growing body of literature1 has contributed to this debate, yet, as Bell points out, this only “testifies to an unhelpful lack of clarity as to UN human rights obligations”.2 Throughout the vast amount of literature, commentators generally follow three lines of argumentation to find the UN bound by human rights obligations.3 First of all, human rights obligations can arise from general international law –​international treaties, customary international law and general principles of international law –​because the UN is acknowledged as a subject of international law.4 Secondly, obligations can 1 To name some of the often-​cited works, see generally, F. Mégret and F. Hoffman, The UN as a Human Rights Violator?, 25(2) HRQ (2003), 314; M. Zwanenburg, Compromise or Commitment: Human Rights and International Humanitarian Law Obligations for UN Peace Forces, 11 LJIL (1998), 229; B. Kondoch, Human rights law and UN peace operations in post-​conflict situations, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 19; J.  Cerone, Reasonable Measures in Unreasonable Circumstances:  A Legal Responsibility Framework for Human Rights Violations in Post-​conflict Territories under UN Administration, in:  N. White and D.  Klaasen (eds.), The UN, Human Rights and Post-​ conflict Situations, 2005, 42; G. Verdirame, UN Accountability for Human Rights Violations in Post-​conflict Situations, in: N. White and D. Klaasen (eds.), The UN, Human Rights and Post-​ conflict Situations, 2005, 81; G. Verdirame, The UN and Human Rights, 2011; R. Freedman, UN Immunity or Impunity? A Human Rights Based Challenge, 25 EJIL (2014) 239; A. Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851. 2 C. Bell, Peace Settlements and International Law, 2012, at 39. 3 A great share of works follows the tripartite conception of F. Mégret and F. Hoffman, The UN as a Human Rights Violator?, 25(2) HRQ (2003), 314. 4 B. Kondoch, Human rights law and UN peace operations in post-​conflict situations, in: N. White and D.  Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 19,

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433090_004

80 chapter 2 arise from the UN Charter as the constituent instrument of the organization.5 Thirdly, the UN can be bound indirectly under certain conditions through the human rights obligations of the member State in which the peace operation is operating.6 For of the present work, it is essential to establish a firm ground for the overall applicability of human rights obligations to UN peace operations (Rechtsbindung). Given the general consensus on this matter, only the main lines of argumentation will be summarised. Furthermore, the special role of the Security Council and the legal effects following therefrom deserve some further attention. Given the existence of additional elements that together form the legal regime of a peace operation,7 the obligations resting upon the peace operation may differ from those of the Security Council, which establishes the peace operations.8 Accordingly, this chapter will discuss the human rights obligations of the UN and the human rights obligations of peace operations separately. Having established the general applicability of human rights obligations, the more contested part of the question, namely the scope and content of the human rights obligations, must be worked out as the basis for the subsequent analysis. Here, existing literature shows a crucial lacuna that has to be filled. Peace operations mandates, as well as other relevant instruments such

at 36 f.; N. White and D. Klaasen, An emerging legal regime?, in: N. White and D. Klaasen (eds.), The UN, Human Rights and Post-​conflict Situations, 2005, 1, at 7; M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 463; for Mégret and Hoffmann, this is the “external conception”, see F. Mégret and F. Hoffman, The UN as a Human Rights Violator?, 25(2) HRQ (2003), 314. 5 B. Kondoch, Human rights law and UN peace operations in post-​conflict situations, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 19, at 36; N. White and D. Klaasen, An emerging legal regime?, in: N. White and D. Klaasen (eds.), The UN, Human Rights and Post-​conflict Situations, 2005, 1, at 7; M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 463; Bell, Peace Settlements and International Law, 2012, at 39. Mégret and Hoffmann call this the “internal conception”, see F. Mégret and F. Hoffman, The UN as a Human Rights Violator?, 25(2) HRQ (2003), 314. 6 C. Bell, Peace Settlements and International Law, 2012, at 39 f.; M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 463 f.; it has also been referred to as the “hybrid conception”, see F. Mégret and F. Hoffman, The UN as a Human Rights Violator?, 25(2) HRQ (2003), 314. 7 See infra, section v. 8 Making a similar distinction between the legal obligations of the Security Council and the legal obligations of the peace operations, see H. Henninger, Menschenrechte und Frieden, 2013, at 174 ff.

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as peace agreements or Status of Forces Agreements (sofas), will be in the centre of analysis. i

Obligations under General International Law

Human rights obligations can arise from general international law, which comprises international treaties, customary international law and general principles of international law. Before analysing rights and duties under international law, a few words on the issue of international subjectivity or international legal personality are apposite. 1 The UN as a Bearer of Rights and Duties under International Law International organizations are subjects of international law, commonly endowed with international legal personality, and are consequently subject to rights and duties under international law.9 Whereas the UN Charter does not contain a clause explicitly granting the organization legal personality,10 there is little doubt nowadays that the UN is a subject of international law, capable of fully bearing rights and duties under international law.11 In 1946, the Convention on the Privileges and Immunities of the United Nations (cpiun) established in Article 1 that the “United Nations shall possess juridical personality”.12 Shortly thereafter, the icj clarified the UN’s legal status in the Reparations for Injuries Opinion by stating that the UN “is a subject of international law and capable of possessing international rights and duties”.13 9 10 11

12 13

P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed. 2009, at 461 f., MN 14–​034; T. Rensmann, International Organizations or Institutions, External Relations and Co-​operation, mpepil, March 2009, MN 1. Contrary to the great majority of more recently established international organizations such as the wto. For more examples see C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, 2001, at 126. J. Frowein, United Nations, mpepil, March 2013, MN 27; T. Irmscher, The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo, 44 GYIL (2001), 353, at 368, with further references. For a contrary opinion (that the UN must not necessarily be a subject of international law) see G. Oosthuizen, Playing the Devil’s Advocate: the United Nations Security Council is Unbound by Law, 12 LJIL (1999), 549, at 562. 13 February 1946, 1 UMTS 15. icj, Reparation for Injuries Suffered in the Services of the United Nations, Advisory Opinion, 11 April 1949, icj Reports 1949, 174, at 178 f.  Explaining the pertinent paragraph of the Advisory Opinion, R. McCorquodale, The Individual and the International Legal System, in: M. Evans (ed.), International Law, 4th ed. 2014, 280, at 282 and, in more detail, P. d’Argent, Reparation for Injuries Suffered in the Service of the United Nations (Advisory

82 chapter 2 Whereas the fact that the UN is a bearer of duties under international law is thus undisputed, the question arises whether human rights fall within the norms the UN has to abide by. For UN-​led peace operations, which are in the focus here, the obligations generally correspond to those of UN as their “mother organization” because “their legal personality is identified with that of the UN.”14 In its Certain Expenses Advisory Opinion the icj affirmed that the United Nations Operation in the Congo (onuc) was a subsidiary organ of the Security Council, established under Article 29 UN Charter.15 The Model-​s ofa and the Model agreement between the United Nations and Member States contributing personnel and equipment to United Nations peacekeeping operations confirm the status of peace operations as subsidiary organs of the UN.16 Therefore, the obligations of peace operations generally follow from the rights and duties placed upon the UN as a whole.17 The icj has pointed out that, as a legal person under international law, the UN is subject to “any obligations incumbent upon them under general rules of international law”.18 For an international law scholar, Article 38 (1) of the Statute of the icj represents the first point of call in the quest for potential sources of obligations under international law. Hence, international conventions (i.e. treaties); international custom, as evidence of a general practice accepted as law; and the general principles of law recognised by civilised nations will briefly be examined in turn.

14 15

16

17

18

Opinion), mpepil, December 2006. See further S. Chesterman, I. Johnstone, D. Malone, Law and Practice of the United Nations, 2nd ed. 2016, at 115 ff. M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 37. icj, Certain Expenses of the United Nations, Advisory Opinion of 10 July 1962, 1962 icj Rep 151, at 176 f.; Article 29 unc reads: “The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.” For the General Assembly, Art. 22 provides for the same possibility. Model-​status-​of-​forces agreement, UN Doc A/​45/​594, 9 October 1990, para 15 and Model agreement between the United Nations and Member States contributing personnel and equipment to United Nations peacekeeping operations, UN Doc A/​46/​1SS, 23 May 1991, para 4. M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 37; M.  Bothe, Streitkräfte internationaler Organisationen, 1968, at 37 ff. But cp. Dannenbaum, who differentiates between the mission per se and the respective troop contingents that “are not organs or agents of the United Nations. They are organs of their sovereign states that those states ‘have placed at the disposal’ of the United Nations for the purposes of a peacekeeping mission.”, T.  Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010) 113, at 140. icj, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, icj Reports 1980, 73, at 90, para. 37.

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2 Obligations Arising from International Human Rights Treaties Since its early days, the UN has acted as an initiator of and provided a forum for the negotiation of the most important human rights treaties. However, even though these treaties have been negotiated under its auspices, the UN is, as an organization, not party to any human rights treaty. Therefore, the binding force of the agreement cannot simply be based on the consent of the UN,19 and it suggests itself under the pacta tertiis principle that the latter cannot be subject to the rules codified in these treaties.20 Different approaches and theories purport that the UN is still bound by human rights norms.21 First of all, the argument may be brought forward that the UN should be regarded bound by those rules and principles it has advanced so vigorously.22 From a traditional positivist approach, however, the distinction between law on the one hand and moral obligations on the other one, i.e. between legality and legitimacy, must be respected. Therefore, Quénivet rightly concludes that even though the UN serves as a global authority to advance human rights, it is not automatically bound by these norms.23 Following a second line of argumentation, it is maintained that the UN is bound by human rights law “transitively […] as a result and to the extent that its members are bound”.24 In its judgement on Waite and Kennedy v. Germany the European Court of Human Rights (ECtHR) stated that in cases when States create international organizations to enhance their co-​operation in certain fields, it

19

See H. Schermers and N. Blokker, International Institutional Law, 5th rev. ed. 2011, at 1001, MN 1577. 20 Cp. also Article 34 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, UN Doc. A/​CONF.129/​15: “A treaty does not create either obligations or rights for a third State or a third organization without the consent of that State or that organization.” 21 Quénivet speaks of a “series of eclectic mechanisms and theories”, N. Quénivet, Binding the United Nations to Human Rights Norms by way of the Laws of Treaties, 42 The George Washington International Law Review (2010), 587, at 598. 22 Cp. Schermers and Blokker who argue that organizations are bound by treaties drafted “with the intention of creating universal law” of which IOs have to apply the main substantive provisions, see H. Schermers and N. Blokker, International Institutional Law, 5th rev. ed. 2011, at 1001, MN 1577. 23 N. Quénivet, Binding the United Nations to Human Rights Norms by Way of the Laws of Treaties, 42 The George Washington International Law Review (2010), 587, at 596 f. 24 F. Mégret and F. Hoffman, The UN as a Human Rights Violator?, 25(2) HRQ (2003), 314, at 318.

84 chapter 2 would be incompatible with the purpose and object of the [European Convention of Human Rights], however, if the Contracting States were thereby absolved from their responsibility under the Convention.25 As a consequence, the ECtHR required in Matthews v. the United Kingdom that after a transfer of powers to an international organization, the rights under the Convention must “continue to be ‘secured’ ”.26 Otherwise, States could avoid compliance with and evade responsibility for their obligations to respect human rights, simply by creating an international organization. This would create “a dangerous loophole”, as De Wet and Nollkaemper warn.27 Taking this line of argument a bit further, it can be argued that if the powers conferred to the international organization are all-​encompassing to the extent that the latter acts virtually independently of the influence of the member States (e.g. with regard to the Security Council), it is only reasonable that the international organization must be bound by law or voluntarily assume the relevant obligations attached to those powers.28 Reinisch has called this “ ‘functional’ treaty succession by international organisations”.29 In a similar vein, it has been suggested that under the “duty of due diligence”, a recognised principle of international law,30 every subject of international law must, as a minimum obligation, ensure that its “own policies, actions, or possible neglect do not undermine the human rights obligations of other subjects of international law”.31 Hence, 25 ECtHR, Case of Waite and Kennedy v. Germany (Application no. 26083/​94), Judgement, 18 February 1999, para. 67. 26 ECtHR, Case of Matthews v. The United Kingdom (Application no. 24833/​94), Judgement, 18 February 1999, para. 32. 27 E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 190; see also M.  Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 471. 28 See e.g. M. Hirsch, The Responsibility of International Organisations toward third parties, 1995, at 54; see also C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, 2001, at 134. 29 A. Reinisch, Securing the Accountability of International Organizations, 7 Global Governance (2001), 131, at 137. Similarly, C.  Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001), 105, at 163. 30 If not a norm of customary law, as Darrow and Arbour suggest, M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 473 f. 31 M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 474. See also P. Klein, La responsabilité des organisations financières et les droits de la personne, Revue Belge de Droit International (1999/​1), 97, at 113.

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the UN, as a subject of international law, must take care that the human rights obligations of its member States are not undermined by any actions of the organization. Yet, critical voices have submitted that even though the theory of functional treaty succession is logical and intelligible, it may not (yet) be firmly established in international law, neither by way of treaty nor custom.32 In addition, the attempt to make member States’ obligations applicable to the UN either by way of functional treaty succession or because of a due diligence duty does not answer the actual question as to the UN’s own human rights obligations.33 Based on these considerations, it is difficult to consider the UN to be bound by human rights treaties per se. However, the applicability of certain norms of those treaties cannot be easily dismissed if one acknowledges their status as customary international law34 or as general principles of law as provided for in Article 38 (1)(c) of the Statute of the icj, to which we turn now. 3 Obligations Arising from Customary International Law Customary international law continues to be one of the most important sources of international law.35 There is widespread recognition that the UN is bound by customary international law,36 including by those norms of human rights

32 33

34

35 36

N. Quénivet, Binding the United Nations to Human Rights Norms by way of the Laws of Treaties, 42 The George Washington International Law Review (2010), 587, at 608; H. Henninger, Menschenrechte und Frieden, 2013, at 203. R. McCorquodale, International Organisations and International Human Rights Law, in: K. Kaikobad and M. Bohlander (eds.), International Law and Power, 2009, 141, at 155 f.  See also O.  de Schutter, Human Rights and the Rise of International Organisations, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 51, at 62. See T. Irmscher, The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo, 44 GYIL (2001), 353; N. White, Towards a Strategy for Human Rights Protection in Post-​Conflict Situations, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 463, at 464; T. Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, stating that “some provisions” have customary status at his time of writing, but that “many other rights will be added in the course of time”, at 99. Discussing the value of custom in the contemporary world, see M. Shaw, International Law, 8th ed. 2017, at 54 f. A. Clapham, Human Rights Obligations of Non-​State Actors, 2006, at 65; H. Schermers and N.  Blokker, International Institutional Law, 5th rev. ed. 2011, at 1004, MN 1579; C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, 2001, at 134 ff.; H.  Schermers, The Legal Bases of International Organization Action, in: R.-​J. Dupuy (ed.), A Handbook on International Organizations, 2nd ed. 1998, 401, at 402.

86 chapter 2 law that have attained customary international law status.37 Without going into great detail, as others have convincingly done before,38 the following main lines of argumentation support the claim that the UN is bound by customary international law. A rule of customary international law has come into existence if two criteria are met: first, there must be repeated behaviour of States (objective element), and second, there must be the belief that such behaviour follows from a legal obligation (opinio juris sive necessitatis, subjective element).39 In a narrow reading of this definition, it is States –​and only States –​that create customary international law and are, as a consequence, bound by it. The UN, in contrast, has per definitionem not participated in the formation of State practice. Consequently, it could be argued that the UN is not bound by these rules. However, the State-​ centred perspective on customary law can be and is, especially against the background of the ICJ Reparations for Injuries and the who Advisory Opinions, no longer maintained. In fact, the wording of Art. 38 (1) (b) of the icj Statute speaks of “general practice accepted as law” and thus leaves open the participation of other subjects of international law in the formation of customary international law. This view has been endorsed by the ilc’s Draft Conclusions on Identification of Customary International Law40 which states in Conclusion 4 (2) that “[i]‌n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.”41 37

A. Clapham, Human Rights Obligations of Non-​State Actors, 2006, at 83; T. Irmscher, The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo, 44 GYIL (2001) 353, at 369; C. Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 431 with further references. More cautiously R.  McCorquodale, International Organisations and International Human Rights Law, in: K. Kaikobad and M. Bohlander (eds.), International Law and Power, 2009, 141, at 157. 38 Instead of many, see comprehensively C.  Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 424 ff. 39 T. Treves, Customary International Law, mpepil, November 2006, MN 8. For a summary of the different conceptions of the relationship between the two elements –​following from the respective underlying theoretical understanding  –​see C.  Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 433 ff., with further references. 40 ilc, Draft conclusions on identification of customary international law, adopted by the International Law Commission at its seventieth session, in 2018, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/​73/​10, para. 65). 41 According to the Commentary to the Draft conclusions, such “certain cases” can include the practice of international organizations in deploying military forces like, for example, in peacekeeping, see Commentary to Conclusion 4, para. (6), UN Doc. A/​73/​10, para. 66.

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While the participation of international organizations in the formation of customary international law does not necessarily lead to them being bound by it, Tomuschat provides an additional reason why the exclusion of international organizations from being bound by customary international law is not convincing: Now, if States acting individually have been subjected to certain rules thought to be indispensable for maintaining orderly relations within the international community, there is no justification for exempting international organizations from the scope ratione personae of such rules. International organizations cannot have more or more extended rights than States.42 In other words, nemo plus juris tranferre potest quam ipse habet: no subject of international law can transfer more power to another subject than those it possesses itself.43 Therefore, international organizations are bound by customary international law.44 In addition, it is submitted that the international legal order is an objective one, in which all legal persons are subordinated to the rules of objective international law.45 Informed by a constitutionalist understanding of the international legal system, the rights and duties under international law form a regulatory framework that has to be respected by every entity which is part of this system.46 42

43

44

45 46

C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, 2001, at 134. Janik, a contrario, argues that –​rather than assuming an obligation of the international organization –​it is more reasonable to claim a continuing responsibility of States even after the creation of an organization, C. Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 430. O. de Schutter, Human Rights and the Rise of International Organisations, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 51, at 62. Also H.  Henninger, Menschenrechte und Frieden, 2013, at 187 with further references. Cp. T. Kleinlein, Konstitutionalisierung im Völkerrecht, 2012, at 577 ff. Also brought forward by A. Bleckmann, Zur Verbindlichkeit des allgemeinen Völkerrechts für internationale Organisationen, 37 ZaöRV (1977), 107, at 118; D.  Shelton, Protecting Human Rights in a Globalized World, 25 Boston College International and Comparative Law Review (2002), 273, at 309; C. Tomuschat, Die Europäische Union und ihre völkerrechtliche Bindung, Europäische Grundrechte-​Zeitschrift (2007) 1, at 4. K. Doehring, Unlawful Resolutions of the Security Council and Their Legal Consequences, 1 MPUNYB (1997) 91, at 93. Henninger uses the notion of “Adressatenlosigkeit des Völkerrechts”, H. Henninger, Menschenrechte und Frieden, 2013, at 185 f. C. Tomuschat, Die Europäische Union und ihre völkerrechtliche Bindung, Europäische Grundrechte-​Zeitschrift (2007) 1, at 4; similarly A. Clapham, Human Rights Obligations

88 chapter 2 Some commentators challenge the applicability of customary human rights law to the UN on the ground that those rules are tailored to States and do not fit international organizations.47 However, it is understood that customary law is only applicable mutatis mutandis, which takes a good share from the persuasiveness of the argument. Furthermore, there is little reason to suggest that the UN has acted as a persistent objector48 during the development of customary human rights law.49 To the contrary, the UN has since its creation promoted the development and implementation of human rights. Hence, the applicability of human rights norms to the UN on the basis of customary international law is a persuading approach. 4 Obligations Arising from General Principles of Law The UN may, last but not least, be bound by general principles of international law.50 These “general principles of law recognized by civilized nations” as provided for in Article 38 (1)(c) of the Statute of the icj are traditionally referred to as having developed internally in foro domestico. Yet, Simma and Alston see no reason why principles accepted on an international plane should not be considered part of that category.51 The icj has repeatedly referred to principles that are relevant only under international law52 while being rather cautious of Non-​State Actors, 2006, at  87. Critically on this assumption, K.  Schmalenbach, International Organizations or Institutions, General Aspects, mpepil, last updated July 2014, MN 80. 47 See e.g. J. Alvarez, The Impact of International Organizations on International Law, 2017 (“the conceptions of human rights in customary law are typically framed as rights against states, not IOs”), at 383. 48 The figure of a persistent objector can be described as follows: “A State that has persistently objected to a new rule of customary international law while that rule was in the process of formation is not bound by the rule for so long as it maintains its objection.”, Draft conclusion 16 and the corresponding comments in paras. 85–​95 in the ilc, Third report on identification of customary international law, by Michael Wood, Special Rapporteur, 27 March 2015, UN Doc. A/​CN.4/​682. See also C. Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 437 f. 49 T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 136. 50 See generally, e.g. R.  Wolfrum, General International Law (Principles, Rules, and Standards), mpepil, last updated December 2010; W. Weiß, Allgemeine Rechtsgrundsätze im Völkerrecht, 39(4) AVR (2001), 394. 51 B. Simma and P.  Alston, The Sources of Human Rights Law, 12 Australian Yearbook of International Law (1988), 82, at 102. 52 See for example the Corfu Channel Case: “Such obligations are based (…) on certain general and well-​recognized principles”, icj, Corfu Channel Case, Judgment of 9 April 1949, icj Reports 1949, 4, at 22; the advisory opinion Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide: “the principles underlying the Convention are

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with the application of principles drawn from municipal law.53 Even though commonly being rather vague, general principles complement other rules of international law and contribute to filling gaps.54 There is broad consensus that the UN is bound by general principles of international law.55 It has been argued that main substantive human rights provisions, i.e. basic human rights56 can be considered general principles of law.57 Accordingly, to the extent that norms codified in international human rights treaties represent general principles of international law, these are applicable to the UN. The legal foundation of the obligation to apply (certain parts of) human rights treaties then “lies not in its character as an international treaty but rather in its character as a general principle of law codified by treaty”.58

53 54

55 56 57

58

principles which are recognized by civilized nations as binding on States, even without any conventional obligation”, icj, Reservations to the Convention on Genocide, Advisory Opinion: icj Reports 1951, 15, at 23; or the advisory opinion on Western Sahara: “the principle of self-​determination, defined as the need to pay regard to the freely expressed will of peoples”. icj, Western Sahara, Advisory Opinion, icj Reports 1975, 12, para. 59. However, Wolfrum points out, that the icj only rarely uses the explicit term “general principles” in its Application for Review of Judgement No 158 of the United Nations Administrative Tribunal Advisory Opinion: “General principles of law and the judicial character of the Court do require that, even in advisory proceedings, the interested parties should each have an opportunity, and on a basis of equality, to submit all the elements relevant to the questions which have been referred to the review tribunal”, para. 36, see R. Wolfrum, General International Law (Principles, Rules, and Standards), mpepil, last updated December 2010, MN 18. G. Gaja, General Principles of Law, mpepil, last updated March 2007, MN 32. Ibid., para. 21; W. Graf Vitzthum, Begriff, Geschichte und Rechtsquellen des Völkerrechts, in: W. Graf Vitzthum and A. Proelß (eds.), Völkerrecht, 6th ed. 2013, 1, at 54 MN 142. For a much broader understanding of the role of general principles, see U. Fastenrath, Lücken im Völkerrecht, 1991, at 100 ff. H. Henninger, Menschenrechte und Frieden, 2013, at 188 with further references. B. Kondoch, Human rights law and UN peace operations in post-​conflict situations, in: N. White and D.  Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 19, at 41. See most notably, B. Simma and P. Alston, The Sources of Human Rights Law, 12 Australian Yearbook of International Law (1988), 82, at 102. Examples include the principles of equality between sexes or the principle of freedom of association, see H. Schermers and N. Blokker, International Institutional Law, 5th rev. ed. 2011, at 835, MN 1338. H. Schermers and N. Blokker, International Institutional Law, 5th rev. ed. 2011, at 1001, MN 1577. Similarly, O. de Schutter, Human Rights and the Rise of International Organisations, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 51, at 71 ff. as well as U. Häußler, Human Rights Accountability of International Organisations in the Lead of International Peace Missions, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 215, at 257 ff.

90 chapter 2 5 Result The above analysis has unveiled different approaches to determine human rights obligations under international law as applicable to the UN, with various success. Especially the attempt to directly apply human rights treaties to the UN is characterised by some weaknesses. To the extent that one considers some human rights norms as customary international law, an application to the UN is legally justifiable. This, however, is only a very low common denominator; difficult questions such as which human rights norms exactly have to be considered customary international law are not yet resolved. While the unequivocal acceptance of human rights obligations on the UN would certainly be a “giant leap for the protection of humankind”,59 general international law leaves the exact contours of UN human rights obligations blurred. ii

The Charter as Constituent Treaty of the UN

A traditional approach based on the sources of international law (as enumerated in Article 38 icj Statute) has proven indefinite for finding a clear explanation for a full-​fledged application of human rights norms to the UN. In the above analysis, however, one particular treaty has been omitted, namely the UN Charter. The UN Charter as the constituent instrument of the international organization serves a dual function:  at the moment of creation of the organization, it represents a contract between States. In the course of the life of the organization, the treaty, in addition, operates as a constitution.60 In this function, the UN Charter is a source of international obligations not only for its member States but also for the organization itself, despite the fact the UN as an organization is technically not a party to the UN Charter.61 From a traditional point of view, the Charter is first and foremost a treaty between the member States of the UN, which has to be interpreted according to the general rules of interpretation laid down in Article 31 of the 1969

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R. McCorquodale, International Organisations and International Human Rights Law, in: K. Kaikobad and M. Bohlander (eds.), International Law and Power, 2009, 141, at 162. E.g. C. Ahlborn, The Rules of International Organizations and the Law of International Responsibility, 8 International Organizations Law Review (2011), 397, at 403. The idea that the UN Charter serves as the constitution of the international community was mainly advanced by Alfred Verdross and Bruno Simma, see A. Verdross and B. Simma, Universelles Völkerrecht, 3rd ed. 1984, at 72 § 94. E.g. G. Verdirame, The UN and Human Rights, 2011, at 56.

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Vienna Convention on the Law of Treaties (vclt).62 Under this perspective, the wording and the overall object and purpose of the UN Charter are at the centre of interpretation. A second approach takes an international constitutionalist stance, which, in different characteristics, regards the UN Charter as a constitution that allows for the practice of its organs to be checked against the provisions of the Charter.63 The interpretation of the Charter thus has to acknowledge its character as a “living instrument” and should follow “a purposive-​dynamic” approach.64 The constitutional character of the UN Charter is widely recognised.65 Since it is not the intention of the present work to dive into the vibrant debates surrounding constitutionalism and its discontents,66 the analysis follows the pragmatic approach suggested inter alia by Kadelbach, who integrates the formal techniques of treaty interpretation with the acceptance of the Charter as a dynamic instrument that includes practice as relevant for (re-​)establishing the object and purpose of the Charter.67 Hence, the classical interpretation of

62

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Article 31 reads: a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, Vienna Convention on the Law of Treaties (vclt), opened for signature 23 May 1969, 1155 UNTS 331. These provisions are considered declaratory of customary international law and thus applicable to the UN Charter, despite the fact that the UN Charter came into being prior to the Vienna Convention, see M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 465. For a summary of the different theoretical approaches, see S. Kadelbach, Interpretation, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 71, pp. 73ff, MN 2ff. with further references. T. Rensmann, Reform, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 25, at 32, MN 20. E.g. B.  Fassbender, The United Nations Charter As Constitution of The International Community, 36 Columbia Journal of Transnational Law (1998), 529; E.  de Wet, The International Constitutional Order, 55 International and Comparative Law Quarterly (2006), 51; N. White, The United Nations System: Conference, Contract or Constitutional Order? 4 Singapore Journal of International and Comparative Law (2000), 281; P.-​M. Dupuy, The Constitutional Dimension of the Charter of the UN Revisited, 1 MPUNYB (1997), 1.  As to the different connotations associated with the “constitutional” nature of the Charter see B.  Fassbender, The United Nations Charter as Constitution of the International Community, 2009, at 27–​51. Instead of many, S.  Kadelbach and T.  Kleinlein, International Law  –​A  Constitution of Mankind? 50 GYIL (2007), 303; and A. Peters, Compensatory Constitutionalism, 19 Leiden J Intl Law (2006), 579. S. Kadelbach, Interpretation, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 71, at 74, MN 5. Cp. also T. Rensmann, Reform, in: B. Simma

92 chapter 2 the human rights-​related provisions in the Charter will be complemented with an examination of the practice to establish the human rights obligations of the UN under its constituent instrument. 1 Programmatic Values or Binding Obligations? Human rights pervade the UN Charter like a “golden thread”,68 starting with the Preamble, continuing with references in the Purposes and Principles in Article 1(3) and finally leading to Chapters ix and x, most notably Article 55.69 The exact scope of obligation created by these provisions, however, is disputed, since, “oddly, it might seem, nothing on the face of the Charter defines the human rights obligations of the United Nations Organization itself”.70 Therefore, a closer look at the UN Charter is apposite. The Preamble reaffirms “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” Preambles commonly underline the motives of the drafters and serve as an “interpretative guideline”.71 This is not to say that the Preamble does not have the same legal binding force as the other parts of the Charter, yet, it does not by itself set forth any specific obligations.72 The proposal to include a human rights charter in the Preamble did not find the approval of the San Francisco Conference and the elaboration of a human rights catalogue was left to the General Assembly.73 While it has been claimed

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et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 25, at 32 f. MN 20 ff. Ahlborn nicely sums up the dual nature of constituent instruments:  “while they operate contracts between States at the moment of the creation of an international organization, they serve as constitutions governing the internal legal order of the organization during its life span.”, C. Ahlborn, The Rules of International Organizations and the Law of International Responsibility, 8 International Organizations Law Review (2011), 397, at 407. E. Riedel and J.-​M. Arend, Article 55(c), in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1565, at 1569, MN 4. Human rights are also mentioned in Article 13(1)(b) on the tasks of the General Assembly as well as in Articles 62(2) and 68 on the Economic and Social Council; and in Article 76(c) on the trusteeship system. Being of a rather procedural content, these articles will not be discussed in detail. M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 471. R. Wolfrum, Preamble, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 101, at 105, MN 13. H. Kelsen, The Law of the United Nations, 1950, at 9. For details on the drafting process, see R. Russell, A History of The United Nations Charter, 1958, at 780; see also R. Wolfrum, Preamble, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 101, at 103, MN 6.

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that the Preamble can be considered as a “mini human rights charter”,74 the declaratory character of the Preamble is generally accepted.75 Similar arguments have been raised concerning further human rights provisions in the Charter. Among the purposes of the UN as spelt out in Article 1, the achievement of “international co-​operation in (…) promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” is mentioned in Article 1(3). It remains a matter of controversy whether the drafters intended to create legal obligations with Article 1(3). The rather general wording of the provision hints more at qualifying the purposes in Article 1 as political objectives rather than legally binding obligations.76 From this perspective, the purposes do not establish obligations on the UN but are of a mere programmatic character.77 On the other hand, Wolfrum submits that their prominent place in the Charter suggests a legally binding character of the purposes.78 In fact, given that the programmatic scene has already been set in the Preamble, the reason for repeating some of the elements of the Preamble in Articles 1 and 2 must be the wish to underline their legal bindingness and their character as more than programmatic.79 Additionally, the travaux préparatoires80 of Article 1 point into

74 75 76 77

78 79

80

R. Wolfrum, Preamble, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 2nd ed. 2002, 33, at 35 MN 6 (“This reference can be considered as a ‘mini human rights charter’.”). R. Wolfrum, Preamble, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 101, at 103, MN 6. R. Wolfrum, Article 1, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 107, at 108, MN 4. K. Partsch, Human Rights in General, in: R. Wolfrum (ed.), United Nations: Law, Policies, and Practice, 1995, 603, at 606, MN 14. The exception is the last part of Art. 1(3) (“for all without distinction as to race, sex, language, or religion”), which is regarded as a directly binding legal norm, namely the principle of non-​discrimination, ibid. R. Wolfrum, Article 1, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 107, at 108, MN 3. Randelzhofer calls this “Verrechtlichung”, A. Randelzhofer, Ziele und Grundsätze, in: R. Wolfrum (ed.), Handbuch Vereinte Nationen, 2nd rev. ed. 1991, 1151, at 1152, MN 5.  See also R. Wolfrum, Article 1, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 2nd ed. 2002, 39, at 40, MN 4. According to Article 32 vclt, the preparatory work of a treaty is a supplementary means of interpretation “in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b)  leads to a result which is manifestly absurd or unreasonable.”

94 chapter 2 the direction that the negotiators acted on the presumption that the UN was bound to respect human rights law.81 In interpreting the relevant operative part of the Charter, similar questions arise. The most pertinent human rights provision in Article 55 lit (c)  provides that the UN shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Again, there is debate in the literature about the level of obligation this provision establishes. To begin with, the Article stands out because of its peremptory language (“shall promote”), which may allude to human rights standards as “a legal imperative for the UN”.82 Nevertheless, some have argued that Article 55 (c) merely laid down programmatic principles to serve as a reference for future action in the field of human rights.83 Tomuschat notes that during the first years of the UN, the provisions containing human rights such as Article 55 were considered of “purely programmatic nature, not containing any actual juridical obligations for States”. This, however, was overcome, since human rights no longer fall under the domaine réservé protected by Article 2(7) of the Charter.84 Riedel and Arend argue that the political and judicial organs of the UN have consistently regarded Article 55 (c), in combination with Article 56, as imposing legal obligations on both the UN and its member states and come to the conclusion that [e]‌ven if the legal obligation is general in character, there can be no doubt that responsibility exists for any substantial infringement of the provisions and that Arts. 55 and 56 impose the legal obligation on member states singly or jointly to stand up for respecting human rights.85 The substance of this legal obligation has to be found outside of the Charter, namely in international treaties or in customary international law.86 81 82 83 84 85 86

M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 149. K. Kenny, UN Accountability for its Human Rights Impact, in: N. White and D. Klaasen, The UN, Human Rights and Post-​Conflict Situations, 2005, 438, at 442. K. Partsch, Menschenrechte, allgemein, in:  R. Wolfrum, Handbuch Vereinte Nationen, 2nd ed. 1991, 544, at 546 f., MN 14. C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, 2001, at 64. E. Riedel and J.-​M. Arend, Article 55(c), in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1565, at 1573, MN 15. Ibid.

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Nevertheless, Riedel and Arend see “wide consensus” that Article 55 (c) creates a legal obligation on both member States and the UN itself to respect and protect human rights, while at the same time also containing a programmatic element. Article 55 (c) thus serves a “dual purpose”.87 The probably strongest argument in favour of a legally binding effect of the UN human rights provisions stems from a purposive interpretation of the Charter. The above uncertainties notwithstanding, it is clear that the provisions of the UN Charter must at least be observed in good faith. In fact, the advancement of human rights is undoubtedly one of the main purposes –​or raison d’être –​of the whole organization; it has taken a more and more prominent position over the years.88 The provisions of the Charter must, therefore, be interpreted in a way that its objects and purposes can effectively be realised, since “it is self-​evident that the Organization is obliged to pursue and try to realize its own purpose”.89 The icj has underlined in its Namibia Opinion that the Charter created binding obligations to respect human rights: Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.90 The critical commentator may observe that the icj does not speak of a legal obligation on the organization, but only on “the former Mandatory”, i.e. member States. To Paust, this recognition nevertheless pertains also to the UN in that “no U.N. entity can have a lawful purpose to deny human rights, as their violation would be a violation of the Charter.”91 According to Dannenbaum, 87 88 89 90 91

Ibid., at 1570, MN 8. T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 136. Z. Stavrinides, Human Rights Obligations under the United Nations Charter, 3(2) International Journal of Human Rights (1999) 38, at 40. icj, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, 16, para. 131. J. Paust, The U.N. Is Bound By Human Rights: Understanding the Full Reach of Human Rights, Remedies, and Nonimmunity, 51 Harvard Int’l Law Journal Online (2010) 1, at 3. See

96 chapter 2 this “alone might be enough to create an obligation on the organisation, on the ground that it cannot legally negate one of the reasons for its constitution as a body.”92 The binding force thus stems from the Charter’s characterisation as a constitution.93 2 The Purpose of Promoting Human Rights The reasoning that the UN is bound by the purposes and principles of its own constituent instrument is hard to rebut in principle. Critics, however, argue that the wording of the Charter does not provide for any explicit obligation to respect human rights. Article 1(3), for instance, only obliges the UN to help achieve the necessary international co-​operation by facilitating the efforts of member States with respect to human rights.94 The duty to respect human rights remains –​according to this view –​with the member States.95 Furthermore, on a close look at the wording of Article 55 (c), the peremptory language (“shall”) only refers to the promotion of human rights while the wording remains silent on any further duty such as “shall respect” or “shall protect”. There is considerable debate about the meaning of the duty to promote human rights.96 To the proponents of a narrow interpretation of the UN’s human rights obligations, the duty to promote cannot be equated with a duty to protect.97

92 93

94 95 96 97

also M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 471 f. T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 137. For a divergent view see N. Quénivet, Binding the United Nations to Human Rights Norms by way of the Laws of Treaties, 42 The George Washington International Law Review (2010), 587, at 599 ff.; B. Kondoch, Human rights law and UN peace operations in post-​ conflict situations, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​ conflict situations, 2005, 19, at 36. T. Meerpohl, Individualsanktionen des Sicherheitsrates der Vereinten Nationen, 2008, at 112. It is important to note that those duties of the member States do not have their legal basis in the Charter but elsewhere, as Kelsen clarifies, H. Kelsen, The Law of the United Nations, 1950, at 29. See also infra, v.1. See e.g T. Meerpohl, Individualsanktionen des Sicherheitsrates der Vereinten Nationen, 2008, at 113. Meerpohl, however, notes that a literal interpretation allows for both narrow and broad understanding of the obligation to promote human rights. After applying further methods of interpretation, he concludes that as things stand an obligation to respect can neither be proven nor ruled out to follow from the obligation to promote in Article 1(3) UN Charter, at 115.

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In fact, the drafters of the UN Charter discussed potential differences between the two terms and deliberately opted for the wording as is stands.98 Nevertheless, neither in the Charter nor in any other document of the organization,99 the exact scope of the obligation to promote is clarified. Lacking clear definition, “promotion” seems to be generally understood as encompassing soft mechanisms such as awareness raising, education, technical co-​operation, and capacity building100 as well as standard-​setting, research and studies, and advisory services.101 The rather weak character of promotion is reinforced in the face of its often intrinsically tied sibling “protection” which usually includes activities like investigations, monitoring, casework, public reporting, and advocacy.102 The question then remains whether and to what extent a duty to respect human rights can be derived from the obligation to promote human rights. Conceptually, the activities related to the promotion of human rights can take place irrespective of the duty bearer. In other words, the UN can promote human rights, even if the obligation lies with others, i.e. with States. A duty to respect, in contrast, only makes sense with regard to one’s own obligations. The Charter remains silent on an obligation to respect human rights. Therefore, the term promotion needs to be further interpreted. Going back to the mere wording, the simple literal meaning of “to promote” as “to further the growth, development, progress, or establishment of (a thing); to advance or actively support (a process, cause, result, etc.); to encourage”103 raises the question as to what extent human rights can be promoted viz actively supported or encouraged without being respected, even if the primary obligation lies with others. Furthermore, taking into account the object and 98 99

100 101 102

103

B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, at 350. As for example the important Vienna Declaration and Programme of Action, World Conference on Human Rights, 48th session, 22nd plenary meeting, part i, 8, 14–​25 June 1993, UN Doc. A/​CONF.157/​23, which uses the term “promotion and protection” on numerous occasions. M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 476. B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, at 350. M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 476. Darrow and Arbour observe that “[i]‌nfluential voices within the United Nations have sometimes suggested that promotion and protection are mutually exclusive.” Oxford English Dictionary, http://​dictionary.oed.com/​cgi/​entry/​50189916?single=1&query_​ type=word&queryword=promote&first=1&max_​to_​show=10.

98 chapter 2 purpose of the provision, it is difficult to imagine how an organization can promote human rights while at the same time not respecting them itself. The General Assembly and other organs of the UN have affirmed the efforts to promote and to protect and have thus contributed to a “significant evolution of the law of the Charter”.104 It is moreover frequently posited that the lack of an explicit obligation to respect human rights can be explained by the fact that the drafters simply “did not anticipate human rights violations by the United Nations, rather than consider them permissible.”105 Arbour and Darrow convincingly add that the lack of an explicit obligation must be seen in the historical context in which the drafters were not likely to foresee the evolution of the UN into an organization which assumes powers and functions that might lead to human rights violations.106 Hence, the decision made at the San Francisco Conference not to follow proposals to replace “encourage” with “protect” in Article 1(3) was not motivated by a deliberate wish to exclude the UN from being bound. Instead, it must be understood as serving the intention to avoid an imposition of human rights standards by the UN within member countries.107 Last but not least, it is brought forward that the breach of human rights obligations by the UN or one of its organs may not only be incompatible with the purposes of the UN but would also lead to a complete lack of credibility and thus surely limited results in the promotion efforts. It therefore only seems logical, even “axiomatic”,108 that the explicit duty to promote human rights includes the implicit obligation to, at the very least, respect human rights.109 As a conclusion, it can be stated today that the promotion and protection of human rights has become an undeniable duty of the UN. The proof of the existence of an obligation to respect human rights is less clear-​cut. A mere focus on the wording –​and the lack of an explicit obligation –​appears legally sound. Yet, a purposive interpretation, informed by a consideration of the

104 B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, at 350. 105 E.g. A. Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851, at 857. 106 See in detail, M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009) 446, at 471 f. 107 R. Russell, A History of The United Nations Charter, 1958, at 780. 108 M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 472; see also A. Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851, at 858. 109 T. Meerpohl, Individualsanktionen des Sicherheitsrates der Vereinten Nationen, 2008, at 113.

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historical context, suggests “an unwritten extension of the UN’s promotional obligation”110 As a result, an implied duty to respect human rights can be read into the Charter.111 3 Interpretation of the Charter by Way of Subsequent Practice The vclt provides in Article 31 (3) (b) that any “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” shall be taken into account. The vclt only refers to conduct the parties, i.e. States, and conduct of the UN organs cannot simply be equated with the subsequent practice of member States.112 Nevertheless, there are reasons to assume that tacit approval or acquiescence by States suffices to consider a certain interpretation of the UN Charter by practice of the organs to be “agreed” upon by member States.113 In fact, the icj has from the beginning referred to subsequent practice also by UN organs.114 In its Reparations for Injuries Advisory Opinion, the icj confirmed this potential source of obligation by stating that “the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice”.115 The relevant work of UN organs thus is important for the interpretation and day-​to-​day application of rights and duties under the Charter.116 As Schachter has famously penned down, “[t]‌he Charter is surely not to be construed as a lease of land or an insurance policy, it is a constitutional instrument whose broad phrases were designed to meet changing circumstances for an undefined future.”117 Therefore, giving

110 A. Peters, Article 25, in:  B. Simma et  al (eds.) The Charter of the United Nations. A Commentary, 3rd ed. 2012, 787, at 823, MN 17. 111 E.g. J.  Paust, The U.N. Is Bound By Human Rights:  Understanding the Full Reach of Human Rights, Remedies, and Nonimmunity, 51 Harvard Int’l Law Journal Online (2010), 1, at 3; A. Peters, Article 25, in: B. Simma et al. (eds.) The Charter of the United Nations. A Commentary, 3rd ed. 2012, 787, at 824, MN 17. 112 C. Ahlborn, The Rules of International Organizations and the Law of International Responsibility, 8 International Organizations Law Review (2011) 397, at 424 ff. 113 See succinctly, T. Rensmann, Reform, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 25, at 32, MN 22. 114 S. Kadelbach, Interpretation, in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 71, at 86, MN 36. 115 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, icj Reports 1949, 174, at 180 (emphasis added by the author). 116 B. Fassbender, The United Nations Charter As Constitution of The International Community, 36 Columbia Journal of Transnational Law (1998), 529, at 598. 117 O. Schachter, Review of Kelsen: The Law of the United Nations, 60 Yale Law Journal (1951), 189, at 193.

100 chapter 2 weight to practice allows for the development and adaptation of the institution while still respecting the rules enshrined in the constituent document and formally accepted by member States.118 It serves at circumscribing the extent of implied powers of the organization. The rise of peacekeeping activities without an explicit foundation in the Charter might serve as an example for such a development through practice. Accordingly, Sands and Klein argue that rules of an organization resulting in obligations can be derived from practice, even in absence of the adoption of formal acts introducing such rules.119 With regards to human rights obligations, practice suggests an evolution towards the UN being bound. Human rights have evolved into an issue less and less in the exclusive realm of member States but as lying in the interest of the community as a whole. Therefore, much of the UN’s action is based on the ground of protecting or at least advancing human rights. For instance, the General Assembly resolution establishing the post of the High Commissioner for Human Rights recognises that “the promotion and protection of all human rights is a legitimate concern of the international community” (para. 3(a)) and it is the function of the High Commissioner to “promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights,” as well as to prevent violations (para. 4(f)).120 Also, the mandates of other agencies such as the United Nations High Commissioner for Refugees (unhcr), the Office for Coordination of Humanitarian Affairs (ocha), and the United Nations Children’s Fund (unicef) reflect the recognition of a duty to protect human rights on behalf of the UN.121 Taken together, they point to acknowledging “human rights protection as a system-​wide commitment.”122 1 18 Cp. ilc, Report of the International Law Commission, 56th session, para. 11. 119 P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed., 2009, at 461, MN 14–​033. 120 GA Res. 48/​141 (Dec. 20, 1993). Paragraph 3(a) of this resolution recognises that “the promotion and protection of all human rights is a legitimate concern of the international community.” Paragraph 4(a) specifies that the high commissioner’s function is to “promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights,” as well as to prevent violations (para. 4(f)), enhance international cooperation for the promotion and protection of human rights (para. 4(h)), and coordinate the human rights promotion and protection activities throughout the UN system (para. 4(i)), therefore acknowledging human rights protection as a systemwide commitment. 121 M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 475 with further references. 122 Ibid. But cp. Quénivet who argues that precisely concepts like mainstreaming highlight the UN’s intention to remain vague with respect to its own human rights obligations, N. Quénivet, Binding the United Nations to Human Rights Norms by way of the Laws of Treaties, 42 The George Washington International Law Review (2010), 587, at 611.

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It has further been argued that the establishment of peacekeeping operations, which are often, at least partly, authorised on human rights grounds, was a prime case in point for the UN’s commitment to human rights.123 As a consequence, the peacekeeping mission is also bound by human rights for the simple reason that “one cannot violate human rights on the grounds that one is promoting human rights.”124 The duty to respect human rights, therefore, is a consequence of the practice of authorising peacekeeping operations on human rights grounds. 4 Result A literal interpretation of the UN Charter alone does not go very far in trying to establish human rights obligations on the UN. When complementing the mere wording of the Charter with a purposive interpretation of the respective provisions, the case can be made in favour of finding the UN bound by human rights. Still, while logically stringent, the contention that the UN must be bound by human rights because it promotes human rights shows some legal vagueness. Therefore, the role of practice and internal acts of the organization need to be analysed more closely. They will be the focus of the following section. iii

Obligations Arising from Unilateral Acts by the UN

The just presented traditional approaches to finding human rights obligations of the UN, based on the sources enumerated in the icj Statute, are the ones commonly relied upon and frequently replicated in the literature. This approach, of course, is the obvious one for a legal scholar and it does lead, as the above sections have shown, to valuable insights. Nevertheless, an unequivocal clarification on the human rights obligations of the UN is still due. Another promising way to establishing human rights obligations of the UN is at the same time the one which commonly receives less thorough attention 123 Dupont, for instance, suggests that the Secretary-​General in his July 1999 Report on unmik interpreted Security Council Resolution 1244 as “requiring international human rights standards as guidance and basis for the exercise of its authority.”, P.  Dupont, Detention of Individuals During Peacekeeping Operations, in: R. Arnold and G.-​J. Knoops (eds.), Practice and Policies of Modern Peace Support Operations under International Law, 2006, 249, at 255. For a list of missions, see T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, FN 175. 124 T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 137.

102 chapter 2 in the literature, possibly because it leaves conventional shores and enters more unfamiliar waters beyond the traditional sources of international law. In other words, we have to examine more closely the internal rules of the UN and their normative character.125 As has been outlined in detail in ­chapter 1 of this book, the UN has issued a range of resolutions, documents and other instruments that highlight the UN’s own understanding of its human rights obligations. For instance, training material and Codes of Conduct such as the We are United Nations peacekeepers pocket card for peacekeeping personnel contain human rights obligations.126 The Secretary-​General’s Decision on Human Rights in Integrated Missions (2005/​24) calls upon all UN entities to ensure that human rights are promoted and protected.127 The 2011 Joint Policy on Human Rights in Peacekeeping Operations and Political Missions explicitly considers international human rights law as part of the normative framework of UN peace operations (para. 13) and calls upon all personnel to act in accordance with international human rights law. These statements arguably go beyond the scope of uncontested human rights obligations than can be derived from traditional sources of international law. 1 Internal Law What is the normative character of such documents, and to what extent can this internal law carry normative binding force? First of all, they hint at an already existing acceptance and willingness of the UN to abide by human rights 125 This approach is also favoured by J. Alvarez, International Organizations as Law-​makers, 2005, at 383 (“Indeed, the easiest way to conclude that IOs are subject to human rights is to go beyond strict positivism and rely on the subsequent practice of IOs for this conclusion.”). 126 See for example dpko/​d fs, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support, January 2015. (“All peacekeeping operations are expected to uphold human rights standards, ensure that they do not adversely affect human rights through their operations, and advance human rights through the implementation of their mandates.”, at 40) or Ten Rules Code of Personal Conduct for Blue Helmets, https://​ conduct.unmissions.org/​ten-​rulescode-​personal-​conduct-​blue-​helmets. See also the Standards of Conduct for the International Civil Service, which provides in para 3 that “[t]‌he values that are enshrined in the United Nations organizations must also be those that guide international civil servants in all their actions:  fundamental human rights, social justice, the dignity and worth of the human person and respect for the equal rights of men and women and of nations great and small.” (emphasis added), in Report of the International Civil Service Commission to the General Assembly, un gaor, 56th Sess., Supp. No. 30, Annex II, UN Doc. A/​56/​30 (2001). 127 ‘Human Rights in Integrated Missions’, Secretary-​General Decision No. 2005/​24, 26 October 2005, quoted in M. O’Flaherty, An Introductory Analysis, in: M. O’Flaherty (ed.), The Human Rights Field Operation, 2007, 1, at 9.

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law.128 Yet, they are not to be considered as authoritative interpretations of the Charter since the Secretary-​General is not an organ explicitly authorised to issue such interpretations.129 As an interpretation of the Charter that is neither authentic nor authoritative, such an interpretation would not be binding on other organs of the UN, but would merely create binding force for the acting organ, i.e. Secretary-​General himself.130 Instead, resolutions and decisions and other acts of the UN could be considered established practice of the organization, as for instance referred to the in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (vclt-​ io) and in the Articles on the Responsibility of International Organizations (ario).131 As Ahlborn warns, the latter “practice of the organization” is not to be confounded with the “subsequent practice” of the contracting parties to the constituent instrument.132 The practice of the organization establishes its own binding force, carrying “considerable weight”133 for determining the rules of the organization. The rules of the organization are part of the internal law of an organization such as the UN. The competence not only to conclude treaties with other entities but also to create internal rules follows from the volonté distincte of the UN as a separate legal entity.134 The internal law encompasses a wide spectrum of legal acts that govern the internal relationship of an organization with other entities, including its organs, its member States or individuals such as its 1 28 A. Clapham, Human Rights Obligations of Non-​State Actors, 2006, at 137. 129 U. Fastenrath, Lücken im Völkerrecht, 1991, at 196 f. 130 S. Kadelbach, Interpretation, in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 71, at 89, MN 47. 131 They are part of the rules of the organization which means “in particular, the constituent instruments, decisions, resolutions and other acts of the organization adopted in accordance with those instruments, and established practice of the organization”, Vienna Convention on the Law of Treaties between International Organizations and States and between International Organizations, 25 ILM 543 (1986), Art. 2 (j) and Articles on Responsibility of International Organizations, adopted on second reading at the sixty-​ third session of the ilc, in 2011, UN Doc A/​66/​10 and Add.1, Article 2 (b). 132 C. Ahlborn, The Rules of International Organizations and the Law of International Responsibility, 8 International Organizations Law Review (2011), 397, at 424 ff. Alvarez, in contrast, does not insist on a strict distinction between the two: codes of conduct, resolutions, reports or opinion letters are “[o]‌ften treated as part of the ‘subsequent practice’ of institutional organs or component parts of the internal ‘rules of the organization’ ”, J. Alvarez, The Impact of International Organizations on International Law, 2017, at 351. 133 G. Verdirame, The UN and Human Rights, 2011, at 57. 134 E.g. C. Ahlborn, The Rules of International Organizations and the Law of International Responsibility, 8 International Organizations Law Review (2011), 397, at 415 ff.

104 chapter 2 employees. Being derived from the Charter as primary source, these legal acts are often called secondary law of the organization.135 The internal documents and instruments concerning human rights obligations of the UN belong to this category since they intend to govern the conduct of UN organs such as peace operations and address the conduct of peacekeeping personnel. They establish binding force for the respective organs as a matter of internal law. Furthermore, the consistent practice of the UN in the context of human rights arguably amounts to internal customary law,136 or, as Kadelbach frames it, coutume constitututionelle.137 It has been argued that these rules of internal customary law may form part of the sources of international law, even though they do not fall into the sources of Article 38 icj Statute.138 What is crucial is the fact that the more consistent such internal customary law or coutume constitutionelle is, the more difficult it is to deviate from the established practice.139 2 Unilateral Declarations Whereas internal law binds the UN and its organs internally, unilateral declarations can arguably establish binding force externally. Hence, another way for the UN to be bound by human rights would be a unilateral declaration in which the UN would declare a distinct set of rules to be binding upon the organization.140 The binding force of unilateral declarations of States is undisputed141 when declarations are publicly made and show the will to be bound.142 Their 135 M. Benzing, International Organizations or Institutions, Secondary Law, mpepil, March 2007. 136 E.g. K. Schmalenbach, Die Haftung Internationaler Organisationen, 2004, at 576 ff. with further references. 137 S. Kadelbach, Interpretation, in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 71, at 87, MN 39. 138 E.g. M.  Benzing, International Organizations or Institutions, Secondary Law, mpepil, March 2007, MN 2. See, however, Sands and Klein, who suggest that secondary law is a source of law in the legal order of the organization, but not necessarily a source of general international law, P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed. 2009, at 448 ff. 139 S. Kadelbach, Interpretation, in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 71, at 87, MN 39. 140 Most notably, N. Quénivet, Binding the United Nations to Human Rights Norms by way of the Laws of Treaties, 42 The George Washington International Law Review (2010), 587, at 612. 141 icj, Nuclear Tests Case (Australia v. France), Judgement of 20 December 1974, para. 46; icj, Nuclear Tests Case (New Zealand v. France), Judgement of 20 December 1974, para. 49 (“Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration”). 142 See critically, M. Koskenniemi, From Apology to Utopia, reissued 2005, at 345 ff.

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binding character is then based on the principle of good faith.143 It has been contended that, just like States, international organizations are bound by their unilateral acts.144 The Secretary-​General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law145 is a case in point for policies that establish binding force as a unilateral act.146 For human rights, no Bulletin by the Secretary-​General exists. Important statements concerning peace operations’ human rights obligations are laid down in the 2011 Policy. The 2011 Policy inter alia provides that “[i]‌nternational human rights law is an integral part of the normative framework of United Nations peace operations” (para. 5), even in the absence of specific human rights provisions in the Security Council mandates (para. 13). It continues that all UN entities, including all peace operations personnel, have a responsibility to ensure that human rights are promoted, respected and protected (para. 8, para. 35) and that all personnel shall act in accordance with international human rights law (para. 36). These provisions, together with the explicitly mandatory character of the 2011 Policy,147 arguably show the UN’s will to be bound by human rights law. However, the 2011 Policy does not expressly promulgate a set of rules which the UN considers binding. Moreover, the 2011 Policy serves as a guiding document on how human rights shall be integrated into peace operations. Its main focus is to outline the institutional relations between the entities involved, namely ohchr, dpko, dpa and dfs (para. 1). As such, the intention of the 2011 Policy is not a public declaration concerning the wish to be bound by human rights, but rather an internal document that inter alia refers to human rights obligations without further specifying the source of such obligations. Therefore, the 143 Principle 1 of the ilc Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, UN ilc ‘Report of the International Law Commission on the Work of Its Fifty-​Eighth Session’ [1 May–​9 June and 3 July–​11 August  2006]. at 367 ff., para. 176. Explaining the legal effects created by unilateral acts, see V.  Cedeño and M. Cazorla, Unilateral Acts of States in International Law, mpepil, February 2017, MN 34 ff. 144 E.g. P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed. 2009, at 464, MN 14–​038; V.  Cedeño and M.  Cazorla, Unilateral Acts of States in International Law, mpepil, February 2017, MN 1. 145 Secretary-​General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law of 6 August 1999, UN Doc. ST/​SGB/​1999/​13. 146 P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed., 2009, at 464, MN 14–​038. 147 “Compliance with this policy is mandatory.”, para. 153. See also the explanations given at the United Nations Peacekeeping Resource Hub, http://​www.peacekeepingbestpractices. unlb.org:  “Compliance with policies and standard operating procedures is mandatory” (emphasis added).

106 chapter 2 2011 Policy is not tantamount with the Secretary-​General’s Bulletin. Its character as a unilateral declaration is thus questionable. This having been said, the importance of documents like the 2011 Policy or other instruments in this context148 should not be underestimated. Even though they may lack the explicit intention to be bound externally, the consistent practice resulting from these internal documents may create external binding force.149 It has been purported that the UN has to be considered bound by human rights as a consequence of the UN expecting human rights compliance from its personnel.150 The UN acts as if it was bound by human rights and thus has created a legal expectation to act in accordance with human rights law. Acting in violation of these rights would contravene the principle of non licet venire contra factum proprium,151 i.e. the principle of estoppel.152 Under the latter, a party is barred from adopting different, subsequent statements on the same issue, contrary to a clear and unequivocal representation previously made by it.153 While initially being applied to inter-​state relations, 148 Worth mentioning, for instance, is the 2013 Human Rights Due Diligence Policy, issued by the Secretary-​General which underlines the UN’s “obligations under international law to respect, promote and encourage respect for international humanitarian, human rights and refugee law.”, General Assembly/​Security Council, Human rights due diligence policy on United Nations support to non-​United Nations security forces, 5 March 2013, UN Doc. A/​67/​775-​S/​2013/​110, para. 1. See also the Joint letter by the Deputy Secretary-​General and the Chair of the United Nations Development Group, Ms. Helen Clark, 24 February 2014, stating that “it is essential that every staff member of the United Nations understands what the commitment of the United Nations to human rights means for the Organization and themselves”, quoted in A.  Gilmour, The Future of Human Rights, 28(2) Ethics & International Affairs (2014), 239, at 245. 149 In this sense also K. Schmalenbach, Die Haftung Internationaler Organisationen, 2004, at 579 f. 150 A. Clapham, Human Rights Obligations of Non-​State Actors, 2006, at 127. 151 The relationship between the principle of non licet venire contra factum proprium and the principle of estoppel remains blurry, but does not have to be scrutinized much further here. Janik calls the principle of estoppel a “specification” (“Ausprägung”) of the general principle of non licet venire contra factum proprium, C. Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 417, with further references. According to Cottier and Müller, an extensive notion of estoppel reflects the maxim of non licet venire contra factum proprium, T. Cottier and J. Müller, Estoppel, mpepil, April 2007, MN 2. 152 On estoppel see also M.  Koskenniemi, From Apology to Utopia, reissued 2005, who explains that estoppel is an expression of the principle that actors “may not blow hot and cold”, at 357. 153 icj, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgement of 15 June 1962, Dissenting Opinion of Sir Percy Spender, icj Reports 1962, 6, at 143 f. On the origin of estoppel as well as its meaning in its narrow and broad conception, see T. Cottier and J. Müller, Estoppel, mpepil, April 2007.

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the principle of estoppel is a recognised general principle of law and therefore also applicable to international organizations.154 Consequently, as de Wet and Nollkaemper convincingly argue, the UN is estopped under this principle from behaviour that violates human rights.155 3 Result In summary, it can be concluded that the UN is bound by human rights by way of its internal law following from its own consistent practice and unilateral acts that hint at a will of the organization to be bound by human rights law. The binding force of such practice and acts may be derived from its quality as internal law of the organization that is binding internally. It may also be conceived of as unilateral acts that create an expectation of compliance not only internally but also vis-​à-​vis other legal entities. At the very least, documents, resolutions and other instruments can be summarised as “soft law”156 that creates normative effects157 and can harden into law.158 In essence, the binding force of UN practice with respect to human rights is undisputed, even though the rules created by internal law arguably fall into the category of “post-​modern or at least post-​positivist norms”.159 At the same time, the exact scope of the obligation to respect and protect human rights

154 E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 174; J. Herbst, Rechtsbindung des UN-​Sicherheitsrates, 1999, at 363. 155 E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 174. 156 J. Alvarez, The Impact of International Organizations on International Law, 2017, at 306 and 399. In explaining the legal importance of guidance notes from the Secretary-​General or other instruments issued by the ohchr or by unicef, Alvarez contents that “such Guidance Notes are yet another example of legally ambiguous ‘soft law’ instruments”, at 399 f., FN 165. The term “soft law” is used rather inconsistently and for very different legal phenomena. For the present purposes, soft law is considered “a source of authority on which policy-​makers (and judges) rely despite the fact that these are not legally binding”, Alvarez, at 364. See also U. Fastenrath, Relative Normativity in International Law, 4 EJIL (1993), 305, at 340. 157 E.g. P. Szasz, General Law-​Making Processes, in: C. Joyner (ed.), The United Nations and International Law, 1997, 27, at 58 ff. Szasz explained how operational activities create a legal effect in the realms of customary international law, international administrative law and internal administrative law. 158 An effect that was already described by R. Higgins, The Development of International Law Through the Political Organs of the United Nations, 1963, at 5–​8. 159 J. Alvarez, International Organizations as Law-​makers, 2005, at596.

108 chapter 2 remains blurred and has to be filled with substance by means of international treaties and/​or customary law.160 This will be done at a later stage.161 iv

Stumbling Blocs: the “special status” of the Security Council

The analysis so far has established that the UN is bound by human rights law, as derived from general international law (treaty, custom, general principles), from the Charter as its constituent document, and from unilateral acts and practice. During the course of the analysis, however, one crucial issue has been concealed, namely whether or not the special status of the Security Council in any way gives reason for a different result for the general human rights obligations of the UN as a whole.162 Such an analysis is necessary since it is the Security Council that establishes peace operations, usually with binding resolutions under Chapter vii. As the Security Council holds a special role within the UN, a discussion of the stumbling blocks brought forward with respect to this organ being bound by human rights is required. Literature on the question of the Security Council’s human rights obligations in general is truly abundant. At the same time, the complex issue is sometimes, in the context of peace operations, shrugged off with a few words on the way to another line of argument. The following chapter, therefore, does not try to give a complete account of every single piece of opinion. Instead, it intends to bring together the essential bits and pieces to come to a workable conclusion for the present analysis.

160 E. Riedel and J.-​M. Arend, Article 55(c), in: B. Simma et al (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1565, at 1573, MN 15. 161 See infra, v.1.b. 162 This question has prominently come to the fore of attention in the context of adverse effects and unintended consequences of sanction measures by the Security Council, see most notably A.  Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851 and T. Meerpohl, Individualsanktionen des Sicherheitsrates der Vereinten Nationen, 2008, esp. at 104 ff. The issue has also been treated in the recurring debate concerning judicial review of Security Council decisions, see for instance, K.  Roberts, Second-​Guessing the Security Council: The International Court of Justice and its Powers of Judicial Review, 7 Pace Int’l L. Rev. (1995), 281; J. Alvarez, Judging the Security Council, 90 AJIL (1996) 1; E.  de Wet and A.  Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, with further references.

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1 The Security Council as a Political Organ: Legibus Solutus? Especially in the early days of the UN, recognised commentators like Hans Kelsen argued against legal constraints for the Security Council when fulfilling its tasks, in conformity with the general “predominance of the political over the legal”,163 which prevailed in the drafting of the Charter. This conception was mainly based on the argument that the Security Council was not designed as law enforcement organ but as an executive body responsible for securing or restoring peace and security, free to decide which actions or decisions were most appropriate.164 This view is supported by a literal interpretation of the Charter in which an unequivocal provision explicitly requiring the Security Council to respect international law is missing.165 Others, however, already then objected to this “blank cheque”,166 especially with respect to human rights. As Sir Lauterpacht put it: The provisions of the Charter on the subject impose legal obligations not only upon the Members of the United Nations. They imply a comprehensive legal obligation upon the United Nations as a whole.167

1 63 H. Kelsen, The Law of the United Nations, 1950, at 735. 164 See A. Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851, at 855, with further references. 165 Article 39 which opens Chapter vii and determines the conditions of application of this Chapter provides: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” An amendment to this article introducing a duty to “respect and enforce and apply the principles or rules of existing law” was not accepted by the delegations at the San Francisco Conference, see A. Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851, at 856. 166 H. Neuhold, Die Grundregeln der zwischenstaatlichen Beziehungen, in:  H. Neuhold, W. Hummer, and C. Schreuer (eds.), Österreichisches Handbuch des Völkerrechts, Part 1, 3rd rev. ed. 1997, 317, at 326, MN  1712 (in a later edition, the author merely speaks of “wide-​ranging discretionary power” (“weit reichendes Ermessen”), see H.  Neuhold, Die Grundregeln der zwischenstaatlichen Beziehungen, in:  H. Neuhold, W.  Hummer, and C. Schreuer (eds.), Österreichisches Handbuch des Völkerrechts, Part 1, 4th rev. ed. 2004, 347, at 356, MN 1842). 167 Quoted in B.  Fassbender, The Role of Human Rights in the Decision-​Making Process of the Security Council, in: B. Fassbender (ed.), Securing Human Rights?, 2011, 74, at 81 f. Lauterpacht continued that the degree of legal obligation was particularly high with regard to a subject matter which, as in the case of human rights and freedoms, is a constant and fundamental theme of the Charter, ibid.

110 chapter 2 The icj in the Admission to UN Membership Advisory Opinion of 1948 came to a similar conclusion: The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgement.168 Today, there is general consensus that the Security Council is not legibus solutus (unbound by law), as the Appeals Chamber of the icty has eminently established in its Tadić decision. The Security Council is, by virtue of its nature as an organ of an international organization, subject to the limits of the constitutional framework of this organization, namely the Charter.169 For the same reason (i.e. being an organ of the UN), the Security Council is subject to international law just like it is the case for its mother organization, the UN.170 This has been confirmed in the Lockerbie cases, in which the question of the compatibility of the practice of the Security Council with international law was particularly at the fore.171 Also, the Charter itself, in particular Article 24, takes care of setting constitutional limits to the powers of the Security Council. Paragraph 1 confers upon the Security Council the “primary responsibility for the maintenance of international peace and security”. With paragraph 2, the Security Council is bound 168 icj, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, icj Reports 1948, 57, at 64. 169 Appeals Chamber of the icty, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case IT-​94-​1, 2 October 1995, para. 28. 170 For an early confirmation of this conclusion refer to the dissenting opinion of Judge Fitzmaurice in the icj’s Namibia Advisory Opinion, who wrote that territorial sovereignty was “a principle of international law that is as well-​established as any there can be, –​and the Security Council is as much subject to it (for the United Nations is itself a subject of international law) as any of its individual member states are.”, icj, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, 16, at 294, para. 115. See also K. Manusama, The United Nations Security Council in the Post-​Cold War Era, 2006, at 18. 171 Judge Weeramantry in his Dissenting Opinion noted that “a clear limitation on the plenitude of the Security Council’s powers is that those powers must be exercised in accordance with the well-​established principles of international law.” icj, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, icj Reports 1992, Dissenting Opinion of Judge Weeramantry, at 65. In detail on the Security Council’s role, see N. White, To Review or Not to Review? The Lockerbie Cases Before the World Court, 12 LJIL (1999), 421.

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to the limits of the Charter: it provides that “[i]‌n discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.” Despite considerable debate about the interpretation of the legal limitations posed by Articles 24 and 25, contemporary scholars agree, according to Peters, that “the purposes and principles constitute a legal limitation of Security Council decisions”.172 Thus, as Delbrück notes, even though the “political approach” predominates with the Security Council, “at least the limits of the law of Charter have to be observed.”173 These limits of the Charter include both formal and material provisions.174 As a minimum baseline, therefore, the Security Council must, as an organ of the UN, act both within the limits of powers attributed to it by the constituent document and in conformity with higher laws.175 It is hence “legibus alligatus”176 (bound by law). For the present analysis, the question remains as to what extent this preliminary finding applies to human rights law. The Charter contains human rights constraints on the Security Council in that they form part of the purposes of the organization as laid down in Article 1.177 Concerning international law, it goes without saying that human rights form part of the legal framework the Security Council has to abide by. They “effectively set”, as Gowland-​Debbas frames it, “teleological limits on Council action.”178 It thus seems safe to argue that the Security Council cannot act in complete disregard of human rights norms. The exact scope of this duty, however, remains open to debate: i.e. does the Security Council only have a general obligation not to act contrary to human rights norms or does it have to assure that the consequences of his measures do not violate human rights?179 Further, it needs to be established whether the obligation includes all human rights or only those of jus cogens. 172 A. Peters, Article 25, in:  Bruno Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 787, at 813, MN 81. 173 J. Delbrück, Article 24, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 2nd ed. 2002, 442, at 445, MN 3. See also J. Herbst, Rechtskontrolle des UN-​Sicherheitsrates, 1999, at 298. 174 H. Henninger, Menschenrechte und Frieden, 2013, at 178 f. with further references. 175 See, in detail, A. Peters, Article 25, in: Bruno Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed., 2012, 787, at 807 ff. 176 K. Manusama, The United Nations Security Council in the Post-​Cold War Era, 2006, at 45. 177 For a comprehensive account on how the Security Council acts on human rights, see B. Ramcharan, The Security Council and the Protection of Human Rights, 2002, at 18. 178 V. Gowlland-​Debbas, Accountability of the Security Council, in:  R. Wilde et  al. (eds.), United Nations Reform Through Practice, 11 December 2011, 34, at 37. 179 This was especially debated in the context of sanctions by the Security Council, see D.  Schweigmann, The Authority of the Security Council under Chapter vii of the UN Charter, 2001, at 171, with further references.

112 chapter 2 On a much more fundamental level, two lines of reasoning are frequently invoked regarding human rights obligations of the Security Council, that question the general applicability of human rights norms to the Security Council: a specific way of interpreting of Article 103 and the special case of the Security Council acting under Chapter vii. They both require brief attention. 2 Limitations under Article 103 UN Charter The first nugget regularly put forward to argue against human rights obligations is Article 103, which establishes primacy of the obligations under the Charter if they collide with obligations under any other international agreement.180 The term “obligations under the Charter” has to be read as encompassing all obligations resulting from the Charter as well as all binding decisions that have been taken by organs competent to do so (intra vires).181 Article 25 provides that UN member States “agree to accept and carry out the decisions of the Security Council”, i.e. they accept an obligation to carry out the binding decisions of the Security Council.182 Binding decisions of the Security Council are generally resolutions adopted under Chapter vii of the Charter. Those resolutions are therefore part of the obligations under the Charter as provided for in Article 103.183 For proponents of unfettered powers of the Security Council, human rights norms fall under the meaning of “obligations under any other international agreement”.184 They are consequently subordinate to binding decisions of the 180 “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 181 R. Bernhardt, Article 103, in: B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 2nd ed., 2002, 1292, at 1295, MN 9.  See also G.  Thallinger, Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council, 67 ZaöRV (2007), 1015, at 1027. 182 H. Kelsen, The Law of the United Nations, 1950, at 95. 183 Non-​binding resolutions, regardless of which organ, do not fall under Article 103, since they are not (legal) obligations, see R. Bernhardt, Article 103, in: B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 2nd ed., 2002, 1292, at 1296, MN 12. 184 The wording of Article 103 speaks of “international agreements” in the sense of international treaties. Since human rights treaty norms are not per se applicable to the UN/​ Security Council, commentators also include customary human rights norms in their argumentation on Article 103, either based on the grounds that treaty and custom are on the same level of hierarchy as sources of international law (D. Schweigmann, The Authority of the Security Council under Chapter vii of the UN Charter, 2001, at 195 f.) or following a teleological interpretation of Article 103 (G. Thallinger, Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council, 67 ZaöRV (2007), 1015, at 1028). Bernhardt, in his commentary on Article 103, does not touch upon the possibility of other actors being bound and simply states that “it seems now to be

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Security Council. In other words, the fact that a Security Council decision violates human rights norms would not be a reason for member States not to follow this decision.185 However, this argumentation has two important shortcomings. The first one –​a qualification generally admitted by the proponents of the above argument themselves –​relates to the exception of jus cogens norms. As Judge Lauterpacht stated in his Separate Opinion in the Genocide Case, the “relief which Article 103 of the Charter may give the Security Council in case of conflict between of its decisions and an operative treaty obligation cannot –​as a matter of simple hierarchy –​extend to a conflict between a Security Council resolution and jus cogens.”186 Thus, human rights norms enjoying jus cogens status would in any case not fall under the limitations of Article 103.187 The second shortcoming is of a more fundamental nature. The reasoning that human rights norms are subordinate to Security Council decisions is only logical if one regards the human rights obligations of the Security Council as following only from “other international agreements”. If, however, human rights obligations are conceived of as resulting directly from Charter obligations and obligations under internal law, a potential conflict between human rights and decisions of the Security Council would be a conflict between two Charter provisions (Article 1(3) vs Article 25). This, in turn, would render Article 103 inapplicable, since it allows the Security Council to overrule external obligations, but not obligations under the Charter.188 In other words, Article

185 186

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generally recognized in practice that binding Security Council decisions taken under Chapter vii supersede all other treaty commitments.”, R.  Bernhardt, Article 103, in:  B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 2nd ed. 2002, 1292, at 1300, MN 30. See for example D. Schweigmann, The Authority of the Security Council under Chapter vii of the UN Charter, 2001, at 194. See also G. Oosthuizen, Playing the Devil’s Advocate: the United Nations Security Council is Unbound by Law, 12 LJIL (1999), 549, at 557 f. icj, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Oder of 13 September 1993, icj Reports 1993, 325, Separate Opinion of Judge ad hoc Lauterpacht, 440, para 100. This is a rather uncontested conclusion shared by, to name but one example, J. Frowein and N. Krisch, Introduction to Chapter vii, in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 2nd ed. 2002, 701, at 711, MN 29, with further references. See further A. Orakhelashvili, The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions, 16(1) EJIL (2005), 59. K. Manusama, The United Nations Security Council in the Post-​Cold War Era, 2006, at 30. Even Kelsen admits that member States are only obliged to carry out decisions that have been taken in accordance with the Charter, at 95.

114 chapter 2 103 is not applicable to obligations of the Security Council itself.189 To the extent that human rights norms are applicable to the Security Council, Article 103 does not limit the Security Council’s obligation to act in conformity with human rights. One of the potential cases of application of Article 103 are Security Council resolutions that authorise member States to take actions that could conflict with their obligations under human rights law.190 Here, the understanding has emerged to regard the compatibility with human rights as a “prerequisite for the lawfulness of the binding decisions of the Security Council.”191 In Al-​Skeini and Al-​ Jedda, the ECtHR found a “presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights.” It continued that [i]‌n the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.192 This “interpretative rule” put forward by the ECtHR not only presumes human rights compatibility of Security Council action but is “an incredibly important

189 A. Peters, Article 25, in:  B. Simma et  al. (eds.) The Charter of the United Nations. A Commentary, 3rd ed. 2012, 787, at 852 f., MN 204 ff. 190 See in detail A. Paulus and J. Leiß, Article 103, in: B. Simma et al (eds.) The Charter of the United Nations. A Commentary, 3rd ed. 2012, 2110, at 2122 f., MN 30ff. As to the specific context of peace operations see comprehensively, K. Larsen, The Human Rights Treaty Obligations of Peacekeepers, 2012, at 314 ff. On Art. 103 see also R.  Wilde, Are Human Rights Part of the Jus Post Bellum, and should they be?, in: C. Stahn and J. Kleffner (eds.), Jus Post Bellum, 2008, 163, at 172. 191 G. Thallinger, Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council, 67 ZaöRV (2007), 1015, at 1029. 192 ECtHR, Al-​Jedda v.  UK  (no.  27021/​08) Judgement of 7 July 2011, para. 102. Remarkably, almost simultaneously, another Court has given an opinion on the interpretation of Article 103 going in the very same direction. In the ruling of the Dutch Court of Appeal in The Hague in the case of the Mothers of Srebrenica, the Court notes that it “is of the opinion that this [Article  103] was not intended to allow the Charter to just set aside like that fundamental rights recognised by international (customary) law or in international conventions”, Appeal Court in The Hague, Mothers of Srebrenica v. The State of the Netherlands and the United Nations, Judgement of 30 March 2010, Case number/​cause-​list number: 200.022.151/​01, para. 5.5.

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development […] that can go a long way in providing a meaningful human rights check on the Security Council.”193 For the present purposes, it can be concluded that Article 103 is no useful vehicle to release the Security Council from its own obligations to comply with human rights law in the context of UN-​led peace operations. 3 Derogation from International Law When Acting under Chapter vii The second potential qualification of the human rights obligations of the Security Council is the idea that the Security Council is not bound by or can de facto “derogate” from its human rights obligations when acting under Chapter vii. The first proposition (i.e. that the Security Council is not bound when acting under Chapter vii), ensues from a strictly literal interpretation of Article 1(1): the apposition “in conformity with the principles of justice and international law” only relates to the task of adjustment or settlement of international disputes and not to the tasks listed in the first part of the paragraph, i.e. the functions of the Security Council under Chapter vii. Consequently, it has been argued that when fulfilling the latter tasks –​most notably, to maintain or restore international peace and security –​the Security Council did not have to act in accordance with international law.194 The legislative history of Article 1(1) supports such an interpretation, since a proposal to amend the text so that it read “to maintain international peace and security in conformity with the principles of international law” did not find enough support.195 This is one of the most-​uttered arguments for those arguing against a legal limitation of the Security Council.196 Whereas being a legitimate argument, it only tells part of the story. As Wolfrum recounts: 193 M. Milanovic, European Court Decides Al-​Skeini and Al-​Jedda, EJIL:Talk!, 7 July 2011. For a comprehensive account see M. Milanovic, Norm Conflict in International Law: Whither Human Rights?, 20 Duke Journal of Comparative and International Law (2009), 69, esp. at 79 ff. 194 H. Kelsen, The Law of the United Nations, 1950, at 294 f. Many have come to the same conclusion, for instance, A. Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851, at 856 f.; see also the diverting piece by G. Oosthuizen, Playing the Devil’s Advocate:  the United Nations Security Council is Unbound by Law, 12 LJIL (1999) 549, at 552. 195 R. Wolfrum, Article 1, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 2nd ed. 2002, 39, at 43, MN 19. 196 It is found, inter alia, with M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 140; A. Vradenburgh, The Chapter vii Powers of the United Nations Charter, 14 Loyola of Los Angeles International and Comparative Law Journal (1991), 175, at 183, to name but a few.

116 chapter 2 The view was expressed that it was important the Security Council should have the power to bring about an end to hostilities without considering whether one side could legally have recourse to armed force.197 Hence, it apparently was not the intention of the drafters to allow the Security Council to act in contravention of international law when taking measures under Chapter vii. Instead, it was intended to give the Security Council enough space –​ legally and politically –​to maintain or restore international peace and security without having to make legal determinations. A comprehensive look at the legislative history therefore rather leads to the conclusion that it is at least doubtful “whether the Security Council may take permanent measures […] which are not in conformity with international law.”198 From today’s perspective, the prevalence of the rule of law requires that the room for release from legal obligations is to be kept very small.199 To allow an organ of the UN the violation of human rights while the whole tenor of the Charter is to promote and to protect human rights would be at least “anachronistic”.200 It is moreover argued that the organs of the UN are bound by human rights because of the principle of good faith codified in Article 2(2) of the Charter. The wording of Article 2(2) suggests that the duty to “fulfill in good faith the obligations assumed by [all members] in accordance with the present Charter” is only addressed to member States. However, Article 2(2) must be read together with the first sentence of Article 2 stating that “[t]‌he Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.” Therefore, member States have to act in good faith not only when acting individually, but also when acting collectively through an organ such as the Security Council.201 Consequently, the Security

197 R. Wolfrum, Article 1, in:  B. Simma et  al (eds.), The Charter of the United Nations. A Commentary, 2nd ed. 2002, 39, at 43, MN 19. 198 Ibid. See also A. Peters, Article 25, in: B. Simma et al. (eds.) The Charter of the United Nations. A  Commentary, 3rd ed. 2012, 787, at 830, MN 141 (“The historical reading of Art 1 (1)  neither supports nor rules out legal limit to Chapter vii action of the Council”). 199 H. Henninger, Menschenrechte und Frieden, 2013, at 191 with further references. 200 D. Akande, The International Court of Justice and the Security Council: is there Room for Judicial Control of Decisions of the Political Organs of the United Nations? 46 ICLQ (1997), 309, at 323. 201 E.  de Wet and A.  Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 173. See also J. Herbst, Rechtsbindung the UN-​Sichersheitsrates, 1999, at 359 ff; R. Kolb, Article 2 (2), in: B. Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 166, at 169,

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Council will be estopped from behaviour contravening the promotion and protection of human rights.202 Secondly, it has been proposed that the Security Council can “derogate” from its human rights obligations when acting under Chapter vii.203 Against the background of the special circumstances in which peace operations are deployed under Chapter vii, this line of argument deserves some more detailed examination. a The Concept of Derogation in Human Rights Law The right to declare a state of public emergency is widely accepted in national as well as in international law.204 Accordingly, the corresponding possibility to derogate from human rights obligations in times of public emergency is also rarely disputed in principle.205 Still, the concept of derogation is not to be found in the Charter. Instead, it has found entry in some of the main human rights treaties, namely the iccpr (Art. 4), the echr (Art. 15), and the achr (Art. 27). Article 4 iccpr, for instance, allows parties to the Covenant to derogate from their obligations “in time of public emergency which threatens the

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MN 4. For a contrary view, arguing that Article 2(2) only addresses member States, see G.  Oosthuizen, Playing the Devil’s Advocate:  the United Nations Security Council is Unbound by Law, 12 LJIL (1999), 549, at 559 f. E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002) 166, at 174. For a more careful conclusion in the sense that the Security Council “seems to be required to act responsibly”, see M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 146 with further references. See most notably G. Thallinger, Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council, 67 ZaöRV (2007), 1015, at 1029. See also E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 179 f., and M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 142; and comprehensively on the topic, E. de Wet, The Chapter vii Powers of the United Nations Security Council, 2004. H.-​J. Heintze, Völkerrechtliche Aspekte des Notstandsrechts, in: A. Zwitter (ed.), Notstand und Recht, 2012, 47, at 51. Heintze also explains that the possibility of derogation from human rights obligations is based on the doctrine of necessity that has also found entry into the asr, see ibid., at 51 ff. J. Hartman, Derogation from Human Rights Treaties in Public Emergencies, 22 Harvard International Law Journal (1981), 1, at 10 f.; R. St. John Macdonald, Derogations under Article 15 of the European Convention on Human Rights, 36 Columbia Journal of Transnational Law (1997), 225. The general acceptance, however, does not mean that the practice of derogation takes place without difficulties, see as but two works among numerous ones, O. Gross and F. Ní Aoláin, Law in Times of Crisis, 2006; and J. Oraá, Human Rights in States of Emergency in International Law, 1992.

118 chapter 2 life of the nation”.206 The UN is not party to any of these treaties and, thus, the Security Council cannot simply invoke one of the derogation clauses for justifying derogation from its human rights obligations when acting under Chapter vii or during peace operations. Accordingly, any construction allowing for the Security Council to derogate from its human rights obligations must apply the provisions of the iccpr (or the echr or the achr respectively) by analogy. This requires a closer look at derogation in the context of military operations in general. To start with, “the legality of derogation (…) in the context of a military operation abroad is not totally certain.”207 The respective derogation clauses allow for derogation only “in time of public emergency which threatens the life of the nation”.208 Since peace operations act outside of the territory of the troop-​contributing states, it is difficult to conceive of a situation that is capable to directly threaten the life of the nation –​hundreds or even thousands of kilometres away from the State(s) concerned. Besides, a peace operation is usually composed of the contingents of several States. If they all were to derogate from their human rights obligations, a public emergency would have to be asserted in all participating States. This, of course, is hard to imagine. However, if one follows a less literal and broader interpretation of the requirement of public emergency, it is arguable that the situation on the ground could amount to an “exceptional situation of crisis which affects the whole population and constitutes a threat to the organized life of the community” and could consequently allow for participating States to derogate.209 Even though States have not tried to claim lawful derogation from human rights obligations during peace operations so far, it has been argued that the possibility of derogation when acting

206 Article 4(1) reads: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” 207 H. Krieger, After Al-​Jedda:  Detention, Derogation, and an Enduring Dilemma, 50(3/​4) Military Law and the Law of War Review (2011), 419, at 435. 208 Art. 4(1) iccpr. Art. 15 (1) echr similarly allows for derogation “[i]‌n time of war or other public emergency threatening the life of the nation”; Art. 27 (1) achr of “[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party”. 209 H. Krieger, After Al-​Jedda:  Detention, Derogation, and an Enduring Dilemma, 50(3/​4) Military Law and the Law of War Review (2011) 419, at 436.

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in a peace operation abroad logically follows from the extension of obligations to include also extraterritorial activities.210 b Applicability to the UN For derogation to be lawful under the iccpr, the echr or the achr, the situation must involve a threat to the life of the nation (substantive requirement), and the state of emergency must be officially proclaimed (procedural requirement). Further, the measures undertaken must be strictly required by the exigencies of the situation, must not violate other obligations under international law (most notably, but not limited to jus cogens) and must be non-​ discriminatory in character.211 None of the treaty provisions provides a legal definition of the notion of public emergency, nor does another source of international law.212 Several treaty bodies have examined the meaning of the “public emergency which threatens the life of the nation”. The European Commission of Human Rights defined the phrase as a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organised life of the community which composes the State in question.213 The ECtHR in the same case repeated the requirement of an “exceptional situation”.214 The IACtHR also stressed that Article 27 “is a provision for exceptional situations only.”215 A threat to or breach of peace according to Article 39 UN Charter is generally not, in itself, a state of (international) public emergency, at least not by

210 E.g. M. Frostad, The Responsibility of Sending States for Human Rights Violations during Peace Support Operations and the Issue of Detention, 50(1–​2) Military Law and the Law of War Review (2011), 127, at 156. 211 For an analysis of the different elements, see e.g. D.  Kretzmer, Emergency, State of, MPEPIL, February 2008. 212 H.-​J. Heintze, Völkerrechtliche Aspekte des Notstandsrechts, in: A. Zwitter (ed.), Notstand und Recht, 2012, 47, at 58. 213 European Commission of Human Rights, Lawless v. Ireland, Report of the Commission, 19 December 1959, (ECtHR) Series B No 1., at 84. 214 ECtHR, Lawless v.  Ireland (No 3), (no 332/​57), Judgement of 1 July 1961, Series A  No 3, para. 28. 215 IACtHR, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion, OC-​8/​87, 30 January 1987, para. 19.

120 chapter 2 default.216 The threat to the existence of the organization would have to be clarified on a case-​by-​case basis. Regarding the more specific case of peace operations, it is not difficult to discover, both in academic literature and in statements by UN practitioners, the claim that a peace operation represents an exceptional situation.217 Indeed, the UN regularly finds itself in countries that have just emerged from armed conflict (sometimes on the brink of relapsing into violence), with people displaced, communities torn by past abuses, infrastructure destroyed and so on and so forth. Calling these situations “exceptional” does not require too much of a stretch in interpretation of the term. On the other hand, the UN has deployed peace operations for several decades now. Currently, over 100,000 military and civilian peacekeepers are deployed, provided with an approved budget of 6.8 billion US-​Dollars for the fiscal year 2017/​18.218 In the over seventy peace operations to date, hundreds of reports have been issued to and by the responsible organs of the UN. In short, UN peace operations have become a regular and important activity of the UN. Without downplaying the challenging circumstances a single peace operation may face on the ground, the wealth of experience and improvement of procedures accumulated over the last decades may run counter a general classification of a peace operation as “exceptional”.219 Further elaborating on the content of the “threat to the life of nation”, the treaty bodies have provided varying definitions or conditions to be fulfilled. The European Commission of Human Rights, for instance, developed the following characteristics for a public emergency: (1) it must be actual or imminent; (2) its effects involve the whole nation; (3) the continuance of the ordinary life of the community is threatened; (4) the crisis or danger must be exceptional to an extent that the ordinary measures permitted under the Convention would not be adequate to address the situation.220 The ECtHR instead grants States parties a 216 See A.  Peters, Article 25, in:  B. Simma et  al (eds.) The Charter of the United Nations. A Commentary, 3rd ed. 2012, 787, at 825, MN 124 (“the mere existence of a situation in the sense of Art. 39 (…) is no state of emergency”). 217 See, for instance, the Observations of the Federal Republic of Germany concerning application no.  78166/​01:  Saramati v. France, Germany and Norway, 18, para. 38, stating that “account must be taken of the special difficulties under which such operations are normally deployed”. For further examples of dilemmas between human rights protection and peace keeping, see H. Henninger, Menschenrechte und Frieden, 2013, at 140 ff. 218 United Nations Peacekeeping, How we are funded, https://​peacekeeping.un.org/​en/​ how-​we-​are-​funded. 219 Cp., for a similar conclusion, A. Peters, in: B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 3rd ed. 2012, 787, at 833, MN 148. 220 European Commission of Human Rights, The Greek Case, Sub-​Commission Report of 5 November 1969, para. 113.

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wide margin of appreciation to decide whether the life of the nation is threatened, while the hrc requires States parties to provide sufficient information for the hrc itself to assess whether a threat to the life of the nation existed.221 For a UN peace operation, the notion of the “threat to the life of nation” seems difficult to apply. If anything, it could be adjusted to encompass a “threat to the life of the mission”. Then, the UN would have to reasonably explain that the situation on the ground is not only imminent but also that the whole mission is at risk and that the derogation from its human rights obligations is the only way to deal with the situation. It is hard to argue that every peace operation, by default, finds itself in circumstances that unbearable. Even if one goes so far and does acknowledge the substantive element of a “state of emergency” to be fulfilled, a lawful derogation, in addition, requires an official proclamation of the state of emergency.222 This condition is more than a technicality since it intends to prevent a justification of human rights violations ex post facto and thus contributes to the rule of law even in exceptional circumstances.223 No later than at this point, it is difficult to determine a lawful derogation on behalf of the UN. Statements highlighting the special challenges of the UN’s peacekeeping activities in general or a specific peace operation in particular have tried to explain shortcomings in human rights issues. However, in none of these statements UN representatives have claimed that the mission finds itself in a state of emergency, let alone has a state of emergency been officially proclaimed. Comments in this direction have commonly been issued ex post and not –​as required –​in advance of any potential human rights derogations.224 Moreover, lawful derogation means that the measures taken must be “strictly required by the exigencies of the situation” and “not inconsistent with their other obligations under international law” (echr). Already in 1981, the hrc underlined the principle of proportionality when deciding if and which human

2 21 See D. Kretzmer, Emergency, State of, mpepil, February 2008, MN 14 ff. 222 A. Peters, Article 25, in:  B. Simma et  al (eds.) The Charter of the United Nations. A Commentary, 3rd ed. 2012, 787, at 825, MN 124. 223 H.-​J. Heintze, Völkerrechtliche Aspekte des Notstandsrechts, in: A. Zwitter (ed.), Notstand und Recht, 2012, 47, at 62. 224 E.g. M. Kelly, The UN, security and human rights, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 118, at 145 (“The environment was therefore not ‘normal’ in the sense that a mature human rights regime could be expected or sustained. (…) it should have been expected, articulated and accepted that there would be some derogation of human rights standards in a situation that equated to a state of emergency”).

122 chapter 2 rights can be derogated from.225 Again, applied to the UN, this would mean that the renouncement of human rights during a peace operation would be strictly required to secure the life of the mission. As mandatory for States, the UN would have to carefully weigh and justify which rights should be derogated from. Even though a vigorous human rights protection might collide with other goals of the mission, it seems difficult to argue that large-​scale derogating from human rights obligations can solve the myriad of problems to be found in a post-​conflict society. In fact, quite the contrary seems to be the case.226 Even if all these conditions are met, and one allows the idea that the Security Council may deviate from international law, there seems to be general consensus that such action finds its limits in jus cogens,227 mainly because States themselves cannot deviate from peremptory norms of international law and therefore cannot confer the more extensive power to do so to the Security Council.228 There is no uniform list of non-​derogable rights under customary

225 hrc, ccpr General Comment No. 5:  Article 4 (Derogations), 31 July 1981, paras. 2 f.  In General Comment No. 29 which replaced General Comment No. 5, the hrc points out:  “The fact that some of the provisions of the Covenant have been listed in article 4 (para. 2), as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists. The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation.”, hrc, ccpr General Comment No. 29:  Article 4: Derogations during a State of Emergency, 31 August 2001, UN Doc CCPR/​C/​21/​Rev.1/​ Add.11, para. 6. 226 E.g. M.  Parlevliet, Bridging the Divide:  Exploring the relationship between human rights and conflict management, 11(1) Track Two (2002) 8; J.  Mertus and J.  Helsing, Introduction:  Exploring the Intersection between Human Rights and Conflict, in:  J. Mertus and J. Helsing (eds.), Human Rights and Conflict, 2006, 3. 227 E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 181 with further references; D. Akande, The International Court of Justice and the Security Council: is there Room for Judicial Control of Decisions of the Political Organs of the United Nations? 46 ICLQ (1997) 309, pp. 322 f. See also Judge Lauterpacht’s Separate Opinion during Bosnia’s second request for provisional measures in the Bosnia Genocide Convention case, in which he argued that to the extent that “paragraph 6 of Security Council Resolution 713 (1991) began to make members of the United Nations accessories to genocide it ceased to be valid and binding in its operation against Bosnia Herzegovina; and that members of the United Nations then became free to disregard it.”, icj, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, icj Reports 1993, 325, at 441, para. 103. 228 E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 181 f.

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international law that could be applied to the UN. Non-​derogable rights are “not a unitary concept”.229 However, potential non-​derogable rights are not limited to jus cogens norms.230 Therefore, one cannot simply claim that the UN could derogate from all human rights except those of jus cogens. Still, the consensus that no derogation is permitted from peremptory norms of international law represents the minimum baseline.231 Under the combined consideration of all elements of a lawful derogation, it cannot be reasonably claimed that it is possible for the UN to derogate by default from its human rights obligations when deploying peace operations.232 Instead, it appears to be widely accepted that the Security Council is bound by international law, even when acting under Chapter vii.233 4 Result As the above paragraphs show, the potential stumbling blocks, which might prevent the Security Council from being bound by human rights, can –​to a great extent –​be pushed out of the way. Therefore, it is concluded that not only the UN as an organization but also the Security Council as an organ of the organization and in recognition of its special status and role for the maintenance of peace and security, is bound by human rights law. Neither Article 103 of the Charter nor the Security Council’s broad powers under Chapter vii allow the Security Council to easily dismiss these obligations. What remains open to 229 K. Teraya, Emerging Hierarchy in Human Rights and Beyond:  From the perspective of non-​derogable rights, EJIL 12 (2001), 917, at 924. 230 The concept of non-​derogable rights is strongly linked to jus cogens, however, the two are not identical. Instead, the set of non-​derogable rights includes, but is not limited to jus cogens, see the succinct analysis by K. Teraya, Emerging Hierarchy in Human Rights and Beyond:  From the perspective of non-​derogable rights, EJIL 12 (2001), 917. On the relationship between jus cogens and derogability see also T. Meron, On a hierarchy of international human rights, 80(1) AJIL (1986), 1, at 15 f. 231 D. Kretzmer, Emergency, State of, mpepil, February 2008, MN 30. See also the seminal work of T. Meron, On a hierarchy of international human rights, 80(1) AJIL (1986), 1. 232 Coming, rather quickly, to a different conclusion, see M.  Moëlle, The International Responsibility of International Organisations: Cooperation in Peacekeeping Operations, 2017, at 298. 233 M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 147; A.  Peters, Article 25, in: B. Simma et al. (eds.) The Charter of the United Nations. A Commentary, 3rd ed. 2012, 787, at 821, MN 109. Eckart Klein and Stefanie Schmahl seem to suggest that the Security Council is only bound by a minimum human rights standard when acting under Chapter vii (“wohl nur den menschenrechtlichen Mindeststandard”), E.  Klein and S.  Schmahl, Die Internationalen und die Supranationalen Organisationen, in:  W. Vitzthum and A. Proelß, Völkerrecht, 6th ed. 2013, 237–​349, at 322, MN 199. This view is not supported here.

124 chapter 2 debate, however, is the exact content of its human rights obligations beyond the minimum standard of jus cogens norms. v

Obligations of Peace Operations

After having established an overall duty to observe human rights on the UN in general and on the Security Council in particular, the human rights obligations of the peace operations must be clarified. To begin with, peace operations are commonly created as subsidiary organs of the Security Council as provided for in Article 29 of the Charter. Since their subsequent operation and management lies with the dpo at the UN Secretariat, peace operations have been called “hybrid organs”234 or simply “organs of the UN”.235 In this function, they are, prima facie, subject to the same human rights obligations as their mother organization viz the UN. As with the human rights obligations of the UN, the exact scope and content of the latter is far from clearly established.236 However, given the existence of further elements that together form the legal regime of a given peace operation, the obligations resting upon the peace operation may be specified in more detail than those of the UN in general. The rather general set of obligations derived from the Charter and from international law is further specified in the resolution establishing the operation, i.e. the mandate. In addition, agreements concluded between the parties to a conflict (e.g. peace agreements), and agreements between the host State and the UN (sofas) belong to the legal regime governing a peace operation.237 In the following, the human rights obligations stemming from this legal regime will be examined. 1 Human Rights Obligations in Mandates Human rights provisions have come to be a standard element of peacekeeping mandates.238 While all the resolutions establishing the currently deployed 2 34 E.g. H. Henninger, Menschenrechte und Frieden, 2013, at 200. 235 M. Bothe, Peacekeeping, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1171, at 1187, MN 25. 236 B. Kondoch, Human rights law and UN peace operations in post-​conflict situations, in: N. White and D.  Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 19, at 33. 237 M. Bothe, Peacekeeping, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 1171, at 1187 ff., MN 25–​27. 238 The first mission with human rights provisions was the United Nations Observer Mission in El Salvador (onusal), Security Council Resolution 693, 20 May 1991.

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missions since 1991 include human rights provisions, roughly two-​thirds of the almost 50 peace operations established after 1991 have included a human rights mandate.239 The mandates of peace operations are as diverse as the underlying conflicts and the countries that they are sent to. Accordingly, human rights mandates given to peace operations do not follow a predetermined blueprint and vary greatly.240 As measures under Chapter vii, resolutions establishing peacekeeping operations are binding upon member States and thus troop-​contributing States. They are equally binding upon other organs of the UN, such as the Secretary-​General and his Special Representatives who serve as heads of mission, and the peace operation as such. Therefore, the human rights obligations laid down in these mandates have to be considered binding upon all actors involved. After having established the general applicability of human rights to UN peace operations, the exact scope of human rights obligations has to be determined. The seemingly evident answer to this question would be to simply assume the same scope of obligations as the one applicable to States. However, this would be a too short-​sighted approach. The mere fact that the UN is capable of bearing rights and duties under international law is “not the same thing as saying that … [its] rights and duties are the same as those of a State”, as the icj noted in its Reparations for Injuries Opinion.241 Therefore, a closer look at the scope and content of human rights in peace operations is required. a Human Rights Tasks in Peace Operations Mandates Human rights mainstreaming has become a cornerstone of UN human rights doctrine. Human rights are intended to play a central role in all activities undertaken by the UN, and many tasks of peace operations have an impact on the human rights of the population, e.g. the holding of elections, security sector reform, protection of refugees, or the protection of women and children. Yet, modern multidimensional peace operations most commonly include a human rights component, i.e. a usually small civilian presence taking the lead

239 For a list of all peace operations with a human rights mandate see supra, Chapter 1, iii.1.a, Table 1. 240 For some comments on the relationship between the nature of the conflict and the inclusion of human rights mandates, see S.  Maus, Institutionalising human rights in United Nations peacekeeping operations, in: W. Benedek, M. Kettemann, and M. Möstl, Mainstreaming Human Security in Peace Operations, 2010, 57, at 59 f. 241 icj, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, icj Rep. 1949, 174, at 179.

126 chapter 2 role concerning the human rights activities of the mission.242 In the following, the most common human rights tasks will briefly be outlined, before looking in more detail at the content of human rights obligations in peace operations. i Promote and Protect A great number of peace operations have the mandate to promote and protect human rights. While in the majority of such cases, the notion of promotion and protection seems to be understood as a technical term, which does not require further definition or specification,243 other mandates apply the term as kind of umbrella term, after which a list of activities such as monitoring, reporting and investigating follows.244 Interestingly, yet another group of mandates uses the term promote and protect and adds additional tasks (e.g. monitoring) on the same level.245 In one instance, the human rights mandate only includes promotion without any further reference to protection or further tasks.246 From the mandates alone, the exact content of the notion to promote and to protect remains vague, since there is no consistency as to whether the notion serves as a collective term for a variety of functions or whether it exists next to other tasks. ohchr, acting under the maxim of “promotion and protection of all human rights”,247 does not define the term, neither do landmark documents featuring it. It is, however, interesting to note that the general 242 T. Howland, Peacekeeping and Conformity with Human Rights Law:  How minustah Falls Short in Haiti, 13(4) International Peacekeeping (2006), 462, at 463. 243 unmil, original mandate S/​RES/​1509 (2003), 19 September 2003, para. 3(l) (“contribute towards international efforts to protect and promote human rights in Liberia”). monua, para. 2 (with reference to report of the Secretary-​General of 5 June 1997 (S/​1997/​438), section VII, para. 38); unamid, as set out in paragraphs 54 and 55 of the report of the Secretary-​General and the Chairperson of the African Union Commission of 5 June 2007 (document S/​2007/​307/​Rev.1), paras. 54(f) and 55(c)(v); unmik: S/​RES/​1244 (1999) of 10 June 1999, para. 11(j). 244 minusca: S/​RES/​2149 (2014) of 10 April 2014, para. 30(e); minusma: S/​RES/​2100 (2013) of 25 April 2013, para. 16(d). 245 unoci: S/​RES/​1528 (2004) of 27 February 2004, para. 6(f); minurcat: S/​RES/​1778 (2007) of 25 September 2007, para. 2(e); unmis: S/​RES/​1590 (2005) of 24 March 2005, para. 4(a) (ix); onusal: Security Council Resolution 693 of 20 May 1991. 246 unmil, current mandate: S/​RES/​2066 (2012) of 17 September 2012, para. 3 (“Encourages the Government of Liberia and unmil to continue to make progress in the transition planning process and address the critical gaps that need to be filled in order to facilitate a successful transition, including by prioritizing tasks, to include promotion of human rights and reconciliation, (…)”). 247 See General Assembly Resolution 48/​141 (1993), A/​RES/​48/​141, 20 December 1993, whereby the post of the High Commissioner for the promotion and protection of all human rights was established.

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parlance within the UN has changed from “promoting and encouraging respect for human rights” as in Article 1(3) of the Charter248 to the now predominant promote and protect, which has been introduced by the General Assembly in 1980.249 It seems today that the use is so common that no further definition is deemed necessary. In academic literature, clear definitions of the term promote and protect are equally rare. Karel Vasak provides a useful one: The ‘promotion’ of human rights implies action resolutely directed towards the future: the question of human rights is seen as containing a lacuna, because they are not all, or are only incompletely, guaranteed under national legislation or international law (…). In these circumstances, a body for the promotion of human rights will attempt to determine inadequacies and even violations, not so much in order that they may be punished, but rather that similar situations may be prevented from recurring in the future.250 On the twin element of protection, Vasak continues: The ‘protection’ of human rights appears to have, in many respects, a diametrically opposed aim. Intended to ensure the observance of human rights as established under existing law, the institution for protection leads, by the sanctions to which protection necessarily gives rise, towards a future that perpetuates the past. It relies mainly on court process whereas the institution for promotion will make use of every available legislative technique, including studies, research, reports, and the drafting of texts.251 Even though the meaning of protection has been more closely dissected by academic literature,252 Howen points out that it is “one of the most frequently 248 Or as in Article 55 (c)  “promote (…) universal respect for, and observance of, human rights”. 249 B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, at 27. 250 K. Vasak, The Distinguishing Criteria of Institutions, in: K. Vasak (ed.) The International Dimensions of Human Rights (unesco 1979), 215, at 224. 251 Ibid., at 225. See also B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, at 15 ff., giving further definitions and explanations of protection. 252 See e.g. the contributions in B.  Ramcharan (ed.), Human Rights Protection in the Field, 2006.

128 chapter 2 used and misused words in the field of human rights”.253 Since there is no consensus on the definition of protection,254 he provides a list of activities that usually fall under the term of protection by stressing that it goes way beyond the “simple notion of ‘monitoring and reporting’.”255 Protection thus can encompass, simultaneously or consecutively: 1. gathering of intelligence and information; 2. analysing information and development of strategies to influence authorities; 3. providing a deliberate and visible presence; 4. investigating and verifying allegations of human rights violations; 5. engaging in persuasive human rights diplomacy; 6. encouraging others to protect their own and others’ rights; 7. writing and publicly releasing statements and reports; 8. making use of the formal justice system; 9. offering a convening and bridging function; 10. activating or helping to activate UN human rights bodies and mechanisms.256 Comparing this list to the human rights tasks in the mandates, it appears that of all these tasks, activities related to gathering and analysis of information (i.e. monitoring), reporting and investigating, are considered so important that they regularly find entry as an additional task, even though they could also be subsumed under the promotion and protection mandate. Further protection tasks only rarely appear in mandates. ii Monitoring, Reporting, Investigating Apart from promotion and protection, monitoring, reporting and investigating appear as prime human rights tasks of peace operations. Human rights components are regularly called upon to “monitor, help investigate and report”257 253 N. Howen, The Fundamental Protection Function of the Human Rights Field Operation, in: M. O’Flaherty, The Human Rights Field Operation, 2007, 31, at 31. 254 Ibid., at 35. 255 Ibid., at 39. 256 Ibid., at 40–​43. 257 minusma:  S/​RES/​2100 (2013) of 25 April 2013, para. 16(d). See also e.g. minustah:  S/​ RES/​1542 (2004) of 30 April 2004, para. 7 iii (b); unisfa: S/​RES/​1990 (2011) of 27 June 2011, para. 10; unmiss:  S/​RES/​1996 (2011) of 8 July 2011, para 3(b)(iii); unoci:  S/​RES/​ 1528 (2004) of 27 February 2004, para. 6(f); minusca: S/​RES/​2149 (2014) of 10 April 2014, paras. 30(e)(ii) and 30(e)(i); minurcat: S/​RES/​1778 (2007) of 25 September 2007, para. 2(e); unamsil: S/​RES/​1270 (1999) of 22 October 1999, para. 2; unomil: S/​RES/​866 (1993) of 22 September 1993, para. 2(f); unomsil: S/​RES/​1181 (1998) of 13 July 1998, para. 8(b); unmis: S/​RES/​1590 (2005) of 24 March 2005, para. 4(a)(ix); onusal: Security Council

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on the human rights situation, to “collect information (…) on violations of international humanitarian and human rights law”258 and “bring them to the attention”259 of the Security Council and other appropriate authorities. According to the circumstances, specific groups are particularly mentioned, such as returning refugees and displaced persons,260 children,261 women262 or explicit reference is made to the “attention to sexual and gender-​based violence”.263 More and more frequently, the task of investigating human rights violations serves the aim of putting “an end to impunity”264 and holding perpetrators accountable.265 iii Training and Capacity Building Human rights components are regularly mandated to give support to the host country. Accordingly, another common task in mandates is capacity building, although it appears somewhat less frequently than the previously discussed tasks of monitoring, reporting and investigating. Some mandates provide for very specific forms of capacity-​building. monua, for instance, shall aim at “developing the capacity (…) to investigate violations and to initiate appropriate action”.266 Other mandates call for a general “training in international human Resolution 693 of 20 May 1991; unmit: S/​RES/​1704 (2006) of 25 August 2006, para. 4(g) and (f); untaes:  S/​RES/​1037 (1996) of 15 January 1996, para. 12; unmibh:  S/​RES/​1035 (1995) of 21 December 1995, para. 28. 258 monusco: S/​RES/​1925 (2010) of 28 May 2010, para. 17. 259 monusco: S/​RES/​1925 (2010) of 28 May 2010, para. 17. See also e.g. unoci: S/​RES/​1528 (2004) of 27 February 2004, para. 6(f); minusca: S/​RES/​2149 (2014) of 10 April 2014, para. 30(ii). 260 E.g. minustah: S/​RES/​1542 (2004) of 30 April 2004, para. 7 iii (b); unmil: S/​RES/​1509 (2003), 19 September 2003, para. 3(l). 261 E.g. unoci:  S/​RES/​1528 (2004) of 27 February 2004, para. 6(f); minusca:  S/​RES/​2149 (2014) of 10 April 2014, para. 30(ii); monuc: S/​RES/​1291 (2000) of 24 February 2000, para. 7(g); unmil: S/​RES/​1509 (2003), 19 September 2003, para. 3(l); onub: S/​RES/​1545 (2004) of 21 May 2004, para. 6. 262 E.g. minusca: S/​RES/​2149 (2014) of 10 April 2014, para. 30(ii); monuc: S/​RES/​1291 (2000) of 24 February 2000, para. 7(g); unmil: S/​RES/​1509 (2003), 19 September 2003, para. 3(l); unoci: S/​RES/​1528 (2004) of 27 February 2004, para. 6(f); onub: S/​RES/​1545 (2004) of 21 May 2004, para. 6. 263 minurcat:  S/​RES/​1778 (2007) of 25 September 2007, para. 2(e); unoci:  S/​RES/​1528 (2004) of 27 February 2004, para. 6(f). 264 minustah: S/​RES/​1542 (2004) of 30 April 2004, para. 8(a). See also minurcat: S/​RES/​ 1778 (2007) of 25 September 2007, para. 2(e); monuc: S/​RES/​1291 (2000) of 24 February 2000, para. 5(g); onub: S/​RES/​1545 (2004) of 21 May 2004, para. 6. 265 minusca: S/​RES/​2149 (2014) of 10 April 2014, para. 12. 266 monua, as specified by Secretary-​General report, 5 June 1997 (S/​1997/​438), section vii, para 38.

130 chapter 2 rights standards”267 or the development of “human rights capacities and institutions”.268 In a third type, it is underlined that “human rights principles should form an integral part of training and capacity building”.269 In academic literature, and also within ohchr, some controversy has arisen as to what extent capacity building and training activities can be considered protection work and whether they represent appropriate action in the face of human rights violations.270 In 2004, then UN High Commissioner for Human Rights, Louise Arbour, asserted that “capacity building, technical assistance and mainstreaming are of little or no value, and may even work to the detriment of human rights, if the basic fundament of protection is not secured.”271 The mandates all follow this approach by listing capacity building and training tasks together with a promotion and protection mandate. iv Assist/​Support A large number of mandates provides for further supportive and/​or coordinating tasks. The common formula is to support or assist the government, transitional authorities, local institutions respectively “in their efforts to promote and protect human rights”.272 Furthermore, the human rights components

267 minurcat: S/​RES/​1778 (2007) of 25 September 2007, para. 2(f), as well as the subsequent mandates S/​RES/​1861 (2009) of 14 January 2009, paras 6(f) and (g) and S/​RES/​1923 (2010) of 25 May 2010, paras. 8(v) and (vi). With a similar mandate “to facilitate the provision of training (…) in human rights”, see unoci:  S/​RES/​1528 (2004) of 27 February 2004, para. 6(d). 268 unmiss: S/​RES/​1996 (2011) of 8 July 2011, paras. 3(c)(i), minusca: S/​RES/​2149 (2014) of 10 April 2014, para. 30(f)(ii). 269 unmiset: S/​RES/​1410 (2002) of 17 May 2002, para. 5. 270 N. Howen, The Fundamental Protection Function of the Human Rights Field Operation, in: M. O’Flaherty, The Human Rights Field Operation, 2007, 31, at 36. 271 L. Arbour, Protecting Human Rights, Charting the Way Forward, Address to the 2004 Heads of Field Presences Meeting, 22 November 2004. 272 E.g. minusma: S/​RES/​2100 (2013) of 25 April 2013, para. 16(d)(iv); minustah: S/​RES/​1542 (2004) of 30 April 2004, para. 7. iii; monusco: monusco: S/​RES/​1925 (2010) of 28 May 2010, para. 12(c) (“support efforts to ensure the protection of civilians from human rights abuses, to promote and protect human rights”); unomsil:  S/​RES/​1181 (1998) of 13 July 1998, para. 8(b); unmis: S/​RES/​1590 (2005) of 24 March 2005, para. 4(a)(viii); monuc: S/​ RES/​1279 (1999) 30 November 1999, para. 5(e); onub:  S/​RES/​1545 (2004) 21 May 2004, para. 6.  Similarly, unamid:  S/​2007/​307/​Rev.1 of 5 June 2007, para. 54(c); unmiss:  S/​ RES/​1996 (2011) of 8 July 2011, para. 11 (“advise and assist the Government in ratifying and implementing key international human rights treaties”); unoci: S/​RES/​1528 (2004) of 27 February 2004, para. 17 (“Continue to support national and international efforts”); unmit: S/​RES/​1704 (2006) of 25 August 2006, para. 4(g)(i).

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often function as coordinator for different national and international human rights activities.273 b Human Rights Obligations of Peace Operations While the overview of human rights tasks gives a first impression about the practical role of human rights in peace operations, the exact scope and content of human rights obligations remains to be established. In several mandates, the Security Council takes the opportunity to assert the role of human rights as a normative framework, not only for the respective parties but also for the peace operation. The Council calls upon the latter to respect,274 to abide by,275 to act in full compliance276 or in accordance277 with human rights law. Unfortunately, so far, no standard formula has emerged in mandates for clarifying unequivocally the fact that and the extent to which all peace operations are bound by human rights law. Instead, the policy of human rights mainstreaming is regularly recalled by ohchr, without advocating more insistently for a formal inclusion of human rights obligations into mandates.278 The wording of the mandates does not provide further insights concerning the functional scope and material content of human rights obligations and thus deserves further scrutiny. i Human Rights Functions: Obligations to Respect, Protect, Fulfil The few formulations listed above point to an understanding that focusses on the obligation to respect human rights. Explicit obligations to protect and to fulfil have so far not found entrance into mandates. Against this lack of specificity, the generally recognised functions of human rights responsibilities may prove insightful in trying to analyse the extent to which the UN has to abide by its human rights obligations. The classical dichotomy of negative (generally concerning civil and political rights) and positive (generally concerning economic, social and cultural rights) obligations has become rather obsolete with the today undisputed acceptance of the 273 unamsil: S/​RES/​1270 (1999) of 22 October 1999, para. 8(h) (support human rights officers); unmee, S/​RES/​1320 (2000) 15 September 2000 2(i); unmibh:  S/​1995/​1031 of 21 December 1995, para. 31; unmis: S/​RES/​1590 (2005) of 24 March 2005, para. 4(d). 274 unomsil S/​RES/​1181 (1998) of 13 July 1998, para. 12. 275 minusma: S/​RES/​2100 (2013) of 25 April 2013, para. 24. 276 minusca: S/​RES/​2149 (2014), 10 April 2014, para. 42. 277 unamid: S/​2007/​307/​Rev.1 of 5 June 2007, para. 55(b) (ix). 278 T. Howland, Peacekeeping and Conformity with Human Rights Law:  How minustah Falls Short in Haiti, 13(4) International Peacekeeping (2006), 462, at 471.

132 chapter 2 indivisibility and interrelatedness of human rights279 and will therefore not be considered any further in this discussion. The successive set of classification is the tripartite typology of respect, protect, fulfil that was introduced some 30 years ago by then Special Rapporteur to the UN Sub-​Commission Asbjørn Eide.280 Of course, at that time, no corresponding duties were discussed for international organizations. Today, the increasing range of tasks fulfilled by UN peacekeeping operations have brought to the fore questions of human rights violations, and so the three functions of responsibility have to be discussed with respect to such operations. In the context of the obligation to respect, the UN must abstain from any behaviour that violates the integrity of the individual or infringes the freedom of the individual, including the freedom to use material resources necessary to satisfy basic needs.281 The UN thus has to refrain from violations not only of jus cogens norms (e.g. the prohibition of genocide, slavery or racial discrimination) but also of other human rights. Especially the cases of (proven) allegations of sexual abuse by UN peacekeepers in various peacekeeping operations,282 but also other instances of human rights violations such as the right to liberty and broader fair trial rights,283 torture and violations of the right to life284 have spurred debate on this matter. Today, it is beyond doubt that the UN must –​at least –​abide by the first level of obligation, i.e. the obligation to respect.285 The second function, namely the obligation to protect, already warrants closer scrutiny. In its traditional understanding, the obligation to protect requires the implementation of the measures necessary to prevent other individuals or groups from violating the integrity, freedom of action or other human 279 I. Koch, Dichotomies, Trichotomies or Waves of Duties?, 5(1) Human Rights Law Review (2005), 81, at 83 f., with further references. 280 The Right to Food as a Human Right, 7 July 1987, E/​CN.4/​Sub.2/​1987/​23, para. 66; A. Eide, Realization of Social and Economic Rights and the Minimum Threshold Approach, 10 Human Rights Law Journal (1989), 35. 281 In analogy from A. Eide, ‘Realization of Social and Economic Rights and the Minimum Threshold Approach’, 10 Human Rights Law Journal (1989), 35. 282 For examples see T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 117 ff. with further references. 283 See, for instance, D. Marshall and S. Inglis, The Disempowerment of Human Rights-​Based Justice in the United Nations Mission in Kosovo, 16 Harvard Human Rights Journal (2003), 95; J. Cerone, Minding the Gap: Outlining kfor Accountability in Post-​Conflict Kosovo, 12 EJIL (2001), 469. 284 K. Kenny, UN Accountability for its Human Rights Impact, in: N. White and D. Klaasen, The UN, Human Rights and Post-​Conflict Situations, 2005, 438, at 447 ff. 285 Instead of many, H. Henninger, Menschenrechte und Frieden, 2013, at 200.

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rights of the individual.286 Three distinct but interrelated developments have brought the question of an obligation to protect to the fore of attention. First, the introduction of the concept of the Responsibility to Protect in 2001 spurred extensive debate about a potential obligation to protect by the international community.287 Secondly, the importance of the individual as an object worthy of protection has gained currency in the context of human security.288 Strongly related to the concept of human security, although without explicit reference, is the increasing incorporation of the task of protection of civilians and/​or vulnerable groups (women, children, refugees, idp) into mandates of peacekeeping operations.289 Despite these factual developments, a general consensus on the UN’s obligation to protect the human rights of individuals does not seem to have emerged. A recent development in mandate drafting, however, points to the direction of somewhat deeper human rights obligations. Newly established peace operations have to ensure that not only they themselves abide by human rights law, but also that “any support provided to non-​United Nations security forces is provided in strict compliance with the Human Rights Due Diligence Policy on United Nations Support to non-​United Nations Security Forces (hrddp).”290 The 2013 Human Rights Due Diligence Policy on United Nations Support to non-​ United Nations Security Forces,291 entails a set of measures by which United Nations entities must ensure that any support provided to non-​UN forces is consistent with the purposes and principles as set out in the Charter as well with the UN’s obligation to respect, promote and encourage respect for international humanitarian, human rights and refugee law (para. 1). Even though not tantamount to acknowledging an obligation to protect, the hrddp adds an important aspect to the overall human rights performance of UN peace ­operations.

286 A. Eide, Realization of Social and Economic Rights and the Minimum Threshold Approach, 10 Human Rights Law Journal (1989), 35. 287 See supra Chapter 1.ii.2.c. 288 See supra Chapter 1.ii.2.b. 289 Most notably the mission in Congo monusco:  S/​RES/​1925 (2010) of 28 May 2010, as well as minurcat:  S/​RES/​1778 (2007) of 25 September 2007, para. 2; unmis:  S/​RES/​ 1590 (2005) of 24 March 2005; unoci: S/​RES/​1528 (2004) of 27 February 2004. See supra ­chapter 2.i. of this work. 290 minusca: S/​RES/​2149 (2014) of 10 April 2014, para. 39 and minusma: S/​RES/​2100 (2013) of 25 April 2013, para. 26. 291 Human rights due diligence policy on United Nations support to non-​United Nations security forces, A/​67/​775–​S/​2013/​110, 5 March 2013, Annex. See supra, Chapter 1.iii.2.e.

134 chapter 2 Under an obligation to fulfil measures have to be taken to ensure for each individual the opportunities to obtain satisfaction of those needs which cannot be secured by personal efforts.292 Concerning an obligation to fulfil by the UN, commentators have been cautious. Arbour and Darrow, for instance, acknowledge the possibility of a positive obligation to fulfil human rights in exceptional circumstances, but in principle see the role of the UN as supporting States in fulfilling their human rights commitments.293 In any case, the positive obligations to protect and to fulfil must be considered against the backdrop of the respective peace operation’s competences.294 ii Material Content of Obligations Substantively, the mandates remain silent on any specific single or group of rights to be particularly observed. In fact, human rights components of peace operations follow an integrated approach to human rights, “paying due attention to civil, cultural, economic, political and social rights, including the right to development, and to the special needs of women, children, minorities, internally displaced persons, and other groups requiring special protection”.295 In line with this doctrine, a considerable number of mandates explicitly mentions specific vulnerable groups, such as returning refugees and displaced persons,296 children,297 women.298 In other instances, and as a second recurring theme, particular reference is made to the “attention to sexual and gender-​based violence”299 –​not only as a consequence of sexual misconduct by peacekeepers, but also as a response to the trend of using sexual violence

292 A. Eide, Realization of Social and Economic Rights and the Minimum Threshold Approach, 10 Human Rights Law Journal (1989), 35. 293 M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 478. 294 See infra, iii. 295 dpko/​d fs/​d pa 2011 Policy on Human Right in Peace Operations, para. 49. 296 E.g. minustah: S/​RES/​1542 (2004) of 30 April 2004, para. 7 iii (b); unmil: S/​RES/​1509 (2003), 19 September 2003, para. 3(l). 297 E.g. unoci:  S/​RES/​1528 (2004) of 27 February 2004, para. 6(f); minusca:  S/​RES/​2149 (2014) of 10 April 2014, para. 30(a)(ii); monuc (S/​RES/​1291 (2000) 24 February 2000), para. 7(g); unmil: S/​RES/​1509 (2003), 19 September 2003, para. 3(l); onub: S/​RES/​1545 (2004) of 21 May 2004, para. 6. 298 E.g. minusca:  S/​RES/​2149 (2014) of 10 April 2014, para. 30(a)(ii); monuc (S/​RES/​1291 (2000) 24 February 2000), para. 7(g); unmil: S/​RES/​1509 (2003), 19 September 2003, para. 3(l); unoci: S/​RES/​1528 (2004) of 27 February 2004, para. 6(f); onub: S/​RES/​1545 (2004) of 21 May 2004, para. 6. 299 minurcat:  S/​RES/​1778 (2007) of 25 September 2007, para. 2(e); unoci:  S/​RES/​1528 (2004) of 27 February 2004, para. 6(f).

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as a particularly appalling means of waging war in some conflicts.300 The goal of ending impunity and bringing perpetrators of human rights violations to justice has moreover found entry into the majority of mandates.301 This having been said, mandates do not emphasise any specific rights in particular. Furthermore, nothing in the mandates hints at a greater importance of jus cogens rights compared to other human rights or to the prioritisation of any other group of rights. Arguably, this can be explained by the understanding of human rights as indivisible and interdependent. Still, it comes with the price of a lack of guidance for the practitioners on the ground. If one tries to specify the exact content of human rights obligations of peace operations, there, first of all, seems to be general consensus that peace operations are bound by peremptory norms of international law, i.e. jus cogens.302 The substantive content of jus cogens, however, remains less clear-​cut. Absent an exhaustive list of norms considered to be jus cogens, one can refer to the icj in the Barcelona Traction Case, which considered acts of aggression, genocide, and violations of the basic rights of individuals, including slavery and racial discrimination as prohibited as part of jus cogens.303 Other norms regularly mentioned include the right to self-​defence, the right to self-​determination, the prohibition on the use of force, as well as the prohibition of torture and piracy.304 Moreover, “fundamental” or “basic” human rights also seem to be accepted as jus cogens. The details, however, i.e. which rights exactly fall under 300 Again, DR Congo, but also Darfur, Cote d’Ivoire, Mali and most recently South Sudan, see unmiss, Conflict in South Sudan: A Human Rights Report, 8 May 2014. The Security Council stressed in Resolution 1820 of 19 June 2008 that “sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security” (para. 1). See further C.  Chinkin, Gender-​Based Crimes, mpepil, April 2011, MN 35. 301 minustah: S/​RES/​1542 (2004) of 30 April 2004, paras. 7 III(a) and 8(a); monusco: S/​ RES/​1925 (2010) of 28 May 2010, para. 12(c), unamid: S/​2007/​307/​Rev.1 of 5 June 2007, para. 55.(c).(iv); unmiss:  S/​RES/​1996 (2011) of 8 July 2011, para. 13, unoci:  S/​RES/​1528 (2004) of 27 February 2004, para. 6(f). 302 N. White, The Law of International Organisations, 2nd ed., 2005, at 24; B. Conforti, The Law and Practice of the United Nations, 3rd rev. ed. 2004, at 201; K.  Manusama, The United Nations Security Council in the Post-​Cold War Era, 2006, at 27. 303 icj, Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970, icj Reports 1970, 3, at 32, para. 34. Note these norms are listed as examples of obligations erga omnes. By nature, these obligations must also be jus cogens, see J. Frowein, Ius Cogens, mpepil, March 2009, MN 6. 304 E.g. S. Oeter, Self-​Determination, in: Bruno Simma et al. (eds.), The Charter of the United Nations. A Commentary, 3rd ed. 2012, 313, at 316, MN 1.

136 chapter 2 this category, remain unclear.305 Some indication is given by the enumeration of non-​derogable rights in Article 4 para. 2 of the iccpr,306 which can be regarded “partly as recognition of the peremptory nature of some fundamental rights”.307 However, the enumeration of non-​derogable provisions in article 4 is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms … the category of peremptory norms extends beyond the list of non-​derogable provisions as given in Article 4, paragraph 2.308 Therefore, the recourse to jus cogens does not automatically lead to a specific list of human rights to be applied by UN peace operations. Apart from the general consensus on jus cogens  –​notwithstanding the vagueness of the content just alluded to  –​opinions on which other obligations the UN, the Security Council and peace operations have to abide by vary greatly. Some commentators regard the UN as being bound by “other basic principles” including certain human rights obligations.309 Further specification about exactly which other human rights obligations are meant is usually lacking. Economic, social and cultural rights, which are usually not ranked among jus cogens norms, could also fall within the category of rights to be applied by peace operations. In its General Comment No. 8, the Committee on Economic, Social and Cultural Rights (cescr) stated that States, as well as the international community, must do “everything possible to protect at least the core content of the economic, social and cultural rights of the affected peoples”.310 3 05 J. Frowein, Ius Cogens, mpepil, March 2009, MN 8. 306 Article 4 para 2 does allow “[n]‌o derogation from articles 6, 7, 8 (paragraphs i and 2), 11, 15, 16 and 18”. 307 Human Rights Committee, General Comment 29, States of Emergency (article 4), UN Doc. ccpr/​C/​21/​Rev.1/​Add.11 (2001), para 11 (emphasis added). For elaboration on the relationship between jus cogens and non-​derogable rights see A.  Orakhelashvili, The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions, 16(1) EJIL (2005), 59, at 64 ff. 308 Human Rights Committee, General Comment 29, States of Emergency (article 4), UN Doc. ccpr/​C/​21/​Rev.1/​Add.11 (2001), para. 11. 309 N. White, The Law of International Organisations, 2nd ed., 2005, at 24. See also B. Conforti, The Law and Practice of the United Nations, 3rd rev. ed. 2004, at 201. 310 cescr, General Comment No. 8 (1997), The relationship between economic sanctions and respect for economic, social and cultural rights, 12 December 1997, UN Doc E/​C.12/​ 1997/​8, para. 7.

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As a consequence, those “fundamental rights” relating to the direct protection of the individual cannot be derogated from even though they do not constitute non-​derogable rights under the iccpr or jus cogens norms.311 Following this line of argument, this would mean that also peace operations have to protect such a core content of economic, social and cultural rights. On the far side of the spectrum, it is sometimes purported that the UN is bound by the whole human rights catalogue of the Universal Declaration of Human Rights312 (udhr). The legal status of the udhr has been subject of much debate in legal literature and remains disputed until today.313 The most elegant way to evade another plunge into this debate is to follow those considering the udhr as the authoritative interpretation of the human rights in the UN Charter.314 According to this constitutionalist approach, the obligations of the udhr are binding upon the UN since they specify binding provisions of the UN Charter. As a consequence, the whole catalogue of human rights obligations laid down in the udhr would be applicable to the UN and to peace operations, irrespective of their legal status as jus cogens or norms of jus dispositivum. As the previous paragraphs have shown, there is no consensus on the exact substantive content of human rights obligations on UN peace operations.

311 K. Manusama, The United Nations Security Council in the Post-​Cold War Era, 2006, at 29. See also E. de Wet, Human Rights Limitations to Economic Enforcement Measures under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime, 14(2) LJIL (2001), 277, at 292. For a different view that negates the relevance of a broad set of human rights (apart from “essential” human rights such as the right to life), see B. Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats, 1996, at 282. 312 GA Res. 217A (III), UN Doc. A/​810, at 71 (1948). 313 For a summary of the debate see H.  Charlesworth, Universal Declaration of Human Rights (1948), mpepil, February 2008, MN 13 ff.; and in detail H.  Hannum, The Status of the Universal Declaration in National and International Law, 25 Georgia Journal of International and Comparative Law (1995), 287. 314 E. Riedel and J.-​M. Arend, Article 55(c), in: B. Simma et al. (eds.), The Charter of the United Nations. A  Commentary, 3rd ed. 2012, 1565, at 1578, MN 30; M.  Darrow and L.  Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 469 ff.; H. Hannum, The Status of the Universal Declaration in National and International Law, 25 GaJIntl&CompL (1995), 287; I.  Brownlie, Principles of Public International Law, 6th ed. 2003, at 535. See also the dissenting opinion of Judge Tanaka in the South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase), Judgement 18 July 1966, icj Reports 1966, 6, as one of the rare occasions when the icj referred to the udhr:  “not binding in itself”, but nevertheless “evidence of the interpretation and application’ of the human rights clauses in the UN Charter”, Dissenting Opinion of Judge Tanaka, at 293.

138 chapter 2 While being reasonably clear with regard to the minimum core of obligation, ambiguity grows as the circle of potential obligations expands. iii The ‘divided and tailored’ Approach Against the background of the lack of a distinct and abstract set of obligations to be fulfilled by peace operations, a ‘divided and tailored’ –​or as it is often called, a proportionate –​approach could be more appropriate. The idea of a tailored application of human rights has evolved in the context of extraterritorial application of human rights.315 The applicants in Banković before the ECtHR argued that the extent as to which Convention rights must be secured extraterritorially “would be proportionate to the level of control in fact exercised.”316 While the ECtHR, in that case, rejected such an approach to jurisdiction altogether, it acknowledged a balanced way of engaging States’ human rights obligations on other occasions. In Cyprus v.  Turkey (2001), the Court argued that, since Turkey exercised effective overall control over Northern Cyprus, it had to secure “the entire range of substantive rights set out in the Convention”.317 In Al-​Skeini, a contrario, the Court found that whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section i of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković and Others, cited above, § 75).318 From this it could be argued that the scope of obligations relates to the level of control:319 the greater the degree of presence (spatial jurisdiction), control (personal jurisdiction), or power exercised in a given situation (gradual jurisdiction), the more obligations apply. The ECtHR, in that sense, accepts a 3 15 See infra, next chapter. 316 ECtHR, Banković and Others v. Belgium et al., Decision, 12 December 2001, Application no. 52207/​99, para. 46. 317 Emphasis added. ECtHR, Cyprus v.  Turkey, (no.  25781/​94), Judgment of 10 May 2001, para. 77. 318 ECtHR, Al-​Skeini and others v.  UK (no.  55721/​07), Judgement of 7 July 2011, para. 137 (emphasis added). 319 Yet, the “cryptic formulation” of the Court in Banković also gave raise to contrary interpretations, see M.  Moëlle, The International Responsibility of International Organisations:  Cooperation in Peacekeeping Operations, 2017, at 294 with further references.

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‘divided and tailored’ approach to human rights obligations.320 As Van Schaack observes, not only the ECtHR but human rights bodies in general are “increasingly comfortable with the idea of a sliding scale of rights and obligations that hinges on the particular circumstances of the foreign State’s presence and actions within the territorial State.”321 A gradual approach to extraterritorial application has similarly been applied by human rights treaty bodies, such as the hrc and the Inter-​American Commission.322 It has also found support in academic literature.323 The ECtHR as well departed from its strictly spatial approach in Banković, under which the answer to the question of effective control was an all or nothing one.324 Since its very different reasoning in Al-​Skeini,325 the Court has confirmed its view that “Convention rights can be ‘divided and tailored’ ”.326 Such a finding is particularly interesting for peace operations and the functional scope of human rights protection (i.e. respect, protect, fulfil) they have to accord on foreign ground. Given the myriad of different peace operations, they may exercise very different levels of authority in their respective host countries. Accordingly, the level of jurisdiction may also move up and down on a sliding scale. The exact threshold will have to be determined on a case-​ by-​case basis, based on the idea, as Moëlle points out, that there has to be “a

320 U. Fastenrath, Art. 1, in:  K. Pabel and S.  Schmahl (eds.), Internationaler Kommentar zur Europäischen Menschenrechtskonvention, 14th ed. 2012, at 53, MN 108. Fastenrath already speaks of a divided and tailored “doctrine”, ibid., at 54, MN 111. 321 B. Van Schaack, The United States’ Position on the Extraterritorial Application of Human Rights Obligations, 90 International Law Studies (2014), 20, at 51. 322 C. Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 140. 323 R. Lawson, Life After Bankovic:  On the Extraterritorial Application of the European Convention on Human Rights, in: F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004, 83; C.  Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 138 with further references. 324 The ECtHR claimed that “the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure ‘the rights and freedoms defined in Section i of this Convention’ can be divided and tailored in accordance with the particular circumstances of the extra-​territorial act in question”, Banković para. 75. 325 In fact, Milanovic put it more blunty by stating that “this is as close as we’ve ever come to the European Court overruling Bankovic.” M. Milanovic, European Court Decides Al-​ Skeini and Al-​Jedda, EJIL:Talk!, 7 July 2011. For a detailed assessment see M. Milanović, Al-​Skeini and Al-​Jedda in Strasbourg, 23 (1) EJIL (2012), 121. 326 ECtHR, Hirsi Jamaa and others v. Italy (no. 27765/​09), Judgement of 23 February 2012, para. 74 (“the Court has now accepted that Convention rights can be ‘divided and tailored’ ”).

140 chapter 2 sufficient nexus” between the international organization and the local population.327 As a consequence, it may be necessary to adjust the functional scope of human rights obligations of a given peace operation. While the latter would have to respect human rights to the extent as they interfere with these rights, a positive obligation to secure positive rights would only apply insofar as the peace operation exercises effective control to be able to do so.328 Such an understanding thus takes account of the actual scope of competence accorded to each peace operation by its respective mandate. Peace operations with a comprehensive mandate, like international territorial administrations, would then be obliged to guarantee human rights in all three dimensions of respect, protect, fulfil. Other peace operations could only be expected to protect and to secure human rights within the boundaries of their mandates. The idea of a ‘divided and tailored’ human rights responsibility may sound revolutionary, but in fact, it is almost as old as the organization itself. Already in 1950, Clyde Eagleton pointed out that “responsibility derives from control”.329 327 M. Moëlle, The International Responsibility of International Organisations: Cooperation in Peacekeeping Operations, 2017, at 293. 328 See most notably M.  Scheinin, Extraterritorial Effect of the International Covenant on Civil and Political Rights, in:  F. Coomans and M.  Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004, 73, at 76. Cp. similarly T.  Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 158 ff. See also infra, next chapter. 329 C. Eagleton, International Organization and the Law of Responsibility, Recueil des Cours 1950-​I, 319, at 385 ff. In fact, the conviction that “with great power comes great responsibility” goes back –​at least –​as far as to the French Revolution during which the French National Convention proclaimed:  “Ils doivent envisager qu’une grande responsabilité est la suite inséparable d’un grand pouvoir”, quoted in: Chez Baudouin, Imprimeur de la Convention Nationale (eds.), Collection Générale des Décrets Rendus par la Convention Nationale, Paris, Du 8 Mai 1793, at 72; Winston Churchill subscribed to the idea (“Where there is great power there is great responsibility”), as did Theodore Roosevelt (“I believe in power; but I believe that responsibility should go with power”), quoted in 1906, The Parliamentary Debates (Authorised Edition), Fourth Series, First Session of the Twenty-​ Eighth Parliament of the United Kingdom of Great Britain and Ireland, Volume 152 (First Volume of Session), Commons, Speaker:  Winston Churchill, Date:  February 28, 1906, Start Column Number 1233, Quote Column Number 1239, Printed and Published Under Contract with His Majesty’s Stationery Office by Wyman and Sons, London, and Theodore Roosevelt and His Time: Shown in His Own Letters by Joseph Bucklin Bishop, Volume 2, (Excerpt of letter dated June 19, 1908 from Theodore Roosevelt to Sir George Otto Trevelyan), Charles Scribner’s Sons, New York, at 94, respectively. Last but not least, it has been taken up by the author of Spider-​Man which lead to a popularization of the saying, see Amazing Fantasy #15 (Formerly: Amazing Adult Fantasy), Comic Book Story Title: “Spider-​Man!”, 1962 August (Cover Date), Writer: Stan Lee, Illustrator: Steve Ditko.

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More recently, commentators have found such a principle of proportionality, understood in the ‘divided and tailored’ sense, to represent an appropriate standard to assess the human rights obligations of the UN, in particular those of the Security Council.330 In applying this principle, account is taken of the particular situation a peace operation finds itself in. At the same time, a blank cheque allowing for disregard of human rights obligations is denied. The argument is particularly compelling concerning full-​fledged territorial administrations (untaet/​u nmik), in which the UN effectively takes over the exercise of jurisdiction and –​accordingly –​the full range of human rights obligations. As a preliminary conclusion, it has to be acknowledged that the range of obligations of UN peace operations cannot be determined in abstracto. Instead, it will have to be determined on a case-​by-​case basis by considering the specific circumstances of a mission, including the level of control exercised by that mission. c Concluding Observations The preceding analysis of the wording of human rights provisions in the resolutions establishing peace operations has yielded a few interesting findings: first, human rights have found entry into the great majority of mandates which mirrors the general recognition of the important role of human rights in peace operations. Judging from the mere number, the task of monitoring, reporting and investigating lies at the heart of human rights work in peace operations. Since all of the present mandates issued after 1991 feature these tasks (with slight variations), the triad of monitoring, reporting and investigating seems to have evolved into a standard provision of peace operations mandates. Apart from this result, however, a great variety in the wording of the human rights provisions of formulations can be noticed. Since mandates are drafted for each situation individually instead of following a predetermined blueprint, this diversity does not come as a complete surprise. However, it does not seem that a specific type of conflict or a certain set of circumstances is reflected in a corresponding human rights mandate. By the same token, it cannot be claimed that human rights mandate drafting has seen a coherent evolution over time,

330 E.g. G. Thallinger, Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council, 67 ZaöRV (2007), 1015, at 1040; K.  Manusama, The United Nations Security Council in the Post-​Cold War Era, 2006, at 29. Cp. more generally Shraga who argues that the principle of functionality, that circumscribes the international legal personality of the organization, determines the scope of applicable law, D. Shraga, The United Nations as an Actor Bound by International Humanitarian Law, 5(2) International Peacekeeping (1998), 64, at 65.

142 chapter 2 for instance, along the so-​called generations or other classifications of peace operations. Instead, recurring trends in formulations can be noted in mandates that have been drafted around the same time. Still, it cannot be ruled out that popular formulations of one period do not recur in the following one, only to reappear even later. The most pertinent example of this claim is the use of the notion of promote and protect. As the foregoing analysis has shown, the term is understood both as an umbrella term for a set of different human rights tasks and as a single human rights task next to others. The approach chosen during mandate drafting does not seem to follow a rule but appears to be somewhat random. This having been said, it seems rather striking that an explicit and preferably standardized reference to human rights as a normative framework for the work of peace operations does not regularly find entry into mandates. Equally missing is a coherent approach as to the functional scope of human rights obligations for peace operations. Summing up, while human rights have evolved into a well-​established part of peace operations mandates, mandate drafting with respect to human rights does not happen in a coherent and predictable manner. The reasons have already been alluded to above.331 First of all, template language for many tasks routinely appears in mission mandates without questioning the actual needs on the ground.332 Furthermore, internal dynamics (such as work habits driven by mandate renewal schedules and reaction to erupting crises) and the interest of different groups within the Council (e.g. the P5 members who contribute financially to the peacekeeping budget above their assessment for the regular budget, elected members who serve as troop-​contributing countries, who host peace operations, or who have a national interest in specific missions as neighbouring countries, etc.) impact on the work of the Security Council.333 As a consequence, the respective composition of the Security Council may significantly influence the number and character of new peace operations.334 Recent developments show an increasing willingness of the Security Council to gain a more comprehensive picture of the situation before making

3 31 See supra, Chapter 1.ii.2. 332 Most notably, Security Council Report, Reviewing Peacekeeping Operations, 31 March 2017. See also B. Jones, R. Gowan, and J. Sherman, Building on Brahimi, 2009, at 22 ff. 333 These dynamics are illustratively described in Security Council Report; Update Report No. 2: UN Peacekeeping Operations, 16 January 2009, esp. at 7 f. 334 This was clearly visible in 2013, when a new dimension in the use of force in peace operations found entry into mandates, in a moment when the members of the Council jointly contributed almost 25 percent of peacekeeping personnel, see Security Council Report, In Hindsight: Changes to UN Peacekeeping in 2013, 31 January 2014.

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decisions regarding peace operations. In an informal Arria formula335 meeting the Council, for instance, invited members of human rights components in peace operations to gain insights on the daily work of human rights field officers and to better understand how human rights components contribute to the implementation of mission mandates.336 Since no concrete results of this or comparable meetings have been made public, it remains to be seen whether increased attention to the factual circumstances will also lead to improved mandate drafting. The legal regime, as established by the mandates alone, leaves considerable room for interpretation, especially concerning the scope and content of human rights obligations. For this reason, the additional elements of the legal framework governing peace operations need to be considered. 2 Extraterritorial Application of Human Rights Treaties In peace operations, troop contingents of one or more national States act together on the territory of a third State. It is therefore principally valid to examine as to what extent peace operations are bound by the (combination of the) human rights obligations of the troop-​contributing countries.337 For this to be the case, States’ respective human rights obligations would have to be applicable extraterritorially. This question of extraterritorial application of human rights treaties has been one of the hot topics of academic debate and jurisprudential activity in the last years.338 While being far from finally settled, the “process of cross-​fertilization and parallel reasoning” among human

335 Arria-​formula meetings or briefings are an informal meeting format in which the Security Council engages in an informal and confidential exchange of views and direct dialogue with persons or groups invited by one or more Council members, see Security Council Report, Special Research Report No. 3:  Security Council Transparency, Legitimacy and Effectiveness, 18 October 2007, at 11, quoting an informal non-​paper prepared by the Secretariat in October 2002. 336 Arria-​ Formula Meeting with Human Rights Components in Peace Operations, announcement of the meeting on What’s in blue. Insights on the Work of the Security Council, 23 February 2017, http://​www.whatsinblue.org/​2017/​02/​arria-​formula-​meeting-​ with-​human-​rights-​components-​in-​peace-​operations-​1.php. 337 G. Verdirame, The UN and Human Rights, 2011, at 202. 338 Examples of pertinent scholarship include M.  Milanovic, Extra-​Territorial Application of Human Rights Treaties, 2011; K. Da Costa, The Extraterritorial Application of Selected Human Rights Treaties, 2013; the pertinent contributions in F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004; R. Wilde, Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights, 26 Michigan Journal of International Law (2005), 739.

144 chapter 2 rights treaty bodies and tribunals apparently has led to some doctrinal convergence,339 which will briefly be summarised in the following. a The Issue of Jurisdiction Central to the debate on extraterritorial human rights obligations is the issue of jurisdiction. In some of the most important human rights treaties, including the iccpr340 and the echr,341 human rights obligations are tied to the requirement of jurisdiction, which triggers the applicability of the former. The question, therefore, arises whether jurisdiction can only be exercised territorially, or if and to what extent human rights obligations are also applicable to a State acting abroad. While accepting a territorial application as the general rule,342 it is well established and confirmed by human rights treaty 339 B. Van Schaack, The United States’ Position on the Extraterritorial Application of Human Rights Obligations, 90 International Law Studies (2014), 20, at 22. 340 Article 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant” (emphasis added). Article 2(1) seemingly features two elements for the applicability of human rights, namely “within its territory” and “subject to jurisdiction”. In Lopez Burgos v. Uruguay (1981), the hrc dismissed a cumulative interpretation of the provision and instead adopted a disjunctive reading, effectively allowing for extraterritorial application of the iccpr, see hrc, Sergio Euben Lopez Burgos v. Uruguay, View of 29 July 1981, Communication No. R.12/​52, UN Doc. Supp. No. 40 (A/​36/​40) at 176 (1981), para. 12.3 (“Article 2 (1) … does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State … In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory”). This reading has also been confirmed by the icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, icj Reports 2004, p. 136, paras. 108–​111; icj, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, icj Reports 2005, 168, para. 216. 341 Article 1: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section i of this Convention.” (emphasis added). Article 1 (1) of the American Convention provides: “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms.” 342 The ECtHR summarised the understanding of jurisdiction as follows: “the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extra-​territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States”, ECtHR, Banković and Others v. Belgium et al., Decision, 12 December 2001, Application no. 52207/​99, para. 59, (emphasis added). However, the

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bodies and courts that extraterritorial jurisdiction can arise as an exception, namely when a State exercises control over foreign territory, e.g. in the context of a military occupation.343 This spatial approach to extraterritorial jurisdiction is generally uncontested and requires States to guarantee the full panoply of human rights to all persons in territories over which it has effective overall control.344 Secondly, States can exercise extraterritorial jurisdiction on the ground of a personal relationship resulting from acts undertaken by a State’s authorities on foreign territory. These two concepts –​the spatial and the personal model –​have also been at the core of the ECtHR’s famous (and notorious) Banković decision.345 The Court had to decide upon the admissibility of the case against 17 European Member States of nato brought before the Court by relatives of the victims of an attack on a Serbian radio/​television station in Belgrade during the 1999 aerial bombardment by nato. By giving a detailed account of the issue of jurisdiction and extraterritorial application of the echr, the Grand Chamber of the Court declared the application inadmissible on 12 December 2001. It is not necessary for the present study to discuss in detail the numerous issues346 Court has been heavily criticised for not distinguishing the notion of jurisdiction as a concept of public international law from jurisdiction with respect to human rights law. For an elaboration on this difference, see, for instance, M. Scheinin, Extraterritorial Effect of the International Covenant on Civil and Political Rights, in: F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004, 73, at 79 f. 343 The most pertinent cases come from the ECtHR in its cases relating to Turkey’s occupation of Cyprus. See most notably, ECtHR, Loizidou v. Turkey, Judgement on Preliminary Objections, 23 March 1995, Application no. 15318/​89, para. 62 and ECtHR, Cyprus v. Turkey, (no. 25781/​94), Judgment of 10 May 2001, para. 77. The Human Rights Committee found the iccpr applicable with respect to the Iraqi occupation of Kuwait, see hrc, Report to the UN General Assembly, 10 October 1991, UN Doc. A/​46/​40, para. 652, as well as the Israeli occupation of Lebanon, see hrc, Concluding Observations: Israel, 18 August 1998, UN Doc. ccpr/​C/​79/​Add.93, para. 10. 344 N. Wenzel, Human Rights, Treaties, Extraterritorial Application and Effects, mpepil, May 2008, MN  21. For a detailed discussion on the understanding of jurisdiction as territorial control see R. Wilde, Triggering State Obligations Extraterritorially, 40(2) Israel Law Review (2007), 503. 345 ECtHR, Banković and Others v. Belgium et al., Decision, 12 December 2001, Application no. 52207/​99. (“Banković”). 346 One of the concepts introduced by the Court in Banković and left to vanish in later decisions was the “espace juridique”. The Court regarded the Convention as a “constitutional instrument of the European public order”. It “is a multi-​lateral treaty operating (…), in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. (…) The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the

146 chapter 2 raised by the Court, which have caused vivid academic debate and met with criticism.347 Suffice it to say that post-​Banković case law in both the ECtHR and other courts348 has not upheld the strikingly narrow interpretation of jurisdiction set forth in Banković, in which the Grand Chamber held that extraterritorial application was limited to very few exceptions to the rule of territoriality.349 The Court referred to the two already established models of personal jurisdiction and of a test of effective control, based on spatial jurisdiction. Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.”, Banković, para. 80. Subsequent case-​law has, however, not upheld this legal space doctrine, which was heavily criticised from the moment of its appearance. Today, it has become “virtually obsolete”, C. Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 146. See also R. Wilde, The ‘Legal Space’ or ‘Espace Juridique’ of the European Convention on Human Rights, European Human Rights Law Review (2005), 115. 347 Literature on this famous case is abundant and the following only offers a very small selection:  For a concise overview, see C.  Steinorth, Banković Case, mpepil, December 2012, with further references. Rick Lawson, legal advisor to the applicants in the Banković case, provides a very critical and detailed discussion of the Court’s decision in R. Lawson, Life After Bankovic: On the Extraterritorial Application of the European Convention on Human Rights, in: F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004, 83. Michael O’Boyle complements Lawson’s critique in the same volume, M. O’Boyle, The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on ‘Life after Bankovic’, in: F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004, 125. A thorough study on the topic has been presented by M. Milanovic, Extraterritorial Application of Human Rights Treaties, 2011. 3 48 See most notably, ECtHR, Öcalan v. Turkey (application no. 46221/​99), Judgement of 12 May 2005; ECtHR, Isaak v. Turkey, (Application no. 44587/​98), Decision on admissibility of 28 September 2006; ECtHR, Behrami v. France and Saramati v. France, Germany and Norway, Decision as to the Admissibility of 2 May 2007 (nos. 71412/​01 and 78166/​01); ECtHR, Al-​ Skeini and others v. UK (no.  55721/​07), Judgement of 7 July 2011; ECtHR, Al-​Jedda v. UK (no. 27021/​08), Judgement of 7 July 2011; Al-​Skeini v. Secretary of State for Defence United Kingdom House of Lords, 13 June 2007, [2007] ukhl 26; Al-​Jedda v. Secretary of State for Defence, Opinions of the Lords, 12 December 2007, [2007] ukhl 58. 349 The ECtHR opined: “In sum, the case-​law of the Court demonstrates that its recognition of the exercise of extra-​territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government. (…) Additionally, the Court notes that other recognised instances of the extra-​territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State.”, Banković, paras. 71–​73, emphases added.

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However, with reference to the exercise of all or some public powers, it made the possibility of an extraterritorial exception far more restrictive, by suggesting that the effective control standard is only met when a State exercised some form of public authority.350 This represented a departure from a factual test of effective control that left out of consideration the legal basis of a State’s conduct, which had been applied in previous case law.351 Most human rights treaty bodies maintained a factual interpretation of jurisdiction based on control.352 The ECtHR did not uphold its narrow interpretation in later decisions. In Issa v. Turkey (2004),353 the Court applied a spatial model of jurisdiction based on a factual test of control over a limited area,354 without requiring that the State exercised lawful competence under international law, as previously suggested in Banković.355 The spatial criterion establishing jurisdiction was considered fulfilled if the State party to the echr exercised factual effective control over a territory or specific area outside its own territory. Subsequent case-​law has also confirmed the personal model of jurisdiction, which focuses on the exercise of authority and control over persons (rather than territory).356 First employed by the Commission in its Cyprus 3 50 C. Steinorth, Banković Case, mpepil, December 2012, MN. 20 f. 351 E.g. ECmHR, Cyprus v. Turkey (no. 6780/​74 and 6950/​75), Decision on the Admissibility of 26 May 1975, para. 10; ECtHR, Loizidou v. Turkey (no. 15318/​89), Judgement on Preliminary Objections, 23 March 1995, para. 62. 352 C. Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 123. 353 In this case, the Court had to decide on the admissibility of a case involving the alleged killing of Iraqi shepherds by Turkish forces in the course of a six-​week military operation by Turkey in northern Iraq in 1995, ECtHR, Issa v. Turkey (no. 31821/​96), Judgement of 16 November 2004. The Court found that a State may exercise jurisdiction over “persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating –​whether lawfully or unlawfully –​in the latter State”, para. 71, making reference to previous decisions by the Commission as well as to the hrc’s communication in Lopez Burgos v.  Uruguay, View of 29 July 1981, Communication No. R.12/​52, UN Doc. Supp. No. 40 (A/​36/​40) at 176 (1981), as the hrc’s leading case on extraterritorial application of the iccpr. 354 The question of whether jurisdiction can be exercised in a (very) limited space has been discussed, for instance, in ECtHR, Al-​Saadoon and Mufdhi v. UK (no. 61498/​08), Decision on Admissibility, 30 June 2009, para. 80 (jurisdiction over a military prison); ECtHR, Medvedev v. France (no.  3394/​03), Judgement of 29 March 2010, para. 67 (jurisdiction on a ship); ECtHR, Al-​Skeini and others v. UK (no. 55721/​07), Judgement of 7 July 2011, para. 136. 355 See also Öcalan v. Turkey, 12 May 2005 (Grand Chamber) paras. 91 ff.; ECtHR, Medvedev v. France (no. 3394/​03), Judgement of 29 March 2010, paras. 50 ff. 356 For a detailed account see C. Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 130–​135.

148 chapter 2 cases,357 the Court has relied on a personal model in Al-​Saadoon and Mufdhi v. United Kingdom (2009)358 and most notably in Al-​Skeini v. United Kingdom (2011).359 It may be doubtful whether the ECtHR is actually ready to subscribe to a “cause-​and-​effect-​jurisdiction” as for instance purported by Scheinin’s conclusion that “[a]‌uthority and control over individuals as a basis for state jurisdiction simply boils down to the proposition that a state has obligations under human rights treaties towards all individuals whose human rights it is able to violate.”360 Nevertheless, ECtHR jurisprudence seems to have departed from the narrow interpretation of extraterritorial application as outlined in Banković. Accompanied by a “reluctant acceptance” on behalf of the States Parties to the echr,361 the Court has shown a tendency to acknowledge extraterritorial jurisdiction on spatial and on personal grounds, including in situations, in which only limited powers are exercised extraterritorially. Hence, through the confirmation of these exceptions to the original rule of territoriality, these

357 E.g. ECmHR, Cyprus v. Turkey (no. 6780/​74 and 6950/​75), Decision as to the Admissibility of 26 May 1975, paras. 8–​10. 358 ECtHR, Al-​ Saadoon and Mufdhi v.  United Kingdom (no.  61498/​ 08), Decision on Admissibility of 30 June 2009, para. 88. 359 ECtHR, Al-​Skeini and others v. UK (no. 55721/​07), Judgement of 7 July 2011, para. 136 (“in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad.”). 360 M. Scheinin, Extraterritorial Effect of the International Covenant on Civil and Political Rights, in: F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004, 73, at 76. See also U. Fastenrath, Art 1, in: K. Pabel and S. Schmahl (eds.), Internationaler Kommentar zur Europäischen Menschenrechtskonvention, 14th ed. 2012, at 57, MN 118. The hrc seems closer to accepting this conception of jurisdiction. In Munaf v. Romania the hrc considered “whether, by allowing the author to leave the premises of the Romanian Embassy in Baghdad, it exercised jurisdiction over him in a way that exposed him to a real risk of becoming a victim of violations of his rights under articles 6, 7, 9, 10, paragraph 1 and 14 of the Covenant, which it could reasonably have anticipated. The Committee recalls its jurisprudence that a State party may be responsible for extra-​ territorial violations of the Covenant, if it is a link in the causal chain that would make possible violations in another jurisdiction. Thus, the risk of an extra-​territorial violation must be a necessary and foreseeable consequence and must be judged on the knowledge the State party had at the time”, hrc, Mohammad Munaf v. Romania, 21 August 2009, U.N. Doc. ccpr/​C/​96/​D/​1539/​2006, para. 14.2 (emphasis added). 361 F. Naert, Applicability/​Application of Human Rights Law to IOs involved in Peace Operations, 2011, 45, at 49. More cautiously with respect to States’ willingness to accept extraterritorial jurisdiction, N.  Wenzel, Human Rights, Treaties, Extraterritorial Application and Effects, mpepil, May 2008, MN 23.

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exceptions have “like beads of mercury (…) coalesced”362 into an evolving doctrine of extraterritorial application. The Human Rights Committee takes a similar stance on the extraterritorial application of the iccpr, as clarified in General Comment No. 31: States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. … This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-​ keeping or peace-​enforcement operation.363 This often-​cited paragraph has become a point of reference in the debate on extraterritorial application of human rights treaties, not least because of its explicit reference to peace operations. What this statement lacks, however, is an answer to the question as to how this level of power or effective control can be reached.364 In its Wall Opinion, the icj endorsed the Human Rights Committee’s view on extraterritorial application of the iccpr: [T]‌he Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.365

362 B. Van Schaack, The United States’ Position on the Extraterritorial Application of Human Rights Obligations, 90 International Law Studies (2014), 20, at 52. 363 Emphasis added. hrc, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ccpr/​C/​21/​Rev.1/​Add. 13, 26 May 2004, para. 10. The hrc repeated its reasoning in its concluding observations on the State reports from Italy, Poland, Norway, the Netherlands, Belgium, Germany and the UK; see K. Larsen, The Human Rights Treaty Obligations of Peacekeepers, 2012, at 181 ff. for a detailed survey. 364 C. Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 124. See also Larsen who adds that “further clarification of this general principle is difficult to identify in the Committee’s practice”, K. Larsen, The Human Rights Treaty Obligations of Peacekeepers, 2012, at 181. 365 icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports 2004, 136, para. 111.

150 chapter 2 Against the background of this evolving jurisprudence of regional and international courts, the possibility of extraterritorial application of human rights instruments can no longer be disputed. b Extraterritorial Obligations in UN-​led Peace Operations How is this excursion on extraterritorial obligations of States relevant for the present study? First and foremost, the extraterritorial human rights obligations of States are relevant in the context of UN-​mandated peace operations. In these cases, the human rights obligations of the participating States must be carefully considered when assessing potential human rights violations. The whole conundrum of attribution of conduct then resonates.366 This book is concerned with the human rights obligations of UN-​led peace operations, which are mainly derived from their status as organs of the UN. Mixing the obligations resulting from the peace operation’s capacity as an organ of the UN with those derived from the combined extraterritorial obligations of troop-​contributing States could bring more confusion rather than clarity to the issue. Yet, while keeping that in mind, the addition of the extraterritorial human rights obligations of contributing States to the equation can broaden the scope of human rights obligations of peace operations. As has already been shown in detail, the scope of human rights obligations of peace operations is far from clearly established. Obligations arise to a large extent from customary international law and general principles, the exact content of which is naturally much more disputed than the obligations written down in human rights treaties. Therefore, a look at States’ extraterritorial human rights obligations can help clarify the scope of obligations of the whole mission. Furthermore, even in UN-​led peace operations, in which the UN theoretically exercises exclusive command and control, States maintain a certain degree of control, at least in practice.367 Hence, even these subsidiary organs of 366 See M.  Zwanenburg, Accountability of Peace Support Operations, 2005, at 51 ff.; T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 139 ff.; C. Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 16 ff.; K. Larsen, Attribution of Conduct in Peace Operations, 19(3) EJIL (2008), 509; J.-​ P. Schütze, Die Zurechenbarkeit von Völkerrechtsverstößen im Rahmen mandatierter Friedensmissionen der Vereinten Nationen, 2011. On the distinction between jurisdiction and attribution, see L.  Moos, Individualrechtsschutz gegen menschenrechtswidrige hoheitliche Maßnahmen von Übergangsverwaltungen der Vereinten Nationalen am Beispiel der United Nations Interim Administration in Kosovo, 2013, at 80 ff. See also infra, Part. C.i.1. 367 J. Grenier, Extraterritorial applicability of human rights treaty obligations to United Nations-​mandated forces, in: A. Faite and J. Grenier (eds.), Applicability of International

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the UN are never exclusively under “full command and control” of the organization.368 States not only keep control over disciplinary and administrative matters; also instances of “phone-​home” activities and/​or refusals to carry out orders seem to be the rule rather than the exception in UN-​led peace operations.369 Consequently, the human rights obligations of troop-​contributing countries can be relevant even for UN-​led operations, not least because States could possibly be held responsible for human rights violations committed in the course of a peace operation (which then brings back the issue of exclusive or dual attribution).370 In addition, the recognition that human rights obligations apply extraterritorially also applies, by analogy, to the human rights obligations of the UN. Especially the acceptance that not only treaty obligations but also obligations arising from customary international law can apply extraterritorially is of importance.371 Thus, as a preliminary result, when an IO like the UN acts on the territory of a foreign State, as in the case of peace operations, its human rights obligations apply on that territory. Open for debate are the questions as to the extent to which human rights law applies extraterritorially and which standards of control govern this extraterritorial application. The gradual approach allowing for a ‘divided and tailored’ application of human rights372 complements the spatial and the personal model of extraterritorial jurisdiction, especially with respect to peace operations, which most likely rather exercise a gradual level of jurisdiction in the respective host country instead of full effective control. Humanitarian Law and International Human Rights Law to UN Mandated Forces, 2004, 79, at 80. 368 This question has also been addressed by the Articles on Responsibility of International Organizations, adopted on second reading at the sixty-​third session of the ilc, in 2011, UN Doc A/​66/​10 and Add.1; for a discussion see infra, Chapter 3.i.1. 369 M. Mayr, Extraterritorial Application of the European Convention on Human Rights and the Access to the Court for Victims of Human Rights Violations of ESDP Missions, 7 BSIS Journal of International Studies (2010) 1, at 17, with further references. See also J.-​ M. Guéhenno and J. Sherman, Command and Control Arrangements in United Nations Peacekeeping Operations, 2009, paras. 18 f. 370 See infra, Chapter 3.i.1. 371 See for instance the reasoning of the Dutch court in a case concerning alleged violation of the right to life and of the prohibition of inhuman treatment by Dutch peacekeepers during the Srebrenica massacre in 1995; Hague Appeals Court, Nuhanović v. Netherlands & Mustafić-​Mujić v. Netherlands, Judgement of 5 July 2011, Case no. 200.020.174/​01, para. 6.3. See further C.  Wiesener, The Application and Interplay of Humanitarian Law and Human Rights Law in Peace Operations, 2015, at 120 f. for a short inquiry into that issue and further references. 372 See supra, 1.b.iii.

152 chapter 2 3 Human Rights Obligations Derived from Peace Agreements Frequently, a peace operation is deployed to support the implementation of a peace agreement. Absent a fixed definition of the term, a peace agreement is generally understood as a document signed between parties to a violent (mostly internal) conflict, with the aim to formally end a conflict and introduce new political and legal structures for the future.373 In contrast to a ceasefire or an armistice, which focus on the temporary suspension or termination of hostilities, i.e. the end of war,374 a peace agreement goes beyond the mere bringing the conflict to an end. By providing for the restoration or normalisation of relations between the conflicting parties, peace agreements regularly include regulations for demobilization and demilitarization, the establishment of new governmental and legal structures, regulations on power-​sharing mainly during the period of transition, elections, human rights and a general rebuilding of the State.375 Thus, peace agreements constitute a “crucial turning point” in the transition from war to peace.376 In a number of cases, peace agreements provide for third-​party oversight or execution of the political settlement, for instance through a UN peacekeeping operation. a Obligations as Derived from Peace Agreements Since the mandates of most of such peacekeeping operations (i.e. the Second-​ Generation peacekeeping operations)377 are closely linked to the respective peace agreements, a closer look at the human rights provisions laid down in the latter may shed some light to the substantive content of human rights obligations of the peace operations. The focus on conflict resolution that lies at the heart of most peace agreements is often underlined by the inclusion of detailed human rights provisions.378 In addition to a general commitment to human rights norms (often 373 C. Bell, Peace Agreements: Their Nature and Legal Status, 100 AJIL (2006), 373, at 374. For a distinction from the term “peace treaty”, see J. Kleffner, Peace Treaties, mpepil, March 2011, MN 1. 374 Y. Dinstein, War, Aggression and Self-​Defence, 4th ed. 2005, at 42–​59. 375 C. Bell, Peace Agreements: Their Nature and Legal Status, 100 AJIL (2006), 373, at 377. 376 A. Solomou, Comparing the Impact of the Interpretation of Peace Agreements by International Courts and Tribunals on Legal Accountability and Legal Certainty in Post-​ Conflict Societies, 27 LJIL (2014), 495, at 498. 377 See Table 3. 378 Human rights protection is regarded as vital element to end conflict and prevent renewed outbreak of violence. Furthermore, including human rights protection in peace agreement helps ensure the success of the latter since it safes the population from further abuse, see ohchr, High Commissioner’s Strategic Management Plan 2008–​2009, at 18–​19.

Human Rights Obligations of UN Peace Operations153 table 3

Peace operations implementing a peace agreement

Peace operation

Mandate

onusal in El Security Council Resolution 693 (1991) of 20 May 1991 Salvador untac in Cambodia Security Council Resolution 745 (1992) of 28 February 1992 onumoz in Security Council Resolution 797 (1992) of 16 Mozambique December 1992 unosom ii in Security Council Resolution 814 (1993) of 26 March Somalia 1993 unomil in Liberia Security Council Resolution 866 (1993) of 22 September 1993 unavem iii in Security Council Resolution 626 (1988) of 20 Angola December 1988 unmibh in BiH Security Council Resolution 1035 of 21 December 1995, UN Doc S/​RES/​1035 (1995) untaes in Croatia Security Council Resolution 1037 (1996), 15 January 1996, UN Doc. S/​RES/​1037 minugua in Security Council Resolution 1094 (1997) of 20 January Guatemala 1997, UN Doc. S/​RES/​1094 unamsil in Sierra Security Council Resolution 1270 (1999) of 22 Leone October 1999, S/​RES/​1270 (1999) unoci in Côte Security Council Resolution 1528 of 27 February d’Ivoire 2004, UN Doc. S/​RES/​1528 (2004) onub in Burundi Security Council Resolution 1545 of 21 May 2004, UN Doc. S/​RES/​1545 (2004) unmis in Sudan Security Council Resolution 1590 of 24 March 2005, UN Doc. S/​RES/​1590 (2005) unamid in Darfur Security Council Resolution 1769 of 31 July 2007, UN Doc. S/​RES/​1769 (2007) unmiss in South Security Council Resolution 1996 of 8 July 2001, UN Sudan Doc. S/​RES1996 (2011)

154 chapter 2 particularly highlighted for the security sector),379 peace agreements regularly provide for the establishment and/​or reform of political and legal institutions serving the promotion and protection of human rights (e.g. National Human Rights Commissions, Ombudspersons for Human Rights).380 From a substantive point of view, aspects that are typically included are non-​discrimination clauses and protection of minorities in cases of ethnic conflict or specific political rights in cases of ideological conflict.381 Besides, accountability for past human rights abuses plays a central role in peace agreements.382 Apart from the latter issue, human rights provisions in peace agreements have so far not attracted much attention in the literature.383 Therefore, a short overview is warranted at this point.384 The reference to human rights in the peace agreements analysed ranges from non-​existent, over a general mentioning, to a detailed enumeration of the rights applicable in the territory. The peace agreements for Liberia and South Sudan, for instance, completely lack any reference to human rights. The majority of peace agreements analysed makes explicit reference to the udhr (Cambodia, Somalia, Angola, Sierra Leone, Burundi), to international human rights instruments (El Salvador, Cambodia, Angola, Guatemala, Burundi, Darfur), 379 E.g. the General Peace Agreement for Mozambique provides that the “Police of the Republic of Mozambique shall: (…) (b) respect the civil and political rights of citizens, as well as the internationally recognised human rights and fundamental freedoms” (Article v.2). 380 E.g. General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 6:  Agreement on Human Rights, providing for a Commission on Human Rights, an Ombudsman for Human Rights and a Human Rights Chamber; Sierra Leone:  Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Lomé Togo, 7 July 1999, S/​1999/​777, article xxv establishing a Human Rights Commission. 381 C. Bell, Peace Agreements: Their Nature and Legal Status, 100 AJIL (2006), 373, at 397. 382 Under the heading of “transition”, much has been written about the need for and detriments of human rights law in a (post-​)conflict environment and its role for accountability and justice. See, instead of many, P. Arthur, How “Transitions” Re-​shaped Human Rights: A Conceptual History, 31(2) Human Rights Quarterly (2009), 321, arguing that concept of “transition to democracy” prioritised legal-​institutional reform also over social justice and redistribution. See further C. Bell, Peace Settlements and International Law: from lex pacificatoria to ius post bellum, in: N. White and C. Henderson (eds.), Research Handbook on International Conflict and Security Law, 2013, 499, at 523. 383 An instructive exception being T. Putnam, Human Rights and Sustainable Peace, in: S. Stedman, D. Rothchild, and E. Cousens (eds.), Ending Civil Wars, 2002, 237. 384 For the purpose of this book, only peace agreements that are monitored and/​or implemented by a peace operation are considered, see Table 4. Prior or subsequent settlements leading to or following from these settlements are only considered to the extent that it is of relevance to the mandate of the respective peace operation.

Human Rights Obligations of UN Peace Operations155 table 4

Peace agreements with human rights provisions

Country

Name and date of peace agreement

El Salvador Cambodia

Agreement on human rights, 26 July 1990 Final Act of the Paris Conference on Cambodia, 30 October 1991 General Peace Agreement for Mozambique, 4 October 1992 Addis Ababa Agreement, 27 March 1993 Cotonou Agreement, 25 July 1993 Bicesse Agreement, 31 May 1991 and Lusaka Protocol, 20 November 1994 Comprehensive Agreement on Human Rights, 19 March 1994 General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton/​Paris), 14 December 1995 Basic agreement on the region of Eastern Slavonia, Baranja and Western Sirmium, 15 November 1995 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999 (Lomé, Togo) Arusha Peace and Reconciliation Agreement for Burundi, 28 August 2000 Linas-​Marcoussis Agreement, 24 January 2003 and Ouagadougou Political Agreement, 4 March 2007 Comprehensive Peace Agreement, 10 February 2005, UN Doc. S/​2005/​78 Darfur Peace Agreement, 5 May 2006 Intergovernmental Authority on Development: Agreement to Resolve the Crisis in South Sudan, Addis Ababa 9 May 2014 and Agreement on Cessation of Hostilities between the Government of the Republic of South Sudan (grss) and the Sudan People’s Liberation Movement/​Army (In Opposition) (splm/​A in Opposition), 23 January 2014

Mozambique Somalia Liberia Angola Guatemala Bosnia and Herzegovina Croatia Sierra Leone Burundi Côte d’Ivoire Sudan Darfur (Sudan) South Sudan

156 chapter 2 and/​or to resolutions, declarations and principles of the UN (El Salvador, Cambodia, Sierra Leone) and other international organizations (such as the oas: El Salvador or oau: Sierra Leone).385 Some treaties, like the agreements for Burundi, Sudan, and BiH, add detailed lists of treaties deemed to be applicable or refer to particular regional human rights instruments like the echr and its Protocols,386 and the African Charter on Human and People’s Rights (Sierra Leone, Burundi, Sudan). Moreover, the agreements for BiH and Croatia provide for the “highest level of internationally recognized human rights and fundamental freedoms”,387 whereas the peace agreement for Mozambique qualifies the reference to “internationally recognized human rights and fundamental freedoms” by mentioning it exclusively as normative baseline for the State Information and Security Service and the Police of the Republic of Mozambique (paras. iv.2(b) and v.2(b)). On the far end of the spectrum, the peace agreements for Sierra Leone, Burundi, Sudan, and Darfur comprise a detailed list of human rights to be promoted and protected on their territories. The settlements for Burundi, Sudan and Darfur follow a truly comprehensive approach by listing civil and political as well as economic, social and cultural rights, complemented by children’s rights and women’s rights (Burundi, Protocol ii, Arts. 3.10–​28; Sudan, Arts. 6.5.1–​9 and Chapter ii Arts. 1.6.2.1–​16; Darfur, Arts. 3.25–​40). In contrast, the Sierra Leonean peace agreement explicitly provides for the protection and promotion of “basic civil and political liberties” as provided for in the udhr and the African Charter on Human and People’s Rights (Article xxiv.1). As the above tour d’horizon has shown, most peace agreements explicitly provide guidance on the substantive content of human rights obligations. In cases in which peace operations are mandated to supervise and/​or help 385 El Salvador: Agreement on human rights, 26 July 1990; Cambodia: Final Act of the Paris Conference on Cambodia, A/​46/​608, S/​23177, 30 October 1991; Angola: Lusaka Protocol, 20 November 1994, Annex 8, Agenda Item ii.3:  A.i.10.; Guatemala:  Comprehensive Agreement on Human Rights, 19 March 1994, A/​48/​928 and S/​1994/​448, 19 April 1994, Chapter x, Article 15; Sierra Leone: Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Lomé Togo, 7 July 1999, S/​1999/​ 777, Article xxiv.1; Burundi: Arusha Peace and Reconciliation Agreement for Burundi, 28 August 2000, Protocol ii Democracy and Good Governance, Article 3.1 and Protocol iii Peace and Security for All; Darfur Peace Agreement, 5 May 2006, Article 3.24. 386 General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 4:  Constitution of Bosnia-​Herzegovina, Article ii, 1 and 2 and Annex 6:  Agreement on Human Rights, Chapter One, Article i. 387 Ibid. and Basic agreement on the region of Eastern Slavonia, Baranja and Western Sirmium, 15 November 1995, A/​50/​757 S/​1995/​951, Article 6.

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implement these peace agreements, they might serve at clarifying the human rights obligations of the peace operation. Yet, since peace agreements themselves are far from being perfectly drafted instruments,388 their use for defining a clear content of human rights obligations of peace operations is limited. b Binding Force of Human Rights Obligations in Peace Agreements The question now arises as to whether peace operations are bound by the human rights obligations provided for in peace agreements. For this to be the case, the peace operation not only has to be an addressee of the peace agreement, but the latter also must be considered to have binding force under international law. Prima facie, peace agreements appear as proper legal documents because of their legal-​looking structure (e.g. preambles, sections, articles, and annexes) and legal-​type language (speaking e.g. of parties, signatories, obligations).389 However, since signatories are likely to include non-​state actors, a categorisation as “international treaty” is problematical.390 According to Article 2.1(a) vclt, a “treaty” means an international agreement concluded between States.391 As Kleffner points out, however, both the vclt and the vclt-​i o contemplate the possibility of the existence of other international agreements and refrain from determining the legal force of such agreements (Articles 3(a) vclt and vclt-​i o).392 While legal scholarship remains undecided about the legal status of peace agreements,393 recourse to jurisprudence is equally difficult since instances of juridical examination of peace agreements by international courts are rare.394 388 H. Hannum, Peace versus Justice:  Creating Rights as well as Order out of Chaos, 13(4) International Peacekeeping (2006) 582, at 587 f.  For an overall critical stance on the inclusion of human rights into peace agreements, see R.  Paris, The Perils of Liberal International Peacebuilding, 22(2) International Security (1997), 54. 389 C. Bell, Peace Agreements: Their Nature and Legal Status, 100 AJIL (2006), 373, at 378. 390 At the same time, considering them as solely domestic legal documents is equally difficult, see C. Bell, Peace Agreements: Their Nature and Legal Status, 100 AJIL (2006), 373, at 378. 391 See also Article 1 vclt: “The present Convention applies to treaties between States.” Note the respective definition of the vclt-​i o: “(a) ‘treaty’ means an international agreement governed by international law and concluded in written form: (i) between one or more States and one or more international organizations; or (ii) between international organizations” (Article 2). 392 J. Kleffner, Peace Treaties, mpepil, March 2011, MN 21. 393 Ibid. See also C.  Bell, Peace Agreements:  Their Nature and Legal Status, 100 AJIL (2006), 373. 394 See A.  Solomou, Comparing the Impact of the Interpretation of Peace Agreements by International Courts and Tribunals on Legal Accountability and Legal Certainty in

158 chapter 2 While the question as to the relationship between the treaty-​making capacity of non-​state actors and their legal personality395 is of limited relevance for the present book, the more crucial issue is whether a peace agreement creates binding international obligations. Unsurprisingly, the Special Court for Sierra Leone squarely denied this possibility and acknowledged obligations only to be created under municipal law, if any.396 In contrast, it has been convincingly submitted that peace agreements create binding obligations since the presumption of pacta sunt servanda applies to States as well as to non-​state actors.397 Furthermore, the signing of a treaty as “legally binding form of consent”398 and in the presence or even with the active involvement of the international community, mainly the UN, gives an indication about the intention of the parties to adopt an internationally binding document.399 Thus, there is no supportable reason why clearly recognizable entities (…) cannot enter into binding agreements in which they have obligations not only to the opposite party in the conflict, but also towards the international community as such, if that international community has formally approved such an agreement or even co-​signed it. By their very nature such commitments are commitments under international law.400

395

396

3 97 398 399 400

Post-​Conflict Societies, 27 LJIL (2014), 495. Solomou mentions the Lusaka Ceasefire Agreement 1999, the Lomé Agreement 1999, and the Dayton Peace Agreement 1995 as the only relevant peace agreements in this regard, at 498. The Special Court for Sierra Leone ruled on the status of the Lomé Agreement and came to the conclusion that the latter was “neither a treaty nor an agreement in the nature of a treaty” and therefore did not create obligations under international law, see The Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Decisions –​Preliminary Motion based on Lack of Jurisdiction, Abuse of Process, Amnesty and Lomé Accord, and Application in Respect of Jurisdiction and Defects in Indictment, Case Nos. SCSL-​2004–​15-​PT and SCSL-​2004–​16-​PT, 13 March 2004, para. 49. See, e.g., J. Kleffner, Peace Treaties, mpepil, March 2011, who finds this discussion of “little assistance”, MN 24. See further P. Kooijmans, The Security Council and Non-​State Entities as Parties to Conflicts, in: K. Wellens (ed.), International Law: Theory and Practice, 1998, 333, at 338 f. The Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Decisions –​Preliminary Motion based on Lack of Jurisdiction, Abuse of Process, Amnesty and Lomé Accord, and Application in Respect of Jurisdiction and Defects in Indictment, Case Nos. SCSL-​2004–​ 15-​PT and SCSL-​2004–​16-​PT, 13 March 2004, para. 42. S. Ratner, The New UN peacekeeping, 1995, at 26. Ibid., at 27. J. Kleffner, Peace Treaties, mpepil, March 2011, MN 24. P. Kooijmans, The Security Council and Non-​State Entities as Parties to Conflicts, in: K. Wellens (ed.), International Law: Theory and Practice, 1998, 333, at 338.

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Following this conclusion, a non-​state party acting in contravention of a peace agreement it has signed must be considered to be violating international law.401 Having recognised the binding force for the parties to the conflict, the implications for third-​party signatories, i.e. the UN and its executing peace operations have to be established. Triggered by the disclaimer added to the UN signature to the Lomé Peace Agreement,402 the UN has set some normative boundaries regarding the content of such settlements when it is involved as observer, mediator or signatory. This includes the exclusion of amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights.403 As such, the UN has evolved into a “normative negotiator”,404 ensuring that the provisions agreed upon in the peace agreements abide by the principles of international law. However, it would be too farfetched to argue in favour of the UN being bound by the obligations. Despite its involvement as (signing) witness, the UN is not a “party” to the agreement and thus not bound by it (cp. vclt and vclt-​i o Arts. 2(g) and (h) and Art. 34). Still, this is not to say that the substance of the peace agreement is without impact on the UN: once a peace operation is mandated to help ensure the implementation of the agreement, the substantial provisions serve at the very least as a basis for activity. More concretely, a detailed enumeration of human rights or a list of human rights instruments to be applicable in the territory give an indication as to the scope of human rights applicable during the operation on the basis that, as will be discussed in the next section,405 the human rights obligations of the respective host State can affect those of the peace operation. On the other hand, the focus on a certain set of rights in the peace agreement does not hinder the UN to follow a comprehensive human rights approach, as demanded by the indivisibility of human rights. For instance, despite the limitation to civil and political rights in the Lomé Agreement (Article xxiv.1), the human rights component of unomsil encompassed a broad range of human rights issues including the rights of women and children and social and

4 01 S. Ratner, The New UN peacekeeping, 1995, at 26. 402 On the request of the Secretary-​General, the UN representative added a reservation to his signature stating that, “to the UN, the amnesty cannot cover international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law”, see Seventh Report of the Secretary-​General on the United Nations Observer Mission in Sierra Leone, UN Doc. S/​1999/​836, para. 54. 403 The Rule of Law and Transitional Justice in Conflict and Post-​Conflict Societies, Report of the Secretary-​General, UN Doc. S/​2004/​616, para. 10. 404 C. Bell, Peace Agreements: Their Nature and Legal Status, 100 AJIL (2006), 373, at 401. 405 See infra, v.4.

160 chapter 2 economic rights.406 By the same token, even when peace agreements completely lack any reference to human rights, such as the agreements for Liberia and South Sudan, the corresponding peace operations mandates feature human rights provisions, sometimes, as in the case of unmiss in South Sudan, in some remarkable detail. Summing up, it is purported here that while peace agreements belong to the legal regime of a peace operation and may set the tone for its operationalisation, their human rights provisions do not result in specific obligations of the UN or the peace operation. 4 The Role of Human Rights Obligations of the Host State As a corollary of the consensual nature of the majority of peace operations, Status of Forces Agreements (sofas) are commonly concluded between peace operations and their host countries.407 They are usually based upon the Model sofa, which was prepared by the Secretary-​General in 1990.408 While the core aim is to provide the peace operation with privileges and immunities necessary for the undisturbed conduct of its duties, the Model sofa also underlines an important duty of peace operations: The United Nations peace-​keeping operation and its members shall refrain from any action or activity incompatible with the impartial and international nature of their duties or inconsistent with the spirit of the present arrangement. The United Nations peace-​keeping operation and its members shall respect all local laws and regulations. The Special Representative/​Commander shall take all appropriate measures to ensure the observance of those obligations.409 The duty to respect local laws and regulations is derived from the acknowledgement of the full sovereignty of the host State as a basic principle of a sofa.410 In contradistinction, the Model sofa remains silent on international law obligations such as ihl or human rights law. Some sofas do contain a

406 Seventh Report of the Secretary-​General on the United Nations Observer Mission in Sierra Leone, UN Doc. S/​1999/​836, para. 46. 407 For a concise overview on the structure, content and significance of sofas see G. Verdirame, The UN and Human Rights, 2011, at 209 ff. 408 Report of the Secretary-​General, “Model Status-​of-​Forces Agreement for Peace-​keeping Operations”, 9 October 1990, UN Doc. A/​45/​594, Annex. 409 Article 6 (emphasis added). 410 M. Bothe, Peacekeeping Forces, mpepil, August 2016, MN 41.

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reference to the 1999 Secretary-​General’s Bulletin on International Humanitarian Law, but none explicitly refers to human rights law.411 Still, the relevance of the duty to respect local laws and regulations should not be underestimated in the context of human rights obligations. One issue that has been raised is the difficult situation when local laws seem to be in contradiction with international standards.412 More interestingly, Verdirame hints at the potential of this provision for introducing a “further route through which human rights obligations might bind both the mission … and its members.”413 The extent as to which existing human rights obligations of the host State are relevant for the peace operation has been a matter of some debate. It has been argued that the full or partial assumption of jurisdiction by the UN may lead to the applicability of the human rights obligations of the respective host State to the peace operation.414 This view draws on arguments taken from the law of State succession, which is, according to Evans, “essentially an umbrella term for a phenomenon occurring upon a factual change in sovereign authority over a particular territory”.415 Since such a change of territorial sovereignty bears the risk of creating a legal vacuum, the law of State succession intends to minimize this risk.416 Given the legal uncertainties in the context of the UN

411 B. Kondoch, Human rights law and UN peace operations in post-​conflict situations, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 2005, 19, at 34 f. The sofa for unamid, for instance, does include the duty to “respect relevant rules and principles of international law”, without explicit reference to human rights, see Agreement between the United Nations and the African Union and Sudan concerning the African Union/​United Nations Hybrid Operation in Darfur, 9 February 2008, 2503 UNTS 271, para. 5. 412 E.g. Experts’ Workshop, UN Peacekeeping and The Model Status of Forces Agreement, United Nations Peacekeeping Law Reform Project, School of Law, University of Essex February 2011, at 14. 413 G. Verdirame, The UN and Human Rights, 2011, at 210 f. 414 Cp. R. Wolfrum, International Administration in Post-​Conflict Situations by the United Nations and other International Actors, 9 MPUNYB (2005) 649, at 689 f; C.  Stahn, International Territorial Administration in the former Yugoslavia, 61 ZaöRV (2001), 107, at 139; J. Cerone, Minding the Gap: Outlining KFOR Accountability in Post-​Conflict Kosovo, 12 EJIL (2001), 469, at 474 f. 415 M. Shaw, International Law, 8th ed., at 727. The most common categories of State succession comprise cession and secession, incorporation of one State into another one or merger of two States, complete dissolution of a State, and Newly Independent States, see e.g. A. Zimmermann, State Succession in Treaties, mpepil, last updated November 2006, MN 8 ff. 416 K. Schmalenbach, International Organizations or Institutions, Succession, mpepil, last updated May 2006, MN 1.

162 chapter 2 taking over sovereign authority over a territory, it may be reasonable to apply, by analogy, the rules of State succession. Despite codification efforts by the UN, which led to the adoption of the 1978 Vienna Convention on Succession of States in Respect of Treaties,417 the field of State succession remains “an area of uncertainty and controversy.”418 Generally speaking, the predominant view used to follow the clean slate-​or tabula rasa doctrine and held that the successor State was not bound by the treaties of its predecessor.419 Recent State practice shows a tendency of successor States to accept existing human rights treaties,420 which is also supported by the practice of international human rights bodies. In General Comment No. 26 (1997), the Committee of the iccpr purported that “once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them.”421 The ECtHR has confirmed “the principle that fundamental rights protected by international human rights treaties should indeed belong to individuals living in the territory of the State party concerned, notwithstanding its subsequent dissolution or succession”.422 Therefore, a mere assumption of jurisdiction by the UN, be it complete as in territorial administrations or partly as in the majority of peace operations, cannot be considered a valid reason to deprive the people of their rights previously accorded to them. The fact that the (partial) assumption of jurisdiction by the UN takes place in accordance with the host State does not have an influence on this since it would be rather ironic if the host State could do away with its human rights obligations by way of cooperating with the UN.423 Critical commentators have, at this point, voiced some caution. Henninger, for instance, purports that neither State practice nor opinio iuris have firmly established a rule of automatic State succession to human rights treaties,

417 Vienna Convention on Succession of States in Respect of Treaties, adopted in Vienna on 23 August 1978. Entered into force on 6 November 1996. United Nations, Treaty Series, vol. 1946, 3. As of 2019, the Convention has 22 parties and another 19 signatories. 418 J. Crawford, Brownlie’s Principles of Public International Law, 8th ed. 2012, at 424. 419 Ibid., at 438; S. Hobe, Einführung in das Völkerrecht, 10th rev. ed. 2014, at 109. 420 J. Crawford, Brownlie’s Principles of Public International Law, 8th ed. 2012, at 440; M. Kamminga, State Succession in Respect of Human Rights Treaties, 7(4) EJIL (1996), 469, at 482. 421 iccpr General Comment No. 26 (1997), para. 4. For a detailed explanation this argument from different perspectives, see M.  Kamminga, State Succession in Respect of Human Rights Treaties, 7(4) EJIL (1996), 469, at 472 f. 422 ECtHR, Case of Bijelic v. Montenegro and Serbia (no. 11890/​05), Judgment of 28 April 2009, para. 69. 423 H. Henninger, Menschenrechte und Frieden, 2013, at 202 f.

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let alone succession to human rights treaties by international organizations.424 In the current state of debate, it seems to remain unclear whether the principle of automatic succession to human rights treaties has been established as a rule of international law.425 Therefore, the relevance of the sofa may not be underestimated: irrespective of an automatic assumption of the host State’s obligations based on the law of State succession, the duty to respect local laws and regulations, which the peace operation has consented to in the sofa, reintroduces human rights obligations of the host State. To the extent that human rights treaties adhered to by the host State can be considered “local laws and regulations”, the UN has the duty to respect those human rights obligations. Given the fact that the majority of States have ratified the lion’s share of the nine core human rights treaties, peace operations have to respect a wide range of human rights derived from the provisions in the sofa. 5 Self-​Commitment by the Peace Operation Peace operations can submit themselves to human rights obligations. In their capacity as legislators, both unmik and untaet issued regulations in which they listed in detail the core human rights treaties and called for observance by “all persons undertaking public duties or holding public office”.426 As a result of such regulations, the peace operations did not become party to the human rights treaties. Yet, since the regulations were binding for the respective peace operations, the content of the rights and duties in the respective human rights instruments became directly binding upon the missions.427 Such a voluntary commitment has so far only been undertaken by unmik and untaet. Because of the exceptional status of the two territorial administrations, the voluntary commitment, which indeed contributes to greater 424 H. Henninger, Menschenrechte und Frieden, 2013, at 203 with further references. But see also U. Fastenrath, Das Recht der Staatensukzession, in: U. Fastenrath, T. Schweisfurth and C. Ebenroth (eds.), Das Recht der Staatensukzession (The Law of State Succession), 1996, 9, at 24 f. 425 E.g. M. Shaw, International Law, 8th ed., at 745; J. Crawford, Brownlie’s Principles of Public International Law, 8th ed. 2012, at 440; A.  Zimmermann, State Succession in Treaties, mpepil, November 2006, MN 15, who points at the icj’s reluctance to tackle the issue with respect to the Genocide Convention. 426 UNMIK/​REG/​1999/​24, 12 December 1999 and UNTAET/​REG/​1, 27 November 1999. 427 H. Henninger, Menschenrechte und Frieden, 2013, at 204 ff.; R. Wolfrum, International Administration in Post-​Conflict Situations by the United Nations and Other International Actors, 9 MPUNYB (2005), 649, at 688 f. But see also Bell, who cautions that it remains unclear what the term “observance” of human rights actually means, C. Bell, Peace settlement and international law, 2012, at 46 f.

164 chapter 2 clarity of human rights obligations of the respective peace operation, can hardly be conveyed to other peace operations. Standard integrated missions commonly do not have the competence to issue binding legislation, nor do they assume other governmental functions in the host state. Therefore, they have to rely on the level of commitment outlined in the preceding sections. vi

Findings

In 1950, Hans Kelsen posited that it was “highly problematical to refer in a legal instrument to rights without referring to the corresponding duties, since legally there exists no right of an individual without a corresponding duty of another individual”.428 Today, human rights are an undisputed and universally accepted part of the international legal order. At the same time, the obligations of the UN with respect to human rights, especially in the context of peace operations, are still far from clearly established. This chapter has accentuated an unresolved problem: while there exists –​ in principle  –​little doubt that the UN is bound by human rights law, it is difficult to dissect the exact legal source of this obligation. Absent a direct applicability of human rights treaties, binding force could emanate from customary human rights law and human rights as general principles of law. The precise contours of these obligations remain, however, blurred. The UN Charter does not explicitly serve as source of human rights obligations on the UN. Only when interpreted as a living instrument, applying a purposive interpretation, it can be concluded that the UN is bound by human rights by way of its internal law, i.e. its own constitution, as well as following from its own consistent practice and from unilateral acts that show the UN’s will to be bound by human rights law. It is argued here that the obligation to respect and protect human rights does apply not only to the UN, but also the Security Council. Potential stumbling blocks referring to the Security Council’s special role and power under Chapter vii have been pushed out of the way. What remains open to debate, however, is the functional scope and substantive content of its human rights obligations beyond the minimum standard of jus cogens norms. The exact meaning of the obligation to respect and protect human rights both under general international law and following from the Charter and internal law of the remains blurred. 428 Hans Kelsen, The Law of the United Nations, 1950, at 29.

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This finding also holds true for peace operations. As organs of the UN, they are bound by the same human rights obligations as their mother organization. In addition, they are also bound on behalf of their mandates and the broader legal regime governing peace operations. Yet, an abstract determination of the scope and content of human rights obligations has turned out to be difficult. An analysis of peace operations mandates, including the peace agreements on which some of them are based, has not succeeded in clarifying the precise substantive content of the human rights obligations of peace operations. Explicit human rights obligations are generally absent from mandates. The present state of affairs –​both academic and in practice –​does not allow for an abstract assessment of the scope of human rights obligations. Instead, case-​ by-​case evaluations are the rule. In this regard, there has been little progress in the task of “clearly defining the scope and contours of UN obligations under international law”429 which Arbour and Darrow called for already a few years ago. This –​albeit dissatisfying –​result can be explained if one takes one step back in order to understand the practical function of a mandate. The mandate is intended to provide a programme of work for the personnel on the ground. The human rights “obligations” of the peace operation as provided for in the mandate are therefore better understood as human rights tasks to be fulfilled. Whether or not these tasks are implemented successfully is evaluated by dpo, largely based on the reporting mechanism to the Secretary-​ General. Successful mandate implementation in this context means that the human rights tasks foreseen in the mandate have been fulfilled. What it does not mean, and this is an important distinction, is whether or not the peace operation has fulfilled its human rights obligations under international law. According to a senior member of dpo, even if human rights mandates sometimes could be improved in order to lead to better implementation records, also future mandates were highly unlikely to include a list of substantive human rights obligation of the peace operations, since this fell under the competence of the Office of Legal Affairs and maybe also to ohchr, but was of only marginal interest of dpo.430 Whether or not a peace operation was successful in including human rights considerations into the whole range of their activities (mainstreaming) had in the past proven to depend more on the “personality of the Special Representative of the Secretary General (srsg) and other mission

429 M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 499. 430 Informal conversation with a member of dpko who gave his view in personal capacity. Memo on file with the author.

166 chapter 2 leaders, rather than on a clear policy and understanding that the operation must comply with its human rights obligations.”431 Yet, as Arbour and Darrow rightly purport, human rights are “too important to be allowed to rest entirely upon the proclivities or discretion of the individual resident coordinator.”432 The lack of clarity about human rights obligations may have serious impacts on the ground: If tasks and mandates do not follow a clear normative and strategic approach, can it even be expected from the individual human rights officer on the ground to successfully implement the mandate? Which consequences does this have for the overall human rights record of the mission? Before looking at these issues more closely by way of three explorative case studies, the next part discusses the consequences of potential human rights violations by peace operations. 431 T. Howland, Peacekeeping and Conformity with Human Rights Law:  How minustah Falls Short in Haiti, 13(4) International Peacekeeping (2006), 462, at 463 f. An insightful account on the uneasy relationship between mandate implementation and fulfilment of human rights obligations is provided by U. Garms, Promoting Human Rights in the Administration of Justice in Southern Sudan, 6 International Organizations Law Review (2009), 581. 432 M. Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 499.

­c hapter 3

Consequences of Human Rights Violations in Peace Operations The previous chapters have established the following findings: first, from an institutional perspective, policy and doctrine on human rights in peace operations show gaps concerning legal clarity and overall strategic guidance. Secondly, the scope and content of human rights mandates of UN peace operations vary greatly. This bears the risk of insufficient, if not arbitrary protection of human rights. In this part, the legal consequences of human rights violations in peace operations will be discussed by taking a closer look at the issues of responsibility (i) and accountability (ii). i

Responsibility for Human Rights Violations

Responsibility, as but one component of the broader concept of accountability,1 is “a cardinal institution of international law”.2 The notion of State responsibility is well established after having been discussed by the International Law Commission (ilc) for over more than 40 years and being codified in the Articles on Responsibility of States for Internationally Wrongful Acts of 10 August 2001 (ars).3 As to the responsibility of international organizations, the development of clear principles is a more recent development.4 It culminated in 1 See infra, ii. 2 J. Crawford, State Responsibility, mpepil, September 2006, MN 1. 3 Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the Commission at its fifty-​third session in 2001 (with commentaries), UN Doc A/​56/​10, adopted by the General Assembly, 28 January 2002, UN Doc A/​RES/​56/​83. Literature on State responsibility is more than abundant, therefore see for an overview as well as for further literature, J.  Crawford, State Responsibility, mpepil, September 2006 and his Introductory Note on the Articles on Responsibility of States for Internationally Wrongful Acts, United Nations Audiovisual Library of International Law, http://​legal.un.org/​avl/​ha/​rsiwa/​rsiwa.html. Some authors argue in favour of State responsibility for the acts of IOs of which it is a member, see most notably O. de Schutter, Human Rights and the Rise of International Organisations, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 51, at 73. This is approach is not further pursued here. 4 The rules governing State responsibility are not simply transferable to IOs, as Article 57 asr affirms:  “These articles are without prejudice to any question of the responsibility under

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the adoption of the Articles on the Responsibility of International Organizations (ario) in 2011 by the ilc.5 While obligations of international organizations may differ from those of States, the main elements of the responsibility of international organizations closely resemble the elements of State responsibility; the ario are largely based on the asr.6 According to Article 3 ario, “[e]‌very internationally wrongful act of an international organization entails the international responsibility of that organization”. An internationally wrongful act of an international organization exists if two conditions are met, namely: an act or omission is (a) is attributable to that organization under international law; and (b) constitutes a breach of an international obligation of that ­organization.7 Therefore, a violation of a primary norm of international law such as human rights law, which is attributable to the UN, triggers the application of secondary norms, namely legal responsibility of the UN.8 While the existence of a

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international law of an international organization, or of any State for the conduct of an international organization.” Articles on Responsibility of International Organizations, adopted on second reading at the sixty-​third session of the ilc, in 2011, UN Doc A/​66/​10 and Add.1, paras. 82–​83 and 87–​88. In resolution 66/​100 of 9 December 2011, the General Assembly took note of the arios and commended them to the attention of Governments and IOs. For procedural history refer to http://​legal.un.org/​avl/​ha/​ario/​ario.html, which also features an Introduction by Special Rapporteur Giorgio Gaja, Introductory Note, Articles on the Responsibility of International Organizations, New York, 9 December 2011. For a critical assessment of the arios see C. Ahlborn, The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations, 9 International Organizations Law Review (2012), 53; C. Amerasinghe, Comments on the ilc’s Draft Articles on the Responsibility of International Organizations, 9 International Organizations Law Review (2012), 29; J. d’Aspremont, The Articles on the Responsibility of International Organizations, 9 International Organizations Law Review (2012), 15. For a positive assessment see K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, with further references to more critical voices. On the particular issue of the rules of an organisation see C. Ahlborn, The Rules of International Organizations and the Law of International Responsibility, 8 International Organizations Law Review (2011), 397. M. Hartwig, International Organizations or Institutions, Responsibility and Liability, mpepil, May 2011, MN 14 f. Critically commenting on the merits and shortcomings of this approach see C. Ahlborn, The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations, 9 International Organizations Law Review (2012), 53. Art. 4 ario. See also T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 120 f.

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breach of human rights obligations will be analysed more closely in the case studies in the next part, the question of attribution of conduct is a more general one, which has to be discussed in advance. 1 Attribution of Conduct The UN can only be made responsible for human rights violations if the activities in question amounting to human rights violations are attributable to the organization. Since peace operations are made up of national contingents, i.e. State organs of troop-​contributing States, the question of attribution of conduct is not a clear-​cut one.9 The premise for attributing conduct either to the UN or to the sending States is the existence of a “functional link”10 between the respective entities. Attribution is hence a “legal operation of identifying the functional link of the subject of international law with the author of the conduct.”11 The legal rules for attributing conduct of individuals or civil or military contingents to an international organization are far from being clearly established and have spurred vivid academic debate.12 The ilc’s ario are one attempt to offer codification of the issue. Article 6 of the ario states the general rule, according to which [t]‌he conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.

9 10 11

12

ilc, Second report on responsibility of international organizations by Mr. Giorgio Gaja, Special Rapporteur, 2 April 2004, A/​CN.4/​541, para. 35. Ibid., para. 17. Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations:  Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 278. Among the most-​cited earlier works on this issue see, for instance, U. Häußler, Human Rights Accountability of International Organisations in the Lead of International Peace Missions, in:  J. Wouters et  al. (eds.), Accountability for Human Rights Violations by International Organisations (2010), 215; M.  Hirsch, The Responsibility of International Organizations toward Third Parties:  Some Basic Principles (1995); Peacekeeping, in:  B. Simma et  al. (eds.), The Charter of the United Nations. A  Commentary, 3rd ed. 2012, 1171; K.  Larsen, The Human Rights Treaty Obligations of Peacekeepers (2012); J.-​P. Schütze, Die Zurechenbarkeit von Völkerrechtsverstößen im Rahmen mandatierter Friedensmissionen der Vereinten Nationen, 2011; M.  Zwanenburg, Accountability of Peace Support Operations, 2005.

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The term “agent” is to be understood “in the most liberal sense”, as the icj defines it in its Reparations for Injuries case to mean “any person who, […] has been charged by an organ of the organization with carrying out, or helping to carry out, one of its functions –​in short, any person through whom it acts.”13 Article 7 of the ario refers to the conduct of organs or agents placed at the disposal of another international organization and considers it “an act of the latter organization if the organization exercises effective control over that conduct.” According to the commentary to the ario, the ilc deems military contingents placed at the disposal of the UN for a peacekeeping operation not to be “fully seconded” to the organization and therefore not falling under the general rule of Article 6.14 Instead, in this “different situation”, the ilc argues, the State “retains disciplinary powers and criminal jurisdiction over the members of the national contingent”. Therefore, the question arises whether the conduct is to be attributed to the organization or to the seconding State.15 The ilc seems to suggest that the conduct of a peacekeeping operation can only be attributed to the UN if the latter exercises “effective control” over that conduct. Contrariwise, the UN Legal Counsel stated in a commentary to the ilc that it worked under the assumption that acts of peace operations were attributable to the UN: As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation.16 13

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icj, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, icj Rep. 1949, 174. The ilc endorses this understanding in its commentary to the ario, see ilc, Articles on Responsibility of International Organizations, adopted on second reading at the sixty-​third session of the ilc, in 2011, UN Doc A/​66/​10 and Add.1, Commentary to Article 6, paras. (2) et seq. Starski speaks of an “elimination of any type of institutional ties” (“Beseitigung jeglicher institutionelle[r]‌Bande zum Staat”) in the context of Article 6 ario, see P. Starski, Zurechnungsfragen bei Multinationalen militärischen Einsätzen, mpil Research Paper Series, No. 2017–​18, at 5. ilc, Articles on Responsibility of International Organizations, adopted on second reading at the sixty-​third session of the ilc, in 2011, UN Doc A/​66/​10 and Add.1, Commentary to Article 7, para. (1). Unpublished letter of 3 February 2004 by the UN Legal Counsel to the Director of the Codification Division, quoted in ilc Report of the International Law Commission, 56th session, UN Doc. /​59/​10 (2004), p.  112. See also Report of the International Law Commission, 56th session, UN Doc. /​59/​10 (2004), Commentary on Article 5, at 111. Coming to the same conclusion G. Verdirame, The UN and Human Rights, 2011, at 199 ff.

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As a consequence, the ilc’s effective control test in Article 7 ario offers a rule of attribution that apparently is in contradiction with the UN’s approach of automatic attribution of conduct as foreseen in Article 6 ario and supported by some international scholars.17 While literature on the issue is truly abundant, State practice and jurisprudence so far fail to offer a consistent stance on the issue. In Behrami v. France and Saramati v. France, Germany, and Norway,18 for instance, the ECtHR ascertained whether acts and omissions of Kosovo Force (kfor) and unmik could be attributed to the UN by relying on the ilc’s understanding of “attribution”.19 In doing so, the ECtHR considered in relation to kfor whether the Security Council “retained ultimate authority and control so that operational command only was delegated”.20 Since “kfor was exercising lawfully delegated Chapter vii powers” of the Security Council, the Court found kfor’s action to be attributable to the UN.21 Concerning unmik, the Court held that unmik’s action was also attributable to the UN, on the ground that unmik was a subsidiary organ of the UN.22 The ECtHR’s interpretation of effective control as “ultimate authority and control” was heavily criticized by scholars.23 In the later Al-​Jedda case concerning the detention of an Iraqi national by British troops in Iraq, the ECtHR confirmed a ruling by the UK House of Lords24 17

Sari and Wessel consider the status of UN-​led operations as subsidiary organs as a sufficient ground for attributing their conduct to the UN, see in detail A. Sari and R.A. Wessel, International Responsibility for EU Military Operations:  Finding the EU’s Place in the Global Accountability Regime, in:  B. Van Vooren et  al. (eds.), The EU’s Role in Global Governance:  The Legal Dimension (2013), 126, at 133. For a contrary view see Okada who claims that the “formal characterization as an organ is not a necessary condition for attribution any more than a sufficient condition”, Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 279. 18 ECtHR, Behrami v. France and Saramati v. France, Germany and Norway (nos. 71412/​01 and 78166/​01), Decision on Admissibility of 2 May 2007. 19 Ibid., para. 121. 20 Ibid., para. 133. 21 Ibid., para. 141. 22 Ibid., para. 143. 23 See most notably M. Milanovic and T. Papic, As Bad As It Gets: The European Court of Human Rights’s Behrami and Saramati Decision and General International Law, 58 ICLQ (2009), 267; K. Larsen, Attribution of Conduct in Peace Support Operations: The ‘Ultimate Authority and Control’ Test, 19 European Journal of International Law (2008), 509; Krieger, A Credibility Gap: The Behrami and Saramati Decision of the European Court of Human Rights, 13 Journal of International Peacekeeping (2009), 159. 24 House of Lords, R. (On the Application of Al-​Jedda) v.  Secretary of State for Defence, 12 December 2007, [2007] UKHL 58 (the United Kingdom).

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and concluded that the Security Council “had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multinational Force and that the applicant’s detention was not, therefore, attributable to the United Nations.”25 The ECtHR with this judgment returned to the effective control test as a standard for attribution. On a national level, the issue of attribution of conduct was discussed by several Dutch courts in the context of the Srebrenica massacre. In Nuhanović v. the Netherlands and Mustafić v. the Netherlands,26 the plaintiffs sought remedy against the UN and the Netherlands for the deaths of their family members who were expelled from the UN compound and subsequently killed. The Hague Court of Appeal found that in the special circumstances of the case, “the State had ‘effective control’ over the conduct of Dutchbat”27 and thus found the Netherlands responsible. The Dutch Supreme Court upheld this view.28 It is interesting to note that the Court of Appeal in the Nuhanović and Mustafić case adopted what has been called a “preventive interpretation”29 of effective control. It argued that the question whether the State had effective control over Dutchbat does not only imply that significance should be given to the question whether that conduct constituted the execution of a specific instruction, issued by the UN or the State, but also to the question whether, if there was no such specific instruction, the UN or the State had the power to prevent the conduct concerned.30 This line of reasoning is based on an argument put forward by Tom Dannenbaum who claims that “ ‘effective control’ must be understood to mean ‘control

25 ECtHR, Al-​Jedda v. UK (no. 27021/​08) Judgement of 7 July 2011, para. 84; for a case note see M. Milanovic, European Court Decides Al-​Skeini and Al-​Jedda, EJIL:Talk!, 7 July 2011. 26 Court of Appeal of The Hague, Nuhanović v. Netherlands & Mustafić-​Mujić v. Netherlands, Judgement of 5 July 2011, Case no. 200.020.174/​01. 27 Ibid., para. 5.9. 28 Supreme Court of the Netherlands, The State of the Netherlands v.  Hasan Nuhanovic Judgement of 6 September 2013, case no. 12/​03324. 29 Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 285; M. Moëlle, The International Responsibility of International Organisations: Cooperation in Peacekeeping Operations, 2017, at 169. 30 Court of Appeal of The Hague, Nuhanović v. Netherlands & Mustafić-​Mujić v. Netherlands, Judgement of 5 July 2011, Case no. 200.020.174/​01, para. 5.9.

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most likely to be effective in preventing the wrong in question’.”31 According to Dannenbaum, an attribution of conduct based on the ability to prevent harmful conduct better serves the interest of victims since it allows for “attributing liability to the entity most responsible for the wrongdoing”.32 While this approach deserves merit from a human rights and victims’ perspective, it does not reflect the current status of international law concerning the rules of attribution of conduct to international organizations as reflected by State practice or opinio iuris.33 In the Stichting Mothers of Srebrenica case, the Hague Court of Appeal once more applied the effective control test, but no longer seemed to rely on the preventive interpretation. Instead, the court considered the specific circumstances of the case and found that in the given situation, which it called “transition period”, the Dutch government actively participated in decision-​making concerning Dutchbat’s activities. Therefore, the court concluded that the State of the Netherlands exercised effective control over Dutchbat’s conduct in that transition period.34 Thus, in interpreting the effective control test, the Court of Appeal put special emphasis not on the ability to prevent wrongdoing but on the exercise of factual, operational authority.35 In sum, several instances of jurisprudence seem to follow the traditional –​ presumptive –​approach to an effective control test36: the conduct of military contingents that have been put under the authority of the UN for the purpose

31

32 33 34 35 36

T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 114. For a critique of that approach see, e.g. J. Paust, The U.N. Is Bound By Human Rights: Understanding the Full Reach of Human Rights, Remedies, and Nonimmunity. Responding to Tom Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal 301 (2010), 51 Harvard ILJ Online, 12 April 2010, at 1–​12. T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010) 113, at 114. P. Schmitt, Access to Justice and International Organizations, 2017, at 26. Stichting Mothers of Srebrenica et al. v. the State of the Netherlands and the United Nations, Judgment of The Hague Court of Appeal, 27 June 2017, Case nos. 200.158.313/​01 and 200.160.317/​01, para. 25. Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 288. However, it is true that there is no clear consensus on the level or variant of control that is needed for attribution to an IO, see M.  Moëlle, The International Responsibility of International Organisations: Cooperation in Peacekeeping Operations, 2017, at 169.

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of peacekeeping operations is presumed to be attributable to the UN.37 Giorgio Gaja, the ilc’s Special Rapporteur on the responsibility of international organizations, clarified that this is the case even though troop-​contributing countries regularly retain control over disciplinary matters and have exclusive jurisdiction in criminal affairs.38 This logic is taken up by Article 6 ario and corresponds to the understanding of the UN and State practice.39 Nevertheless, it has been noted that a single attribution to the UN and the corresponding exclusive responsibility of the UN may be too narrow a view.40 States maintain a certain degree of control in practice, even when formally acting under exclusive command and control of the UN in UN-​led peace operations.41 Therefore, the presumption of attribution of conduct to the UN can be rebutted on factual grounds, namely “whenever national contingents operate under the direct instructions of their contributing state and thereby in fact fall outside the reach of the UN’s effective control.”42 In that case, the conduct has to be attributed to

37 38 39 40 41

42

Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 276. ilc, Second report on responsibility of international organizations by Mr. Giorgio Gaja, Special Rapporteur, 2 April 2004, A/​CN.4/​541, para. 40. M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 100; M. Zwanenburg, International Military Forces, MPEPIL, September 2015, MN 26. U. Fastenrath, Art 1, in: K. Pabel and S. Schmahl (eds.), Internationaler Kommentar zur Europäischen Menschenrechtskonvention, 14th ed. 2012, at 30, MN 59, with further references. This includes not only control over disciplinary and administrative matters, but also “phone-​home” activities or refusals to obey orders, see J. Grenier, Extraterritorial applicability of human rights treaty obligations to United Nations-​mandated forces, in: A. Faite and J. Grenier (eds.), Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces, 2004, 79, at 80; M.  Mayr, Extraterritorial Application of the European Convention on Human Rights and the Access to the Court for Victims of Human Rights Violations of ESDP Missions, 7 BSIS Journal of International Studies (2010) 1, at 17, with further references; M.  Zwanenburg, Accountability of Peace Support Operations, 2005, at 39 ff.; U. Häußler, Human Rights Accountability of International Organisations in the Lead of International Peace Missions, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 215, at 247. See also, in some detail T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010) 113, at 148 ff. See also supra, Chapter 2.v.2.b. on extraterritorial human rights obligations. A. Sari and R.A. Wessel, ‘International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime’, in: B. Van Vooren et al. (eds.), The EU’s Role in Global Governance: The Legal Dimension (2013), 126, at 133.

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the sending State or, under certain factual circumstances, also to both the UN and the State.43 As this brief overview shows, under the current state of international law, the rules of attribution are still in the process of consolidation. The UN’s view and recent jurisprudence speak for the presumption-​rebuttal approach. Sufficient State practice is still lacking,44 even though some commentators consider existing State practice to support the presumptive approach.45 On the other hand, the wording of Art. 7 ario seems to suggest a factual approach under which conduct is only attributable when the UN exercises a certain level of effective control.46 While the status of the ario as lex lata is subject to debate,47 international and national jurisdictions are increasingly considering them as the state of law.48 The tension between Art. 6 and Art. 7 ario is yet to be resolved.49

43

44 45 46

47

48

49

See, e.g., the judgement of the Dutch Supreme Court in State of the Netherlands v. Mustafić et  al., 6 September 2013, BZ9228 (the Netherlands) and Supreme Court, State of the Netherlands v.  Nuhanović, BZ9225, 6 September 2013 (the Netherlands). For a critical assessment, see P. Schmitt, Access to Justice and International Organizations, 2017, at 23. For a more detailed account on dual attribution see, instead of many, M. Zwanenburg, International Military Forces, mpepil, September 2015, MN 27 and P.  Starski, Zurechnungsfragen bei Multinationalen militärischen Einsätzen, mpil Research Paper Series, No. 2017–​18, at 26 ff. P. Schmitt, Access to Justice and International Organizations, 2017, at 14 f. with further references. See e.g. A.  Sari, UN Peacekeeping Operations and Article 7 ario, 9 International Organizations Law Review (2012) 77, at 84 f. and M. Zwanenburg, Accountability of Peace Support Operations, 2005, at 34 ff. Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 276; P.  Starski, Zurechnungsfragen bei Multinationalen militärischen Einsätzen, mpil Research Paper Series, No. 2017–​18, at 5. See, e.g., P.  Schmitt, Access to Justice and International Organizations, 2017, at 14 ff; J. Wouters and J. Odermatt, Are All international Organizations Created Equal? Reflections on the ilc’s Draft Articles on the Responsibility of International Organizations, 9 iolr (2012), 7. P. Schmitt, Access to Justice and International Organizations, 2017, at 26; P.  Starski, Zurechnungsfragen bei Multinationalen militärischen Einsätzen, mpil Research Paper Series, No. 2017–​18, at 3. See also Daugirdas who calls the ario “neither premature nor feckless”, 25(4) EJIL 991, at 993. Moëlle wonders whether the distinction between Article 6 and Article 7 is “not simply artificial and somehow redundant”, M.  Moëlle, The International Responsibility of International Organisations: Cooperation in Peacekeeping Operations, 2017, at 171.

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The strictly factual approach of the ario has the advantage that conduct is attributed based on the facts and circumstances and therefore satisfies the actual realities in a given case.50 Furthermore, it allows allocating responsibility for the respective wrongdoing to that entity which actually was in charge. On the other hand, this approach may lead to greater legal uncertainty, since attribution may be different from case to case. For victims, this can have detrimental effects when they do not necessarily know against whom they have to bring their claims. This having been said, it remains, for reasons explained in more detail below, difficult for victims to gain justice when seeking remedies from the UN.51 In any case, as important as accountability and redress for victims are, these questions remain distinct from the legal operation of attribution of conduct. From an institutional law point of view, it seems more reasonable to attribute conduct to the UN because the organization has an interest in integrity vis-​à-​vis third parties, as the Secretariat emphasised in its comments to the ilc.52 Besides, the UN depends on the continued willingness of States to support peace operations by contributing troops and civilian personnel. If States regularly had to face responsibility for the conduct of peacekeepers, while at the same time lacking full authority over the latter, their readiness to participate in future peace operations may most likely wane. These considerations of viability and sustainability of peace operations speak in favour of a presumptive attribution to the UN.53 In conclusion, despite a somewhat different approach by the ario, it is purported here that conduct of peace operations is in principle attributable to the UN, be it on the basis of their status as a subsidiary organ or on the basis of a rebuttable presumption.54 If factual circumstances suggest, this 50 P. Starski, Zurechnungsfragen bei Multinationalen militärischen Einsätzen, mpil Research Paper Series, No. 2017–​18, at 23. 51 At this moment see only Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 291 and in more detail, T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113. See in more detail, infra, ii. 52 ilc, Responsibility of International Organizations: Comments and Observations Received from International Organizations, UN Doc. A/​CN.4/​637/​Add.1 (2011), Comment on Article 6 by the United Nations, para. 5. 53 Y. Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275, at 281 f. 54 This view is also shared by A.  Sari, UN Peacekeeping Operations and Article 7 ario, 9 International Organizations Law Review (2012), 77, at 84 f.; M.  Zwanenburg,

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presumption may be rebutted in an individual case and can result in attribution of conduct to the sending State or to both the UN and the State.55 As will be shown in the following chapters, the examples analysed in the present study do not give rise to serious doubts against the general assumption that the conduct of the peace operations can be attributed to the UN, notwithstanding a potential additional attribution to a State. Therefore, as a general presumption for the purpose of the present work, the issue of attribution does not prevent the UN from being held accountable for human rights ­violations. 2 Circumstances Precluding Wrongfulness Once an act or omission amounting to a breach of international law and attributable to an international organization is found, this organization is responsible. However, factual circumstances could provide a justification or excuse for an act or omission which would otherwise be wrongful. Like the ars, also the 2011 ario list a number of circumstances precluding the wrongfulness of an act. If applicable to the situations described in the present book, this could mean that the UN has not committed an international wrongful act and is, in consequence, not to be held responsible under international law. a Consent According to Article 20 ario, valid consent given by a State or another international organization can preclude the wrongfulness of an act. This does not include acts which are not in conformity with an obligation arising under a peremptory norm of general international law (Article 26 dario). In any event, it is difficult to imagine that any State or any other international organization would consent to the violation of human rights by a UN peace operation. To all intents and purposes, such an example of consent has been given neither explicitly nor implicitly.

55

Accountability of Peace Support Operations, 2005, at 34 ff.; Y.  Okada, Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-​contributing nations, 32 LJIL (2019), 275; A. Sari and R.A. Wessel, ‘International Responsibility for EU Military Operations:  Finding the EU’s Place in the Global Accountability Regime’, in:  B. Van Vooren et  al. (eds.), The EU’s Role in Global Governance: The Legal Dimension (2013), 126. In some instances, conduct will have to be attributed to two international organizations, see comprehensively M. Moëlle, The International Responsibility of International Organisations: Cooperation in Peacekeeping Operations, 2017.

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b Self-​defence Secondly, wrongfulness would be precluded if the act constituted a measure of self-​defence, as stated in Article 21 ario. It does not need much explanation to conclude that the UN regularly does not act in self-​defence when violating human rights obligations. Clearly, there are situations in which the UN could be forced to take action in self-​defence that lead to infringing human rights of individuals. Such situations could possibly occur in missions in which the UN operates under a robust mandate, in circumstances potentially amounting to armed conflict, as for instance in the DR Congo.56 Other possible situations could occur when members of the peace operation find themselves under direct attack, as for example in Mali.57 In these situations, various activities potentially infringing or violating human rights (e.g. the deprivation of liberty) could be considered lawful as a consequence of self-​defence. Such assessments, however, can only be made very carefully and on a case-​by-​case basis. They are not suitable as a general excuse for UN (standard) behaviour. Regarding the case studies examined here (Kosovo, Timor-​Leste, Haiti),58 the UN did not find itself under armed attack or imminent threat of attack, which would warrant actions in self-​defence, in any of these missions. c Countermeasures in Respect of an Internationally Wrongful Act Thirdly, Article 22 ario states that an act is not wrongful if it constitutes a countermeasure taken in accordance with the substantive and procedural conditions required by international law. It is difficult to imagine how potential human rights violations by UN peace operations could have been taken as a countermeasure. Also, it remains open to debate whether countermeasures are allowed under human rights law in the first place.59 Hence, countermeasures thus do not serve as justification for human rights violations. d Force Majeure The argument of force majeure could be relevant in the context of UN peace operations. According to Article 23.1 ario, the

56 57

On the Intervention Brigade as part of monuc see supra Chapter 1.i.3. The peace operation has repeatedly been attacked, for instance in September 2017, leaving two peacekeepers dead and two others seriously injured, see UN News Centre, Security Council, UN chief condemn latest attack on peacekeepers in Mali, 6 September 2017. 58 See infra, Chapter 4. 59 U. Fastenrath, Entwicklung und gegenwärtiger Stand des internationalen Menschenrechtsschutzes, in:  U. Fastenrath (ed.), Internationaler Schutz der Menschenrechte, 2000, 9, at 45.

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wrongfulness of an act of an international organization not in conformity with an international obligation of that organization is precluded if the act is due to force majeure, that is, the occurrence of an irresistible force or of an unforeseen event, beyond the control of the organization, making it materially impossible in the circumstances to perform the obligation. Generally speaking, force majeure is not applicable to peace operations, since they regularly take place as enterprises planned and organised by a considerable bureaucracy and follow established rules and guidelines. Even if some operations may on rare occasions appear as having escaped the grip of control of the organization, they are generally not a result of an irresistible force or an unforeseen event. In one instance, however, a closer look is justified. When the earthquake hit Haiti in January 2010, it happened as an unforeseen event for the mission as it did for everybody else. The cholera epidemic that followed was a result of leaking wastewater coming from the peace operation’s base and the subsequent contamination of drinking water.60 As a consequence, one could argue that the alleged violation of the victims’ human rights to clean water and to health that has been brought forward against the UN, are precluded from wrongfulness since the earthquake and its consequences had made it “materially impossible … to perform the obligation” (Art. 23.1 ario). This argumentation, however, neglects the fact that the UN had ignored its own principles when setting up the sewage system of the operation, an activity that was unaffected by the earthquake.61 Therefore, the earthquake itself was not the reason for the human rights violations. Hence, even in this case, force majeure cannot be brought forward to preclude human rights violations by peace operations from wrongfulness. e Distress Article 24 ario affirms that wrongfulness of an act is precluded, if there is “no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.” While it may be possibly admitted that a UN peace operation saves lives of persons entrusted to the former’s care, human rights infringements of peace operations do generally not result from a situation of distress, leaving no other reasonable way.

60 See in detail infra Chapter 4.iii.3.b. 61 See infra Chapter 4.iii.3.b.

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Instead, they come up as a consequence of policy and management decisions taken in the set-​up of the mission or during standard operation of the mission. Therefore, distress is not a valid cause for precluding wrongfulness of the UN’s actions. f Necessity Last but not least, Article 25 ario affirms the customary notion of necessity. Keeping the scope of application narrow, necessity may, according to Article 25.1(a) ario, only be invoked if the act in question is the only means for the organization to safeguard against a grave and imminent peril an essential interest of its member States or of the international community as a whole, when the organization has, in accordance with international law, the function to protect the interest in question; In academic literature as well as in statements from UN practitioners, it has repeatedly been stated that UN peace operations have to compromise on human rights protection in order to safeguard the overall goal of maintaining peace in the country in which the mission is operating.62 Maintaining peace and security is, without doubt, “an essential interest” of the UN’s member States as well as of the international community as a whole. In addition, the UN indeed has the function to protect this interest according to Article 1(1) of its Charter. This notwithstanding, necessity may not be invoked here for several reasons. First of all, the infringement of human rights cannot be regarded “the only means” to safeguard the interest of maintaining peace and security. If a more vigorous human rights protection rivals against the protection of peace because of strained financial and personal resources,63 an increased budget can be an appropriate means to attain both goals. If human rights protection is perceived as hindering the peace process,64 then a careful weighing of 62

63 64

This happens especially with respect to transitional justice, i.e. the judicial assessment of human rights violations that had happened during the conflict. Numerous authors have voiced concern that the pursuit of justice can severely hinder the peace process. See e.g. J. Klabbers, Redemption Song? Human Rights Versus Community-​building in East Timor, 16(2) LJIL (2003), 367; M. Kelly, The UN, security and human rights, in: N. White and D.  Klaasen (eds.), The UN, human rights and post-​conflict situations, 118, at 145. For more examples of “dilemmas” between human rights and peace, see H. Henninger, Menschenrechte und Frieden, 2013, at 140 ff. E.g. H. Kiderlen, Von Triest nach Osttimor, 2008, at 329. Cp. E. Lutz, Understanding Human Rights Violations in Armed Conflict, in: J. Mertus and J. Helsing (eds.), Human Rights and Conflict, 2006, 23.

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priorities is in order, instead of a plain disregard of human rights. Furthermore, shortcomings in the protection of specific rights, such as procedural rights, can be regarded neither as suitable nor as necessary means for safeguarding peace and security. Secondly, the risk of falling back into conflict is usually not a “grave and imminent peril” (Article 25.1 (a) ario), but rather a common feature of post-​ conflict situations in general, with or without the deployment of a UN peace operation.65 Instances in which a relapse into armed conflict is imminent may be thinkable and have happened while a UN mission was on the ground (e.g. in East Timor). In these situations, however, it was not the lack of protection for human rights that saved the situation but rather robust military action (like the military intervention by Australia).66 This having been said, one more impediment to regarding human rights violations precluded from wrongfulness because of necessity remains. Art. 25.1 (b) ario allows for invoking necessity only if it does not seriously impair an essential interest of the State or States towards which the international obligation exists, or of the international community as a whole. It can be argued that the protection of human rights is an “essential interest” of the international community as a whole. Promoting and encouraging respect for human rights is one of the purposes of the United Nations and is codified in Article 1(3) of the Charter. Moreover, the development of human rights law in the last century has left no doubt that the protection of human rights is not left to the disposal of willing States but falls under the interest of the community as a whole.67 Therefore, it cannot be impaired as a consequence of necessity. g Human Rights Violations May Be Justified because of Greater Good In a variation of the aspect of necessity, a rather commonplace attempt to justify potential human rights violations involves the undeniable importance of a greater good, namely the success of the mission as such. Numerous variations of this argument exist in both academic literature and from

65

Empirical studies have shown that more than half of all countries emerging from armed conflict fall back into violence within five years, P.  Collier et  al., Breaking the Conflict Trap, 2003, at 83–​88. 66 See infra Chapter 4.ii.4.b. 67 See supra Chapter 1.i.2.

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commentators of practice.68 The dilemma of peace versus justice69 is frequently brought forward in this context as well as the issue of repatriation of refugees, including the reconstruction and restitution of property, which could arguably destabilize a country that has just emerged from (ethnical) conflict.70 Other examples relate to the protection of minorities and to their right to democratic participation.71 In essence, all the examples and arguments boil down to the claim that the protection of human rights may be qualified to secure the success of the mission, which is strongly related to the maintenance of security. Therefore, the key word in this discussion is balance between security and human rights. It rests on the assumption that a dilemma or trade-​off exists between the maintenance of security (and thus peace) on the one hand and the protection of human rights on the other one. In the Capstone Doctrine, for instance, dpko cautions that a balance must be struck between the need to ensure that developmental, human rights, gender and other perspectives are fully taken into

68

69

70

71

E.g. C. Bell, Peace agreements and Human rights, in: N. White and D. Klaasen (eds.): The UN, human rights and post-​conflict situations, 2005, 241, at 247 f., calling for a moving away from focusing on “clashes of human rights and pragmatic politics” in favour of a perception as “dilemmas of change management”. In his persuasive work, Henninger not only describes these dilemmas both as factual and legal problems, but also offers a well-​ reasoned solution, see H. Henninger, Menschenrechte und Frieden, 2013. For examples see C. Bell, Peace agreements and Human rights, in: N. White and D. Klaasen (eds.):  The UN, human rights and post-​conflict situations, 2005, 241, at 248 with further references. See also S.  Buckley-​Zistel, “The Truth Heals”? Gacaca Jurisdiction and the Consolidation of Peace in Rwanda, 80 FW (2005), 110, at 120 f.; hrap, Final Report, 2016, at 23, para. 3 (“Such violations may be seen by the international organization as justified by the need to suppress hostile or divisive elements and to neutralize security threats in a turbulent post-​conflict”); in detail C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001), 105, at 163 ff. E.g. M. Kelly, The UN, security and human rights, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​conflict situations, 118, at 143 (commenting on untaet); on unmik see Report of the Security Council Mission on the implementation of Security Council resolution 1244 (1999), 29 April 2000, UN Doc. S/​2000/​363, para. 7 (“uncontrolled and massive returns could actually destabilize the security situation and seriously aggravate inter-​ethnic tensions”). For more general considerations see C.  Bell, Peace agreements and Human rights, in: N. White and D. Klaasen (eds.): The UN, human rights and post-​conflict situations, 2005, 241, at 247 f. as well as A. Hvidsten and K. Skarstad, The challenge of human rights for peace research, 10(1) International Theory (2018), 98, at 105 ff. E.g. H. Henninger, Menschenrechte und Frieden, 2013, at 141 f.

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account, and the need to deliver a timely and effective humanitarian and security response.72 This claim seems to establish a polarisation of security versus human rights (and other) perspectives and arguably suggests that humanitarian and security issues should not be obstructed by supposedly less important questions such as human rights. Such a confrontation is in contradiction to a broad understanding of security of which human rights are part –​an understanding that is repeatedly brought forward by UN officials.73 In his 2005 report In Larger Freedom, then Secretary-​General Kofi Annan already maintained unequivocally that [i]‌t would be a mistake to treat human rights as though there were a trade-​off to be made between human rights and such goals as security or development.74 Nevertheless, in the debate on human rights protection in peace operations, Kofi Annan’s paradigm seems to be eclipsed, since the perceived dilemma of security versus human rights is regularly brought forward, and the standard solution is almost always seen as lying in a prioritisation of the former over the latter.75 This priority for security is based on different explanations, both legal and factual. Some authors assume a general legal priority of peace and security

72

dpko, Principles and Guidelines (Capstone Doctrine), 2008, at 54. Michael Kelly asks “what is the correct balance between security and human rights?”, M. Kelly, The UN, security and human rights, in: N. White and D. Klaasen (eds.), The UN, human rights and post-​ conflict situations, 118, at 145. 73 E.g. Securing peace and development:  the role of the United Nations in supporting security sector reform, Report of the Secretary-​General, 23 January 2008, UN Doc A/​62/​659–​S/​2008/​39 (2008), para. 35. 74 In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-​General, 21 March 2005, UN Doc. A/​59/​2005, para. 140. 75 For instance, in its report on the lessons learned from the peacekeeping operations in Sierra Leone, dpko concedes that “the benefits of activities in the human rights area tend to be in the longer term. In the short term, there may be times when reporting human rights violations may be perceived to be counter-​productive to pushing the peace process forward or even contrary to the interests of the mission. The Human Rights Section of unamsil had its share of those moments when there was considerable scepticism, even within the mission, about the usefulness of its tasks.”, United Nations dpko, Peacekeeping Best Practices Unit, Lessons Learned from United Nations Peacekeeping Experiences in Sierra Leone, September 2003, at 55 (emphasis added).

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over human rights. In his commentary to Article 1 of the UN Charter, Wolfrum suggests that in case of conflict between the different purposes laid down in Article 1, “practical concordance” has to be established, “while giving priority to the lasting preservation of peace.”76 This priority of one goal over another one is explained by the wording of the Charter, which itself establishes primary goals (i.e. peace and security) and secondary goals (such as human rights).77 They purport that while Article 1(1) describes the maintenance of international peace and security as direct purpose, Article 1(3) only indirectly mentions human rights as means to achieve international co-​operation.78 Others claim that peace and security are a precondition for the protection of human rights.79 The icj provided a source for this line of argumentation in its Advisory Opinion on Certain Expenses when it stated that “[t]‌he primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition.”80 A related argument suggests a gradual implementation of human rights proportionate to the level of peace that exists in the mission context.81 The more a peace operation succeeds in securing peace and security, the more 76

77

78 79 80 81

R. Wolfrum, Article 1, in:  B. Simma et  al. (eds.), The Charter of the United Nations:  A Commentary, 3rd ed. 2012, 107, at 109, MN 5. Similarly, D. Schweigmann, The Authority of the Security Council under Chapter vii of the UN Charter, 2001, at 170. See also Albrecht Randelzhofer who purports that if practical concordance does not lead to a solution, the sequence of purposes as laid down in the Charter gives an indication about their respective priority, A.  Randelzhofer, Ziele und Grundsätze, in:  R. Wolfrum (ed.), Handbuch Vereinte Nationen, 2nd rev. ed. 1991, 1151, at 1153, MN 8. Most notably H.  Kiderlen, Von Triest nach Osttimor, 2008, at 249; E.  de Wet and A.  Nollkaemper, Review of Security Council Decisions by National Courts, 45 German Yearbook of International Law (2002), 166, at 172 (“The Security Council has to balance the realization of its primary goal with the realization of the secondary goals contained in Articles 1 and 2 of the Charter”); similarly, A. Vradenburgh, The Chapter vii Powers of the United Nations Charter, 14 Loyola of Los Angeles International and Comparative Law Journal (1991), 175, at 180 ff., esp. at 183. Questioning the need for any balancing, see Oosthuizen who contends that the “main object and purpose of the UN is to maintain international peace and security –​nothing in the unc suggests that this purpose must be balanced with any other”, G. Oosthuizen, Playing the Devil’s Advocate: the United Nations Security Council is Unbound by Law, 12 LJIL (1999), 549, at 562. H. Kiderlen, Von Triest nach Osttimor, 2008, at 245 ff. E.g. P. Sutter, Das Treuhandsystem der VN als Mittel zum Peacebuilding? 24 S+F (2006) 26, at 28. icj, Certain Expenses of the United Nations, Advisory Opinion of 10 July 1962, 1962 icj Reports, 151, at 168. Most notably W. Weiß, Security Council Powers and the Exigencies of Justice after War, 12 MPUNYB (2008) 45, at 96.; similarly, H. Kiderlen, Von Triest nach Osttimor, 2008, at 328 ff.

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attention can be dedicated to the implementation of human rights. In its most radical variation, this approach supports the establishment of a certain level of negative peace, before human rights-​related activities –​belonging to the realm of positive peace –​should be undertaken.82 Even though the arguments just presented appear to be sound and convincing in the sense that they accurately mirror the situation on the ground, they cannot persuade from a legal point of view. First of all, the idea of a general priority of peace over human rights disregards the development that the interpretation of the Charter has gone through during the last decades. The Charter itself does not give any explanation on how to understand the term “peace”.83 Originally, the term was intended to mean the absence of military violence, i.e. negative peace.84 The wording of the Charter, however, is comprised of elements of both the negative and the positive85 understanding of peace. On the one hand, the provisions in the Charter allowing for sanctioning of threats or breaches of peace hint at a negative understanding. On the other hand, several provisions contain components of a positive conception of peace, as for instance the preamble, Article 1 paragraphs 1, 2, 3 as well as Chapters ix and x.86 Today, there is general consensus that at least the combined notion of peace and security stands for a positive understanding of peace.87 Against this

82 83 84 85

86

87

This has been called the security-​first approach, see e.g. U.  Schneckener, Frieden Machen: Peacebuilding und Peacebuilder, 80 FW (2005) 17, at 24. The evolution of the interpretation of the term peace has already been described in an earlier work of the present author, see S. Maus, The Responsibility to Rebuild, 23(2) HuV-​i (2010) 52, at 56 ff. D. Blumenwitz, Friedenssicherung, in:  R. Wolfrum (ed.), Handbuch Vereinte Nationen, 2nd rev. ed. 1991, 175, at 176, MN 2. The notion of positive peace has been introduced by Johan Galtung, see for example J. Galtung, Three Approaches to Peace, in: J. Galtung (ed.), Peace, War, and Defense, Vol. ii, 1976, 282. Absent an established definition, the understanding of the scope of positive peace ranges from rather narrow to very broad, but generally includes as characteristic elements the promotion of justice, democracy, as well as economic and social well-​being. See e.g. W.  Heintschel von Heinegg, Factors in War to Peace Transitions, 27 Harvard Journal of Law and Public Policy (2004), 843, at 847. A. Randelzhofer, Ziele und Grundsätze, in: R. Wolfrum (ed.), Handbuch Vereinte Nationen, 2nd rev. ed. 1991, 1151, at 1154, MN 12. See also R. Wolfrum, Article 1, in: B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 3rd ed. 2012, 107, at 109 f., MN 8 ff. For a thorough analysis of the term “peace” in the Charter see M. Lailach, Die Wahrung des Weltfriedens und der internationalen Sicherheit als Aufgabe des Sicherheitsrates der Vereinten Nationen, 1998. C. Tomuschat, Article 33, in: B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 3rd ed. 2012, 1069, at 1073, MN 13; See also S. Maus, The Responsibility to Rebuild, 23(2) HuV-​i (2010), 52, at 56 ff. with further references.

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backdrop, a confrontation of peace versus human rights as a result of Charter interpretation is neither legally tenable nor logically convincing. Even if one, in playing the devil’s advocate, assumes a need for a consideration of legal interests between peace on the one hand and human rights on the other one, the argumentation legally leads into a dead end. A consideration of legal interests (Rechtsgüterabwägung) is only possible if the fulfilment of one legal interest (peace) necessarily violates the other one (human rights). This is rather untenable in the situation at hand, especially as a general claim. Instead, if anything, a case-​by-​case assessment would be necessary to determine whether (1)  the infringement of human rights is suitable for the attainment of peace and (2) whether it is also appropriate, i.e., no less restrictive measure is available to achieve the goal. In a last step, it must be confirmed that the advantages of the measure are in an appropriate balance (angemessenes Verhältnis) to the resulting detriments. It is difficult to imagine that a balancing of this sort would lead to a general prioritization of peace over ­human rights. Finally, also the arguments concerning the progressive implementation of human rights as well as the idea of a security-​first/​pragmatic approach cannot persuade. Henninger rebuts them both by stating that the proponents of a progressive implementation of human rights may aptly describe the realities on the ground, but have so far not succeeded in providing a legal framework for this approach that relates the legal (human rights) obligation to the factual (security) circumstances.88 Besides, the security-​first/​pragmatic approaches lack consistency and predictability of decisions and therefore undermine the legitimacy of the latter.89 Bearing in mind that neither the UN Charter nor any other source of international law provides for a legal justification of this approach, its prima facie persuasiveness has to be put aside in favour of a legally stringent classification. To conclude, it may seem reasonable at first sight to justify human rights infringements with a view to securing a greater good, namely the overall success of a peace operation. However, none of the various approaches arguing along these lines offers a legal justification for such a prioritisation of peace and security over human rights. Therefore, if one assumes a general applicability of human rights to UN peace operations –​as the present study does –​the mere fact that factual circumstances on the ground may be difficult does neither legally alter the existing human rights obligations nor justify their violation.

88 89

H. Henninger, Menschenrechte und Frieden, 2013, at 373 f. Ibid., at 374.

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h Result As the above paragraphs have shown, none of the circumstances precluding wrongfulness as laid down in Articles 20–​25 ario are, in general, applicable to possible infringements of human rights law by UN peace operations. Therefore, it must be upheld that the infringement of human rights law by the UN is a violation of international law as it stands today and entails legal responsibility. Legal Consequences of an Internationally Wrongful Act: Responsibility According to the ario, the violation of an obligation of international law involves several legal consequences. This also holds true for a violation of international human rights law by the UN in peace operations that is imputable to the UN. Therefore, a violation of a primary norm of international law such as human rights law triggers the application of secondary norms, namely legal responsibility of the UN.90 First of all, the UN is under an obligation –​also under customary law –​to cease the international wrongful act, i.e., the human rights violation (Art. 30 (a) ario). As we shall see in more detail in the case studies,91 potential human rights violations are often examined ex post, either after the UN has transferred authority to other entities or has reduced and/​or changed its engagement significantly. Therefore, in most cases, when a cessation of the act takes place, it does so not as a consequence of a legal obligation but because of a change in factual circumstances. Secondly, Art. 30 (b) ario requires an IO to “offer appropriate assurances and guarantees of non-​repetition”. Again, this is hardly applicable to the situations discussed here, since circumstances have changed to a point where repetition is not likely.92 In addition, the UN “is under an obligation to make full reparation for the injury caused by the internationally wrongful act”, with injury including both material and moral damage (Art. 31 ario). According to the ario, reparation takes the form of restitution (i.e. re-​establishing the situation existing before the wrongful act was committed, Art. 35 ario), compensation (Art. 36 ario), and satisfaction (e.g. an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality, Art.  37 ario). Generally speaking, the UN has acted reluctantly concerning reparations in the 3

90

See also T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 120 f. 91 See infra, Chapter 4. 92 See infra, Chapter 4.

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past. Often, it ignored the questions of reparations, passed on the issue to other organizations or even brought forward opaque reasons to evade reparations.93 Hence, compensation by the UN for violations of human rights seems to be rather the exception than the rule, to say the least. From the perspective of international law, this finding is noteworthy. The legal consequences of wrongful acts and most notably the obligation of reparation of injury question are firmly established in international law.94 There is no reason to assume that this very basic principle does not apply to IOs. It is thus hard to avoid the question of how the UN could have been so reluctant in fulfilling its obligations under the law of responsibility in a series of instances. Once the applicability of human rights obligations to UN peace operations is established and a breach of these obligations can be demonstrated, why does the inevitable consequence of such behaviour fail to appear? 4 Invocation of Responsibility Given the horizontal nature of international law, there is no superior authority responsible for the enforcement of international wrongful acts that would automatically invoke responsibility. Instead, responsibility can be invoked by other subjects of international law. In the context of an IO, a variety of actors are conceivably entitled to raise accountability of that IO, provided that their interests or rights have been affected.95 The ila describes a broad constituency having a stake in accountability of IOs, namely IOs themselves, including their staff and supervisory organs; member States of IOs; non-​members of IOs; domestic and international courts and tribunals; supervisory and monitoring organs within domestic systems (e.g. parliaments) and ngos working 93 See infra, Chapter 4.i.4, ii.4. and iii.4. 94 As was already held by the Permanent Court of International Justice (pcij) in 1928: “It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation” pcij, The Factory at Chorzów (Germany v.  Poland), (Claim for Indemnity) (The Merits), Judgement of 13 September 1928, pcij Ser. A., No. 17 (1928). See also icj, Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion of 11 April 1949, icj Reports 1949, 174, at 184. See also ilc, Fourth Report on State responsibility, by Mr. Roberto Ago, Special Rapporteur, the internationally wrongful act of the State, source of international responsibility, Yearbook of the International Law Commission 1972, Vol. ii(1) (“One of the principles most deeply rooted in the doctrine of international law and most strongly upheld by State practice and judicial decisions is the principle that any conduct of a State which international law classifies as a wrongful act entails the responsibility of that State in international law.”, p. 205, para. 30). 95 ila Committee on Accountability of International Organizations, ila Report of the Sixty-​ Eighth Conference, Taipei, May 24–​30, 1998, 584, at 587.

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on both the national and international level, and private parties (both legal and natural persons).96 Concerning the third level of accountability –​responsibility –​ the ario distinguish between the subjects directly injured and other subjects. a Invocation of Responsibility by States It is a principle of international law that the breach of an obligation is equivalent to the violation of the subjective rights of others.97 Therefore, a State is entitled to invoke responsibility of an international organization if the obligation breached is owed to that State (Art. 43(a) ario). Also, the entitlement to invoke responsibility is also given if the obligation breached is owed to the international community as a whole.98 In addition to the invocation of responsibility by an injured State, Article 49 ario further broadens the possibility for invocation of responsibility to a State or an international organization other than an injured State or organization. This is possible if the obligation breached “is owed to a group of States or international organizations, including the State or organization that invokes responsibility, and is established for the protection of a collective interest of the group” (Art. 49(1) ario) or “is owed to the international community as a whole” (Art. 49(2) ario).99 A  State invoking responsibility under Article 49 may claim cessation of the international wrongful act, assurances and guarantees of non-​repetition and reparation in the interest of the injured State or the beneficiaries of the obligation breached (Art. 49(4) ario).

96 97

98

99

Ibid. K. Ipsen, Völkerrechtliche Verantwortlichkeit und Völkerstrafrecht, in:  K. Ipsen (ed.), Völkerrecht, 6th rev. ed, 2014, 545, at 554, MN 31. This principle was already recognised by Ago, ilc, Fourth Report on State responsibility, by Mr. Roberto Ago, Special Rapporteur, the internationally wrongful act of the State, source of international responsibility, Yearbook of the International Law Commission 1972, Vol. ii(1), at 220 f., para. 65. In the latter case, the breach of the obligation must either “specially affect that state” (Art. 43(b)(i)) or be “of such a character as radically to chance the position of all the other States … to which the obligation is owed with respect to the further performance of the obligation” (Art. 43(b)(ii)). Also provided for in Article 49, but not in the centre of the present study, is the possibility to invoke responsibility by another IO in case of an obligation erga omnes. This issue has been discussed in the literature mainly with respect to the EU, see, e.g. E. Klein, Sanctions by International Organizations and Economic Communities, 30 Archiv des Völkerrechts (1992), 101, at 110. For a different view see P. Palchetti, Reactions by the European Union to Breaches of Erga Omnes Obligations, in: E. Cannizzaro (ed.), The European Union as an Actor in International Relations, 2002, 219, at 226. See also the commentary on Article 49 ario, UN Doc A/​66/​10, para. 88.

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The question thus arises whether a State can be regarded as “injured” because of a violation of human rights by a UN peace operation. To begin with, international human rights law does not protect States, but human beings.100 Consequently, in the instance of a violation of human rights, there exists no directly injured State, with one exception, namely when the human rights of foreign nationals are concerned.101 Therefore, it could be argued that in case of a violation by the UN, the rights of “foreign” (i.e. “non-​UN”) individuals are concerned, resulting in an injury of the national State of these individuals, i.e. the host State of the peace operation. This perception is only part of the full picture. International human rights law and the obligations therefrom are of a special nature, which is different from the classical bilateral relationship between States. Human rights obligations are typically erga omnes obligations in the sense that they have “an absolute rather than a reciprocal character –​it is, so to speak, an obligation towards all the world rather than towards particular parties.”102 In order not to confuse this with the original concept established by the icj in Barcelona Traction, Simma explains this varied meaning of erga omnes in the context of human rights treaties: They, too, create rights and obligations between their parties to the effect that any State party is obliged as against any other State party to perform its obligations and that, conversely, any party has a correlative right to integral performance by all the other contracting states. … the obligations

100 On the nature and character of human rights obligations and a discussion of a potential “special character” of human rights obligations, see F. Mégret, International human rights law theory, in: A. Orakhelashvili, Research Handbook on the Theory and History of International law, 2011, 199, at 222. 101 B. Simma, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours (1994-​VI), 217, at 296, para 55. In the affirmative also G. Gaja, Is a State Specially Affected When its Nationals’ Human Rights are Infringed?, in:  L. Vohrah et  al. (eds.), Man’s Inhumanity to Man, 2003, 373, at 380: “unlike other states, the state of nationality is ‘directly’ injured by the infringement. It is true that when human rights are infringed, a state may be likely to focus on the breaches affecting its nationals.” 102 Sir Gerald Fitzmaurice, quoted in B. Simma, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours (1994-​VI), 217, at 366. Similarly, B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989 (“the interests protected by such [human rights] provisions are not allocable solely to any particular State. Therefore, in the first instance every other State party to the multilateral convention, or bound by the relevant rule of customary law should be considered as an injured State”, at 283).

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arising from such treaties can be considered obligations erga omnes –​ the omnes, however limited … to the circle of the other contracting parties.103 As a consequence, as Gaja points out, “a request of compliance or an invocation of responsibility may be made by any state towards which the obligation exists”.104 Of course, the UN itself is not part of this network of rights and obligations arising from human rights treaties. To the extent that human rights obligations are part of customary international law, however, the rights and obligations also extend to the UN and similarly create a network of obligations with other States. The idea that not only human rights violations by States but also by the UN are enforceable under general international law may not yet resound throughout the land.105 But it is only a logical consequence of the original idea pinned down by the icj in Barcelona Traction that the most important community interests –​obligations erga omnes in its original meaning –​must be enforceable by all. From this perspective, it seems to be of little relevance to determine which human rights can be considered as having an erga omnes character in order to invoke responsibility under Article 49 ario (which allows invocation of responsibility if the obligation breached is owed to a group of States or international organizations).106 Instead, every State is entitled to invoke responsibility for a breach of human rights obligations by the UN. The extent to which States

103 B. Simma, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours (1994-​VI), 217, at 370, para. 117. 104 G. Gaja, Is a State Specially Affected When its Nationals’ Human Rights are Infringed?, in: L. Vohrah et al. (eds.), Man’s Inhumanity to Man, 2003, 373, at 374. 105 Cp. B.  Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, who argues that some State practice is emerging according to which States avail themselves to alternative avenues of action against human rights violations under general international law, at 290 and 295 with further references. But see also U.  Fastenrath, Entwicklung und gegenwärtiger Stand des internationalen Menschenrechtsschutzes, in:  U. Fastenrath (ed.), Internationaler Schutz der Menschenrechte, 2000, 9, who notes that given the reluctance of State to make use of inter-​state claims, the practical meaning of further measures is practically irrelevant (“praktisch irrelevant”, at 45). 106 This is the approach taken by A.  von Bogdandy and M.  Steinbrück Platise, ario and Human Rights Protection, 9(1) International Organizations Law Review (2012), 67, at 75. On the relationship between human rights as non-​derogable rights or obligations erga omnes, see K. Teraya, Emerging Hierarchy in Human Rights and Beyond: From the perspective of non-​derogable rights, 12 EJIL (2001), 917, at 931 ff.

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make  –​or rather do not make  –​use of this entitlement will be treated further below. b Invocation by Individuals through Diplomatic Protection In the context of peace operations, one legal relationship merits special attention, namely the obligations of the peace operation towards individuals in the host country. The law of responsibility leaves this relationship unaccounted for. Article 33 ario, determining the scope of international responsibility of international organizations determines that the rules are “without prejudice to any right, arising from the international responsibility of an international organization, which may accrue directly to any person or entity other than a State or an international organization” (Art. 33 (2)).107 Article 50 ario reflects this non-​treatment of individuals by stating that the rules on the invocation of responsibility are without prejudice to the entitlement that a person or entity other than a State or an international organization may have to invoke the international responsibility of an international organization. Even though the invocation of responsibility by a person other than a State or international organization “has not been totally ignored”,108 von Bogdandy and Steinbrück Platise rightly purport that the “without prejudice”-​clause leaves the issue completely open. As a consequence, the ario “leave the individual in the cold”.109 Instances in which acts of international organizations directly affect individuals are still rather the exception than the rule. Still, they nonetheless exist, most notably in the case of the exercise of public authority as, for instance, in peace operations.110 107 In the commentary to Article 33, breaches committed by peacekeeping forces and affecting individuals is explicitly listed as example in which an organization could incur responsibility towards other persons than States or international organizations. The consequences of these breaches are, however, not covered by the ario and the commentary merely refers to GA resolution 52/​247, of 26 June 1998, on “Third-​party liability: temporal and financial limitations”, UN Doc A/​66/​10, para. 88. 108 G. Gaja, Introductory Note, Articles on the Responsibility of International Organizations, New York, 9 December 2011, http://​legal.un.org/​avl/​ha/​ario/​ario.html. 109 A.  von Bogdandy and M.  Steinbrück Platise, ario and Human Rights Protection, 9(1) International Organizations Law Review (2012), 67, at 72. 110 Ibid., 69 f.  Further examples include refugee status determination by the unhcr, see M.  Smrkolj, International Institutions and Individualized Decision-​Making, 9(11) German Law Journal (2008), 1779; as well as administration of justice by the International Criminal Court, see F.  Knur, Individuelle Rechtspositionen gegenüber internationalen Organisationen und Institutionen, 2020.

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As the majority of the Articles in ario, Article 33 mirrors the corresponding provision in the ars, which equally does not treat the invocation of responsibility by individuals.111 A significant difference, however, is that in their relationship with States, individuals have the possibility to address their claims to various regional and universal human rights claims procedures that had been in place when the ars were drafted. For international organizations, however, comparable protection regimes are completely missing.112 Absent any direct remedy for breaches of an individual’s rights by international organizations and the impossibility of invoking responsibility under the ario, individuals can only seek diplomatic protection. Under diplomatic protection, the State of nationality of an injured person secures protection of that person and invokes responsibility of the State committing an internationally wrongful act.113 With regard to the extension of diplomatic protection to human rights law, the icj has taken a clear stand on this issue in the Case concerning Ahmadou Sadio Diallo in which it ­stated that [o]‌wing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed ­human rights.114 While the icj’s approach to open diplomatic protection to violations of human rights has generally been appreciated as an effective means to secure redress for injuries,115 there exists some debate as to the requirements for the exercise of diplomatic protection.

111 Article 33(2) ario uses virtually the same wording as Article 33(2) ars: “This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.” 112 A.  von Bogdandy and M.  Steinbrück Platise, ario and Human Rights Protection, 9(1) International Organizations Law Review (2012), 67, at 72 f. 113 For a summary of diplomatic protection see J. Dugard, Diplomatic Protection, mpepil, May 2009. 114 icj, Ahmadou Sadio Diallo (Republic of Guinea v.  Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, icj Reports 2007, at 582, para. 39. 115 E.g. A. Vermeer-​Künzli, Diallo and the Draft Articles, 20 LJIL (2007), 941, at 942; J. Dugard, Diplomatic Protection, mpepil, May 2009, para. 10.

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One of the cornerstones of diplomatic protection in its traditional understanding is the nationality of claims. This rule is regarded as customary international law116 and is reflected in Article 1 of the Articles on Diplomatic Protection.117 Article 45(1) ario adopts the rule and requires the nationality of claims for a claim to be admissible. The commentary to Article 45(1) ario further clarifies that –​while the definition provided for in Article 1 of the Articles on Diplomatic Protection deals with States –​diplomatic protection can equally be exercised by a State towards an international organization, “for instance when an organization deploys forces on the territory of a State and the conduct of those forces leads to a breach of an obligation under international law concerning the treatment of individuals.”118 The commentary remains silent, however, whether the rule of nationality is also applicable to violations of human rights law. Giorgio Gaja, the Special Rapporteur for the ario, argues that the invocation of responsibility by a State for the violation of human rights law is not diplomatic protection stricto sensu.119 In these cases, the requirement of nationality should not apply since human rights are –​as has already been alluded to above –​not States rights, but individual rights. Therefore, the diplomatic protection of human rights is different from the diplomatic protection of the rights of aliens in the sense that human rights remain the rights of the individual and are not being transformed into States rights in the process of diplomatic protection.120 As a consequence, it can be claimed that the State of nationality does not have an exclusive right to invoke responsibility for human rights violations.121 Instead, also other States are entitled to secure protection for the individual. This claim corresponds to the arguments raised above. 116 icj, Ahmadou Sadio Diallo (Republic of Guinea v.  Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, icj Reports 2007, at 582, para. 39. 117 Article 1 reads: “For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.” ilc, Articles on Diplomatic Protection, 2006, http://​legal.un.org/​avl/​ha/​adp/​adp.html. 118 Commentary to Article 45, UN Doc A/​66/​10, para. 88. 119 G. Gaja, The Position of Individuals in International Law, 21 EJIL (2010), 11, at 13. 120 G. Gaja, Is a State Specially Affected When its Nationals’ Human Rights are Infringed?, in: L. Vohrah et al. (eds.), Man’s Inhumanity to Man, 2003, 373, at 382. 121 G. Gaja, The Position of Individuals in International Law, 21 EJIL (2010), 11, at 13. The icj did not rule on this issue nor did it decide whether the existence of a remedy directly available to the individual (such as individual claims procedures under certain human rights treaties) affect the possibility for States to invoke responsibility for the same injury, see ibid., at 14.

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Following this line of reasoning would allow the invocation of responsibility for violations of human rights law by UN peace operations not only by the host State of the peace operation but also by other States. In principle, this would constitute a valuable means for redress for the victims of human rights violations. The ario further provide for a second requirement in the context of the admissibility of a claim. It relates to the exhaustion of local remedies122 and requires that “any available and effective remedy” has to be exhausted before responsibility may be invoked (Art. 45(2) ario). While the rule is firmly established in international human rights law,123 already the commentary to Article 45(2) ario suggests that the rule requires some clarification with respect to international organizations. Without providing a definition of situations in which the exhaustion of local remedies rule applies, “one clear case appears to be that of a claim in respect of the treatment of an individual by an international organization while administering a territory.”124 Similarly, staff members of an international organization would be expected to exhaust the internal mechanisms available before relying on their national States for protection.125 Beyond these instances, it may be doubtful whether the local remedies rule has to be applied, mainly because international organizations rarely provide suitable mechanisms for internal remedy.126 The inclusion of the term “any available and effective” remedy takes note of this circumstance but does 122 In this context, “local remedies” is not to be understood as indicating a particular geographic area, but rather as representing a term of art describing the exhaustion of internal mechanisms, see Commentary to Article 45, UN Doc A/​66/​10, para. 88. 123 See in detail C. Amerasinghe, Local Remedies in International Law, 2nd ed. 2004, at 64–​75. 124 Commentary to Article 45, UN Doc A/​66/​10, para. 88. Coming to the same conclusion, C.  Amerasinghe, Comments on the ilc’s Draft Articles on the Responsibility of International Organizations, 9 International Organizations Law Review (2012), 29, at 30. See further L. Gramlich, Diplomatic Protection Against Acts of Intergovernmental Organs, 27 German Yearbook of International Law (1984), 386, at 396 ff.; K.  Wellens, Remedies against International Organizations, 2002, at 66 f.; G. Thallinger, The Rule of Exhaustion of Local Remedies in the Context of the Responsibility of International Organizations, 77 Nordic Journal of International Law (2008), 401. 125 C. Amerasinghe, Comments on the ilc’s Draft Articles on the Responsibility of International Organizations, 9 International Organizations Law Review (2012), 29, at 30. 126 In particular, Amerasinghe, ibid.: “a claimant who is being diplomatically protected does not need to have exhausted the internal remedies of the organization, if any exist. It is only, for example, when an organization, such as the UN, is exercising powers associated with state government that the rule becomes applicable.” But see H. Schermers and N. Blokker, International Institutional Law, 5th rev. ed. 2011 who stress that “claims against international organizations can be brought as international claims only when the ‘local’ remedies have been exhausted.”, at 1192, MN 1858.

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not provide any further details about what has to be considered available and effective.127 The factual test of these formal requirements is still pending. So far, States have been reluctant to exercise diplomatic protection with respect to human rights violations by UN peace operations. Far from being an entitlement of the individual concerned, the exercise of diplomatic protection lies in the discretion of the State, who invokes or abstains from invoking its own rights.128 From the perspective of an individual concerned, this is the major shortcoming of the ario’s approach relating to individuals.129 c

In practice: Reluctance Concerning the Invocation of Responsibility The preceding paragraphs showed that rules on international responsibility establish a broad scope of action for States wishing to invoke responsibility for human rights violations by the UN, either in their own right or on behalf of individuals injured. This matter has been discussed before, mainly with respect to inter-​State enforceability of human rights obligations arising from human rights treaties.130 Already in this context it had to be asserted that instead of opening the floodgates, “what is to be observed on this scene is less an excessive human rights ‘vigilantism’ than a remarkable lack of vigour on the part of States parties to human rights conventions to take up and counter treaty breaches committed by other States parties.”131 A similar observation can be made in relation to the issue of the present study, namely the virtually 127 For instance, the commentary considers also remedies before arbitral tribunal, national courts or administrative bodies to be “available” if the organization has consented to examine such claims, UN Doc. A/​66/​10, para. 88, commentary to Article 45, paras. 8 f. 128 G. Gaja, Is a State Specially Affected When its Nationals’ Human Rights are Infringed?, in: L. Vohrah et al. (eds.), Man’s Inhumanity to Man, 2003, 373, at 374. 129 A.  von Bogdandy and M.  Steinbrück Platise, ario and Human Rights Protection, 9(1) International Organizations Law Review (2012), 67, at 75. 130 For a cautions view, see J. Frowein, Reactions by Not Directly Affected States to Breaches of Public International Law, Recueil des cours, 1994-​IV, Vol 248, 345, at 398 ff. Bruno Simma, in contrast, argues in favour of far more extensive possibilities beyond the procedures provided for in the human rights treaties, see e.g. B. Simma, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours (1994-​VI), 217, at 364 ff. (both with further references). B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, 1989, at 280 ff. notes that with respect to rules that are identical in treaty and in customary law, including human rights norms, violations of such rules of international human rights law may be considered either under a particular treaty regime or under the regime of international customary law. 131 B. Simma, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours (1994-​VI), 217, at 372 f.

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complete lack of action of States as a response to human rights violations by UN peace operations. Further below an attempt will be made to shed some light to the reasons for such reluctance on behalf of States. ii

Accountability for Violations of International Human Rights Law

With international responsibility mainly focussing on the responsibility towards injured States, the broader concept of accountability deserves further attention.132 In 2004, the International Law Association (ila) Committee on Accountability of International Organizations concluded that “[a]‌s a matter of principle”, the authority and power of an IO entails accountability, i.e. “the duty to account for its exercise”.133 This call for accountability is based on the assumption that the duty to account for (i.e., to justify, to be answerable) its behaviour is a corollary of the increasing powers of IOs.134 Therefore, the UN has to be held accountable for its activities during peace operations. Accountability can take various forms and is, as such, a complex concept and one of the hot topics in international law.135 In an attempt to structure the debate, the ila Committee has identified three interrelated levels of accountability: 1. internal and external scrutiny and monitoring of the fulfilment of the IO’s functions, irrespective of potential and subsequent liability and/​or responsibility; 2. tortious liability for injurious consequences arising out of acts or omissions not involving a breach of any rule of international and/​or institutional law; 3. responsibility arising out of acts or omissions which do constitute a breach of a rule of international and/​or institutional law.136 1 32 See P. Schmitt, Access to Justice and International Organizations, 2017, at 17 ff. 133 ila, Accountability of International Organisations: Final Report of the Berlin Conference 2004, at 5. 134 E.g. M.  Zwanenburg, Accountability of Peace Support Operations, 2005, at 61 ff. For some critical remarks on increasing accountability, pointing to high costs and commitment of resources, see J. Klabbers, Editorial Reflections on Compliance, 5 International Organizations Law Review (2008), 1. 135 J. Klabbers, Book Review of Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 8 International Organizations Law Review (2011), 273, at 273. 136 ila, Accountability of International Organisations: Final Report of the Berlin Conference 2004, at 5.  For an explanation of the interrelationship between these three levels of accountability see the first report of the ila Committee on Accountability of International Organizations, ila Report of the Sixty-​Eighth Conference, Taipei, May 24–​30, 1998, 584, at 599 f. See also V. Gowlland-​Debbas, Accountability of the Security Council, in: R. Wilde

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Whenever acts or omissions of UN peace operations amount to breaches of international law, the third level of accountability, namely international responsibility, is particularly relevant. In addition to that, other forms of legal accountability (e.g. ombudspersons, inspection panels, or mediation procedures)137 as well as political, administrative –​or managerial138 –​and financial forms of accountability are conceivable.139 A necessary degree of accountability is best achieved in the combination of these four forms.140 The addressees towards whom accountability is exercised can include individuals, member States as well as the IO’s “future self, to remain a viable, effective, capable organization”.141 A full review of the accountability mechanisms in the context of the UN would go beyond the scope of this book.142 Instead, in addition to the legal mechanisms that will be analysed in more detail in the case studies, the following sections will briefly discuss internal mechanisms and litigation in the context of peace operations.

1 37 138

139 140 141

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et  al (eds.), United Nations Reform Through Practice, 2011, 34; and in detail V.  Nanda, Accountability of international Organizations, 33(3) Denver Journal of International Law and Policy (2005), 379. P. Schmitt, Access to Justice and International Organizations, 2017, at 18. Managerial accountability has been described as internal accountability of sub-​organs vis-​à-​vis the mother institution, e.g. of the human rights component vis-​à-​vis headquarters. For an account of how instruments such as results-​based management work in practice, see e.g. U. Garms, Promoting Human Rights in the Administration of Justice in Southern Sudan, 6 International Organizations Law Review (2009), 581, at 595 ff. For an overview over the UN’s complex system of accountability, see the Report of the Secretary-​ General, Towards an accountability system in the United Nations Secretariat, 29 January 2010, UN Doc. A/​64/​640, Annex 1. ila, Accountability of International Organisations: Final Report of the Berlin Conference 2004, at 5; see e.g. M. Parish, An essay on the Accountability of International Organizations, 7(2) International Organizations Law Review (2010), 277. ila, Accountability of International Organisations: Final Report of the Berlin Conference 2004, at 5. T. Bode, Cholera in Haiti, 47 Georgetown Journal of International Law (2016), 759, at 786. Pointing to these different levels of accountability see also K.  Sandvik, On the Social Life of International Organisation, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 287, at 292 ff.; K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 381; E.  Busuioc and M.  Lodge, The Reputational Basis of Public Accountability 29 Governance (2016), 247 (accountability “is about sustaining one’s own reputation vis-​à-​vis different audiences.”, at 248). This has been done, e.g., by M. Möldner, Accountability of International Organizations and Transnational Corporations. A Comparative Analysis, 2019.

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1 Internal Mechanisms In the specific context of accountability in UN peacekeeping, there are two main ways of dealing with harms caused that belong to the broader category of accountability through scrutiny and monitoring.143 First, individual harm caused by peace operations personnel such as loss, harm or injury should be reviewed, according to Article 51 of the Model sofa, by a standing claims commission to be composed of three members, one member to be appointed by the Secretary-​General of the United Nations, another by the respective government and a chairman jointly by the Secretary-​General and the government. It is a widely criticized fact that no such claims commission has been established to date.144 Yet, in many peace operations, local claims review boards or other non-​judicial dispute resolution mechanisms have been set up in accordance with Section 29 of the cpiun. These mechanisms serve the goals of information gathering, answerability and responsiveness through the collection of evidence, issuance of reports and the allocation of remedies as appropriate.145 It is important to note that compensation takes place when rights are adversely affected; they do not necessarily have to be violated. In fact, the ex gratia payments awarded by claims commissions compensate for damage to civilian property or the physical integrity or life of civilian individuals “without even starting to think whether such damage was caused lawfully or illegally.”146 Secondly, when harm is caused on a larger scale, involving mass victims, the mechanisms regularly applied are public inquiries by UN-​appointed experts. The UN undertook some form of internal scrutiny, for instance, concerning its failings in preventing the genocide in Rwanda in 1994 and the widespread and systematic killings in Srebrenica in 1995,147 as well as on 143 Other forms of accountability that exist in addition to ex post mechanisms are not further discussed here. They include control and oversight through UN organs and reporting procedures as well as semi-​judicial procedures such as Ombudspersons, see, for a detailed account, G. Verdirame, The UN and Human Rights, 2011, Chapter 8, at 320 ff. 144 E.g. R. Freedman, UN Immunity or Impunity? A Human Rights Based Challenge, 25 EJIL (2014), 239, at 247. 145 R. Freedman, UN-​Accountable?:  A Response to Devika Hovell, 110(8) AJIL Unbound (2016). 146 U. Häußler, Human Rights Accountability of International Organisations in the Lead of International Peace Missions, in:  J. Wouters, E.  Brems, S.  Smis, and P.  Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 215, at 264. 147 Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda of 15 December 1999, UN Doc. S/​1999/​1257 (1999); Report of the Secretary-​General Pursuant to General Assembly Resolution 53/​35: The Fall of Srebrenica, 15 November 1999, UN Doc. A/​54/​549. See also the Report of the Secretary-​General’s Internal Review Panel on United Nations Actions in Sri Lanka, November 2012.

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instances of sexual misconduct.148 The reports help with establishing facts and gathering information;149 they further regularly include recommendations to the UN and may lead to apologies or expressions of regret on behalf of the UN.150 Despite certain virtues to them,151 both approaches, however, have serious shortcomings.152 In the local claims review boards, the main caveat is that the UN (and/​or its personnel) serves as both defendant and adjudicator, i.e. it is “acting as a judge in its own case”.153 In a similar vein, it is the UN that decides whether or not a claims review board or a similar mechanism for dispute resolution is available to the dispute at hand. If the political will is lacking, as became evident in the case of Haiti, the UN can effectively evade accountability under this approach.154 Calls on Haiti to request the establishment of an appropriate mechanism remain unheard.155 The reports, on their part, did not regularly achieve a true change in policy or foster reform, either because their findings were watered down or blocked by the UN and/​or member States (e.g. in the context of sexual abuse and exploitation) or because they simply do not create enough momentum to lead to a true change, as can be observed with

148 General Assembly, A  comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations, 24 March 2005, UN Doc. A/​59/​ 710 (Zeid Report); Marie Deschamps, Hassan B. Jallow, and Yasmin Sooka, Taking Action on Sexual Exploitation and Abuse by Peacekeepers. Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic, 17 December 2015. 149 The Srebrenica Report, for instance, has been praised as “the frankest document of its sort to have been published by the United Nations”, S. Chesterman, I. Johnstone, D. Malone, Law and Practice of the United Nations, 2nd ed. 2016, at 606. 150 R. Freedman, UN-​Accountable?:  A Response to Devika Hovell, 110(8) AJIL Unbound (2016). More critically on the readiness for apology, see S.  Chesterman, I.  Johnstone, D. Malone, Law and Practice of the United Nations, 2nd ed. 2016, at 592. 151 Such as enabling tailor-​made solutions to each IO or providing flexibility and adaptability to new contexts, see mainly O. de Schutter, Human Rights and the Rise of International Organisations, in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 51, at 108 ff. 152 For instance summarised by R.  Freedman, UN-​Accountable?:  A Response to Devika Hovell, 110(8) AJIL Unbound (2016). See also G. Verdirame, The UN and Human Rights, 2011, at 225 f. 153 General Assembly Resolution 51/​903, Report of the Secretary-​General, 21 May 1997, UN Doc. A/​51/​903, para. 10. Furthermore, the process has been criticised for lack of transparency and due process, see e.g. K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016) 341, at 362. 154 E.g. G. Verdirame, The UN and Human Rights, 2011, at 225. 155 See infra Chapter 5.iii.2.

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the continuous struggle –​and failure –​of the UN to protect civilians.156 They neither led to resignations within the UN Secretariat, despite the fact that the responsibility of the UN, especially in the cases of Rwanda and Srebrenica, was spelt out more or less explicitly.157 Overall, the efficacy of reports as accountability mechanism must be considered “dismal”.158 2 Litigation If possibilities for internal modes of settlement remain barred, litigation may be another avenue for achieving accountability. While criminal prosecution against individual members would be one possibility in cases of misconduct,159 institutional liability of the UN could be sought in civil prosecutions.160 Third-​party claims against the UN commonly concern personal injury, damage or loss of property and non-​consensual use and occupancy of premises; human rights claims are less common.161 In contrast to criminal prosecution, human rights litigation is a private undertaking, initiated by an individual or a group of victims and/​or relatives as plaintiffs and often supported by human rights ngos or law firms. In case of conviction, reparations and sometimes punitive damages are to be paid by the respondent.162 However, the UN’s comprehensive immunity represents a major obstacle –​ if not “insuperable bar”163 –​for this avenue for redress.164 In the cases brought forward by victims of the Haiti cholera and by victims and relatives of the massacre in Srebrenica, both US and Dutch courts found that the UN was able to invoke immunity.165 This has been widely criticised in academic literature on 156 R. Freedman, UN-​Accountable?:  A Response to Devika Hovell, 110(8) AJIL Unbound (2016). 157 G. Verdirame, The UN and Human Rights, 2011, at 328. 158 Ibid., at 335. 159 E.g. F. Hampson and A. Kihara-​Hunt, The Accountability of Personnel Associated with Peacekeeping Operations, in:  C. Aoi, C.  de Coning, and R.  Thakur (eds.), Unintended Consequences of Peacekeeping Operations, 2007, 195. 160 For a distinction, see e.g. C. Safferling, Can Criminal Prosecution be the Answer to massive Human Rights Violations? 5(12) German Law Journal (2004), 1469. The models of this kind of litigation are the Holocaust-​Era human rights claims before US courts, see e.g. P. Zumbansen, Globalization and the Law, 5 (12) German Law Journal (2004), 1499. 161 G. Verdirame, The UN and Human Rights, 2011, at 224. 162 C. Safferling, Can Criminal Prosecution be the Answer to massive Human Rights Violations? 5(12) German Law Journal (2004), 1469, at 1485. 163 G. Verdirame, The UN and Human Rights, 2011, at 225. 164 Ground-​breaking A. Reinisch, International Organizations before National Courts, 2000. 165 United States Court of Appeals for the Second Circuit, Delama Georges et  al. v.  United Nations et al., No. 15–​455 (2d Cir. 2016) Judgement of 18 August 2016; United States District Court for the Southern District of New York, Delama Georges et al. v. United Nations et al.,

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various grounds. First of all, it is questionable whether the blanket invocation of immunity may be reconciled with the victims’ right to access to a court.166 Furthermore, Boon points out that immunity not only undermines responsibility of the UN, but also unduly shifts the burden of seeking redress to the victims.167 From a theoretical perspective, the original idea that immunity is necessary to protect the organization from interference with the organization’s functions is difficult to uphold in cases of human rights violations by the UN since such conduct should not reasonably be considered as being part of the functions of the organization.168 Nevertheless, some commentators have argued that member States will have to rethink the UN’s absolute immunity when alternative modes of redress remain unavailable to victims and member States are put in the situation in which they are constitutionally unable to uphold the UN’s immunity.169 As of today, however, this is not yet the case. iii

No Responsibility, Little Accountability

The above paragraphs have shown that international law offers a set of rules and procedures to react to violations of international law. This also holds true for the violation of the human rights of individuals by international 13-​CV-​7146 (jpo), Opinion and Order, 9 January 2015; Foundation Mothers of Srebrenica v. The Netherlands and the UN, Case No. 295247/​HA ZA 07-​2973, Judgement in the incidental proceedings of 10 July 2008. 166 See for a few examples among many, O.  de Schutter, Human Rights and the Rise of International Organisations, in:  J. Wouters, E.  Brems, S.  Smis, and P.  Schmitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 51, at 121; R. Freedman, UN Immunity or Impunity? A Human Rights Based Challenge, 25 EJIL (2014), 239, at 253. 167 K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 365. Boon also points out that absolute immunity serves as the opposite of an economic incentive that would encourage measures to avoid of minimise damage, ibid. 168 To Klabbers, the underlying theoretical problem is the fact that the theory of functionalism can explain the relationship between the organization and its member States. With respect to individuals, however, functionalism has little to say about the organization’s relationship to third parties. As a corollary, the concept of functional immunity is not designed to consider the rights of individuals. With the distinction between official and unofficial acts being difficult, the result is a de facto absolute immunity, J. Klabbers, The EJIL Foreword: The Transformation of International Organizations Law, 26(1) EJIL (2015), 9, at 14. 169 K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 367. See also G. Verdirame, The UN and Human Rights, 2011, at 359 ff.

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organizations. There exists broad consensus about the requirement of some form of mechanism available to individuals for them to secure protection and seek redress. This principle has been confirmed by numerous decisions of domestic courts.170 In the case of human rights violations by UN peace operations, however, it seems like accountability does neither take place in the form of legal responsibility, nor through alternative forms of accountability in a meaningful way. Given the heterogeneous nature of peace operations, these preliminary findings will be discussed more closely in the following explorative case studies on the human rights record of three peace operations, namely unmik, untaet and minustah. 170 A.  von Bogdandy and M.  Steinbrück Platise, ario and Human Rights Protection, 9(1) International Organizations Law Review (2012), 67, at 73.

­c hapter 4

Human Rights in UN Peace Operations Practice In the following, the human rights record of the United Nations Mission in Kosovo (unmik), the United Nations Transitional Administration in East Timor (untaet) and the United Nations Stabilization Mission in Haiti (minustah) will be analysed in more detail. The selection of the three explorative case studies is mainly based on the access to sufficient information and evidence to discuss allegations of human rights violations. For unmik, the wealth of case law produced by the Human Rights Advisory Panel (hrap) allows a depth of analysis that usually is difficult to achieve because of lack of data and information. For untaet, no reference to findings by an independent review body can be made but UN sources such as reports as well as academic literature provide reasonable insights. With respect to the alleged human rights violations by minustah, most notably in the context of the cholera outbreak in 2010, the book can draw from the detailed examination that has taken place in preparation of efforts to seek judicial remedy before national courts. In addition, the three case studies have in common that they exercised a considerable degree of control which is, as we have seen in Chapter 2, of relevance for the scope of human rights obligations. While this is obvious with respect to the two territorial administrations in Kosovo and East Timor, also the role of the peace operation in Haiti was, as will be shown further below, marked by the exercise of a significant degree of control, especially in the context of the cholera. Hence, an attempt will be made to establish whether and to what extent these missions have committed human rights violations or abuses. Subsequently, the reactions to and consequences of these potential human rights infringements are examined. Due to the heterogeneity of peace operations, the insights gained in the following chapter cannot be generalised. Instead, they will serve as illustrative examples for the practice of human rights in UN peace operations. Having said this, the case studies may provide some ideas about patterns and structures that go beyond the individual cases ­analysed here.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433090_006

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Human Rights in the United Nations Mission in Kosovo

The first case study chosen here is the United Nations Mission in Kosovo (unmik),1 not least because it established the first (and only) quasi-​judicial human rights advisory body to review the human rights record of the mission. This allows the following analysis to draw not only from numerous reports of the relevant institutions concerned with human rights protection in Kosovo,2 but also from the Human Rights Advisory Panel (hrap) opinions as well as the report of the Ombudsperson in Kosovo. 1 About the Mission a Background Kosovo used to be an autonomous province of Serbia within the Socialist Federal Republic of Yugoslavia (sfry). In 1989, constitutional changes led to a removal of Kosovo’s provincial autonomy and Kosovo became part of the Republic of Serbia. In 1991, Kosovo Albanians declared independence, which was deemed illegal by Serbia and the sfry. In the following years, the conflict, which was accompanied by systematic human rights violations against Kosovo Albanians, intensified and erupted into an internal armed conflict.3 By June 1998, the wide-​scale policy of “ethnic cleansing” had already caused 1,500 Kosovo Albanians dead and an estimated 400,000 who had fled or been expelled from their homes.4 After the failure of the Rambouillet peace negotiations in spring 1999,5 the North Atlantic Treaty Organization (nato) started Operation Allied Forces, an 1 2

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Security Council Resolution 1244 of 10 June 1999, UN Doc. S/​RES/​1244 (1999). See, e.g., European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, CDL-​AD (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), paras. 26 ff., which is based on reports of the Ombudsperson institution in Kosovo; the Report by the Council of Europe Commissioner for Human Rights; the reports by the osce Mission in Kosovo, the reports by the US Department of State and the reports by Amnesty International, and on information provided for by unmik, kfor, osce and ohchr. For a detailed account of the background and history, see the report of the osce Mission in Kosovo, “Kosovo/​Kosova: As seen as told”, osce Office for Democratic Institutions and Human Rights, 1999, part i, Chapter 1. See also comprehensively the report of the Independent International Commission of Kosovo, The Kosovo Report, 2000, at 55 ff. H. Strohmeyer, Collapse and Reconstruction of a Judicial System:  The United Nations Missions in Kosovo and East Timor, 95 AJIL (2001) 46, at 46. These peace negotiations between representatives of the fry and Kosovo Albanians were called for by the six-​country “Contact Group” (France, Germany, Italy, Russia, the United Kingdom and the usa) in February 1999. The Kosovo Albanian delegation signed the “Interim Agreement for Peace and Self-​Government in Kosovo” of 23 February 1999, which provided for autonomy and self-​government in Kosovo; the delegation of Serbia/​fry, however,

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air campaign against Serbian and Yugoslav security forces and paramilitary groups, on 24 March 1999. The air strikes ended on 10 June 1999, when the Federal Republic of Yugoslavia (fry) agreed on the withdrawal of Yugoslav and Serb forces from Kosovo6 and the UN Security Council established unmik. b Mandate and Structure Committed to the sovereignty and territorial integrity of fry,7 the Security Council by Resolution 1244 (1999) authorised the deployment of an international civil presence (unmik) and an international security presence,8 the nato-​led multinational Kosovo Force (kfor).9 unmik was established to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-​governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.10 The tasks of unmik were unprecedented in scope and complexity11 and included the performing of basic civilian administrative functions; organizing and overseeing the development of provisional institutions for democratic and autonomous self-​government; the holding of elections; facilitating a political process designed to determine Kosovo’s future status; supporting the reconstruction of key infrastructure and other economic reconstruction; supporting humanitarian and disaster relief aid; maintaining civil law and order; protecting and promoting human rights; and assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo.12

6 7 8 9 10 11 12

did not. See, e.g., Independent International Commission of Kosovo, The Kosovo Report, 2000, at 82 f. See Military Technical Agreement between the International Security Force (kfor) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, 9 June 1999. Security Council Resolution 1244 of 10 June 1999, S/​RES/​1244 (1999), preamble. Ibid., para 7. Ibid., para. 5. kfor was responsible, inter alia, for establishing a secure environment and ensuring public safety order in Kosovo, and supporting the international civil presence, para. 9. Security Council Resolution 1244 of 10 June 1999, S/​RES/​1244 (1999), para. 10. See, e.g., M.  Matheson, United Nations Governance of Postconflict Societies, 95 AJIL (2001), 76, at 79. Security Council Resolution 1244 of 10 June 1999, S/​RES/​1244 (1999), para. 11(b)-​(k).

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Hence, unmik assumed overall responsibility for Kosovo, including all legislative and executive powers as well as the administration of justice. In short, the UN “became the state”.13 The wide-​ranging powers were vested in the Special Representative of the Secretary-​General (srsg) who was responsible for the implementation of the international civil presence and who exercised the legislative and executive power.14 unmik had a four-​pillar structure, with the heads of each pillar being a Deputy of the srsg (dsrsg) within unmik, under the roof of UN leadership.15 With the adoption of the Constitutional Framework in May 2001 and the establishment of the Joint Interim Administrative Structure (jias),16 a new Pillar i was created under the direct authority of the srsg.17 It was responsible for “Law Enforcement and Justice” and took over functions akin to a Ministry of Justice and/​or Ministry of the Interior.18 After the declaration of independence by the Assembly of Kosovo in February 2008 and the entry into force of a new constitution on 15 June 2008, the tasks and responsibilities of unmik changed significantly. One of the major modifications was the transfer of rule of law activities from unmik to the European Union Rule of Law Mission in Kosovo (eulex).19 At the time of writing unmik’s main tasks included the promotion of security, stability and respect for human rights in Kosovo.20

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M. Brand, Effective human rights protection when the UN ‘becomes the state’, in: N. White and D. Klaasen, The UN, Human Rights and Post-​conflict Situations, 2005, 347. 14 Security Council Resolution 1244 of 10 June 1999, S/​RES/​1244 (1999), para. 6. 15 Pillar i:  Humanitarian Assistance, led by the Office of the United Nations High Commissioner for Refugees (unhcr); Pillar ii: Civil Administration, under the United Nations; Pillar iii: Democratization and Institution Building, led by the Organization for Security and Co-​operation in Europe (osce), and Pillar iv: Reconstruction and Economic Development, managed by the European Union (EU). 16 See unmik Regulation No. 2000/​1 on the Kosovo Joint Interim Administrative Structure, 14 January 2000, UNMIK/​REG/​2000/​1. 17 The new Pillar i replaced the original UNHCR-​led Pillar. In June 2000, unhcr left the pillar structure and maintained a presence in Kosovo outside unmik. 18 M. Brand, The Development of Kosovo Institutions and the Transition of Authority from unmik to Local Self-​Government, January 2003. 19 See most notably Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 24 November 2008, UN Doc S/​2008/​692; Statement by the President of the Security Council, 26 November 2008, UN Doc S/​PRST/​2008/​44; and Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 10 June 2009, UN Doc S/​2009/​300. 20 United Nations Peacekeeping, unmik Factsheet, https://​peacekeeping.un.org/​en/​mission/​unmik.

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2 unmik Human Rights Mandate and Structures a Human Rights Mandate Resolution 1244 (1999) vested in unmik the responsibility for the protection and promotion of human rights,21 however, without providing for any clear mechanism to ensure implementation of this all-​encompassing human rights mandate.22 The Secretary-​General specified that “unmik will be guided by internationally recognized standards of human rights as the basis for the exercise of its authority in Kosovo.”23 Furthermore, unmik’s human rights monitors and advisors were to “ensure that human rights protection and promotion concerns are addressed through the overall activities of the mission”24 The srsg’s Regulations25 provided a few clarifications regarding the role of human rights within unmik. With Regulation No. 1999/​24 On the Applicable Law in Kosovo of 12 December 1999, the srsg declared that “all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards”.26 By virtue of Regulation 2001/​9 of 15 May 2001, the srsg further promulgated international human rights treaties to be directly applicable in Kosovo.27 While for some commentators the situation in Kosovo is “perhaps the clearest example of the application of international human rights law to the United Nations”,28 others consider the catalogue of international human rights instruments in the above regulations merely “as a declaratory political commitment to a high standards of human rights, yet without putting the practice to the test of local remedies or international supervision through international human rights bodies.”29

21 22 23 24 25 26 27 28 29

Security Council Resolution 1244 of 10 June 1999, S/​RES/​1244 (1999), para. 11(j). hrap, Annual Report 2008, at 2. Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/​1999/​779, 12 July 1999, para. 42. Report of the Secretary-​General on the United Nations Interim Administration in Kosovo, UN Doc. S/​1999/​779, 12 July 1999, para. 87. On the legal nature of Regulations see C.  Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001) 105, at 145 ff. unmik Regulation No. 1999/​24, On the Applicable Law in Kosovo, of 12 December 1999, UNMIK/​REG/​1999/​24, section 1.3, referring to the udhr and the core human rights treaties. unmik Regulation No. 2001/​ 9, On a Constitutional Framework for Provisional Self-​ Government in Kosovo, 15 May 2001, UNMIK/​REG/​2001/​9, para. 3.3. A. Clapham, Human Rights Obligations of Non-​State Actors, 2006, at 128. M. Brand, Institution Building and Human Rights Protection in Kosovo in the Light of unmik Legislation, 70 Nordic Journal of International Law (2001), 461, at 476.

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It seems generally agreed that unmik did not simply act as a “care-​taker”30 for Serbia and Montenegro who ratified the echr in March 2004 and who is also party to the great majority of the core international human rights treaties.31 As a consequence of Resolution 1244, Serbia and Montenegro could not exercise jurisdiction over Kosovo within the meaning of Article 1 echr. Thus, Serbia and Montenegro could not be held accountable for human rights violations caused by acts or omissions outside of its control. This, however, did not automatically commit unmik to respect the obligations resulting from these treaties by succeeding in those obligations.32 Likewise, unmik itself points to the sui generis situation of unmik: even though the provisions of international human rights instruments were applicable law because of Regulation 1999/​24, it could not be implied that treaties and conventions to which Serbia and Montenegro were party were “in any way binding on unmik”.33 In addition, it has been argued that the assumption that the UN interim administration had to respect existing obligations would be in contradiction to Article 103 of the UN Charter, which guarantees the precedence of a binding obligation such as Resolution 1244 over obligations under any other international agreement.34 Thus, the applicability of specific treaty provisions must be determined on a case-​by-​case basis.35

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European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 78. ohchr, Status of Ratification, http://​indicators.ohchr.org. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 78. See also supra B.i.2. Report Submitted by unmik Pursuant to Article 2.2 of the Agreement Between unmik and the Council of Europe Related to the Framework Convention for the Protection of National Minorities (Council of Europe Doc. acfc(2005)003, Prishtina, May 30, 2005), p. 27. B. Knoll and R.-​J. Uhl, Too little, too late: the Human Rights Advisory Panel in Kosovo, 5 European Human Rights Law Review (2007), 534, at 353; European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 78. For a discussion of this assertion see supra, B.iv.2. Report Submitted by unmik Pursuant to Article 2.2 of the Agreement Between unmik and the Council of Europe Related to the Framework Convention for the Protection of National Minorities (Council of Europe Doc. acfc(2005)003, Prishtina, May 30, 2005), at 27.

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This having been said, the treaties signed by Serbia and Montenegro remain valid and once the people are accorded rights under those treaties, the protection of their human rights continues to belong to the individuals, notwithstanding changes in the administration of the territory.36 Making reference to this general assertion, and reiterating unmik’s responsibility to protect and promote human rights under Resolution 1244 (1999), the Human Rights Committee (hrc) concluded in 2006 that unmik as well as the Provisional Institutions for Self-​Government (pisg) were “bound to respect and to ensure to all individuals within the territory of Kosovo and subject to their jurisdiction the rights recognized in the Covenant.”37 While not much can be said against the hrc’s reasoning, one particular problem remains: even though the people of Kosovo might be entitled to the rights enshrined in the international human rights instruments, they lack the capacity to enforce these rights against unmik and other international actors such as kfor.38 This lack of legal accountability, especially given the fact that unmik acted like a State proper,39 is “unconceivable and incompatible with the principles of democracy, the rule of law and respect for human rights”.40 This challenge will be further discussed below.

36 37 38 39

40

See most notably the Human Rights Committee’s General Comment No. 26 (1997) on continuity of obligations, 8 December 1997, ccpr/​C/​21/​Rev.1/​Add.8/​Rev.1, para. 4. hrc, Concluding observations of the Human Rights Committee:  Kosovo (Republic of Serbia), 14 August 2006, CCPR/​C/​UNK/​CO/​1, para. 4. B. Knoll and R.-​J. Uhl, Too little, too late: the Human Rights Advisory Panel in Kosovo, 5 European Human Rights Law Review (2007), 534, at 536. On the dual nature as both interim administrations and surrogate states see L.  von Carlowitz, Crossing the Boundary from the International to the Domestic Legal Realm, 10 Global Governance (2004), 307, at 319; J. Nilsson, unmik and the Ombudsperson Institution in Kosovo: Human Rights Protection in a United Nations “Surrogate State”, 22(3) Netherlands Quarterly of Human Rights (2004), 389; R. Wilde and N. Schrijver, The Complex Role of the Legal Adviser when International Organizations Administer Territory, 95 ASIL Proceedings (2001), 251, at 253 (focussing on the dual role of the legal adviser); J.  Beauvais, Benevolent Despotism:  A Critique of U.N. State-​building in East Timor, 33(4) New  York University Journal of International Law and Politics (2001), 1007. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 91. See in general, M. Bothe and T. Marauhn, UN Administration of Kosovo and East Timor, in: C. Tomuschat (ed.), Kosovo and the International Community, 2002, 235; L. von Carlowitz, unmik Lawmaking Between Effective Peace Support and Internal Self-​determination, 41(3) Archiv des Völkerrechts (2003), 336.

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b Human Rights Structures Within the unmik pillar structure, the responsibility for the monitoring, protection and promotion of human rights fell under Pillar iii, administered by the Organization for Security and Co-​operation in Europe (osce).41 It was assisted in its work by the United Nations High Commissioner for Refugees (unhcr), which was also active in human rights monitoring.42 Additionally, the Office of the srsg had established a Human Rights Office, directly advising the srsg. While it was, at the beginning, staffed with a “high profile international human rights expert”, the Office lost influence after the departure of this expert in January 2000.43 Its functions were dispersed throughout the interim international administration and coordinated by an Inter-​Pillar Working Group on Human Rights.44 The latter, in turn, was related to the Human Rights Oversight Committee (hroc), which was established in June 2002 and should provide review, scrutiny and advice.45 Mandated to ensure that unmik actions were in compliance with international human rights standards,46 the hroc received much criticism, especially for its “lack of independence and the secrecy of its proceedings and findings”, as well as for its very few meetings since its establishment.47 Within the pisg, there was no dedicated human rights 41

M. Brand, Institution Building and Human Rights Protection in Kosovo in the Light of unmik Legislation, 70 Nordic Journal of International Law (2001) 461, at 485 f. 42 Ibid., at 467. 43 Ibid. 44 Mirroring the lack of influence of the Human Rights Office, literature on this body is rare. See, as one of the few pieces referring to it, a report to the Committee on Legal Affairs and Human Rights of the Council of Europe’s Parliamentary Assembly, Protection of human rights in Kosovo, 6 January 2005, Doc. 10393. 45 The hroc is composed of the Principal Deputy srsg, the Heads of the four Pillars, the Legal Adviser, the Director of unmik of Public Affairs, the Director of unmik Office of Returns and Communities, the Head of Office of the UN High Commissioner on Human Rights, the Chief of unmik Office of Gender Affairs, the Deputy Commander of kfor (Observer) and the Department of Human Rights and Rule of Law of the osce Mission in Kosovo (OMiK). 46 European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), paras. 97 ff. 47 Report to the Committee on Legal Affairs and Human Rights of the Council of Europe’s Parliamentary Assembly, Protection of human rights in Kosovo, 6 January 2005, Doc. 10393. As of 2005, the rapporteur speaks of only three meetings all in all, none of which during the two years preceding his report. See also European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 100.

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department, which could secure the requirement of the pisg “to observe and secure human rights”, as provided for in the Constitutional Framework.48 Acknowledging the importance of an independent human rights review and complaints mechanism,49 an Ombudsperson institution in Kosovo was established in 2000.50 Its original mandate was to “receive and investigate complaints from any person or entity in Kosovo concerning human rights violations and actions constituting an abuse of authority by the interim civil administration or any emerging central or local institution.”51 It could also initiate investigations against unmik on his own initiative.52 Even though the Ombudsperson succeeded in becoming an important corrective voice,53 its overall scope and room for manoeuvre remained limited and fell short of providing an effective remedy for violations of human rights.54 In October 2004, the Council of Europe European Commission for Democracy through Law (Venice Commission) came to the conclusion that “an adequate and consistent mechanism for the examination of alleged human rights breaches by the two ‘institutional’ sources of potential human rights violations in Kosovo” (i.e. kfor and unmik as well as the pisg, which acted under the supervision of unmik) was lacking.55 It recommended the establishment of a human rights court for Kosovo

48 49 50 51 52 53 54

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UNMIK/​REG/​2001/​9, para. 3.2. See also Report to the Committee on Legal Affairs and Human Rights of the Council of Europe’s Parliamentary Assembly, Protection of human rights in Kosovo, 6 January 2005, Doc. 10393. Report of the Secretary-​General on the United Nations Interim Administration in Kosovo, UN Doc. S/​1999/​779, 12 July 1999, para. 89. unmik Regulation No. 2000/​38, On the Establishment of the Ombudsperson Institution in Kosovo, 30 June 2000, UNMIK/​REG/​2000/​38, as amended by unmik Regulation No. 2003/​8, 15 April 2003, UNMIK/​REG/​2003/​8. Ibid., section 3.1. Ibid., section 4.4. M. Brand, Institution Building and Human Rights Protection in Kosovo in the Light of unmik Legislation, 70 Nordic Journal of International Law (2001), 461, at 484. For an assessment of the role of the Ombudsperson, see, e.g., A. Momirov, Local Impact of ‘UN Accountability’ Under International Law: The Rise and Fall of unmik’s Human Rights Advisory Panel, 19(1) International Peacekeeping (2012), 3, at 9 f.; J. Nilsson, unmik and the Ombudsperson Institution in Kosovo: Human Rights Protection in a United Nations “Surrogate State”, 22(3) Netherlands Quarterly of Human Rights (2004), 389; G. Murati, The Ombudsperson Institution vs the United Nations Interim Administration in Kosovo (unmik), in: J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds.) Accountability for Human Rights Violations by International Organisations, 2010, 373. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 74.

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and, as a provisional, short-​term solution pending this establishment, the setting up of an independent human rights advisory panel.56 In 2006, the Special Representative issued unmik Regulation No. 2006/​12 On the Establishment of the Human Rights Advisory Panel.57 As a quasi-​judicial body, the hrap was intended to function as an independent instrument for review of complaints of alleged human rights violations by unmik. Ratione personae, the hrap was to deal with complaints about acts or omission for which unmik was responsible. Ratione temporis, it was empowered to consider “complaints relating to alleged violations of human rights that had occurred not earlier than 23 April 2005 or arising from facts which occurred prior to this date where these facts give rise to a continuing violation of human rights.”58 In cases when the hrap found that a human rights violation had occurred, it would publicly address the srsg and make recommendations on remedial measures.59 The creation of the hrap was generally welcomed and praised as the “only human rights mechanism in existence that deals specifically with human rights violations allegedly committed by or attributable to a United Nations field mission”.60 Critical voices, however, condemned the details of the establishing process and, not least, the final outcome.61 Most notably it has to be pointed out that under the pretext of avoiding duplication, the creation of the hrap went hand in hand with a significant reduction of powers of the Ombudsper­ son: u ­ nmik Regulation 2006/​6 effectively removed the Ombudsperson’s 56 57 58 59 60 61

Ibid., para. 101 ff. The Parliamentary Assembly of the Council of Europe underlined this recommendation, see Parliamentary Assembly of the Council of Europe, Resolution 1417 (2005), Protection of human rights in Kosovo, adopted on 25 January 2005. unmik Regulation No. 2006/​12, On the Establishment of the Human Rights Advisory Panel, 23 March 2006, UNMIK/​REG/​2006/​12, amended by unmik Administrative Direction No. 2009/​1, On the Establishment of the Human Rights Advisory Panel of 17 October 2009. unmik Regulation No. 2006/​12, On the Establishment of the Human Rights Advisory Panel, 23 March 2006, UNMIK/​REG/​2006/​12, Section 2. hrap, Annual Report, 2008, at 3. A. Momirov, Local Impact of ‘UN Accountability’ Under International Law: The Rise and Fall of unmik’s Human Rights Advisory Panel, 19(1) International Peacekeeping (2012), 3, at 9. See most notably, B. Knoll and R.-​J. Uhl, Too little, too late: the Human Rights Advisory Panel in Kosovo, 5 European Human Rights Law Review (2007), 534 (“The history of the Human Rights Advisory Panel, whose creation had only been pondered as late as in 2004, is one of forgiven chances and of wasted efforts. It testifies both to the tragic incoherence with which the international com-​munity viewed its institution-​building mandate and the reluctance to provide effective remedies.”, at 548 f.). See also A. Momirov, Local Impact of ‘UN Accountability’ Under International Law: The Rise and Fall of unmik’s Human Rights Advisory Panel, 19(1) International Peacekeeping (2012), 3.

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competence to deal with cases involving unmik.62 As the hrap remained non-​operational in the first months of its existence, a large number of pending cases against unmik with the Ombudsperson were no longer been taken care of. Thus the Regulation “shu[t]‌down the only avenue through which Kosovars could complain against acts of their caretaker government and have their cases heard.”63 The hrap for its part was faced with growing resistance from unmik because of its proactive approach. Tensions culminated in unmik Administrative Direction 2009/​1, which stressed the non-​adversarial nature of the proceedings and severely limited the powers of the hrap overall.64 Despite these shortcomings, for the purpose of the present analysis, the findings of the hrap serve as an important basis for the following evaluation of unmik’s human rights record. 3 Potential Human Rights Violations Resolution 1244 and unmik’s own Regulations prima facie appear to provide a solid commitment to the promotion and protection of human rights. However, the mere recognition of human rights standards in unmik regulations does not rule out that these regulations –​or acts resulting from their implementation –​do constitute infringements or violations of human rights.65 In fact, there exists a vast body of academic literature detailing the numerous and manifold infringements of human rights by unmik.66 In his second annual 62

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unmik Regulation No. 2006/​6, On the Ombudsperson Institution in Kosovo, 16 February 2006, UNMIK/​REG/​2006/​6, section 3.4. See also C.  Ryngaert, The Accountability of International Organizations for Human Rights Violations, in:  M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and Application of the European Convention of Human Rights, 2012, 73, at 76 f. B. Knoll and R.-​J. Uhl, Too little, too late: the Human Rights Advisory Panel in Kosovo, 5 European Human Rights Law Review (2007), 534, at 534. unmik Administrative Direction 2009/​1, 17 October 2009. See in detail A. Momirov, Local Impact of ‘UN Accountability’ Under International Law: The Rise and Fall of unmik’s Human Rights Advisory Panel, 19(1) International Peacekeeping (2012), 3, at 11 f. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), paras. 94 f. W. O’Neill, Kosovo:  An Unfinished Peace, 2002, esp. Chapter  5; M.  Brand, Institution Building and Human Rights Protection in Kosovo in the Light of unmik Legislation, 70 Nordic Journal of International Law (2001), 461; C.  Stahn, International Territorial Administration in the former Yugoslavia, 61 ZaöRV (2001), 107, at 152 ff.; C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001), 105, at 162 ff.; E.  Abraham, The Sins of the Savior, American University Law Review (2002–​2003), 1291; D. Marshall and S. Inglis, The Disempowerment of Human

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report, the Ombudsperson found clear words about unmik’s human rights record: As the state, however, unmik is not structured according to democratic principles, does not function in accordance with the rule of law, and does not respect important international human rights norms. The people of Kosovo are therefore deprived of protection of their basic rights and freedoms three years after the end of the conflict by the very entity set up to guarantee them.67 It is not the intention of the present section to replicate these findings of the already large choir of unmik critics. Nor does it aim at a full account of all potential human rights infringements unmik might be responsible for. Rather, by way of exemplary human rights problems, it will be analysed if and to what extent unmik violated its obligation to respect, protect and fulfil human rights. With unmik being the only mission with a genuine human rights review body, the following will take advantage of the case law of the hrap. A selection of potential human rights violations will be discussed by means of these cases.68 The hrap did not have to determine, in every single case, the applicable law, since according to Regulation 2006/​12, the hrap was mandated to examine complaints regarding a violation by unmik of the human rights as set forth in the main human rights instruments.69 This advantage is a further reason for the reliance upon the hrap case law in this case study. In the case

Rights-​Based Justice in the United Nations Mission in Kosovo, 16 Harvard Human Rights Journal (2003), 95; J.  Nilsson, unmik and the Ombudsperson Institution in Kosovo:  Human Rights Protection in a United Nations “Surrogate State”, 22(3) Netherlands Quarterly of Human Rights (2004), 389; W. Benedek, Final Status of Kosovo, 80 Chicago-​Kent Law Review (2005), 215; J.  Friedrich, unmik in Kosovo, 9 MPUNYB (2005), 225, at 275 ff.; J. Tielsch, UN-​Verwaltung und Menschenrechte, 2006; J. Werzer, The UN Human Rights Obligations and Immunity:  an Oxymoron Casting a Shadow on the Transitional Administrations in Kosovo and East Timor, 77 Nordic Journal of International Law (2008), 105; C. Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, esp. at 47–​60 (based on the findings of the Ombudsperson Institution in Kosovo). 67 Ombudsperson Institution in Kosovo, Second Annual Report 2001–​2002, 10 July 2002, at 1. 68 Before the establishment of the hrap, the Ombudsperson has heard individual complaints on alleged human rights violations by unmik. For an account of these cases, see C.  Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 46–​60. 69 unmik Regulation 2006/​12, section 1.2.

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law of the hrap, the echr and its protocols played the most significant role.70 The following analysis will therefore take this human rights instrument as the main basis of reference. a Access to Justice, Right to Legal Remedy A particular specificity of unmik was the granting of immunities, pursuant to Regulation No. 2000/​47 of 18 August 2000, which provided that kfor, unmik as well as their personnel, property, funds and assets “shall be immune from any legal process.”71 Generally, the granting of immunity to international organizations and their organs is rather common and well-​founded. It is derived from the UN Charter and further codified in the cpiun,72 in order to guarantee the freedom to carry out the mandated activities without undue interference from the host States. In case of unmik, however, the granting of immunities became a human rights concern in itself.73 With Resolution 1244, the Security Council created unmik “as a surrogate state”,74 in which all legislative and executive authority was vested in unmik and exercised by the srsg.75 Therefore, unmik was not comparable to other peace operations mandated to monitor or assist the local government. Instead, unmik was Janus-​faced by being, at the same time, the government and an international presence.76 As a peculiar consequence, “the immunity does nothing else but to protect unmik from itself”.77 Hence, the Regulation met with unequivocal and widespread criticism, 70 71 72 73

74 75 76 77

C. Chinkin, The Kosovo Human Rights Advisory Panel, 2012, at 5; hrap Annual Report 2008, para. 10. unmik Regulation No. 2000/​47, On the Status, Privileges and Immunities of kfor and unmik and their Personnel in Kosovo, 18 August 2000, UNMIK/​REG/​2000/​47, sections 2 and 3. See generally on the validity of immunity for the UN, E.  De Brabandere, Immunity as a guarantee for institutional autonomy, in: R. Collins and N. White (eds.), International Organizations and the Idea of Autonomy, 2011, 278. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 62. Ombudsperson Institution in Kosovo, Special Report No. 2 on Certain Aspects of unmik Regulation No. 2000/​ 59 Amending unmik Regulation No. 1999/​ 24 on the Law Applicable in Kosovo (27 October 2000), para. 7. unmik Regulation 1999/​1, On the Authority of the Interim Administration, 25 July 1999, UNMIK/​REG/​1999/​1, section 1.1. E.g. M. Aznar-​Gómez, Some Paradoxes on Human Rights Protection in Kosovo, in: P.-​M. Dupuy, B. Fassbender, M. Shaw, K.-​P. Sommermann (eds.), Völkerrecht als Wertordnung, 2006, 15, at 23. osce, Kosovo, Review of the Criminal Justice System, 1 September 2001 –​28 February 2002, http://​www.osce.org/​kosovo/​13043, at 38. The Council of Europe’s Commissioner

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for example by Kosovo’s Ombudsperson,78 by the Parliamentary Assembly of the Council of Europe,79 by the Venice Commission80 and by international commentators.81 In essence, it was criticised that unmik’s and kfor’s immunity denied the people of Kosovo the possibility of legal remedy against legislative and executive acts of the interim administration. Potential infringement of human rights by such acts could not be brought under judicial review. The fundamental right to access to a court was thus being curtailed.82

78

79 80

81

82

for Human Rights came to the same conclusion: “the rationale for the immunities is consequently unclear”, since “the immunity of UNMIK is tantamount to immunity against itself and against authorities created and controlled by it”, see Kosovo:  The Human Rights Situation and the Fate of Persons Displaced from their Homes, Report by the CoE Commissioner for Human Rights, Mr. Àlvaro Gil-​Robles, Doc. CommDH(2002)11, 16 October 2002, para. 39. Ombudsperson Institution in Kosovo, Special Report No. 1, On the compatibility with recognised international standards of unmik Regulation No. 200/​47 on the Status, Privileges and Immunities of kfor and unmik and Their Personnel in Kosovo (18 August 20000) and on the implementation of the above Regulation, 26 April 2001; Ombudsperson Institution in Kosovo, Fourth Annual report 2003–​2004, 12 July 2004, at 14 f. For reference to cases brought to the attention of the Ombudsperson on this matter, see C. Janik, Die Bindung Internationaler Organisationen an internationale Menschenrechtsstandards, 2012, at 50. CoE’s Parliamentary Assembly resolution 1417 (2005), Protection of human rights in Kosovo, 25 January 2005 on, paras. 5 and 6. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 74. See, e.g., C.  Stahn, International Territorial Administration in the former Yugoslavia, 61 ZaöRV (2001), 107, at 114 and A.  Zimmermann and C.  Stahn, Yugoslav Territory, United Nations Trusteeship or Sovereign State?, 70 Nordic Journal of International Law (2004), 423, at 448; A.  Momirov, Local Impact of ‘UN Accountability’ Under International Law:  The Rise and Fall of unmik’s Human Rights Advisory Panel, 19(1) International Peacekeeping (2012), 3, at 5 f.; M. Brand, Institution Building and Human Rights Protection in Kosovo in the Light of unmik Legislation, 70 Nordic Journal of International Law (2001), 461; J.  Friedrich, unmik in Kosovo, 9 MPUNYB (2005), 225, at 277 ff.; J. Nilsson, unmik and the Ombudsperson Institution in Kosovo: Human Rights Protection in a United Nations “Surrogate State”, 22(3) Netherlands Quarterly of Human Rights (2004), 389, at 401 ff. E.g., Kosovo: The Human Rights Situation and the Fate of Persons Displaced from their Homes, Report by the CoE Commissioner for Human Rights, Mr. Àlvaro Gil-​Robles, Doc. CommDH(2002)11, 16 October 2002, at paras. 40–​43. See also J. Werzer, The UN Human Rights Obligations and Immunity: an Oxymoron Casting a Shadow on the Transitional Administrations in Kosovo and East Timor, 77 Nordic Journal of International Law (2008), 105, at 129 ff.

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b Housing and Property Claims One of the most pressing problems in the first phase after the deployment of unmik was related to housing and property rights. The armed conflict had left approximately 50  percent of houses and apartments destroyed; tens of thousands of peoples were homeless and large numbers of refugees returning to Kosovo found their original homes occupied or destroyed.83 This, together with increasing illegal housing occupations, posed a threat to the stability and security in Kosovo.84 In addition, discriminatory legislation enacted by the Serb authorities in the 1990s, inter alia prohibiting Kosovo Albanians to buy property from Serbs, caused a rise in informal property transactions.85 When unmik arrived, there was “widespread confusion regarding occupancy and ownership rights”.86 The right of refugees and displaced persons to return to their homes was firmly enshrined in Resolution 1244.87 It was part of unmik’s responsibilities to assure “the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo”.88 In November 1999 the srsg established the Housing and Property Directorate (hpd), which functioned as an administrative body with the mandate to regularise housing and property rights in Kosovo and to resolve disputes regarding residential property.89 The Housing and 83 84 85 86 87 88 89

L. von Carlowitz, Crossing the Boundary from the International to the Domestic Legal Realm, 10 Global Governance (2004), 307, at 308 f. Ibid. For details see hpcc, Final Report of the Housing and Property Claims Commission, Pristina 2007, at 12 ff. L. von Carlowitz, Crossing the Boundary from the International to the Domestic Legal Realm, 10 Global Governance (2004), 307, at 309. Security Council Resolution 1244 (1999), preamble, paras. 9(c), 11(k), 13, Annexes 1 and 2. Ibid, para. 11(k). unmik Regulation 1999/​23, On the establishment of the housing and property directorate and the housing and property claims commission, UNMIK/​REG/​1999/​23, 15 November 1999. See also unmik Regulation No. 2000/​60, Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission, UNMIK/​REG/​2000/​60, 13 October 2000. The Regulation was based on the recommendations made by experts from the United Nations Human Settlement Programme (UN-​Habitat). Their plan of action in the field of housing and property rights called for intervention by unmik in three main areas: (1) the establishment of an adjudication mechanism for housing and property rights; (2) the creation of centralized Cadastre and property records; (3)  the enhancement of municipal government and administration, see Habitat, “Housing and Property in Kosovo; Rights, Law and Justice: Proposals for a Comprehensive Plan of Action for the Promotion and Protection of Housing and Property Rights in Kosovo,” 30 August 1999. See also hpcc, Final Report of the Housing and Property Claims Commission, Pristina 2007, at 17, www.pca-​cpa.org/​ showfile.asp?fil_​id=626.

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Property Claims Commission (hpcc) served as an independent quasi-​judicial organ for the resolution of disputes concerning residential property. Once the srsg deemed them ready and able, the local courts would take over these functions. In fulfilling their mandate, the Housing and Property Directorate/​ Claims Commission (hpd/​c c) was intended to protect the rights to adequate housing and to ensure the protection of property rights as stipulated in international human rights instruments.90 Between January 2001 and December 2014, when the hpcc held its final session, the hpcc decided on over 43,000 property claims.91 Apart from the mere numbers, when it comes to the evaluation of hpcc’s work, commentators reach ambiguous conclusions. In principle, the establishment of the hpcc was a right step that enjoyed popular acceptance.92 Especially with its double perspective of addressing both past ethnic discrimination and illegal post-​conflict occupation, the hpcc contributed to mitigating ethnic tensions.93 In its Final Report of 2007, the hpcc itself underlined its “significant contribution to assisting dispossessed property right holders gain repossession of their homes.”94 It thus enabled refugees and displaced persons who had been dispossessed of their homes as a result of discrimination or displacement to return home.95 On the other hand, illegal occupations continued throughout unmik’s mandate, despite the hpd/​c c. The reasons for this were mainly a lack of enforcement power and the inability to bring an effective eviction scheme in line with requirements under international human rights law.96 This is also the conclusion of the Venice Commission, which added that because of the length of proceedings before the hpcc (up to four years) and the lack of remedy not only against this length but also against decisions on the merits, the hpcc contributed to a climate of impunity for property rights violations.97

90 91 92 93 94 95 96 97

L. von Carlowitz, Crossing the Boundary from the International to the Domestic Legal Realm, 10 Global Governance (2004), 307, at 312. Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 30 January 2015, UN Doc. S/​2015/​74, Annex 1, para. 2.1. L. von Carlowitz, Crossing the Boundary from the International to the Domestic Legal Realm, 10 Global Governance (2004), 307, at 312. Ibid., at 323. Von Carlowitz further notes that this specialized adjudication mechanisms saved the still fragile local judiciary from dealing with sensitive matters. hpcc, Final Report of the Housing and Property Claims Commission, Pristina 2007, at 9. Ibid. L. von Carlowitz, Crossing the Boundary from the International to the Domestic Legal Realm, 10 Global Governance (2004), 307, at 322 f. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, adopted by

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In its first year of operation, complaints concerning property issues constituted the largest number of human rights complaints received by the hrap.98 In the context of housing and property, several human rights issues are touched upon, most notably, the right to fair trial (Article 6 (1) echr); the right to an effective remedy (Article 13 echr); and the right to peaceful enjoyment of possessions (Art. 1 Protocol No. 1). i Right to a Fair Trial: the 14,000 Cases Among the numerous issues in the context of the right to fair trial, the lengths of proceedings played a significant role. For the purpose of this case study, this question is of interest and relevance, since it touches upon often heard arguments putting forward the special circumstances of post-​conflict situations and newly built institutions. In Kosovo, lengthy proceedings before the hpcc as well as when executing the decisions of the hpcc put into question the reconcilability with Article 6 (1) echr calling for “a hearing within a reasonable time”.99 The hrap heard a large group of cases that all related to a particular set of facts, so they were grouped together as the “14,000 cases”. In 2004, just within the five year time limit for the submission of civil compensation claims, between 17,000–​18,000 compensation claims were lodged before Kosovo courts against unmik, kfor and/​or pisg relating to the damage or destruction of property owned by ethnic Serbs who fled from Kosovo and left their homes towards the end of the armed conflict in 1999.100 On 26 August 2004, the Director of the unmik Department of Justice (doj) sent a letter to all court presidents and to the President of the Supreme Court, taking note of the “problems that such a huge influx of claims will pose for the courts” and asking to suspend the

the Venice Commission at its 60th Plenary Session, Venice, 8–​9 October 2004, Opinion no. 280/​2004, cdl-​a d (2004)033, para. 42. 98 hrap, Annual Report 2008, para. 18. 99 Article 6(1) of the echr states, in relevant part: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. To the hrap, Article 6 is applicable to proceedings before the hpcc because of the judicial functions of the hpcc, despite the fact that the hpcc is not a court per se, see, hrap, Milije Vučković against unmik, case no. 03/​07, Opinion of 13 March 2010; hrap, Nadica Kušić against unmik, case no. 08/​07, Opinion of 15 May 2010; hrap, Simo Mitrović against unmik, case no. 06/​07, Opinion of 17 December 2010, amongst other cases. 100 Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 1. For a summary see hrap, Final Report, 2016, paras. 139 ff.

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proceedings in this category of cases.101 Four years later, in September 2008, the Director of the doj notified the courts that cases which had been suspended according to the letter of 26 August 2004 should now be processed.102 In a number of cases, the hrap considered complaints alleging a violation of Article 6 (1) echr because of the doj letter. Before assessing the substantive issues, the hrap pronounced its view with respect to a more general, highly important question beyond the facts of these particular cases. Since much of the delay in the proceedings took place after the transfer of authority with respect to the administration of justice to the pisg, the Panel had to determine whether unmik was actually responsible for these potential violations. The original cause for the suspension of the court proceedings was clearly imputable to unmik, as the letter by the doj was sent in 2004 (at a time when unmik was still in charge of judicial proceedings).103 Yet, it may be open to debate as to what extent unmik could be held responsible for actions in the field of administration of justice after the transfer of authority to the pisg. To answer this question, the Panel referred to the provisions in the Constitutional Framework for Provisional Self-​Government according to which the pisg had to “observe and ensure internationally recognized human rights and fundamental freedoms”.104 Furthermore, pursuant to Chapter 12 of the Constitutional Framework, the srsg remained responsible for “overseeing the Provisional Institutions of Self-​Government, its officials and its agencies, and taking appropriate measures whenever their actions are inconsistent with unscr 1244 (1999) or this Constitutional Framework.” Consequently, the hrap argued, unmik remained responsible for any human rights violations resulting from acts or omissions by the pisg.105 101 The full text of the letter is reproduced in hrap, Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 6.  The letter referred to “over 14,000 cases”, in the end, the number of complaints filed was approximately 17,000. 102 Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 8. In December 2008, unmik’s responsibility for the judiciary ended with the assumption of control by eulex. 103 Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 18. 104 unmik Regulation No. 2001/​9 of 15 May 2001, Section 3.2. 105 Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 18. See also Nexhmedin Spahiu against unmik, case no. 02/​08, Partial Opinion of 20 March 2009, paras. 25, 28 and 29.

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In order to determine whether or not proceedings are undertaken within a reasonable time, no generalised assessments are possible. Instead, each case warrants an individual consideration, taking into account the complexity of the case, the conduct of the parties involved and what was at stake for the complainant.106 In the 14,000 cases, the respective lawsuits were halted immediately after having been lodged, as a result of an intervention by the director of unmik doj. Generally speaking, the temporary suspension of the proceedings could be deemed reasonable, if it were to provide necessary logistical and administrative support to the courts given the vast amount of lawsuits filed. The wording of the letter sent by the doj suggested that support in the planning and organization of the proceedings by unmik was being organised. However, in fact, the suspension of trials –​and thus a “complete denial of access to a court”107 for a certain group of individuals –​lasted four years. During this time, no noteworthy action capable of solving the difficulties was taken by unmik.108 In sum, the Panel did not see that unmik acted proportionately with respect to the means employed and the ends that it sought to achieve. It therefore found that unmik denied the complainants access to justice in violation of Article 6 (1).109 In other cases, the hrap came to different conclusions: in Mitrović, the Panel examined proceedings before the hpcc with a duration of over five years, two of which fell under the jurisdiction of the Panel.110 While there were some delays in the period falling outside of the jurisdiction of the Panel, it did not find significant delays in the period under consideration and concluded that the reasonable time was not exceeded. In its reasoning, the Panel took into account the backdrop of the high number of cases brought before the hpcc111 and the “logistical difficulties faced in the context of post-​conflict Kosovo”.112 1 06 hrap, Annual Report 2010, para. 101. 107 Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 42. 108 hrap, Final Report, 2016, para. 145. 109 Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 43. See also hrap, Final Report, 2016, para. 145. 110 The Panel can only exercise temporal jurisdiction for incidents after 23 April 2005. 111 According to the Final Report of the hpcc, 29,160 claims were filed with the hpd, Final Report of the Housing and Property Claims Commission, Pristina, 2007, at 40. 112 hrap, Simo Mitrović against unmik, case no. 06/​07, Opinion of 17 December 2010, para. 89. See also hrap, Gani Emini against unmik, case no. 17/​08, Opinion of 18 June 2010, in which the Panel did find a violation of Article 6(1), despite acknowledging the above considerations.

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In Kušić,113 the Panel considered the extent to which delays in the execution of a decision can amount to a violation of Article 6 echr.114 In the case before the hrap, the complainant criticized the non-​execution of a decision of the hpcc, in which the latter had recognised the complainant’s ownership right to a particular apartment but granted another person the right to occupy the very same apartment until a compensation scheme as provided for in Regulation no.  2000/​60 was finalized.115 While the Panel once more acknowledged the “unique context in which unmik operate[d]‌”,116 it found that the lack of implementation of a compensation formula eight years after the promulgation of Regulation no. 2000/​60 and up to the point that unmik was no longer responsible117 was not convincingly explained by unmik. Therefore, the complainant not only suffered from a non-​execution of the hpcc’s decision, which would have granted the complainant either the right to repossess the apartment or compensation. Given the circumstances, the complainant also faced the possibility of an indeterminate wait for the execution of the decision. Therefore, the hrap found that the delay in the execution of the hpcc’s decision amounted to a violation of Article 6 echr.118 ii Right to Peaceful Enjoyment of Possession: Confiscation of Property In the early days of unmik, the confiscation, i.e. taking and occupation, of private property, including houses, without compensation by kfor and unmik, was a serious human rights problem. The Ombudsperson received a number of complaints on this issue and also discussed it in his First Special Report.119 1 13 See Nadica Kušić against unmik, case no. 08/​07, Opinion of 15 May 2010, for details. 114 The echr considers delays of more than one year as prima facie unreasonable, see hrap, Annual Report 2010, para. 104. 115 unmik Regulation No. 2000/​60 on Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission, UNMIK/​REG/​2000/​60, 31 October 2000, esp. para. 4.5. 116 Nadica Kušić against unmik, case no. 08/​07, Opinion of 15 May 2010, para. 65. 117 By 31 December 2008, unmik Regulation No. 2006/​50 concerning the Kosovo Property Agency (kpa), the successor body to the hpd, expired. Authority over the kpa was assumed by Kosovo authorities, making unmik no longer responsible, see hrap, Annual Report, 2010, paras. 50–​51. 118 Nadica Kušić against unmik, case no. 08/​07, Opinion of 15 May 2010, paras. 65 ff. The hrap also held, again following the jurisprudence of the ECtHR, that the rights created by the binding decision of the hpcc should be considered a “possession” within the meaning of Article 1 of Protocol No. 1 to the echr. Therefore, the non-​execution of the decision also violated the complainant’s right to peaceful enjoyment of possessions Nadica Kušić against unmik, case no. 08/​07, Opinion of 15 May 2010, paras. 69–​70. 119 Ombudsperson Institution in Kosovo, Special Report No. 1 on the compatibility with recognised international standards of unmik Regulation No. 2000/​47 on the Status,

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He came to the conclusion that while the taking as such may be justifiable with a view to the emergency-​like situation at the beginning of the operation, the continued failure to pay compensation could not be justified.120 Furthermore, the Ombudsperson criticised the procedural constraints introduced by Regulation 2000/​47, making it virtually impossible for property owners to claim compensation from kfor and unmik. Therefore, he argued that not only the confiscation but also Regulation 2000/​47 were incompatible with the right to peaceful enjoyment of possession of Article 1 of Protocol 1.121 On a similar note, the Ombudsperson pointed to the fact that as a consequence of the procedures before the hpd/​CC, persons have been evicted from their housing, without the possibility to return to their original homes, which have remained destroyed since the armed conflict. He heavily criticised the lack of action on this issue by unmik and Kosovo authorities and suggested that this, too, could amount to a violation of human rights.122 The hrap, albeit on slightly different aspects, also dealt with the issue of confiscation of property. In Morina, the Panel inter alia considered the circumstances of the lawfulness of confiscation of property.123 The complainant, the owner of a retail business selling hunting ammunition, faced criminal charges against him on the unauthorised possession and use of weapons.124 In October 2002, unmik Police conducted a search in the complainant’s premises and confiscated all ammunition as well as documents and business records. Six years later, in September 2008, the complainant was informed that all charges against him had been dismissed. Two months later, the complainant died. His confiscated property, however, had not been returned. In addition to a violation of the “reasonable-​time” requirement of Article 6 (1) echr, and a violation of the right to effective remedy under Article 13 echr, the Panel also considered whether the failure to return the confiscated property amounted to a violation of the complainant’s right to property under Article 1 of Protocol No. 1 to the echr.125

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Privileges and Immunities of kfor and unmik and Their Personnel in Kosovo (18 August 2000) and on the implementation of the above Regulation, 26 April 2001, paras. 29 ff. Ibid., para. 34. Ibid., para. 44. Ombudsperson Institution in Kosovo, Sixth Annual Report 2005  –​2006, 11 July 2006, pp. 39ff, esp. at 42. Jahja Morina against unmik, case no. 36/​08, Opinion of 10 May 2012, paras. 13 ff. For a short summary see hrap 2012, paras. 76–​78. See also Nexhmedin Spahiu against unmik, case no. 02/​08, Opinion of 26 November 2010. Jahja Morina against unmik, case no. 36/​08, Opinion of 10 May 2012, paras. 13 ff. Art. 1 of Protocol No. 1 to the echr reads: “1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general

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By confiscating the hunting ammunition and other business documents, unmik interfered with the complainant’s right to protection of property. With the dismissal of criminal charges against the complainant, at the latest, there was no lawful basis for not returning the confiscated goods. Therefore, unmik had violated the complainant’s right to property as guaranteed by Article 1 of ­Protocol 1.126 To sum up, the hrap found unmik to have violated human rights in a large number of cases relating to housing and property issues. The violations mainly concerned Art. 6 (1) echr and Article 1 of Protocol 1. c Abductions and Forced Disappearances Another major element of the conflict in Kosovo was the widespread abduction and forced disappearance of civilians during and in the aftermath of the conflict. A  report by Amnesty International estimated that more than 3000 ethnic Albanians, mostly men, had been abducted by Serb police, paramilitary and military forces, mainly during the nato bombings between March and June 1999.127 Upon return to their often damaged or destroyed homes by the end of August 1999, many Kosovo Albanian refugees found their family members either missing or dead, which, in turn, sparked human rights abuses in revenge.128 While numbers remain disputed, it is estimated that more than 15,000 people were killed or disappeared between 1998 and 2000, i.e., during and in the immediate aftermath of the conflict. More than 3,000 ethnic Albanians, and about 800 Serbs, Roma, Ashkalia, Bosniaks and members of other minority communities went missing during this period.129

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principles of international law. 2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Jahja Morina against unmik, case no. 36/​08, Opinion of 10 May 2012, paras. 86 ff. Amnesty International, Burying the Past:  Impunity for enforced disappearances and abductions in Kosovo, June 2009, EUR 70/​07/​2009, at 6. On the other side of the coin, in the immediate aftermath of the conflict, armed paramilitary Kosovar groups engaged in the abduction and/​or killing of Serbs, Roma, and members of other minority groups, ibid., at 7. Ibid., at 7. On the wide-​spread human rights violations, see also the Report of the Special Rapporteur for Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia, UN Doc. A/​54/​396, 24 September 1999. In several opinions, the hrap provides these numbers by making reference to various sources (e.g. reports by the osce; quarterly reports of the UN Secretary-​General on unmik; unmik Police Annual Reports; the International Commission on Missing Persons; and data issued by the unhcr and by the icrc), see e.g. hrap, Snežana Zdravkovic against unmik, case no.  46/​08, Opinion 25 February 2013, paras. 17 ff. See also Amnesty International, Burying the Past: Impunity for enforced disappearances and

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According to its mandate, unmik was responsible for the judicial activities in Kosovo, including the investigation and prosecution of crimes. Several units within unmik were established to handle the issue of missing persons, inter alia the Missing Persons Unit (mpu) within unmik Police, and the War Crimes Investigation Unit (wciu).130 However, despite efforts of kfor and unmik, investigations remained incomplete and impunity for these and other human rights violations persist. In 2004, the Human Rights Committee deplored the “scarcity of serious investigations leading to prosecutions”.131 Two years later, the it voiced its concern that some 1,713 ethnic Albanians and 683 non-​Albanians, including Serbs, Roma, Ashkali and Egyptians, continued to be reported as missing as of May 2006, that low priority has been given to investigations of disappearances and abductions by the Missing Persons Unit of the unmik police and, since 2003 by the Central Criminal Investigative Unit132 In December 2008, eulex took over unmik’s responsibilities with regard to police and justice and assumed full operational control over the rule of law. In the subsequent months, all criminal case files were handed over to eulex.133 Ten years after the end of the conflict, in 2009, the fate and/​or remains of more than 1300 ethnic Albanians remained unknown; the bodies of about half of the above mentioned 3000 have been recovered since 1999.134 In 2015, 1,653 individuals were listed by the International Committee of the Red Cross (icrc) as still missing.135 The failure of unmik to initiate thorough investigations has, in the words of Amnesty International, revealed “a shocking disregard for the rights of the missing persons and their family members.”136 In their report, Amnesty International deplored a long list of failures by unmik:  the

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abductions in Kosovo, June 2009, EUR 70/​07/​2009, at 8, referring to numbers reported by unmik, officials from of the fry and Amnesty International’s own estimates. For details see, e.g. hrap, Snežana Zdravkovic against unmik, case no. 46/​08, Opinion 25 February 2013, para. 26. hrc, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, 12 August 2004, CCPR/​CO/​81/​SEMO, para. 9. hrc, Concluding observations of the Human Rights Committee:  Kosovo (Republic of Serbia), 14 August 2006, CCPR/​C/​UNK/​CO/​1, para. 13. See, e.g. hrap, Snežana Zdravkovic against unmik, case no. 46/​08, Opinion 25 February 2013, paras. 27–​28. Amnesty International, Burying the Past:  Impunity for enforced disappearances and abductions in Kosovo, June 2009, EUR 70/​07/​2009, at 7. hrap, Final Report, 2016, para. 153. Amnesty International, Kosovo: unmik’s Legacy, 2013, at 5.

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failure to gather and/​or properly document evidence, including statements of witnesses; the failure to maintain investigative files; and the failure to review investigations on a regular basis.137 In some cases, no investigation at all had taken place or investigations were closed “for no apparent reason, or for reasons of political expediency.”138 The consequences of such failure to bring perpetrators to justice are serious. On the one hand, it undermines the authority of the mission, when the local population cannot or does not trust the law enforcement capacity of the transitional administration.139 On the other hand, a culture of impunity can also encourage criminals to further engage in criminal activities or to take the law into their own hands.140 Especially in a post-​conflict situation, where the reconciliation can be supported by an effective judicial system, the lack of meaningful investigation and prosecution of crimes can have devastating effects on a society.141 Moreover, these issues can amount to human rights violations. i Right to Life: Killings, Abductions and Forced Disappearances The cases of murders and intentional killings as well as abductions and forced disappearances were summarised by the hrap as the missing and murdered persons cases (mmp). The activities of unmik in these cases could amount to a violation of Article 2 (1) echr safeguarding the right to life.142 To begin with, unmik was not the perpetrator in any of the cases of killings or forced disappearances and abductions. Therefore, the potential violation cannot concern the substantive limb of Article 2, i.e., the actual death of a person, but rather the procedural obligation to undertake effective investigations into such cases. Especially since the seminal Velásquez-​Rodríguez case of the 1 37 Ibid., at 7. 138 Ibid. 139 H. Strohmeyer, Collapse and Reconstruction of a Judicial System:  The United Nations Missions in Kosovo and East Timor, 95 AJIL (2001), 46, at 60. 140 Ibid. See also European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo:  Possible Establishment of Review Mechanisms, cdl-​a d (2004)033, adopted at the Commission’s 60th Plenary Session (Venice, 8–​9 October 2004), para. 45. 141 Ibid., see also several identical comments of the hrap, for instance, Momčilo Milenkovič against. unmik, case no. 312/​09, Opinion of 6 June 2013, para. 87. 142 “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Forced disappearances can also amount to crimes against humanity under the Rome Statute of the International Criminal Court (Article 7.1 (i)).

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Inter-​American Court of Human Rights,143 a positive obligation to investigate disappearances is commonly accepted as an obligation under international human rights law.144 Article 2 echr does not explicitly mention such an obligation. However, it is generally recognised that Article 2, read in conjunction with the duty in Article 1 echr to “secure to everyone (…) the rights and freedoms defined in Section i of this Convention”, implies the need for “some form of effective official investigation when individuals have been killed as a result of the use of force.”145 This view follows from the consistent jurisprudence of the ECtHR146 and was also taken up by the hrap.147 While relying on the jurisprudence of the ECtHR, the hrap was the first body to assess the positive obligations in the form of procedural action of an interim territorial administration, i.e. an organ of an intergovernmental organization, with respect to acts committed by third parties.148 Because of this precedential work and since the factual circumstances of a duty to investigate into past crimes are common to most post-​conflict peace operations, a detailed presentation of these arguments is pertinent. Once more following the jurisprudence of the ECtHR, the hrap first of all clarified that the procedural obligation under Article 2 had a “broader autonomous scope” beyond cases of active involvement of agents of the State.149 According to the ECtHR, “the absence of any direct State responsibility for the 1 43 IACtHR, Velásquez-​Rodríguez v. Honduras, Judgment of 29 July 1988, Series C No. 4. 144 Instead of many, see C. Grossman, Disappearances, mpepil, February 2008, para. 6. See also hrc, General Comment No. 6: Article 6 (Right to Life), 30 April 1982, para. 4; hrc, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/​C/​21/​Rev.1/​Add. 13, paras. 8 and 18. See further UN initiatives on the subject of forced disappearances underlining the duty to investigate, such as the UN General Assembly Declaration on the Protection of all Persons from Enforced Disappearances,18 December 1992, UN Doc. A/​Res/​47/​133, Article 13. 145 hrap, Shaip Canhasi against unmik, case no.  04/​08, Opinion of 12 November 2008, para. 28. 146 ECtHR, McCann and Others v. United Kingdom, no. 18984/​91, Judgment of 27 September 1995, para. 161; ECtHR, Kaya v. Turkey (158/​1996/​777/​978), Judgment of 19 February 1998, para. 86; ECtHR, Kelly v. United Kingdom, no. 30054, Judgment of 4 May 2001, paras. 94 ff. 147 hrap, Shaip Canhasi against unmik, case no. 04/​08, Opinion of 12 November 2008, para. 28. See also Snežana Zdravkovic against unmik, case no. 46/​08, Opinion 25 February 2013. 148 Snežana Zdravkovic against unmik, case no. 46/​08, Opinion of 25 February 2013, para. 65. Summarising its pioneering work on this issue, see hrap, Final Report, 2016, paras. 167 ff. 149 hrap, Shaip Canhasi against unmik, case no. 04/​08, Opinion of 12 November 2008, para. 27, referring to ECtHR, Šilih v. Slovenia, no. 71463/​01, Judgment of 28 June 2007, para. 94; ECtHR, Yasa v. Turkey, no.  22495/​93, Judgment of 2 September 1998, para. 100; ECtHR, Menson v. United Kingdom, no. 47916/​99, Decision on Admissibility of 6 May 2003, para. 1; ECtHR, Angelova and Illiev v. Bulgaria, no. 55523/​00, Judgment of 26 July 2007, para. 93.

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death of the applicants’ relative does not exclude the applicability of Article 2 of the Convention.”150 The hrap, following this approach, opined that unmik could be responsible for a violation of the procedural limb of Article 2 even though unmik was neither involved in nor responsible for the actual killing. Furthermore, it pointed out that the obligation was an obligation of means, not of result.151 In several cases before the hrap, the srsg argued that, while in general accepting unmik’s obligation to investigate under Article 2 echr, the “unique circumstances” in which unmik operated must be considered when assessing unmik’s activities.152 The hrap took a clear stand on this issue: with the adoption of unmik Regulations No. 1999/​1 and No. 1999/​24, unmik explicitly assumed obligations under the echr and other international human rights instruments. However, even though unmik did face serious difficulties and challenges, especially in the early phase of its operation, “under no circumstances could these elements be taken as a justification for diminishing standards of respect for human rights.153 The Panel also referred to the ECtHR, which in several cases confirmed that Article 2, including its procedural aspects, continued to apply in situations of armed conflict or generalised violence, as well as in post-​conflict societies.154 In the context of the iccpr, the hrc stated in its General Comment No. 6 that the right to life was “the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation”.155 Against this backdrop, the hrc had already 1 50 ECtHR, Angelova and Illiev v. Bulgaria, no. 55523/​00, Judgment of 26 July 2007, para. 93. 151 According to the ECtHR “there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-​threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in the present case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life”, ECtHR, Angelova and Illiev v. Bulgaria, no. 55523/​00, Judgment of 26 July 2007, para. 94, with further references. See also, with further references to the requirements established by the ECtHR concerning evidence, public scrutiny, demonstration of progress and hrap, Shaip Canhasi against unmik, case no. 04/​08, Opinion of 12 November 2008, paras. 30–​33. 152 Snežana Zdravkovic against unmik, case no. 46/​08, Opinion of 25 February 2013, para. 108. 153 Ibid., para. 110, see also Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 44. 154 For a summary of the ECtHR’s reasoning see Snežana Zdravkovic against unmik, case no. 46/​08, Opinion of 25 February 2013, paras. 111 f. 155 hrc, General Comment No. 6, 30 April 1982, para. 1.

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called upon unmik to investigate outstanding cases of disappearances and abductions.156 Of the almost 250 mmp cases declared admissible, the hrap found violations of Article 2 of the echr in over 90% of cases.157 It attested unmik a “pattern of perfunctory and unproductive investigations” and called the failures of unmik “systemic”.158 ii Prohibition of Torture and Inhuman Treatment The lack of investigation and the resulting mental suffering by family members of a victim of forced disappearance can moreover amount to inhuman treatment, which is prohibited by Article 3 echr and Article 7 iccpr.159 In Cyprus v. Turkey the ECtHR ruled that “the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons attained a level of severity which can only be categorised as inhuman treatment within the meaning of Article 3”.160 The essence of the violation is, according to the ECtHR, less the factual circumstance of the disappearance. It rather stems from the reactions and attitudes to the situation when it is brought to the attention of the relevant authorities.161 With respect to unmik, the hrc took notice of the lack of investigation when considering unmik’s implementation of the iccpr in Kosovo.162 Already 156 hrc, Concluding observations of the Human Rights Committee:  Kosovo (Republic of Serbia), 14 August 2006, CCPR/​C/​UNK/​CO/​1, para. 13. 157 hrap, Final Report, 2016, para. 158. For a list of cases refer also to the annual reports of the hrap. 158 hrap, Annual Report 2014, para. 50 and para. 80. For a summary of the mmp cases, see hrap, Final Report, 2016, paras. 173 ff. 159 Article 3 echr reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 7 iccpr provides that “[n]‌o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” 160 ECtHR, Cyprus v. Turkey, (no. 25781/​94), Judgment of 10 May 2001, para. 157. Further relevant ECtHR jurisprudence is cited in the hrap’s assessment of each case. See also the finding by the hrc, María del Carmen Almeida de Quinteros et al. v. Uruguay, Communication No. 107/​1981, U.N. Doc. CCPR/​C/​OP/​2, 1990, paras. 14 ff. 161 ECtHR, Çakici v. Turkey, (no. 23657/​94), Judgment of 8 July 1999, para. 98, echr, 1999-​IV. See also ECtHR, Cyprus v. Turkey, (no. 25781/​94), Judgment of 10 May 2001, para. 156. 162 Whereas unmik is not a State Party to the iccpr, the hrc in its concluding observations on the initial report of Serbia and Montenegro requested a report by unmik, after Serbia had declared itself unable to report on the human rights situation in Kosovo (hrc, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, 12 August 2004, CCPR/​CO/​81/​SEMO, para. 3). unmik then submitted the Report Submitted By The United Nations Interim Administration Mission In Kosovo To The Human Rights

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in its concluding observations regarding the report of Serbia and Montenegro, the hrc pointed out that the State Party was obliged to “investigate fully all cases of alleged violations of human rights, in particular violations of articles 6 [right to life] and 7 [prohibition of torture and inhuman treatment] of the Covenant.”163 The hrc then reiterated its concern with regard to the lack of investigation by unmik: unmik, in cooperation with pisg, should investigate all outstanding cases of war crimes, crimes against humanity and ethnically motivated crimes committed before and after 1999, including where the perpetrators may have been Kosovo Albanians, ensure that the perpetrators of such crimes are brought to justice and that victims are adequately compensated.164 The hrc further expressed concern about almost 2500 ethnic Albanian and non-​Albanian persons reported to be missing in 2006 and regretted the low priority given to investigations of disappearances and abductions by unmik. It therefore recommended that unmik should “effectively investigate all outstanding cases of disappearances and abductions and bring perpetrators to justice.”165 The hrap came to similar conclusions in a number of cases brought before it. Making reference to the extensive jurisprudence of the ECtHR,166 the Panel found in several cases that “unmik contributed to the complainant’s distress and mental suffering in violation of Article 3 of the echr”167 Overall, the hrap found a violation of Article 3 echr in 163 out of 178 cases.168 Once more, the Committee on the Human Rights Situation In Kosovo Since June 1999, CCPR/​C/​UNK/​1, 13 March 2006. 163 hrc, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, 12 August 2004, CCPR/​CO/​81/​SEMO, para. 9. 164 hrc, Concluding observations of the Human Rights Committee:  Kosovo (Republic of Serbia), 14 August 2006, CCPR/​C/​UNK/​CO/​1, para. 12. 165 Ibid., para. 13. 166 The hrap makes detailed reference to relevant case law in its respective opinions, see e.g. hrap, Svetlana Jočić against unmik, case no. 34/​09, Opinion of 23 April 2013, paras. 101 ff. 167 Ibid., para. 125. See also, with identical or similar findings, Ruhan Ruhani against unmik, case no. 85/​09, Opinion of 5 June 2013, para. 123; S.P. and V. Ð. against unmik, case no. 06/​09 and case no. 55/​09, Opinion of 6 June 2013, para. 139; Nadica Nedeljković against unmik, case no. 46/​09, Opinion of 6 June 2013, para. 118; Dušan Tomanović, Jelena Tomanović-​Koković and Verica Tomanović against unmik, cases nos 248/​09, 250/​09 and 251/​09, Opinion of 25 April 2013, para. 113. 168 hrap, Final Report, 2016, para. 163.

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failures were found to be systemic and could not be justified by references to the difficult circumstances encountered by unmik in the early days of the mission.169 d Treatment of Displaced Persons and Refugees The conflict in Kosovo led to large numbers of displaced persons and returning refugees that unmik had to deal with. One of the most well-​known hrap opinions in this context is N.M. and Others.170 The case considers the complaint of 138 members of the Roma, i.e. the Roma, Ashkali and Egyptian (rae), minority communities in Kosovo who were placed, after having fled their homes, in internally displaced persons (idp) camps near the Trepča smelter north of Mitrovica. The smelter had extracted zinc and lead up until 1999 and used to be the largest mine in former Yugoslavia. The complainants claimed to have suffered lead poisoning and other serious health problems caused by soil contamination stemming from the proximity to the Trepča smelter, coupled with poor hygiene and living conditions in the idp camps.171 In its opinion, the hrap found that unmik violated a number of human rights, as enshrined not only in the echr, the iccpr and the icescr, but also, with respect to women, in the cedaw and, with respect to children, in the crc.172 Most notably, the Panel considered the potential violations of the right to life and the right to be free from inhuman and degrading treatment (Articles 2 and 3 of the echr) and of the rights to housing and to an adequate standard of health (Articles 11 and 12 icescr). i

Right to Life, Right to Be Free from Inhuman and Degrading Treatment The detrimental situation in the aforementioned idp camps was a known fact to unmik.173 Still, unmik refrained from informing the people living in the 1 69 hrap, Annual Report 2014, at i. 170 hrap, N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016. A summary of the case is provided in the hrap, Final Report, 2016, paras. 208 ff. For a detailed report see Human Rights Watch, Kosovo: Poisoned by Lead, 23 June 2009. 171 hrap, N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016, paras. 37 ff. 172 See in detail, ibid., paras. 193 ff. 173 For instance, the World Health Organization conducted a blood testing among children and pregnant women and recommended a removal of these groups of persons from the camps, see N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016, paras. 50 and 72 ff. In addition, the Ombudsperson for Kosovo heavily criticised the conditions in the camps, see Ombudsperson Institution in Kosovo, Fifth Annual Report to the Special Representative of the Secretary-​General of the United Nations, 11 July 2005, pp. 35 ff. See

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camps about the health risks and did not take appropriate steps (e.g. relocation) to safeguard their lives and physical integrity. Thus, the idps suffered exposure to and contamination with lead over a period of several years until the closure of the camps in 2009. Making reference to ECtHR case law, the Panel found that unmik did not take all actions that could reasonably be expected to protect the complainants’ right to life, as required by Article 2 of the echr.174 In addition, it found that the lack of information on the part of unmik constituted a violation of the positive obligation under Article 2 of the echr to provide access to information in the context of dangerous activities and environmental matters.175 Furthermore, the Panel held that unmik violated the right to be free from inhuman or degrading treatment under Article 3 of the echr. It argued that the poor living conditions in the idp camps, exacerbated with the exposure to lead contamination and a lack of adequate medical care over a long period of time, reached the threshold of severity triggering Article 3. The Panel concluded that this could be considered inhuman and degrading treatment. unmik’s failure to take appropriate action to react to this deplorable state of affairs consequently amounted to a violation of Article 3 echr.176 It is noteworthy that the Panel took into account the special circumstances of unmik, including its limited budget and post-​conflict security challenges. Nevertheless, it unequivocally stated that “under no circumstances could these elements be taken as a justification for diminishing standards of respect for human rights”.177 A default reference to political and security issues, which the srsg had brought forward in response to the complaint, was not considered convincing on the part of the Panel. After all, the camps existed for more than ten years, a period long enough for unmik to find a better solution. ii Rights to Adequate Housing, Health Care and Standard of Living The hrap also examined complaints regarding violations of the right to health (Article 12, icescr) and the right to an adequate standard of living (Article 11, icescr). Here, the Panel carefully considered that pursuant to Article 2 of the icescr the rights enshrined in the icescr are to be implemented progressively.178 Nevertheless, it has been firmly established by the icescr Committee

1 74 175 176 177 178

also the concerns voiced by the hrc, Concluding observations of the Human Rights Committee: Kosovo (Republic of Serbia), 14 August 2006, CCPR/​C/​UNK/​CO/​1, para. 14. N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016, paras. 211 ff. Ibid., para. 219. Ibid., paras. 245 f. Ibid., para. 221 and para. 243. N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016, para. 267.

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that all rights entail minimum core obligations that apply at all times and with due consideration to vulnerable groups.179 According to the Panel, unmik has failed to consider the marginalised situation of those idps who belonged to the rae communities. It firmly rejected the srsg’s questionable argument that the Roma had lived in substandard living conditions even before the conflict.180 Instead, the Panel held that the rae idps should have been regarded as particularly vulnerable, deserving special protection and consideration.181 Moreover, the Panel opined that having already assessed the living conditions in the camps as life-​threatening and degrading, they could not be considered as meeting the minimum standard required under Articles 11 and 12 icescr (the right to an adequate standard of living and the right to the highest attainable standard of health). unmik therefore also violated the complainants’ right to an adequate standard of living (Art. 11 icescr) and their right to health (Art. 12 icescr).182 e Findings The short insight into a fragment of the hrap’s rich case law shows that unmik violated its human rights obligations in various ways and instances. The findings are relevant for a number of reasons:  first, the hrap did take into account the interim character of the transitional administration and the special circumstances under which it operated. However, these factors were not considered as an automatic justification for the violation of international human rights law. This is an important finding since it firmly counters regularly voiced arguments pledging for a limited accountability for peace operations due to their special nature and prevailing circumstances.183 Secondly, unmik violated human rights in all three dimensions, namely its obligations to respect, to protect and to fulfil: the immunities granted to unmik by Regulation 2000/​47 effectively prevented the people in Kosovo from bringing potential civil claims before a court. The Regulation thus violated their right to a fair and public hearing as provided for in Article 6 (1) echr. Further, in unlawfully confiscating property or confiscating without compensation, unmik failed to respect the right to peaceful possession of property as provided for in Article 1

179 cescr, General Comment No. 3 on the nature of State Parties’ obligations, 14 December 1990, UN Doc. E/​1991/​23, paras. 10 ff. 180 N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016, para. 244. 181 Ibid., para. 273. 182 Ibid., paras. 277 ff. 183 Most notably by the UN itself, see e.g. the srsg’s argumentation in N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016, para. 166.

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of Protocol No. 1 to the echr. Concerning the obligation to protect, unmik did not fulfil its obligations in the context of cases of killings and forced disappearances. Here, unmik’s investigations were incomplete or lacking completely. Furthermore, the treatment of the members of the rae communities in the idp camps constituted inter alia a violation of unmik’s obligation to protect and to fulfil the right to health under Article 12 of the icescr. Last not least, unmik’s failure to take action with a view to reducing the length of proceedings as well as the time for the execution of decisions constituted a violation of unmik’s obligation to fulfil the complainants’ rights to effective remedy under Article 13 echr. It has thus been shown that unmik not only theoretically could have, but very concretely did violate human rights. 4 Reactions and (Lack of ) Consequences The previous section has shown that unmik violated human rights in various concrete instances. Instead of stopping at this point, as it is often done, the present book goes beyond this moment of accusation and continues with a closer look at the reactions to those violations. After a presentation of the recommendations of the hrap (a.), the reactions of unmik (b.) and further consequences on the part of relevant UN authorities such as the Secretary-​General (c.) will be discussed. a Recommendations of the Panel The hrap in its opinions not only stated whether there had been a breach of human rights but also, where necessary, made recommendations to be submitted to the srsg.184 These recommendations regularly called for the following actions on the part of unmik: 1. to take all possible steps to end the particular human rights violations or, given unmik’s diminishing competence in Kosovo, to influence the respective authorities (e.g. eulex or Kosovo authorities) to take all possible steps; 2. to publicly acknowledge responsibility for the acts or omissions leading to the human rights violation (esp. in the murder and enforced disappearances cases); 3. to take appropriate steps towards payments of adequate compensation to the complainant(s) for pecuniary and, as is applicable in most cases,

184 unmik Regulation No. 2006/​12, On the Establishment of the Human Rights Advisory Panel, section 17.1.

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non-​pecuniary moral damage as well as to work towards the realisation of a reparations programme; 4. to take immediate and effective measures to implement the recommendations and inform both the complainant and the hrap about any further developments.185 This consistent pattern of recommendations follows the path outlined by the law of responsibility, as discussed in the previous chapter.186 b Reactions by unmik According to unmik Regulation No. 2006/​12, the srsg had “exclusive authority and discretion to decide whether to act on the findings of the Advisory Panel.”187 Consequently, the srsg was under no obligation to follow the recommendations of the hrap. Rather, the srsg could lawfully refuse compliance.188 According to Section 17.4 of Regulation 2006/​12, the decisions of the srsg “shall be published promptly”. The first response was published in 2010, even though the hrap gave its first opinion as early as 2008. In subsequent years, the public responses continued to be issued slowly and incompletely,189 but efforts increased towards the end of the hrap’s mandate.190 The responses of the srsg all followed a consistent pattern and were identical, depending on the type of violation found by the hrap and the respective recommendations made. i End Human Rights Violation With the first response having been issued in April 2010, and thus after the transfer of authority to eulex or to Kosovo authorities, the srsg in his responses was unable to promise measures necessary to be taken by unmik in order to end the human rights violation. In fact, unmik at this point could no longer influence decisions made in Kosovo, since it did no longer have

185 E.g., Dušan Tomanović, Jelena Tomanović-​Koković and Verica Tomanović against unmik, cases nos. 248/​09, 250/​09 and 251/​09, Opinion of 25 April 2013; N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016. 186 See supra, Chapter 3.i.3. 187 unmik Regulation No. 2006/​12 on the Establishment of the Human Rights Advisory Panel, section 17.3. 188 C. Ryngaert, The Accountability of International Organizations for Human Rights Violations, in: M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and Application of the European Convention of Human Rights, 2012, 73, at 82. 189 Cp. hrap Annual Report 2010, para. 121. 190 In 2014, for instance, 99 responses were published, hrap Annual Report 2014, para. 70.

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authority over these institutions.191 Therefore, the srsg regularly assured to request eulex to liaise with Kosovo authorities in order to ensure that all possible steps were taken which were necessary e.g. for the execution of decisions of the hpd/​c c192 or to ensure that criminal investigations were pursued.193 As a response to a number of cases regarding murders and enforced disappearances, the srsg furthermore voiced regret for the lack of effective investigation.194 ii Public Apology The srsg’s approach in response to the recommendation of a public apology for human rights violations has been criticised. In many of the cases regarding missing persons, the complainants had received a standard letter from the srsg stating that he “deeply regret[ted] that there was a lack of an effective investigation into the abduction and death of your [loved one] which has caused you additional distress and mental suffering”.195 Victims and commentators considered this standard wording as well as the lack of any further activities on the part of unmik insufficient and falling short of a meaningful apology.196 Furthermore, the sending of letters, even though some of them were published on the website of the hrap, cannot be deemed a “public apology”.197 iii Reparations With respect to the realisation of a reparations program, including restitution, compensation, rehabilitation and satisfaction, the responses of the srsg in general included the following statement: 191 hrap Annual Report 2014, para. 64. The Panel considered unmik’s lack of influence as deeply problematic when issuing its recommendations, see hrap, Final Report, 2016, para. 232. 192 See, as but one example, srsg’s comments on hrap opinion in the case of Nadica Kušic (case no.  08/​07), http://​www.unmikonline.org/​hrap/​Eng/​Cases%20Eng/​DC_​No_​08-​07-​ SRSG-​comments.pdf. 193 See, as but one example of many identical ones, srsg’s decision in the complaint of Jordanka Pavic (No. 98/​09), http://​www.unmikonline.org/​hrap/​Eng/​Cases%20Eng/​DC_​ No_​98-​09-​SRSG_​comments.pdf. 194 See, as but one example of many identical ones, srsg’s decision in the complaint of Jordanka Pavic (No. 98/​09), http://​www.unmikonline.org/​hrap/​Eng/​Cases%20Eng/​DC_​ No_​98-​09-​SRSG_​comments.pdf. 195 Letter quoted in hrap Annual Report 2013, para. 99. 196 The dissatisfied reaction of a group of victims which has been published in a Serbian newspaper is quoted in hrap, Annual Report 2013, para. 99; hrap, Annual Report 2014, para. 74. 197 hrap, Annual Report 2013, para. 99; hrap, Annual Report 2014, para. 74.

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Current UN General Assembly resolutions do not allow the Organization or its Missions to pay compensation other than for material damage or physical harm. unmik therefore is not in a position to pay any compensation for human rights violations that may have occurred. unmik will, however, continue to address the issue with the United Nations Headquarters in New York with the aim of drawing the attention of the General Assembly to this problem, also taking into account of the human rights standards that prevail in the context in which unmik is operating.198 What the srsg referred to without explicitly mentioning is Resolution 52/​247 of the General Assembly on third-​party liability. The resolution provides that third-​ party claims against the UN shall be limited to economic loss and that no compensation shall be payable for non-​economic loss, such as pain and suffering.199 Section 7 of unmik Regulation No. 2000/​47 on the Status, Privileges and Immunities of kfor and unmik implemented the General Assembly Resolution for unmik and thus established the same rule, namely that compensation was only to be paid for property loss or damage and for personal injury, illness or death.200 Still, the standard response to the recommendation regarding the payment of compensation merits criticism. While it is true that unmik is not obliged –​ or, as it is the view of the srsg, not in a position –​to pay reparations or compensation, the reference to the current legal situation sounds like a rather cheap excuse. In fact, the assurance that the srsg will raise the issue with the General Assembly, so far, has not led to any visible action. Both Amnesty International and the hrap, who have consistently inquired about the srsg’s efforts in these matters, have not succeeded in finding any meaningful activity.201 198 See, as but one example of many identical ones, srsg’s comments on hrap opinion in the case of Nadica Kušic (case no. 08/​07), http://​www.unmikonline.org/​hrap/​Eng/​Cases%20 Eng/​DC_​No_​08-​07-​SRSG-​comments.pdf. 199 General Assembly Resolution 52/​247 on third-​party liability: temporal and financial limitations, 17 July 1998, UN Doc. A/​RES/​52/​247, para. 9. The resolution is based on the Report of the Secretary-​General, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, 20 September 1996, UN Doc. A/​51/​389 and the subsequent report of the Secretary-​General, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, 21 May 1997, UN Doc. A/​51/​ 903. For a commentary to the GA Resolution see B. Oswald, H. Durham, and A. Bates, Documents on the Law of UN Peace Operations, 2010, Chapter 28. 200 unmik Regulation No. 2000/​47, On the Status, Privileges and Immunities of kfor and unmik and their Personnel in Kosovo, UNMIK/​REG/​2000/​47, 18 August 2000. 201 Amnesty International, unmik’s Legacy, 2013, esp. at 25 ff.; hrap, Annual Report 2014, para. 75. That there are ways to tackle the issue of compensation is shown in the Opinion of the European Commission for Democracy through Law (Venice Commission) on the

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In later responses, the srsg chose this formula: I wish to recall that the acts in question relate to activities carried out by the institutions established under the interim administration in Kosovo. As such, had unmik continued to have control over these institutions today, unmik would have been in a position to refer the Panel’s recommendation to those institutions for appropriate action. I am prepared to discuss the possibility of setting up a mechanism to deal with such matters with the relevant authorities at the appropriate juncture.202 Amnesty International called this response “an extraordinary attempt by unmik to deny its liability for violations of the very human rights standards that it was created to uphold and respect.”203 The lack of investigation had not been a failure of Kosovo authorities but one of unmik police. Trying to transfer responsibility for this failure to Kosovo authorities is thus a rather evasive attempt. The promise to discuss the issue “with the relevant authorities at the appropriate juncture” has so far not been followed by any visible activity by the srsg.204 iv Efforts to Promote and Protect Human Rights As a last point in many responses, the srsg makes a very general reference to the continuous effort of the UN to promote and protect human rights which is, not least because of its tone, worth quoting in full: As a general matter, the Panel may also wish to be informed that the principal organs of the United Nations have adopted numerous resolutions and decisions which reflect the importance of promoting and protecting human rights, including by the United Nations. The Organisation also continues to make changes in order to strengthen its work for the future and within the areas of the United Nations where it can make a

Existing Mechanisms to Review the Compatibility with Human Rights Standards of Acts by unmik and eulex in Kosovo, Opinion no. 545 /​2009, 21 December 2010, cdl-​ ad(2010)051, para. 47. 202 See, as but one example of many identical ones, srsg’s decision in the complaint of Jordanka Pavic (No. 98/​09), http://​www.unmikonline.org/​hrap/​Eng/​Cases%20Eng/​DC_​ No_​98-​09-​SRSG_​comments.pdf. 2 03 See also Amnesty International, unmik’s Legacy, 2013, at 26 and hrap, Annual Report 2013, paras. 100ff. 204 hrap, Annual Report 2014, para. 77.

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difference. In this regard it will continue striving to meet its core mission of protecting people from harm.205 This last statement seems superfluous, if not presumptuous. The reference to the resolutions of the UN is even more confusing if one looks more closely at the content of one of those resolutions. The General Assembly Resolution 60/​147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted on 21 March 2006, for instance, explains that the obligation to respect, ensure respect for and implement international human rights law includes the duty to take appropriate measures to prevent violations; to investigate violations effectively and promptly; to ensure effective access to justice; and to provide effective remedies, including reparation.206 Such reparation includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-​repetition.207 Resolution 60/​147 is not addressed to the UN in particular. Yet, it seems reasonable to apply the principles of this resolution also to the UN once it bears the responsibility for the respect and implementation of human rights as, e.g., in the case of Kosovo. Despite the fact that the principles of the resolution, including the forms of reparation, are confined to gross violations of international human rights law,208 the duty to provide effective remedies to victims applies to all human rights violations, not only the most severe forms thereof.209 As a consequence, it seems difficult to understand that the srsg makes reference to UN efforts to promote and protect human rights, such as Resolution 60/​147, while at the same time acting in contradiction to the principles laid down in such instruments, thus failing to live up to its own standards. v Findings As a conclusion one has to follow the hrap’s assessment that the srsg’s practice of responding to the recommendations of the hrap showed a “lack of 205 See, as but one example of many identical ones, srsg’s decision in the complaint of Jordanka Pavic (No. 98/​09), http://​www.unmikonline.org/​hrap/​Eng/​Cases%20Eng/​DC_​ No_​98-​09-​SRSG_​comments.pdf. 206 General Assembly Resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 21 March 2006, UN Doc. A/​Res/​60/​147, para. 3. 207 Ibid., paras. 19–​23. 208 Ibid., preamble. 209 See ibid., para. 3.

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effective engagement by the srsg regarding the substantive work of the Panel.”210 Consequently, despite the numerous opinions and recommendations issued by the hrap, nothing tangible has come from the work of the Panel and unmik remains effectively unaccountable for its human rights violations.211 As a result, victims have suffered twice: once from the human rights violation by unmik and a second time from the disappointment to see their hope and trust in the process unfulfilled.212 c Further Reactions and Consequences In his quarterly reports to the Security Council on unmik, the Secretary-​General regularly included a section on human rights. Some reports did not mention the activities of the hrap at all,213 others referred to the hrap’s opinion in a very casual way and offered little more than a matter-​of-​fact presentation of the number of complaints dealt with. The very brief accounts of the Panel’s findings were not complemented by an assessment or even a discussion.214 It is noteworthy that the lack of engaged reporting on the hrap did not go unnoticed in the local population; the Serbian news service Vesti deplored in March 2014 that, so far, none of unmik’s quarterly reports had mentioned the hrap’s work or any of the over 100 opinions that had already been delivered by the Panel.215 The Secretary-​General did raise with the Security Council the unsolved issue of compensation for moral damages as recommended by the Panel,216 and, 210 hrap, Annual Report 2014, para. 70. For the srsg’s narrative, see unmik, srsg’s Statement to the Press on the Occasion of the Publication of the Final Report of the Human Rights Advisory Panel, 22 July 2016, https://​unmik.unmissions.org/​srsg’s-​ statement-​press-​occasion-​publication-​final-​report-​human-​rights-​advisory-​panel (“Most importantly, the decision to establish hrap and to investigate complaints against the Mission and to engage in the process of reviewing unmik’s compliance with human rights in an independent, transparent and public way demonstrates the commitment of the United Nations to human rights.”). 211 hrap, Annual Report 2014, para. 79; hrap, Final Report, 2016, para. 241. 212 In this sense also the hrap, see hrap Annual Report 2014, para. 79. See similarly, hrap, Final Report, 2016, Executive Summary, para. 68. 213 See, e.g., Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 30 January 2015, UN Doc. S/​2015/​74. 214 E.g., Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 29 April 2016, UN Doc. S/​2016/​407, para. 48; Report of the Secretary-​ General on the United Nations Interim Administration Mission in Kosovo, 1 February 2016, UN Doc. S/​2016/​99, para. 42; Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 3 November 2015, UN Doc. S/​2015/​833, para. 42. For more examples see the summary in the hrap, Final Report, 2016, Annex J, at 135 ff. 215 Translated and quoted in hrap, Annual Report 2014, para. 77. 216 E.g. Minutes of unsc 7448th meeting (New York, 26 May 2015), S/​PV.7448, at 3 f.

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in one of his last reports, noted that no progress had been made on this issue.217 This is especially deplorable since other means for redress have equally proven unsuccessful: Before bringing their case to the hrap, the complainants had brought their claims to the UN and asked for compensation and remedies for economic losses as foreseen by General Assembly Resolution 52/​247. The UN responded that the claims “[did] not constitute claims of a private law character and, in essence, amount to a review of the performance of unmik’s mandate (…) therefore, the claims are not receivable.”218 As a consequence, the claimants did not receive any form of compensation, neither through the hrap nor through the UN claims procedure. Overall, the Secretary-​General missed the chance to bring to the attention of the Security Council the key findings of the Panel and thus prevented debate on these issues.219 This lack of attention matches the perceived lack of importance attributed to the hrap as an organ and to the relevance of its findings. Yet, it does not come as a surprise, since already the establishment of the Panel had to overcome obstacles. According to a Code Cable from then srsg Jessen-​ Petersen to then Under-​Secretary-​General (usg) Guéhenno in November 2005, it took months for UN Headquarters to give clearance for the promulgation of the draft Regulations which would establish the hrap. This suggests that not only the inauguration of the Panel was tried to be delayed, but also its effectiveness was sought to be undermined from the beginning.220 In its 2006 report to the Human Right Committee unmik stated that the creation of the hrap would address a major gap in human rights protection in Kosovo, namely that the “people in Kosovo do not have an effective means of seeking redress for an alleged violation of human rights”221 Hopes were high that the Panel would serve as promising pilot project for accountability and that the political pressure exerted by the hrap would be high enough to make

217 Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 29 April 2016, UN Doc. S/​2016/​407, para. 48. 218 Letter from Patricia O’Brian, Under-​ Secretary-​ General for Legal Affairs, Claim for Compensation on behalf of Roma, Ashkali and Egyptian residents of Internally Displaced Person (idp) camps in Mitrovice, Kosovo, 25 July 2011. 219 hrap, Final Report, 2016, para. 276. 220 B. Knoll and R.-​J. Uhl, Too little, too late: the Human Rights Advisory Panel in Kosovo, 5 European Human Rights Law Review (2007), 534, at 542 (the Code Cable is reproduced in excerpts on at 541). Similarly, the assessment of the hrap, see hrap, Final Report, 2016, at 30 ff. 221 hrc, Report Submitted By The United Nations Interim Administration Mission In Kosovo To The Human Rights Committee on the Human Rights Situation In Kosovo Since June 1999, CCPR/​C/​UNK/​1, 13 March 2006, para. 131.

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unmik comply with the recommendations.222 With hindsight, this hope has not matched reality. 5 Results Resolution 1244 (1999) vested in unmik the responsibility for the protection and promotion of human rights. The task was not an easy one, given the myriad of human rights problems already in place in post-​conflict Kosovo and in light of the unprecedented long list of other tasks and responsibilities placed upon unmik. unmik’s human rights problems have been at the centre of scholarly interest from its very beginning. With the creation of the hrap, a quasi-​judicial body was put in place to receive complaints regarding human rights violations by unmik. In over 500 opinions, the Panel found human rights violations for which unmik was responsible. These violations related to all sorts of human rights infringements, most notably the right to a fair trial and the right to peaceful enjoyment of possession in the context of housing and property cases; the right to life and the prohibition of torture in the context of uninvestigated cases of abductions and forced disappearances; and the rights to health and adequate standard of living with respect to the situation in idp camps. First of all, the results underline that the mere inclusion of the promotion and protection of human rights in the mandate of a peace operation alone does not lead to human rights protection. unmik was endowed with a strong human rights mandate from the outset but the sole commitment to high standards has proven to be insufficient for the viable protection of human rights, especially when effective means for legal remedies are lacking.223 Secondly, in many of its findings, the hrap could show that unmik was responsible for violating human rights despite the special circumstances it operated in. In responding to the complaints, the srsg frequently attempted to justify unmik’s behaviour –​be it delay in administrative procedures, lack of investigations or insufficient health-​related activities –​by arguing that “the standards which are required from a State cannot be the same in the case of an interim administration.”224 Additionally, the precarious security situation 222 C. Ryngaert, The Accountability of International Organizations for Human Rights Violations, in: M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and Application of the European Convention of Human Rights, 2012, 73, at 82–​85. 223 See also M. Brand, Institution Building and Human Rights Protection in Kosovo in the Light of unmik Legislation, 70 Nordic Journal of International Law (2001), 461, at 488. 224 E.g. Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​ 08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 44.

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in Kosovo was repeatedly brought forward.225 The present case study, however, showed that, based on the findings of the hrap, and against the backdrop of unmik’s human rights mandate, unmik’s interim character and its factual difficulties encountered must be duly taken into account but cannot be taken as an excuse for the diminishing standards of respect for human rights.226 These findings are important since they counter attempts for a justification of unmik’s (in)action, that are brought forward not only by UN representatives but which also resound in academic literature. As will be discussed more closely in Chapter 5, this repeated doubt about the existence and the scope of human rights obligations of UN peace operations may negatively influence the compliance with human rights law. The results of this case study serve at counteracting these dynamics by invalidating part of the reasoning brought forward to questioning broad human rights obligations. In the second part of this case study, it has been shown that unmik’s reactions to the findings and recommendations of the Panel were unsatisfactory with respect to UN accountability in general. In essence, unmik remained unaccountable for its human rights violations, despite the efforts of the hrap.227 It is particularly ironic that the unmik administration left the people in Kosovo with a lack of effective remedies for human rights violations and thus with a significant gap in human rights protection, while the protection of human rights was one of the justifications for the international engagement in Kosovo in the first place.228 ii

Human Rights in the United Nations Transitional Administration in East Timor

The United Nations Transitional Administration of East Timor (untaet) has received widespread academic attention, leading to a vast amount of academic literature. The focus of this case study does not lie in a reconsideration or re-​ evaluation of untaet as a whole, but rather in shedding light on the distinct 2 25 E.g. in N.M. and Others v. unmik, case no. 26/​08, Opinion of 26 February 2016, para. 166. 226 E.g. Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 44. Reiterated again in hrap, Final Report, 2016, at 3. 227 In fact, the members of the hrap deplored that the process was turned “into a human rights minstrel show” and felt that they needed to apologize “for its role in this sham.”, hrap, Annual Report 2015/​2016, para. 121. 228 B. Knoll and R.-​J. Uhl, Too little, too late: the Human Rights Advisory Panel in Kosovo, 5 European Human Rights Law Review (2007) 534, at 547.

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question of untaet’s human rights record. To this end, the case study will start with providing a short background to the mission and then proceed to its mandate and structure. It will then turn to potential human rights violations committed by untaet, including reactions and consequences thereof. 1 About the Mission a Background The end of untaet and Timor-​Leste’s entry into independence marked the end of nearly 500 years of colonial rule229 and almost 25 years of occupation. On 20 May 2002, the “delayed decolonisation”230 finally led to independence and Timor-​Leste231 was admitted as the 191st member State of the United Nations on 27 September 2002. The way to independence was marked by violence and painful losses.232 After a failed attempt of the Timorese at achieving independence in 1975, Indonesia intervened in the former Portuguese colony and annexed it as the 27th province (“Timor Timur”, “Eastern Timor”).233 Mass killings, mass rapes and forced expulsions accompanied the invasion; in the few weeks until February 1976, over 60.000 Timorese were killed.234 Only in 1999, after 25 years of violent Indonesian occupation, Portugal and Indonesia reached, with the support of the UN, a historical agreement over a referendum of the Timorese population.235 In the so-​called popular consultation, the people had the choice 229 See in detail on the colonial history, M. Schlicher, Portugal in Ost-​Timor, eine kritische Untersuchung zur portugiesischen Kolonialgeschichte in Ost-​Timor (1850–​1912), 1996. 230 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 297. 231 Upon independence, Timor-​Leste was chosen as official name. Before that, the territory was generally referred to as East Timor. In this book, the two names will be used respectively. 232 For an account of Timor-​Leste’s history in the 20th century, see e.g. S. Maus, Transitional Justice in Timor-​Leste, in: A. Mihr, G. Pickel, and S. Pickel (eds.), Handbuch Transitional Justice, 2018, 545, at 547 ff. 233 The UN through the General Assembly Resolution of 12 December 1975, UN Doc. A/​RES/​ 3485 (XXX) and by Security Council Resolution of 22 December 1975, UN Doc. S/​RES/​384 (1975), and Resolution of 22 April 1976, UN Doc. S/​RES/​389 (1976) condemned this as an unlawful act and continued to refer to Timor-​Leste as “non-​self governing territory” under the administrating power of Portugal. 234 See in detail, M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 300 ff. and M. Schlicher, Osttimor stellt sich seiner Vergangenheit, 2005. 235 Agreement between the Republic of Indonesia and the Portuguese Republic on the question of East Timor, 5 May 1999, UN Doc. A/​53/​951-​S/​1999/​513, annex i. For detail of the events within Timor-​Leste and of the changing political environment on an international scale that paved the way for this agreement, see D. Kingsbury, East Timor to 1999, in: D. Kingsbury (ed.), Guns and Ballot Boxes: East Timor’s Vote for Independence, 2000, 17 and

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between autonomy within Indonesia or full independence. The result of the referendum on 30 August 1999 was clear: with a turnout of 98 percent, 78.5 percent voted for an independent Timor-​Leste. Already during the vote count, and even more massively after the publication of the voting result, violence escalated and led to massive atrocities among the civilian population, including mass murder, torture and ill-​treatment, sexual enslavement and rape, forced displacements and the killing of around 2000 persons. The Indonesian army followed a scorched earth policy and left over 80 percent of the infrastructure destroyed.236 More than three-​quarters of the population were displaced, several hundred thousand fled into the Indonesian western part of the island. While UN staff were evacuated, Indonesia agreed to international assistance in order to maintain peace and security. On 15 September 1999, the Security Council authorised the Australian-​led International Force in East Timor (interfet),237 which finally put an end to the violence. Following growing international pressure, including the threat of economic sanctions, Indonesia handed control over Timor-​Leste to the UN on 27 September 1999. During the almost 25 years of Indonesian occupation, Timor-​Leste deplored over 100,000 deaths, including approximately 19,000 caused by direct killings and over 81,000 caused by starvation and illnesses.238 Following the referendum, the Security Council, by virtue of Resolution 1272 of 25 October 1999, placed Timor-​Leste under the authority of untaet.239 This peace operation is the focus of the following case study. b Mandate and Structure Resolution 1272 endowed untaet with the “overall responsibility for the administration of East Timor”240 during the transition to independence. As an integrated, multidimensional operation, untaet was “empowered to exercise all legislative and executive authority, including the administration of justice”.241

236 2 37 238 2 39 240 241

M. Schlicher and A. Flor, Osttimor –​Konfliktlösung durch die Vereinten Nationen, 78(2–​ 3) FW (2003), 251, at 258. Report of the International Commission of Inquiry on East Timor to the Secretary-​ General, UN Doc. A/​54/​725. Security Council Resolution 1264 (1999) of 15 September 1999, UN Doc. S/​RES/​1264. Final Report of the Commission for Reception Truth and Reconciliation of Timor-​ Leste, “Enough!”, October 2005, http://​www.cavr-​timorleste.org/​en/​chegaReport.htm, part 3: The History of the Conflict. Security Council Resolution 1272 of 25 October 1999, UN Doc. S/​RES/​1272. Ibid., para. 1. Ibid.

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untaet was mandated to (a)  provide security and maintain law and order throughout the territory of East Timor; (b) to establish an effective administration; (c) to assist in the development of civil and social services; (d) to ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance; (e) to support capacity-​building for self-​government; (f) to assist in the establishment of conditions for sustainable development.242 The overall authority was vested in the Secretary-​General and exercised by the srsg. The srsg headed the three main components of the mission, namely a governance and public administration component, a humanitarian assistance and emergency rehabilitation component, and a military component.243 Five offices for political, legal, constitutional, electoral, and human rights affairs respectively supported the srsg.244 Similar to unmik, untaet represented the formal government of the territory, with plenipotentiary legislative and executive powers vested in the Transitional Administrator, the srsg.245 The period between the establishment of untaet in October 1999 and Timor-​Leste’s independence in May 2002 was characterised by a continuous transfer of power to the nascent Timorese authorities.246 2 untaet Human Rights Mandate and Structure a Human Rights Mandate Unlike its “twin” operation unmik, the mandate of untaet did not explicitly call for the promotion and protection of human rights. Equally lacking in the mandate was any reference to human rights standards as the normative basis for activities of the srsg. While the Preamble referred to human rights in the context of the need for investigations into reports of systematic, widespread and flagrant violations of human rights law, the mandate did neither define

2 42 Ibid., para. 2. 243 Report of the Secretary-​General of 4 October 1999, UN Doc. S/​1999/​1024, para. 38. The Resolution specified the troop strength of the components with up to 1,640 police officers in the governance and public administration component and up to 8.950 troops and 200 military observers in the military component, see Security Council Resolution 1272 of 25 October 1999, UN Doc. S/​RES/​1272, para. 3. 244 Report of the Secretary-​General of 4 October 1999, UN Doc. S/​1999/​1024, para. 41. 245 J. Chopra, The UN’s Kingdom of East Timor, 42(3) Survival: Global Politics and Strategy (2000), 27, at 29. 246 For a comprehensive insight on the challenges of this process, see the account of two legal advisers at UNTAET, J. Morrow and R. White, The United Nations in Transitional East Timor, 22 Australian Year Book of International Law (2002), 1.

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who should conduct these investigations nor did it provide untaet with the explicit mandate to do so.247 Instead, untaet’s human rights mandate was somewhat hidden in a reference to the report by the Secretary-​General prepared for the planning of untaet.248 According to para. 29 h) of this report, untaet had the objective to “create non-​discriminatory and impartial institutions, particularly those of judiciary and police, to ensure the establishment and maintenance of the rule of law and to promote and protect human rights”.249 The detour through the report of the Secretary-​General does not alter the binding force of untaet’s human rights responsibility.250 However, it is noteworthy that untaet’s human rights mandate concerns the creation of national human rights institutions, who, in turn, will promote and protect human rights. Hence, the promotion and protection of human rights is, as Opie rightly concluded, not an end in and of itself for untaet.251 In the operative part, the only explicit human rights task was the call for the creation of an independent East Timorese human rights institution.252 According to the report of the Secretary-​General, this institution should, inter alia, be tasked with the investigation of alleged human rights violations and the conduct of public inquiries, advisory and support functions, as well as human rights education.253 In addition, the mandate provided that untaet personnel should dispose of appropriate training in international humanitarian, human rights, and refugee law.254 Apart from this, “human rights friendly obligations”255 such as the protection of the rights of refugees and displaced persons and the effective delivery of humanitarian aid were part of the mandate.256 In 247 Only in his report the Secretary-​General considered the investigations into alleged human rights violations to fall under the functions of a future national human rights institution, see Report of the Secretary-​General of 4 October 1999, UN Doc. S/​1999/​1024, para. 42. 248 Security Council Resolution 1272 of 25 October 1999, UN Doc. S/​RES/​1272, para. 3 (“UNTAET will have the objective and a structure along the lines set out in part IV of the report of the Secretary-​General”). 249 Report of the Secretary-​General of 4 October 1999 (S/​1999/​1024), para. 29 h). 250 Cp. C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001) 105, at 162 f. 251 R. Opie, International Human Rights Promotion and Protection Through Peace Operations, in: M. Bothe and B. Kondoch (eds.), 7 International Peacekeeping (2001), 99, at 121. 252 Security Council Resolution 1272 of 25 October 1999, UN Doc. S/​RES/​1272, para. 8. 253 Report of the Secretary-​General of 4 October 1999, UN Doc. S/​1999/​1024, para. 42. 254 Security Council Resolution 1272 of 25 October 1999, UN Doc. S/​RES/​1272, para. 15. 255 A. Devereux, Searching for clarity, in:  N. White and D.  Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 298. 256 Security Council Resolution 1272 of 25 October 1999, UN Doc. S/​RES/​1272, para. 10.

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this sense, human rights were mainstreamed into the mandate of untaet,257 without a strong explicit human rights mandate. The lack of explicit direct reference to the promotion and protection of human rights in the untaet mandate is especially noteworthy against the background of unmik’s mandate. The latter was issued only a few months earlier and prominently called for the civilian component of unmik to promote and protect human rights.258 It can only be speculated about the reasons for this difference. One commentator argued that the transfer of responsibility from the dpa –​which had led untaet’s predecessor, the United Nations Mission in East Timor (unamet)  –​ to dpko had caused a significant loss of continuity, communication, and transmission of knowledge and experience from unamet to untaet.259 Maybe this was part of the reasons why the issue of human rights, which played a significant role on the ground, did not feature prominently in the mandate.260 Another reason may lie in the fact that untaet had a much clearer vision of the gradual transfer of responsibility to local authorities than unmik:261 Kosovo’s independence was not the original goal of unmik, whereas untaet from the beginning saw human rights obligations to be exclusively with the nascent State of Timor-​Leste. Accordingly, untaet’s role was somewhat different from that of unmik. Even though Resolution 1272 endowed untaet with the mandate to run the country, the rationale behind this mandate was not so much to create a country according to the UN’s liking but rather to support the Timorese people on their journey to independence (which never was an outspoken goal in Kosovo). While Resolution 1244 stressed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia (preamble), East Timor was considered a Non-​Self-​Governing Territory,262 since the annexation of East Timor by Indonesia was never recognised. It has been argued that the role of the UN in Timor-​Leste thus amounted to

257 S. Jones, East Timor, in:  A. Henkin (ed.), Honoring Human Rights under International Mandates, 2003, 115, at 119. 258 Security Council Resolution 1244 of 10 June 1999, UN Doc. S/​RES/​1244, para. 11(j), See also A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 297 f. 259 J. Chopra, The UN’s Kingdom of East Timor, 42(3) Survival: Global Politics and Strategy (2000), 27, at 28. 260 For more ideas and speculations on this issue see A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 298. 261 For a comparison see e.g. C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001), 105, at 149 ff. 262 See Chapter xi of the UN Charter.

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a trusteeship under Articles 76 and 77 of the UN Charter.263 Having in mind Timor-​Leste’s path to independence, untaet quickly established institutions264 for the participation of the Timorese.265 Overall, the approach chosen for untaet may, especially in direct comparison with unmik, give a hint at the general value of the promotion and protection of human rights attributed to untaet. Like unmik, untaet worked on the premise of a continuing applicability of the existing law of East Timor, provided that it was compatible with the mandate of untaet and in consistency with international human rights standards. Vested with full legislative power, the srsg could enact new laws and regulations and could amend, suspend or repeal existing ones.266 In his first Regulation No. 1999/​1 on the Authority of the Transitional Administration in East Timor, the srsg, Sergio Vieira de Mello, proclaimed that internationally recognised human rights standards as reflected by the udhr and the core human rights treaties were to be observed by all persons undertaking public duties or holding public office in Timor-​Leste.267 Hence, while unmik’s human rights obligations were (also) derived from Resolution 1244, Resolution 1272 lacked this explicit reference. untaet’s human rights responsibilities stemmed from Regulation No. 1999/​1,268 as well as from its status as a subsidiary organ of the UN.269 Notably, untaet did not adopt a specific regulation on the privileges and immunities of untaet staff as did unmik with its Regulation No. 2000/​47.

2 63 E.g., Amnesty International, East Timor, August 2000, AI Index: ASA 57/​05/​00, at 4. 264 Such as the Political Cabinet with four untaet members and five members coming from the National Council of Timorese Resistance (cnrt) and the East Timor Transitional Administration (etta). 265 The way in which this has been done has been extensively discussed elsewhere, see as but one example, J. Morrow and R. White, The United Nations in Transitional East Timor, 22 Australian Year Book of International Law (2002) 1. For a comparison of the respective routes taken by untaet and unmik, see C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001), 105, at 149 ff. 266 Report of the Secretary-​General of 4 October 1999, UN Doc. S/​1999/​1024, para. 32. On the legal character of Regulations by UN Administrations see C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001) 105, at 145 ff. 267 untaet Regulation No. 1999/​1 on the Authority of the Transitional Administration in East Timor UNTAET/​REG/​1991/​1, 27 November 1999, Section 2. 268 Cp. C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor, 5 MPUNYB (2001), 105, at. 145 ff. 269 E. De Brabandere, Human Rights Accountability of International Administrations, in:  J. Wouters, E.  Brems, S.  Smis, and P.  Smitt (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 331, at 345. See supra Chapter 1.i.1.

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Instead, the cpiun was considered to apply to untaet staff as a matter of customary law.270 b Human Rights Structures untaet established several organs and bodies that worked on human rights-​ related issues. i Human Rights Unit Within untaet, a Human Rights Unit (hru) was established, as envisaged by the Secretary-​General’s report.271 Its responsibilities encompassed legal analysis and human rights advice to the srsg, observing human rights developments in the country, as well as human rights education, training and capacity building for the civil society.272 In practice, the hru started its work with no budget and staffed with only two officers.273 Sidney Jones, who served as the first Director of the hru, described the role of the hru as “unclear” and constantly at the brinks of marginalization.274 At the same time, she deplored that human rights monitoring and investigations were not considered to fall under the hrus tasks, despite the fact that investigation into and justice for the past atrocities were the most pressing human rights issue to the majority of the East Timorese.275 Instead, the hru could only make an effort to hold up the interests of victims of human rights abuses in the internal dialogue on the complex issue of how to deal with past abuses.276 Later, the hru was further responsible for advising and supporting the constituent assembly as well as for supporting the establishment of the Commission for Reception, Truth and Reconciliation (Comissão de Acolhimento, Verdade e Reconciliacão de Timor-​Leste, (cavr)).277 270 E. De Brabandere, Immunity as a guarantee for institutional autonomy, in: R. Collins and N. White (eds.), International Organizations and the Idea of Autonomy, 2011, 278, at 288. 271 Report of the Secretary-​General of 4 October 1999, UN Doc. S/​1999/​1024, para. 41. 272 Literature on the hru is scarce, arguably mirroring its lack of influence. For a presentation and evaluation of its role, see the two first-​hand accounts by A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 314 and S. Jones, East Timor, in: A. Henkin (ed.), Honoring Human Rights under International Mandates, 2003, 115. See also the short untaet Fact Sheet 12: Human rights of 28 February 2002, issued by the untaet Press Office, http://​reliefweb. int/​report/​timor-​leste/​untaet-​fact-​sheet-​12-​human-​rights. 273 S. Jones, East Timor, in:  A. Henkin (ed.), Honoring Human Rights under International Mandates, 2003, 115, at 120 f. 274 Ibid., at 121. 275 Ibid. 276 A. Devereux, Searching for clarity, in:  N. White and D.  Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 309. 277 Ibid., at 309 ff.

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ii Office of the Ombudsperson Like in Kosovo, the transitional administration made plans for the establishment of an Ombudsperson institution. A draft regulation prepared by the hru modelled the Ombudsperson after the one in Kosovo, including the authority to consider complaints against untaet with respect to potential human rights violations in the context of untaet’s administrative and governance activities.278 The Regulation was never adopted and the Ombudsperson was appointed without a legal framework for its operation.279 According to a press release by untaet, the Ombudsperson was tasked with the protection of rights and legitimate interests of all persons living in East Timor against governmental abuses, injustices and denial of rights. As such, complaints can be filed against untaet, the Transitional Administration, the Cabinet, as well as agencies, programs and institutions that collaborate with the Government.280 Despite this promising announcement, the institution faced serious problems in practice. Amongst others, they are mirrored by the fact that any formal record of the complaints received by the Ombudsperson is publicly unavailable, and that the mechanism seems to have been largely unknown and thus significantly underutilised.281 As a consequence, the Ombudsperson’s power and influence is not comparable to its Kosovo counterpart.282

278 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 338; A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 315. 279 C. Stahn, The Law and Practice of International Territorial Administration, 2008, at 602. It has been reported that one of the reasons why untaet refrained from formally establishing the Ombudsperson institution was the recognition that an independent East Timor might lack the financial means to maintain such an office, see J. Morrow and R. White, The United Nations in Transitional East Timor, 22 Australian Year Book of International Law (2002), 1, at 14. 280 untaet Daily Briefing 01 June 2001, http://​reliefweb.int/​report/​timor-​leste/​untaet-​ daily-​briefing-​01-​jun-​2001. 281 A. Devereux, Searching for clarity, in:  N. White and D.  Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 315; C. Stahn, The Law and Practice of International Territorial Administration, 2008, at 602; M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 338 f. 282 E.g. E. De Brabandere, Immunity as a guarantee for institutional autonomy, in: R. Collins and N. White (eds.), International Organizations and the Idea of Autonomy, 2011, 278, at 291; S. Chesterman, You The People, 2004, at 150.

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iii Serious Crimes Process Notwithstanding the lack of an explicit mandate on this issue, key decision-​ makers within untaet, such as Hansjörg Strohmeyer, Acting Principal Legal Advisor to untaet from its establishment in October 1999 until mid-​2000, saw a “moral imperative” for untaet to take action on holding perpetrators of human rights violations accountable.283 In June 2000, the issue was taken up, albeit not by the hru proper. Paralleled by juridical action in Indonesia under the so-​called “twin-​track” approach,284 untaet by Regulation No. 2000/​15 established the Special Panels for Serious Crimes (spsc) within the District Court in Dili. These Panels exercised exclusive jurisdiction with respect to serious criminal offences, namely genocide, war crimes, crimes against humanity, murder, sexual offences and torture.285 Concerning the serious criminal offences of murder, sexual offences and torture, the Panels had temporal jurisdiction only for the period between 1 January and 25 October 1999.286 They were designed as hybrid courts with two international judges and one East Timorese judge sitting on the Panels.287 In addition, the Serious Crimes Unit (scu) was established with a mandate to conduct investigations and prepare indictments. Staffed with UN personnel and, at the beginning part of the hru, the scu was later transferred to the authority of the Prosecutor-​General of Timor-​Leste. However, instead of

283 H. Strohmeyer, Making Multilateral Interventions Work, 25(2) Fletcher Forum of World Affairs (2001), 107, at 123; see also Security Council Resolution 1264 of 15 September 1999, UN Doc. S/​RES/​1264. See similarly Sidney Jones who explained that “the overriding need was seen to be investigating and bringing to account those responsible for the human rights atrocities of 1999”, quoted in A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 315. 284 E.g. C. Reiger and M. Wierda, The Serious Crimes Process in Timor-​Leste, March 2006, at 8. For a critical evaluation of the investigations and trials in Indonesia see also D. Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, in: P. Seils (ed.) for the International Center for Transitional Justice, August 2003. 285 untaet Regulation No. 2000/​15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/​REG/​2000/​15 of 6 June 2000, Section 1. See also Regulation No. 2000/​11 on the Organization of the Courts in East Timor, UNTAET/​REG/​ 2000/​11 of 6 March 2000, Section 10.4 (“The establishment of panels with exclusive jurisdiction over serious criminal offences shall not preclude the jurisdiction of an international tribunal for East Timor over these offences, once such a tribunal is established.”). 286 untaet Regulation No. 2000/​15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/​REG/​2000/​15 of 6 June 2000, Section 2.3. 287 Ibid., Section 22.1.

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functioning as an organ of the court, the scu remained and operated as a separate institution.288 iv Commission for Reception, Truth and Reconciliation Complementing the Serious Crimes Process, untaet initiated the Timor-​Leste Commission for Reception, Truth and Reconciliation (cavr).289 The time span covered by the cavr was much broader than the one of the Serious Crimes Process, since it considered violations of international human rights law, international humanitarian law, and criminal acts committed between 25 April 1974 (Carnation Revolution in Portugal) and 25 October 1999 (transfer of authority to the UN).290 The objectives of the cavr included traditional truth-​ seeking in the form of inquiry into human rights violations during the above time span, and reporting on these findings as well as promoting reconciliation and supporting the reception291 and reintegration of minor offenders into Timorese communities through community reconciliation processes (crps).292 The cavr broke new ground in several ways: first of all, it was the first truth commission in Asia.293 Secondly, the crps represented a novelty by providing a special procedure in which offenders confessed their guilt and regretted their offences, while members of the community and victims agreed upon means of reparation, such as public apology, material reparation or community service.294 It is noteworthy that the crps did not work as an alternative to criminal prosecution. Instead, they were only applicable to minor offences while serious violations like murder, rape or crimes against humanity had to be

288 C. Reiger and M. Wierda, The Serious Crimes Process in Timor-​Leste, March 2006, at 13. For detailed criticism on staffing and resourcing of the scu, see ibid. and see S. Jones, East Timor, in: A. Henkin (ed.), Honoring Human Rights under International Mandates, 2003, 115, at 135 ff. 289 untaet Regulation 2001/​10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, 13 July 2010, UNTAET/​REG/​2001/​10. For a detailed account of the cavr see M. Schlicher, Osttimor stellt sich seiner Vergangenheit, 2005. 290 untaet Regulation 2001/​10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, 13 July 2010, UNTAET/​REG/​2001/​10, Section 1c. 291 The term reception refers to the great number of refugees in West Timor, who often had committed minor offences or were known as pro-​Indonesian and therefore fear revenge upon their return to Timor-​Leste. The cavr intends to facilitate this return, see in detail M. Schlicher, Osttimor stellt sich seiner Vergangenheit, 2005, at 19–​21. 292 untaet Regulation 2001/​10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, 13 July 2010, UNTAET/​REG/​2001/​10, Section 3. 293 A. Fleschenberg, Osttimors Wahrheitskommission. 11 Blätter für deutsche und internationale Politik (2003), 1312, at 1312. 294 Ibid., at 1313 f.

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transferred to the Serious Crimes Process.295 Furthermore, in contrast to many previous truth commissions, the cavr did not allow for amnesties.296 The interest in the cavr among the population was immense; more than 7000 witnesses were heard throughout the country. After five years, on 31 October 2005, the 2500 pages report Chega! (Portuguese for “enough!”) was presented.297 The main calls of the report were the establishment of an international criminal tribunal and the creation of a permanent successor institution to the cavr. In December 2005, the cavr was dissolved and the technical secretariat (Secretariado Tecnico Pos-​c avr/​s tp-​c avr) was established. It was responsible for the dissemination and publication of the report. The establishment of a permanent institution is pending.298 3 Potential Human Rights Violations Overall, untaet is considered a success.299 However, despite the many positive voices, untaet had to face criticism because of its human rights record, albeit much less broad and less harsh than its twin mission unmik in Kosovo.300 In contrast to unmik, a detailed assessment of untaet’s human rights record is difficult due to a lack of official record on human rights violations, for instance by courts, an Ombudsperson institution or by an independent, quasi-​ judicial body like the hrap. Therefore, this case study cannot provide a case-​ by-​case analysis. Rather, it will try to outline general trends and weaknesses, give some indications on the legal character of these issues, and shed light on consequences reached therefrom.

295 See C. Reiger and M. Wierda, The Serious Crimes Process in Timor-​Leste, March 2006, at 33 f. and M. Schlicher, Osttimor stellt sich seiner Vergangenheit, 2005, at 17. 296 Ibid. 297 Final Report of the Commission for Reception Truth and Reconciliation of Timor-​Leste, “Enough!”, October 2005, http://​www.cavr-​timorleste.org/​en/​chegaReport.htm. 298 E.g. “After Ten Years, cavr Report Still Resonates in Timor-​Leste and Around the World”, Interview with Patrick Walsh by the ictj, 23 February 2016, https://​www.ictj.org/​news/​ 10-​years-​cavr-​report-​timor-​leste-​truth. 299 See M.  Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 369; J.  Beauvais, Benevolent Despotism: A Critique of U.N. State-​building in East Timor, 33(4) New York University Journal of International Law and Politics (2001) 1007, at 1161; J. Morrow and R.  White, The United Nations in Transitional East Timor, 22 Australian Year Book of International Law (2002), 1, at  46; J.  Steele, Nation Building in East Timor, 19(2) World Policy Journal (2002), 76, at 86. 300 For outspoken and detailed human rights criticism see most notably, Amnesty International, East Timor: Justice past, present and future, July 2001 and C. Bongiorno, A Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623.

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a Education, Health, Land: Economic and Social Rights When Timor-​ Leste gained independence, untaet transferred sovereignty over one of the poorest countries in Asia. A World Bank report presented daunting numbers: as of 2001, 60 percent of adults were illiterate, over 40 percent of children were underweight, infant mortality was at 8.8  percent and the fertility rate was among the highest in the world, with an average of more than seven children per woman.301 At the same time, poverty and low levels of education were common for a great part of the population; 20 percent of the population lived on less than a dollar a day. Especially in rural areas, access to infrastructure such as electricity (11 percent) and safe drinking water (43 percent) was poor.302 Against this backdrop, it seems that “untaet indeed was a success, but only for the United Nations, and not for the East Timorese.”303 The question thus arises as to what extent untaet was under an obligation, from a human rights perspective, to significantly enhance the situation during its mandate, and whether its modest record in this field may amount to a violation of economic and social rights. The provisions of the icescr were applicable to untaet and its personnel according to Regulation No. 1999/​1. As already discussed with unmik’s economic and social human rights obligations,304 Article 2.1 icescr provides for a progressive realisation of the rights enshrined in the Covenant. General consensus exists that despite the progressive realisation, leaving a certain amount of discretion to the States, a minimum standard exists that has to be guaranteed vis-​à-​vis individuals. This minimum standard creates “legitimate demands” for intervention to ensure that economic, social and cultural rights are respected.305 To start with, untaet found a devastated country in 1999; the social and economic situation had deteriorated during the decades of Indonesian occupation.306 The short time between 1999 and 2002 did not allow for the UN or

301 International Development Association, Program Document for a Proposed Grant to the Democratic Republic of Timor-​Leste, World Bank Report No:  29077-​TP, 29 September 2004, para. 5. 302 Ibid., para. 6. More recent numbers based on the Census 2004 are provided in the Core Document Forming Part of the Reports of States Parties: Timor-​Leste, 16 July 2007, UN Doc. HRI/​CORE/​TLS/​2007, Annex 1, pp. 167 ff. These numbers are not directly comparable to those of the World Bank Report, due to different methods and sources. 303 M. Benzing, Midwifing a New State, 9 MPUNYB (2005) 295, at 369. 304 See supra Chapter 4.i.3.d. 305 Analytical report of the Secretary-​General on Minimum Humanitarian Standards submitted pursuant to Commission on Human Rights Resolution 1997/​21, E/​CN.4/​1998/​87, 5 January 1998, para. 61. 306 See supra Chapter 4.ii.1.a.

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any other power to erase the traces of the past and to create a flourishing country from scratch.307 Likewise, untaet was unable to significantly ameliorate severe human rights issues, such as food shortages due to irregular food distribution and slow to non-​existent reconstruction of basic infrastructure.308 Crucial issues, such as the question of land titles, were deliberately not tackled by untaet, but instead left until after independence when they would fall under the responsibility of the new Timorese government.309 Overall, the human rights activities of untaet did not explicitly address economic or social rights.310 This lack of viable action can be partly explained by the enormous tasks untaet faced. However, within the logistical, bureaucratic and financial framework that governed untaet, the srsg and other mission authorities still had the power to take policy decisions.311 Some critics have thus argued that these decisions were taken with a view to create a stable security environment, to prepare for early elections and for transition to independence.312 Yet, they paid less attention to the most pressing social and economic needs of the population. In fact, untaet’s reports on human rights activities do not even mention measures relating to economic and social rights.313 Hence, untaet could be 3 07 See similarly, M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 370. 308 J. Chopra, The UN’s Kingdom of East Timor, 42(3) Survival: Global Politics and Strategy (2000), 27, at 31. Another severe problem was the widespread unemployment, especially among the younger population. 309 S. Chesterman, Justice Under International Administration, 2002, at 9. 310 Commission on Human Rights, Situation of human rights in East Timor Report of the High Commissioner for Human Rights, 29 March 2000, UN Doc. E/​CN.4/​2000/​27; Commission on Human Rights, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, 6 February 2001, UN Doc. E/​CN.4/​2001/​37; Commission on Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 1 March 2002, UN Doc. E/​CN.4/​2002/​39. 311 J. Beauvais, Benevolent Despotism: A Critique of U.N. State-​building in East Timor, 33(4) New York University Journal of International Law and Politics (2001), 1007, at 1164. 312 J. Chopra, The UN’s Kingdom of East Timor, 42(3) Survival: Global Politics and Strategy (2000) 27, at  31 (“UNTAET’s implicit agenda bore the ominous hallmarks of a typical UN ‘exit strategy’ by avoiding committed engagement in problem-​solving; holding a face-​saving election after a reasonable period; and withdrawing without having built adequate local capacity.”) See also J. Beauvais, Benevolent Despotism: A Critique of U.N. State-​building in East Timor, 33(4) New York University Journal of International Law and Politics (2001) 1007, at 1166. For the background and initial intention of the mission see A. Suhrke, Peacekeepers as Nation-​builders, 8(4) International Peacekeeping (2001), 1. On planning techniques, see T.  Langford, Orchestrating Peace Operations, 30(2) Security Dialogue (1999), 135. 313 E.g. untaet, The Human Rights Unit report, March 2001. See also Commission on Human Rights, Situation of human rights in East Timor Report of the High Commissioner for

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blamed, in the words of Beauvais, for its “failure to do much more than provision itself and provide emergency relief.”314 This is especially striking since untaet profited from considerable funds earmarked for the reconstruction of the country.315 It thus seems that untaet deliberately chose to focus on issues other than economic and social rights. Both immediate efforts as well as longer-​term policies appear to have been put in abeyance –​much more as a matter of deliberate choice than as forced by adverse circumstances. This sobering record of untaet’s efforts at least hints at deficits in the realisation of the above rights. Given the lack of empirical evidence, a final assessment whether untaet’s action –​or lack of action –​actually amounts to a violation of human rights is difficult. It cannot be assessed whether untaet undertook sufficient efforts to achieve the minimum standard required under international human rights law. In any case, human rights protection in the field of economic and social rights remained at the margin of untaet’s primary focus and it is likely that gaps in human rights protection remained. b Dealing with Past Human Rights Violations With the establishment of the scu and the spsc, there was a chance that the calls for bringing perpetrators of human rights violations to justice were heard, at least in theory. In practice, the institutions faced serious shortcomings, most notably with regard to resources, capacity and expertise. It started “from scratch” with only a few computers, vehicles and staff, as one former senior staff member noted.316 Management problems, including the lack of a consistent prosecution strategy,317 as well as shortage in resources quickly led

314 315 316 317

Human Rights, 29 March 2000, UN Doc. E/​CN.4/​2000/​27; Commission on Human Rights, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, 6 February 2001, UN Doc. E/​CN.4/​2001/​37; Commission on Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 1 March 2002, UN Doc. E/​CN.4/​2002/​39. In the latter report, untaet voiced concern that the in the drafting process for a new Constitution for Timor-​ Leste little attention had been paid to economic, social and cultural rights (para. 48). This, observation, however, only refers to the Constituent Assembly, not to untaet itself. J. Beauvais, Benevolent Despotism: A Critique of U.N. State-​building in East Timor, 33(4) New York University Journal of International Law and Politics (2001), 1007, at 1124. J. Chopra, The UN’s Kingdom of East Timor, 42(3) Survival: Global Politics and Strategy (2000) 27, at 29. Report to the Secretary General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-​Leste (the then East Timor) in 1999, 26 May 2005, UN Doc. S/​2005/​458 Annex 1, 15 July 2005 (“CoE-​Report”), para. 44. See CoE-​Report, paras. 60 ff.

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to a backlog of over 700 unprocessed cases already in early 2001, less than one year after its creation.318 The backlog of cases not only caused overcrowded detention facilities filled with pre-​trial detainees, but also led to the release of alleged perpetrators of serious crimes.319 At the same time, scarce resources were (mis)used to investigate complaints against low-​level suspects, especially in the first months after the establishment of the scu.320 After independence in 2002, the scu continued to exist under the authority of the Prosecutor-​ General. It was closed down in May 2005 without having fulfilled its mandate to complete all investigations until 2004 and to complete proceedings until May 2005.321 According to the Commission of Experts (CoE) appointed by the Secretary-​ General to review the prosecution of serious violations of human rights in Timor-​Leste, the scu had filed around 100 indictments with the Special Panels, indicting about 400 persons. Of the persons accused, over three quarters were at large and not within the borders of Timor-​Leste, making them unreachable for the Timorese jurisdiction.322 The spsc conducted 55 trials against 87 defendants, the great majority (85) of whom were found guilty.323 However, this number represented only about 40 percent of the total number of killings in 1999.324 In addition to the unfinished process regarding murder cases, the investigations into other serious crimes such as destruction of property, deportation, rape and torture, were not conducted vigorously and thus remained incomplete.325 As a consequence, the trust in and satisfaction with the Serious Crimes Process within the Timorese population dwindled.326 Victims groups voiced their 3 18 319 320 321 322 323

S. Chesterman, Justice Under International Administration, 2002, at 8. untaet, Human Rights Unit Report, March 2001. CoE-​Report, para. 60. Security Council Resolution 1543 of 14 May 2004, UN Doc. S/​RES/​1543 (2004), para. 8. CoE-​Report, paras. 48 f. Report of the Secretary-​General on Justice and Reconciliation for Timor-​Leste, 26 July 2006, UN Doc. S/​2006/​580, para. 9. 324 Ibid. See also C. Reiger and M. Wierda, The Serious Crimes Process in Timor-​Leste, March 2006, at 18. 3 25 CoE-​Report, para. 51. 326 See J. Beauvais, Benevolent Despotism: A Critique of U.N. State-​building in East Timor, 33(4) New York University Journal of International Law and Politics (2001), 1007, at 1155. Calls for an international tribunal had been voiced from the beginning, and even more so against the backdrop of the slow progress within the Serious Crimes Process, see, e.g. S. Chesterman, Justice Under International Administration, 2002, at 8, see also E. Harper, Delivering Justice in the wake of mass violence, 10(2) Journal of Conflict and Security Law (2005), 149, at 154.

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dissatisfaction with the scu because it failed to complete investigations into all serious crimes and because it was not able to bring those perpetrators most responsible for serious crimes to justice. The unresolved issue of locating missing persons was also criticised.327 The CoE shared this criticism and concluded that “[i]‌t cannot be said that the serious crimes process has achieved accountability for those who bear the greatest responsibility for serious crimes.”328 While the virtually complete lack of co-​operation from Indonesia seriously hampered the work of the serious crimes process,329 also the co-​operation of the international community was dissatisfying. During its first two years of operations, the spsc suffered major delays mainly “due to inefficient recruitment practices and funding of international judges”.330 During this time, there were not enough judges to allow for more than one trial panel to sit at a time.331 Only after vital issues concerning capacity, administrative support, infrastructure and organizational planning had been ameliorated –​and more than one Panel operationalised –​trials could have been conducted with reasonable progress.332 However, one of the main impediments of the serious crimes process was the issue of inadequate and irregular funding. Already in November 2000, a Security Council mission to Timor-​Leste deplored that “the judicial sector remains seriously under-​resourced.”333 The CoE report five years later came to the same conclusion and added that the Serious Crimes Process in Timor-​ Leste did not only suffer from lack of funding in absolute terms, but that funds accorded to it were significantly lower than those of other internationalized justice processes such as the ones in Sierra Leone or Cambodia.334 The funding provided to the institutions of the serious crimes process was not sufficient to enable the Serious Crimes Process to fulfil its tasks.335 Moreover, according to the cavr, 27 serious crimes referrals to the scu, including over 800 possible murder charges, 60 possible charges of rape and several hundreds of cases of 3 27 CoE-​Report, para. 54. 328 Ibid., para. 64. 329 S.  de Bertodano, East Timor:  Trials and Tribulations, in:  C. Romano, A.  Nollkaemper, and J. Kleffner, Internationalized Criminal Courts and Tribunals, 2004, 79, at 80 f. For an account of the legal proceedings in Indonesia see S. Linton, Unravelling the First Three Trials at Indonesia’s Ad Hoc Court for Human Rights Violations in East Timor, 17 LJIL (2004), 303. 330 CoE-​Report, para. 129. 331 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 361. 332 CoE-​Report, para. 132. 333 Report of the Security Council Mission to East Timor and Indonesia, 21 November 2000, UN Doc. S/​2000/​1105 (2000), para. 8. 334 CoE-​Report, at 93 ff. 335 Ibid., para. 104.

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torture, have not been taken on because of this lack of resources and because of the established deadline of 20 May 2005.336 Against the backdrop of a “manifestly inadequate”337 juridical procedure in Indonesia, the double track approach of the serious crimes process in Timor-​Leste cannot be termed a success. To the contrary, the well-​intended and initially prudently designed concept338 has not achieved appropriate implementation in practice. One can only speculate about the reasons as to why adequate resources were not allocated, which led to the chronically under-​funding and de-​prioritization of “such a critical sector”.339 It is also difficult to understand why the UN and the international community did not sustain their efforts to support the scu, e.g. by extending its mandate until the completion of investigations and indictments, or by exerting political pressure on the respective stakeholders in Timor-​Leste and Indonesia. This behaviour stands in stark contrast to the reports of the Secretary-​ General, which regularly emphasised the need for justice, and the resolutions of the Security Council repeating commitment to this goal.340 The consequences were serious: while minor offenders surrendered themselves to the cavr and faced the consequences, the perpetrators of the most serious crimes remained exempt from punishment. This “impunity gap”341 critically hampered the transition to peace and reconciliation and created the impression of a “culture of impunity” among the population.342 Commentators agree that the accounting for the human rights violations of 1999, which the Secretary-​General called “vital to ensure a lasting resolution of the conflict and the establishment of the rule of law in East Timor”,343 remained incomplete. Considering the enormous task, the UN in general and untaet in particular was faced with, the above shortcomings may seem understandable.344 Even 3 36 Ibid., para. 107. 337 Ibid., para. 17. See in detail on the juridical process in Indonesia, D. Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, in: P. Seils (ed.) for the International Center for Transitional Justice, August 2003. 338 M. Schlicher, Osttimor stellt sich seiner Vergangenheit, 2005, at 31 (“klug überlegt”). 339 J. Beauvais, Benevolent Despotism: A Critique of U.N. State-​building in East Timor, 33(4) New York University Journal of International Law and Politics (2001), 1007, at 1160. 340 M. Hirst and H. Varney, Justice Abandoned?, June 2005, at 25. 341 E.g. C.  Reiger and M.  Wierda, The Serious Crimes Process in Timor-​Leste, March 2006, at 34. 342 M. Schlicher, Osttimor stellt sich seiner Vergangenheit, 2005, at 80. 343 Progress Report of the Secretary General on the Question of East Timor, 13 December 1999, UN Doc. A/​54/​654, para. 42. 344 Strohmeyer points to the “enormity and multiplicity of challenges facing a mission”, H. Strohmeyer, Making Multilateral Interventions Work, 25(2) Fletcher Forum of World Affairs (2001), 107, at 121.

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more so, practitioners, including the srsg in both Kosovo and Timor-​Leste, Sergio Vieira de Mello, have repeatedly criticised the criticism.345 However, even though the circumstances might be considered challenging and explanations for shortcomings seem valid, the question as to the legal character must not be precluded. In other words, do the acts (or omissions) of untaet amount to human rights violations? i Right to Life: Lack of Investigation untaet created the Serious Crimes Unit (scu) as well as the Special Panels for Serious Crimes (spsc) in order to investigate the crimes and corresponding human rights violations committed during 1999. However, critical lack of human and financial resources prevented the two institutions from investigating more than a fraction of the crimes and led to a persistence of impunity for years after the events. In addition to growing frustration among victims and their relatives, this delay in or non-​existence of investigations can also amount to a violation of human rights law. The crimes committed in 1999 included, amongst other, murder and mass killings and thus can amount to a violation of Article 6.1 of the iccpr, which safeguards the right to life. Since untaet was not the perpetrator of the murders, its responsibility can only refer to the procedural obligation to undertake effective investigation into these cases.346 The fact that untaet was neither responsible nor involved in the killings does not preclude untaet’s obligation to investigate these cases.347 Aware of the serious lack of resources, the scu (prosecutor) decided to identify and pursue ten so-​called “priority cases”, which involved crimes against humanity and “massacres” (however without consistently applying what was considered a massacre) or the murder of multiple victims.348 The first cases, the Los Palos Case and the Lolotoe Case were quickly brought to trial while the final indictment was issued only in July 2003, once more due to a lack of 345 S. Vieira de Mello, How not to run a country: Lessons for the UN from Kosovo and East Timor, unpublished paper, June 2000. 346 The precedence for this obligation is IACtHR, Velásquez-​Rodríguez v. Honduras, Judgment of 29 July 1988, Series C No. 4, see supra Chapter 4.i.3.c. Referring to the right to effective investigation with respect to the human rights violations in Timor-​Leste, see Report of the International Commission of Inquiry on East Timor, 31 January 2000, UN Doc. A/​54/​726-​ S/​2000/​59, annex, para. 148; and Interim report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, A/​56/​337, 6 September 2001, para. 84. 347 See supra Chapter 4.i.3.c 348 D. Cohen, Indifference and Accountability, 2006, at 13.

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resources and organisation.349 The pursuance of this “priority cases”-​strategy, however, meant that cases involving other crimes than murder, such as forced displacement, rape, or destruction of property were neglected. Moreover, this strategy resulted in a selection of some cases of murder while other were left unindicted or even un-​investigated. The numbers draw a gloomy picture: with 95 indictments relating to 572 murders, not even half of the estimated 1,400 murders of 1999 led to an indictment. At the closure of the scu in 2005, 514 investigative files remained open without indictment; another approximately 50 cases were brought to the attention of the scu for which no investigations had been instituted at all.350 The UN Commission of Experts thus underlined the “need for the scu to complete its investigations” and strongly called for an “opportunity to complete its investigations to the extent possible, with a view to identifying all suspects and to issuing indictments and international arrest warrants to facilitate future prosecution.”351 This, however, never happened. From a human rights point of view, this means that for a significant number of victims and relatives of victims, the right to effective investigation was not fulfilled. The lack of resources was repeatedly brought forward as a justification for this failure.352 Indeed, resource strains are a familiar problem in almost all peace operations, but this alone cannot explain untaet’s failure. Three points have to be made to understand the whole picture. First of all, untaet did see large amounts of money flowing into the country and it seems that it was a deliberate decision, rather than a surrender to the overall conditions, to accord to the scu and the spsc a “low budgetary priority in comparison with more ‘urgent’ tasks”.353 Secondly, the work of the scu and the spsc did not follow a clear strategy or mandate.

3 49 350 351 352

Ibid. Ibid., at 15. CoE-​Report, para. 108. E.g. Commission on Human Rights, Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, 6 February 2001, UN Doc. E/​CN.4/​2001/​37, para. 13; Commission on Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 1 March 2002, UN Doc. E/​CN.4/​2002/​39, para. 19. There are no exact numbers publicly available for untaet. For its successor mission unmiset it has been reported that the combined budget for the scu and the spsc amounted to only around 5% of the whole budget for the years 2003–​2005 (around 15,000 usd compared to around 296,000,000 usd), see CoE-​Report, para. 99. 353 D. Cohen, Hybrid Justice in East Timor, Sierra Leone, and Cambodia, 43 Stanford Journal of International Law (2007), 1, at 14.

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Neither the Security Council354 nor untaet made the effort to channel the scarce resources by providing a clear route for action. According to Cohen, this was a “serious failing of untaet” and distinguishes the scu from the majority of other international or hybrid tribunals.355 Thirdly, the fixed date for closure of the scu and spsc prevented both institutions from completing their work. Instead, the scu had to make the deliberate decision not to indict more individuals who could have been brought to trial: “We had to think about not indicting people because of the time constraints. We had no choice. … We could have indicted so many more.”356 As a consequence, the question whether or not effective investigation would take place or whether or not a person accused of having committed a serious crime was not predictable and ended, in many cases, in persisting impunity. One commentator summarised it bluntly: “accountability for Serious Crimes has boiled down to a question of luck.”357 From a human rights perspective, this assessment is sobering. If similar cases are not treated alike for no objective reasons and if obvious cases of serious violations of human rights are not investigated, let alone brought to trial, it is very difficult to refrain from considering the latter as a violation of the right to effective investigation under Article 6.1 iccpr. Given the deliberate decisions untaet has taken vis-​à-​vis the serious crimes process, the lack of resources does not serve as a justification for this violations of the right to effective investigation. In fact, the mere provision more resources would not have sufficed in overcoming the problems described above.358 Rather, the according of a higher priority within untaet’s tasks, a prosecutorial strategy and a mandate that would last until all cases were completed would have enabled the fulfilling of the right to effective investigation. It was the decision of untaet and the Security Council not to do so, therefore incurring responsibility for human rights violations. This conclusion is further underpinned if one considers untaet’s behaviour with regard to Indonesia and perpetrators residing outside of Timor-​Leste in

354 A late instance in which the Security Council did make a statement about the scu was Resolution 1543 (2004) in which the need to complete all investigations and conclude all trials and other activities by see Security Council Resolution 1543 (2004) of 20 May 2005, UN Doc. S/​RES/​1543, para. 8. 355 D. Cohen, Indifference and Accountability, 2006, at 15. 356 Member of the scu, quoted in D. Cohen, Indifference and Accountability, 2006, at 14. 357 S. Linton, Putting Things into Perspective, 2005, at 29. 358 R. Opie, International Human Rights Promotion and Protection Through Peace Operations, in: M. Bothe and B. Kondoch (eds.), 7 International Peacekeeping (2001), 99, at 139.

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Indonesia. The scu decided to investigate not only Timorese suspects, but also high-​level Indonesian members of the armed forces and militias who were the majority of those responsible for the crimes committed in 1999. Against the background of a complete lack of co-​operation on the part of Indonesia, it was clear that they would never appear before the spsc in Timor-​Leste. Prima facie, this can hardly be blamed on untaet. Even though the (futile) indictment of Indonesian suspects stretched limited resources even further, it at least served the aim of documenting and establishing a more comprehensive record of the 1999 violations.359 This may become important for future prosecutions before national or international courts. From a human rights perspective, the mere fact that the indictment against Indonesian suspects most likely would never lead to proceedings before the spsc does not automatically mean a violation of the right to effective investigation as it is an obligation of means, not of result.360 More questionable, however, is the lack of political will to exert pressure on Indonesia to conduct investigations on its part. To the contrary, it seems that the UN both on the level of untaet and at headquarters refrained from any activity in this direction. Without going much into detailed here, the UN’s denial of political “ownership”361 of the scu indictment against the high-​ ranking Indonesian General Wiranto is a telling example.362 The more general but sustained lack of support for the creation of an international tribunal for Timor-​Leste another one.363 This, at the very least, sheds a disconsolate light to untaet’s and the UN’s willingness to seriously live up to their very own human rights standards.

3 59 See in detail on this argument D. Cohen, Indifference and Accountability, 2006, at 14 f. 360 See supra Chapter 4.i.3.c. 361 D. Cohen, Indifference and Accountability, 2006, at 11; M.  Hirst and H.  Varney, Justice Abandoned?, June 2005. 362 For a detailed account of the case, see e.g. CoE Report, paras. 70 ff. 363 A great number of commentators and human rights activists have called for the establishment of such a tribunal, both from the beginning and especially once the shortcomings of the procedures in place have become evident. The High Commissioner for Human Rights, for instance, has reiterated this call several reports, see Interim report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 6 September 2001, UN Doc. A/​56/​337, para. 84; Commission on Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 1 March 2002, UN Doc. E/​CN.4/​2002/​39, para. 95. The CoE has extensively elaborated on options available to the Security Council to establish such an international tribunal, paras. 407 ff. See also, e.g. R. Opie, International Human Rights Promotion and Protection Through Peace Operations, in: M. Bothe and B. Kondoch (eds.), 7 International Peacekeeping (2001), 99, at 146 f.

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ii Right to Fair Trial: Prolonged Pre-​Trial Detention The shortcomings in resources referred to above led to a second human rights problem in the realm of the proper administration of justice, namely the right to “a fair and public hearing by a competent, independent and impartial tribunal established by law” as provided for in Article 14.1 iccpr. In providing a detailed analysis of more than 20 trials before the spsc, Cohen concludes that there was no adequate protection of the rights of the accused.364 Again, it has to be acknowledged that the spsc started under the most adverse conditions: legal resources such as books or court records, but also furniture and other court equipment had been burned or were unusable.365 Once the spsc did become operational, more deficits became apparent, the most striking one was the almost complete lack of legal professionals.366 The lack of human and material resources led to serious delays in the hearings of cases, causing long periods of pre-​trial detention –​and sometimes even to large-​scale releases as a measure of last resort.367 The long delays constituted one of the prime reasons endangering the respect for the right to a fair trial, which includes, under Article 14.3 (c) iccpr the right to be tried without undue delay. The purpose of the provision is both to avoid keeping accused persons in a state of uncertainty and to ensure that the deprivation of liberty caused by detention related to the trial does not last longer than necessary.368 Since the provision is part of the “minimum guarantees” under Article 14 it cannot be easily dismissed, even though it does not fall under the non-​derogable rights in Article 4.2 iccpr.369 In addition,

364 D. Cohen, Indifference and Accountability, 2006, at 42 ff; D. Cohen, Hybrid Justice in East Timor, Sierra Leone, and Cambodia, 43 Stanford Journal of International Law (2007), 1, at 17. For case reports on numerous cases see the website of the Timorese ngo Judicial System Monitoring Programme, at http://​jsmp.tl. 365 H. Strohmeyer, Building a New Judiciary for East Timor, 11(3) Criminal Law Forum (2000), 259, at 268 f. 366 Ibid., at 269. 367 E.g. S. Linton, Prosecuting Atrocities at the District Court of Dili, 2(2) Melbourne Journal of International Law (2001), 414, part vi. For accounts of specific cases see Amnesty International, East Timor: Justice past, present, future, July 2001, at 36–​39. 368 Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 16 December 2014, CCPR/​C/​GC/​32, para. 35. 369 In any case, even if untaet intended to derogate from this provision, it would have to make sure that “such derogations do not exceed those strictly required by the exigences of the actual situation”, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial UN Doc. CCPR/​C/​GC/​32, para 6.  In any case, untaet never officially declared the state of public emergency or made any similar public determinations, see M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 342.

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long and/​or unnecessary detention may at the same time violate Article 9.3 iccpr .370 untaet’s very own Human Rights Unit voiced concern that the right to fair trial was endangered,371 but it seems that even despite these warnings untaet did not succeed in allocating additional resources to alleviate this problem. Whether or not the delays have to be considered “undue” would have to be determined on a case-​by-​case basis taking into account factors such as the complexity of the case or the conduct of the parties involved, and the manner in which the authorities dealt with the matter.372 The same holds true for the lawfulness of the detention in custody of persons awaiting trial. However, the hrc underlines in its General Comment No. 35, that Article 9.3 iccpr provides that such detention shall be the exception rather than the rule.373 This was not the case in Timor-​Leste, as the following case will briefly illustrate. On a pre-​trial hearing in the case of Julio Fernandes and 19 other accused, it came to light that the detention order of the 20 detainees had been or was about to expire. As a consequence, Julio Fernandes was immediately released after having been unlawfully detained, which constituted “a highly embarrassing situation for the United Nations.”374 Following an urgent motion by the prosecution for the continued detention on the next day, the Special Panel issued a “blanket extension” of the detention for all 20.375 The defence appealed and the Court of Appeal unanimously overruled the decision of the Special

370 “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.” See Human Rights Committee, General Comment No. 32, Article 14:  Right to equality before courts and tribunals and to a fair trial, 16 December 2014, UN Doc. CCPR/​C/​GC/​32, para. 61, with further references. 371 Commission on Human Rights, Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, 6 February 2001, E/​CN.4/​ 2001/​37, para. 22. 372 Ibid., para. 35. 373 Human Rights Committee, General comment No. 35, Article 9 (Liberty and security of person), 16 December 2014, UN Doc. CCPR/​C/​GC/​35, para. 38. 374 S. Linton, Prosecuting Atrocities at the District Court of Dili, 2(2) Melbourne Journal of International Law (2001), 414, part iv A. 375 Ibid.

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Panel, making reference to Article 9.3 iccpr which considers detention to be the exception.376 While the Court of Appeal correctly overruled the Special Panel’s decision, the case is a striking example for serious mistakes made by a body established (and staffed and resourced) by untaet leading to violations “going to the heart of fair trial guarantees in international law.”377 This case was not a singular irregularity but rather one example of a general trend in the administration of justice by untaet: when the scu’s inability to undertake investigations against a great number of detainees became apparent, the General Prosecutor ordered large-​scale releases for detainees who had for months been in pre-​ trial detention.378 Such emergency measures, however, cannot cover or even “heal” the actual limitation of the rights enshrined in Article 9.3 and Article 14.3 (c) iccpr. iii Right to Fair Trial: Lack of Translators A second issue arose as a result of the striking lack of trained personnel such as court clerks and translators at the spsc. Professional translators would have been vital given the Babylonian mix of languages used in the courtroom (English, Portuguese, Bahasa Indonesia, and Tetum, plus sometimes local dialects) –​often simultaneously. However, it was only in 2004, when one professionally trained translator was hired. Before that, the translators at the spsc were untrained, mostly without any experience of translating in a legal context and sometimes even working as translators for the first time.379 This raises serious human rights issues with respect to the right to fair trial. Article 14.3(f) iccpr provides that everyone shall be entitled to “have the free assistance of 376 Court of Appeal of East Timor, Julio Fernandes and 19 Others v.  Prosecutor General, Criminal Appeal No 1 of 2001, 14 February 2001, reported in detail in S. Linton, Prosecuting Atrocities at the District Court of Dili, 2(2) Melbourne Journal of International Law (2001), 414. 377 S. Linton, Prosecuting Atrocities at the District Court of Dili, 2(2) Melbourne Journal of International Law (2001), 414. 378 Commission on Human Rights, Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, E/​CN.4/​2001/​37 6 February 2001, para. 13. See S. Linton, Prosecuting Atrocities at the District Court of Dili, 2(2) Melbourne Journal of International Law (2001), 414, for an account of some cases in which immediate release was ordered because of irregular detention. 379 D. Cohen, Hybrid Justice in East Timor, Sierra Leone, and Cambodia, 43 Stanford Journal of International Law (2007), 1, at 15. Cohen graphically describes the scarce situation on the ground from the lack of court clerks and translators to lack of computers, books and vehicles for the scu.

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an interpreter if he cannot understand or speak the language used in court”. Like the previously discussed Article 14.3(c), the right to an interpreter is part of the “minimum guarantees” under Article 14. The author is not aware of reported cases in which the lack of an interpreter directly inhibited the fairness and equality of arms in criminal proceedings380 to such an extent that the outcome of the case was to the detriment of the defendant for this specific reason. Nevertheless, the particular language situation in Timor-​Leste and the lack of interpreters at the spsc may have caused human rights infringements. Whereas Portuguese and Tetum are the national languages of Timor-​Leste, only around 20 percent of the Timorese speak Portuguese and about half of the population speak Tetum. A significant part of the population speaks one or more of the over 15 dialects that are recognised as national languages, but not the “lingua franca” Tetum.381 English and Bahasa Indonesia are working languages in Timor-​Leste. With two international judges sitting on the spsc, English was commonly used as the working language in the courtroom. However, the percentage of those Timorese mastering English was minimal and even judges were not always native English speakers.382 It is thus obvious that reliable translation would have been essential. The failure of untaet to provide such service cannot simply be explained by the notorious lack of resources. Instead, in order to guarantee the rights to fair trial, including the right to translation in Article 14.3(f) iccpr, untaet, from the beginning of the spsc, should have paid more attention to recruiting professional interpreters and to allocate the necessary resources for such recruiting. iv Right to Fair Trial: Political Interference A third potential infringement of fair trial rights relates to political interference. Article 14.1 iccpr provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The hrc underlines that this right “is an absolute right that is not subject to any exception.”383

380 Cp. Human Rights Committee, General Comment No. 32, Article 14:  Right to equality before courts and tribunals and to a fair trial, 16 December 2014, CCPR/​C/​GC/​32, para. 40. 381 A.-​K. Kaellner, Geschichte und Kultur von Timor-​Leste, in: DGVN (ed.), Blickpunkt Timor-​ Leste, 2010, 84, at 85. 382 D. Cohen, Hybrid Justice in East Timor, Sierra Leone, and Cambodia, 43 Stanford Journal of International Law (2007), 1, at 15. 383 Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 16 December 2014, CCPR/​C/​GC/​32, para. 19.

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According to Resolution 1272, untaet was empowered to exercise all legislative and executive authority, including the administration of justice. Thus, all authority was vested in the Transitional Administrator, making the separation of power a rather empty concept. untaet, however, quickly engaged in the development of judicial institutions. With Regulation No. 2000/​11 on the Organization of Courts in East Timor384 and Regulation 2000/​16 on the Organisation of the Public Prosecution Service in East Timor,385 untaet provided the necessary legal framework to guarantee the independence of the judiciary as a whole, of the judges as well as the prosecution. While the establishment of judicial independence in law is necessary, it may not be sufficient. Therefore, one also has to look at the “actual independence of the judiciary from political interference by the executive branch and legislature.”386 Whenever the executive is in a position to control or direct the judiciary, the independence of a tribunal is seriously put at risk.387 In 2001, the former acting General Prosecutor and acting Deputy General Prosecutor for Serious Crimes in East Timor between June to September 2000, Carlos Vasconcelos, publicly blamed untaet for political interference. His criticism is so strong that it is worth being quoted in full: As acting General Prosecutor responsible for the prosecution service in East Timor, I faced untaet’s Minister of Justice who seemed never to have heard of the fundamental principles of the separation of powers and of prosecutorial independence, nor of the importance that the United Nations places upon these principles. … I was privy to a series of 384 untaet Regulation No. 2000/​11 on the Organization of Courts in East Timor, 6 March 2000, UNTAET/​REG/​2000/​11. Sections 1 and 2 read:  “1. Judicial authority in East Timor shall be exclusively vested in courts that are established by law and composed of judges who are appointed to these courts in accordance with untaet Regulation No. 1999/​3. \2.1 Judges shall perform their duties independently and impartially, and in accordance with applicable laws in East Timor and the oath or solemn declaration given by them to the Transitional Administration pursuant to untaet Regulation No. 1999/​3. \2.2 Judges shall decide matters before them without prejudice and in accordance with their impartial assessment of the facts and their understanding of the law, without improper influence, direct or indirect, from any source.” 385 untaet Regulation 2000/​16, On the Organisation of the Public Prosecution Service in East Timor, 6 June 2000, UNTAET/​REG/​2000/​16. Section 4.2. provides that “public prosecutors shall act (…) without improper influence, direct and indirect, from any source, whether within or outside the civil administration of East Timor.” 386 Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 16 December 2014, CCPR/​C/​GC/​32, para. 19. 387 Ibid.

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very serious, but elementary, professional errors that could have exposed, and still can expose, untaet and its leadership to international ridicule. I never dreamt that I would encounter such a degree of political interference, incompetence and mismanagement in the United Nations.388 Another commentator stated more cautiously that untaet’s Ministry of Justice, which used to be untaet’s Judicial Affairs Department, “continue[d]‌to play a particularly active and influential role”389 vis-​à-​vis the prosecution. According to section 12.4 of Regulation 2000/​16, the Transitional Administrator may issue guidance to the General Prosecutor “on matters of legal policy and coherence”. The General Prosecutor, in turn, reported to the Transitional Administrator in administrative matters such as budget and staff. Despite the fact that Section 12.4 clarified that nothing should preclude the independent authority of the General Prosecutor in his or her prosecutorial powers, the above example illustrates that the strong ties of the General Prosecutor to the Transitional Administrator bore the potential for abuse and thus threatened the judiciary’s ability to guarantee independence.390 With respect to interference with court proceedings, the case of Takeshi Kashiwagi is instructive.391 The Japanese activist, who had worked and lived in Timor-​Leste for several years, was arrested in August 2000 on the charge of defamation and “spreading hatred” forbidden under the Indonesian Criminal Code –​a provision that had been used by Indonesia to take action against peaceful political dissidents and which must be considered contravening the right to freedom of expression.392 On 7 September 2000, the Transitional Administrator issued an executive order declaring that defamation was not of criminal nature in Timor-​Leste and could therefore not be the basis of criminal charges. On 9 September, Kashiwagi was released. In Kashiwagi’s subsequent claim for compensation for unlawful detention, the Dili District Court found the Investigating Judge, the General Prosecutor, and the Deputy General Prosecutor for Ordinary Crime liable for following incorrect procedures and ordered 388 C. Vasconcelos, Briefing to the Annual Conference of the International Association of Prosecutors, September 2001. 389 S. Linton, Rising from the Ashes, 25(1) Melbourne Law Review (2001), 122, Section iii.F. 390 R. Opie, International Human Rights Promotion and Protection Through Peace Operations, in:  M. Bothe and B.  Kondoch (eds.), 7 International Peacekeeping (2001), 99, at 145; S.  Linton, Rising from the Ashes, 25(1) Melbourne Law Review (2001), 122, Section iii.F. 391 For a report of the case see C. Bongiorno, A Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623, at 666 ff. 392 See in detail ibid., at 667.

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to pay material compensation. Notably, the Court further classified the executive order of the Transitional Administrator as arbitrary interference.393 Bongiorno finds it “bizarre that the Transitional Administrator could be found liable to pay damages in a claim for illegal detention as a result of issuing the executive order that secured the claimant’s release.”394 Still, the case has also been referred to as evidence of the lack of judicial independence.395 Against the backdrop of untaet’s responsibility to lay the foundations of a viable judicial system based on the respect for international human rights standards, political interference  –​irrespective of good intentions that may stand behind that interference –​should not be an accepted means of securing respect for human rights. Instead, untaet should have made sure that the non-​applicability of Indonesian laws contravening human rights standards was clear in the first place. As Amnesty International pointed out, untaet’s actions laid the foundations for the future administration of justice in Timor-​ Leste. Thus, “there can be no excuse for upholding anything other than the highest standards.”396 c Findings The previous paragraphs did not intend to draw a full picture of untaet’s human rights record in Timor-​Leste. Nevertheless, it has become evident by way of illustrative examples that significant gaps in human rights protection were present under untaet. These gaps most notably involve the duty to respect the right to a fair trial as well as the duty to investigate in order to protect the right to life. With respect to economic and social rights, it is conceivable that untaet did not live up to its duty to fulfil economic and social rights by failing to adopt appropriate measures towards the full realisation of these rights. 4 Reactions and Consequences In contrast to unmik, untaet did not make an effort to ensure its own compliance with human rights standards and refrained from dealing with actual 393 C. Bongiorno, A Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623, at 675. 394 Ibid. 395 Ibid., at 674 f.; Amnesty International, East Timor:  Justice Past, Present and Future, 2001, at 23. 396 Amnesty International, East Timor: Justice past, present and future, July 2001, at 31. See similarly R. Opie, International Human Rights Promotion and Protection Through Peace Operations, in: M. Bothe and B. Kondoch (eds.), 7 International Peacekeeping (2001), 99, at 131.

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and potential human rights violations as a guarantee for the right to effective remedy.397 Internally, the Human Rights Unit did not assume the role as a monitoring body with respect to untaet’s activities. For instance, when providing information to the Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, the hru did not even hint at the potential of human rights infringements by untaet.398 The Ombudsperson institution never developed into a viable monitoring body.399 Equally ineffective as a control mechanism were the regular reports to the Security Council prepared by the Secretary-​General pursuant to its obligation under paragraph 18 of Resolution 1272. The chapters on human rights did in general not take much space within the report and were largely uncritical.400 The Secretary-​General did report on the difficulties in the justice system, also pointing to prolonged detention and language problems, but did not refer to the issue as concern for the protection of human rights.401 Political interference was not mentioned at all. In the reports of the High Commissioner for Human Rights,402 protection against human rights violations by untaet did not play a noticeable role or sometimes did not even contain any single suggestion in this direction.403 Non-​governmental organizations such as Amnesty International as well as local human rights organizations did raise awareness concerning untaet’s human rights record. However, this does not amount to a monitoring mechanism.404

3 97 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 341. 398 Commission on Human Rights, Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, E/​CN.4/​2001/​37, 6 February 2001. 399 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 338 f. 400 Ibid., at 341; F. Mégret and F. Hoffmann, The UN as a Human Rights Violator?, 25(2) HRQ (2003), 314, at 337. 401 Report of the Secretary-​General, 17 April 2002, UN Doc. S/​2002/​432, paras. 17–​19. 402 Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, 6 February 2001, UN Doc. E/​CN.4/​2001/​37; The situation in East Timor during its transition to independence, Human rights questions:  Report of the United Nations High Commissioner for Human Rights, 6 September 2001, UN Doc. A/​56/​337; Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 1 March 2002, UN Doc. E/​CN.4/​2002/​39. 403 Commission on Human Rights, Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, 6 February 2001, UN Doc. E/​CN.4/​2001/​37. 404 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 341.

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a Reactions by untaet Without structured human rights monitoring, reactions can only be eclectic. Anne-​Marie Devereux, a former Legal Officer at the hru, recounts that she regularly heard comments suggesting that the country could not “ ‘afford’ policies respecting human rights.”405 With respect to untaet itself, apparently the attitude that human rights standards were not binding upon the mission was prevalent among untaet officials outside the hru.406 In addition, untaet quickly transferred part of the authority to Timorese institutions, which may explain why untaet officials saw the responsibility for the promotion and protection of human rights to lie with the nascent country rather than with the transitional administration.407 This may be a crucial difference to unmik, which exercised sovereign authority for a much longer period (1999–​2008) and without the clear goal of independence like in Timor-​Leste. When confronted with criticism regarding the inconsistencies within the judiciary, e.g. with respect to political interference, reactions either failed to appear408 or downplayed the extent of the interference.409 It thus seems that awareness of potential human rights infringements in the administration of justice was limited. To the contrary, UN officials in Dili and at UN headquarters considered the Serious Crimes Process as a success or even as a model operation, mainly because of the high number of cases it has completed, especially in comparison with the icty and the ictr. Also, the functioning on a modest budget –​overall and compared to the international tribunals –​has been heralded as efficiency.410 Against the backdrop of the incomplete investigation 405 406 407

408 409

410

E-​mail from Anne-​Marie Devereux, Legal Officer, untaet Human Rights Unit, to Carla Bongiorno, 4 September 2001, quoted in C. Bongiorno, A Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623, at, 652. C. Bongiorno, A Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623, at 652. See similarly Verdirame: “The assumption seems to be that human rights violations are committed by others, and that all the UN and other international actors can do is train, supervise or monitor the read addresses of human rights obligations.”, G. Verdirame, The UN and Human Rights, 2011, at 242. R. Opie, International Human Rights Promotion and Protection Through Peace Operations, in: M. Bothe and B. Kondoch (eds.), 7 International Peacekeeping (2001), 99, at 146. Gita Welch, justice minister in the transitional cabinet responded to criticism raised in an Amnesty International Report: “I don’t think there’s much basis for saying this.” Her aide, Judge Luis Antero, called the report “premature”, lusa, East Timor: UN Officials Dismiss Amnesty’s Critical Report as “Exaggeration”, 30 July 2001, http://​www.etan.org/​et2001c/​ august/​01-​4/​00un.htm. D. Cohen, Hybrid Justice in East Timor, Sierra Leone, and Cambodia, 43 Stanford Journal of International Law (2007), 1, at 16 f.

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record and the lack of fair trial standards in the processes, this assessment seems, at least, debatable. The priorities at UN headquarters –​in these particular circumstances –​apparently lie much more on numbers (cases closed, dollars spent) than the realisation of human rights standards. The reasons for this reluctance to accord human rights considerations a priority role can only be speculated about. Part of it may be grounded already in the mandate: instead of a clear human rights mandate, untaet’s human rights responsibilities were formulated in a vague and indeterminate way. This indeterminacy may have “flowed into the conduct of the operation on the ground.”411 Compared to unmik, this argument seems warranted: unmik’s unequivocal mandate to promote and protect human rights was regularly referred to, not least in many of the opinions issued by the hrap. For untaet, such a clear mandate was missing. The almost complete absence of any awareness of potential human rights violations by untaet may be a consequence thereof. Hence, a clear formulation of the mission’s human rights obligations, ideally in the unequivocal terms of a responsibility to respect, protect and promote human rights in the mandate itself should become the general rule.412 Furthermore, whenever the UN acts as a surrogate State like in transitional administrations –​if that will ever be the case again –​the respective mission, like a State, should be under the same reporting obligation on human rights issues, i.e., not only to the Security Council through the Secretary-​General but also to international human rights bodies as applicable.413 b Further Reactions and (lack of) Consequences Since reactions were few, direct consequences as an answer to human rights problems and violations are difficult to assert. Nevertheless, a short epilogue on the continuation of the UN’s engagement in Timor-​Leste may be insightful. Timor-​Leste gained independence on 20 May 2002 and unmiset, the United Nations Mission of Support in East Timor, followed as successor mission to untaet.414 unmiset was mandated to provide assistance to the nascent country in the fields of administration, law enforcement and internal and external security (para. 2). The mandate provided for a Human Rights Unit and a 411 C. Bongiorno, A Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623, at 677. 412 See A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 320. 413 Ibid., at 321. 414 Security Council Resolution 1410 (2002), 17 May 2002, UN Doc. S/​RES/​1410 (2002).

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Serious Crimes Unit within the civilian component of the mission (para. 3 (a)) and called for human rights standards to form an integral part of unmiset’s training and capacity building activities (para. 5). The High Commissioner for Human Rights at the same time welcomed the “mainstreaming of human rights as an operational principle of the successor mission” and called for a transformation of this principle into operational reality.415 In April 2005, despite the Secretary-​General’s recommendation to extend the mandate of unmiset,416 the Security Council established a political mission, the United Nations Office in Timor-​Leste (unotil) for a period of one year until May 2006.417 unotil was inter alia mandated to support the government and the police, and to provide training in democratic governance and human rights (para. 2 (iii)). A severe outbreak of violence resulting in a political, humanitarian and security crisis between April and June 2006 made the Security Council extend unotil’s mandate until August 2006.418 Against the backdrop of a still deteriorating situation, the government of Timor-​Leste asked for police and military assistance which was provided by international forces led by Australia.419 While the situation prima facie looked like a primarily political crisis, underlying causes going far beyond a purely political dimension quickly became apparent. In his report to the Security Council, the Secretary-​General referred to numerous unresolved issues, including Timor-​Leste’s legacy of the past of which the question of accountability remains an important part.420 Furthermore, the report mentioned institutional deficits mainly in the security sector, but also in other parts of the administration; high unemployment

415 Commission on Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 1 March 2002, UN Doc. E/​ CN.4/​2002/​39, para. 88. 416 Progress report of the Secretary-​General on the United Nations Mission of Support in East, 18 February 2005, UN Doc. S/​2005/​99, paras. 67 ff. 417 Security Council Resolution 1599 (2005) of 28 April 2005, UN Doc. S/​RES/​1599. For a critical comment on the closure of unmiset in favour of unotil, see Paulo Gorjao, unmiset’s hastily replacement by unotil in East Timor, http://​www.etan.org/​et2005/​ may/​08/​00unmiset.htm. 418 Security Council Resolution 1690 (2006), 20 June 2006, UN Doc. S/​RES/​1690. 419 For a detailed account of the crisis see the Report of the Secretary-​General on Timor-​Leste pursuant to Security Council resolution 1690 (2006), 8 August 2006, UN Doc. S/​2006/​628 and the Report of the United Nations, Independent Special Commission of Inquiry for Timor-​Leste, established by the United Nations High Commissioner for Human Rights, 2 October 2006. 420 For the interrelation between impunity for past crimes and ongoing human rights violations, see generally S.  Linton, Accountability in E.  Timor, Indonesia and Cambodia, at 14 ff.

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rates, especially among the youth and widespread poverty with almost 350,000 people faced with food insecurity and malnutrition.421 Notably, as analysed above, many of these issues identified by the Secretary-​General were strongly related to the human rights shortcomings by untaet. On a similar note, the Secretary-​General noted that the achievement of socio-​economic development effectively addressing poverty and unemployment was “as crucial as anything that [could] be done through a new United Nations mission.”422 Even though not formulated in a human rights language, this statement at least acknowledged past shortcomings in one vital but often neglected aspect of the UN’s engagement in Timor-​Leste. On the request of Timor-​Leste, the Security Council with Resolution 1704 established the United Nations Integrated Mission in Timor-​Leste (unmit), on 25 August 2006.423 unmit was designed as a truly integrated mission with the srsg as head of unmit and coordinator of all UN activities in the country (para. 3). unmit had a strong police component mandated to provide interim law enforcement and public security (para. 4(c)) and a strong presence of UN military liaison officers in order to provide security (para. 4(d)). Moreover, unmit was, inter alia, mandated to support the government in its institutional development and in the preparation of the upcoming presidential and parliamentary elections (paras. 4 (a)  and (b)). Further tasks were to undertake capacity-​building (para. 4(f)) and to facilitate the provision of relief and recovery assistance (para. 4(h)). With respect to human rights, unmit had the mandate to assist in further strengthening the national institutional and societal capacity and mechanisms for the monitoring, promoting and protecting of human rights and for promoting justice and reconciliation, including for women and children, and to observe and report on the human rights situation (para. 4(g)). Furthermore, unmit was to assist the Office of the Prosecutor-​General of Timor-​Leste, through the provision of a team of experienced investigative personnel, to resume investigative functions of the former Serious Crimes Unit, with a view to 421 Report of the Secretary-​General on Timor-​Leste pursuant to Security Council resolution 1690 (2006), 8 August 2006, UN Doc. S/​2006/​628, paras. 29–​35. 422 Ibid., para. 143. 423 Security Council resolution 1704 (2006), 25 August 2006, UN Doc. S/​RES/​1704 (2006).

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completing investigations into outstanding cases of serious human rights violations committed in the country in 1999 (para. 4(i)). Compared to the rather modest human rights mandate of untaet which provided for the promotion and protection of human rights mainly through institution-​building (see above),424 unmit’s human rights mandate was more explicit. Concretely, the mandate was translated into practice through the creation of a small Human Rights and Transitional Justice Section (hrtjs) with a focus on five main fields of activity: accountability and ending of impunity; protection of the rights of women and children; support of security sector reform; progressive realisation of economic, social and cultural rights; and capacity-​building for national human rights institutions and civil society.425 The Serious Crimes Investigation Team (scit) was established in January 2007 within unmit’s Office of the Deputy Special Representative of the Secretary-​ General for Security Sector Support and Rule of Law.426 It was not operating until the beginning of 2008, when the UN and the government resolved questions regarding the scit’s relationship with the Office of the Prosecutor-​ General, which finally allowed the scit to continue the investigations the scu had left unfinished upon its closure in 2005.427 Without aiming at undertaking a comprehensive analysis of unmit and its human rights record in particular,428 suffice it to say that also with the establishment of the scit, the transitional justice process in Timor-​Leste remained 424 Human rights promotion and protection through capacity-​building was also one of the main recommendations of the High Commissioner for Human Rights when addressing the needs of a successor mission to untaet, see Commission on Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor 1 March 2002, UN Doc. E/​CN.4/​2002/​39, para. 90. 425 Oral report of a member of the hrtjs during a research stay of the author in Timor-​ Leste in September 2009. A  summary can be found in S.  Maus, Kleine Einheit, große Aufgaben:  Die unmit Human Rights and Transitional Justice Section, in:  dgvn (ed.) Blickpunkt Timor-​Leste, 2010, at 49 f. 426 The Secretary-​General, however, had recommended the establishment within the Office of the Prosecutor-​General of Timor-​Leste, see Report of the Secretary-​General on Justice and Reconciliation for Timor-​Leste, 26 July 2006, UN Doc. S/​2006/​580, para. 39 (d) (iii); Report of the Secretary-​General on Timor-​Leste pursuant to Security Council resolution 1690, 8 August 2008, UN Doc. S/​2006/​628, para. 87. For a comprehensive assessment see International Center for Transitional Justice, Impunity in Timor-​Leste: Can the Serious Crimes Investigation Team Make a Difference?, June 2010. 427 International Center for Transitional Justice, Impunity in Timor-​Leste: Can the Serious Crimes Investigation Team Make a Difference?, June 2010, at 14. 428 For a critical assessment see, O. Richmond and J. Franks, Liberal Peacebuilding in Timor Leste, 15(2) International Peacekeeping (2008), 185.

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incomplete. The main reasons for this were a lack of political will on the part of the Timorese government and a lack of support by the international community.429 On a positive note, it deserves to be mentioned that at least the need for consistency and long-​term engagement by the UN was repeatedly reiterated by the Secretary-​General, leaving open the possibility for progress in the realm of traditional justice in the future.430 It seems that unmit’s approach of a gradual transfer of authority to the Timorese institutions, and a withdrawal policy that is guided much more by benchmarks than by timelines431 is a recognition of the lessons learned. Overall, it is notable that, as with most other missions, untaet’s successor missions were established without any institutionalised accountability mechanism. Indeed, unmik’s hrap until today remains the only instrument to independently review the human rights record of a UN peace operation. Timor-​ Leste’s Ombudsperson Institution, the Provedor dos Direitos Humanos e Justica, is neither mandated nor staffed to undertake this task.432 The call for an accountability mechanism, independent of the human rights (policy) component, by default was among the recommendations of most commentators analysing untaet.433 The reasoning behind such calls points 429 For a summary of different views that were collected during a field trip in 2009, see S.  Maus, No peace without justice  –​(K)ein (bisschen) Frieden ohne Gerechtigkeit?, in: DGVN (ed.) Blickpunkt Timor-​Leste, 2010, 31; see also, with further references, S. Maus, Transitional Justice in Timor-​Leste, in: A. Mihr, G. Pickel, and S. Pickel (eds.), Handbuch Transitional Justice, 2018, 545. 430 Report of the Secretary-​General on Timor-​Leste pursuant to Security Council resolution 1690 (2006), 8 August 2006, UN Doc. S/​2006/​628, para. 142 (“nation-​building and peacebuilding are long-​term tasks”). 431 srsg Atul Khare, conversation with the author during a study trip to Timor-​Leste in September 2009, summarised in Ekkehard Griep, unmit –​oder: wie man eine gelernte Lektion in der Praxis anwendet, in: dgvn (ed.) Blickpunkt Timor-​Leste, Blaue Reihe Nr. 107, Berlin 2010, 8. See also the Joint Transition Plan (jtp) between the Government of the Democratic Republic of Timor-​Leste and unmit of 19 September 2011, mapping out the priorities and objectives until unmit’s departure, https://​www.laohamutuk.org/​ reports/​UN/​UNMIT/​JTPSep2011En.pdf. The jtp also includes a section on Rule of Law, Justice and Human Rights. 432 For a glance on this institution see S. Maus, Scharfer Wachhund oder zahnloser Tiger? Chancen und Herausforderungen für den Ombudsmann für Menschenrechte und Gerechtigkeit, in: DGVN (ed.) Blickpunkt Timor-​Leste, 2010, 51. 433 E.g., E. De Brabandere, Immunity as a guarantee for institutional autonomy, in: R. Collins and N.  White (eds.), International Organizations and the Idea of Autonomy, 2011, 278, p. 291; M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 371 f.; A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​ conflict situations, 2005, 293, at 317. Bongiorno calls for a “Permanent Human Rights

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to a growing or complete lack of credibility of the mission, especially when acting as a surrogate State, if not bound by any checks and balances –​as would be the case for a regular government.434 In Timor-​Leste, some credibility was regained by unmit through the provision of security after the 2006 crisis. In the subsequent years, unmit succeeded in supporting a thorough reform of the security sector. As has been alluded to above, however, Timor-​Leste’s manifold (human rights) problems are far from being solved. Moreover, unmit’s positive record in one sector does not automatically preclude the mission from any human rights violations. Therefore, an accountability mechanism would have been appropriate but has not materialised. 5 Results untaet was mandated by Resolution 1272 (1999) to guide Timor-​Leste on the road to independence; it was “midwifing a new State”.435 Upon arrival, untaet found a devastated country with virtually no functioning infrastructure and a population suffering from 25 years of occupation and gross violations of human rights. According to its mandate, untaet’s human rights tasks focussed on the support of the establishment of Timorese human rights institutions. Lack of data and empirical evidence prevented a case-​by-​case analysis of human rights violations on the part of untaet. Nevertheless, illustrative examples of untaet’s policies and priorities have shown that gaps existed in the protection of human rights. Fields of concern on the one hand were mainly related to economic and social rights in the context of the extremely low standard of living of the Timorese population. On the other hand, the rights to life and to a fair trial in the context of the investigation of past abuses were in Claims Commission” in addition to national Human Rights Institutions on the ground, C.  Bongiorno, A  Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623, at 677 ff. Against the general trend calling for greater accountability see also the critical voice of Sergio Vieira de Mello: “The accumulation of rules and regulations has occurred not least due to the insistence of some Governments on greater UN accountability. Accountability is translated in to meaning more control, which too often means more expensive bureaucracy and less efficiency.” He, instead, calls for simplifying administrative procedures and a delegation of greater authority to the mission, S. Vieira de Mello, How not to run a country: Lessons for the UN from Kosovo and East Timor, unpublished paper, June 2000. 434 Council of Europe:  Commissioner for Human Rights, International Organisations acting as quasi-​governments should be held accountable, 8 June 2009. See also M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 371 f.; A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 320. 4 35 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295.

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doubt. These issues may have amounted to human rights violations in specific instances. If challenging circumstances have been brought forward in an attempt to justify human rights violations by unmik, arguments underlining the precarious security situation and difficult circumstances overall were ubiquitous for the UN mission in Timor-​Leste. Human rights activities were not considered a priority. In addition, the lack of a clear human rights mandate for untaet and the rather “oblique reference to the applicability of human rights obligations to [untaet’s] activities”436 made it easier to focus on the human rights violations of the past and potential human rights violations of national authorities instead of taking a closer look at those possibly committed by untaet. Compared to unmik, this is a crucial difference. Part of untaet’s weaknesses with respect to human rights was rooted in mission planning. On the one hand, insiders like Sidney Jones have complained about a lack of structure for coordinating different human rights elements as well as problematic communication and coordination.437 On the other hand, it has been recounted that during the planning of untaet in 1999, there was little to no contact or exchange with Timorese representatives438 and much of the international expertise was lost when dpko took over mission planning from dpa, which had been in charge before.439 This loss of expertise and lack of engagement with people on the ground may have led to the rather modest human rights mandate that untaet ended up with –​while the genesis of an organization does not determine later choices, it “identifies the boundaries within choices are made”.440 Therefore, choices made by untaet in the context of human rights were limited from the beginning by the specific setup of the mission. One of the main conclusions to be drawn from untaet is the crucial importance of a clear recognition of the mission’s own human rights obligations in its mandate. Regardless whether the ultimate goal of a temporal administration is the strengthening of local structures and institutions or the transfer of 4 36 G. Verdirame, The UN and Human Rights, 2011, at 242. 437 S. Jones, East Timor, in:  A. Henkin (ed.), Honoring Human Rights under International Mandates, 2003, 115, at 119. 438 J. Chopra, The UN’s Kingdom of East Timor, 42(3) Survival: Global Politics and Strategy (2000) 27, at 32. 439 Ibid., at 28. 440 A. Suhrke, Peacekeepers as Nation-​builders, 8(4) International Peacekeeping (2001), 1, at 17 making reference to Howard Adelman who claims under his “conditioning thesis” that the genesis of an organization creates a template that limits the choices for the organization.

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authority to a new State, once a peace operation subsumes power, provisions recognising the potential for human rights violations should be a standard element of every mandate. iii

Human Rights in the United Nations Stabilization Mission in Haiti

1 About the Mission a Background The United Nations have a long tradition as peacekeepers in Haiti.441 Subsequent to the deployment of two political missions in 1990 (United Nations Observer Group for the Verification of the Elections in Haiti (onuveh)) and 1991 (joint un-​o as International Civilian Mission in Haiti (micivih)), the Security Council established the first peacekeeping operation in Haiti in 1993, called the United Nations Mission in Haiti (unmih).442 In the subsequent years, unmih and its successor missions –​the United Nations Support Mission in Haiti (unsmih),443 the United Nations Transition Mission in Haiti (untmih),444 and the United Nations Civilian Police Mission in Haiti (miponuh)445 –​ helped maintain a secure and stable environment in the country and restore democracy. The situation, however, remained volatile throughout and in February 2004, armed violence broke out in the city of Gonaives and quickly spread to other cities. The insurgents gained control over the northern part of the country and democratically elected President Bertrand Aristide fled into exile. On 29 February, the Security Council authorised the US-​led Multinational Interim Force (mif)446 which was succeeded by the United Nations Stabilization Mission in Haiti (minustah)447 on 1 June 2004. b Mandate and Structure The mandate of minustah was some sort of precedent for both a wide and a robust peace operation:  minustah was mandated to support the Transitional Government in ensuring a secure and stable environment to enable the 441 For details see UN peacekeeping, minustah website, https://​minustah.unmissions.org and minustah Fact Sheet, https://​peacekeeping.un.org/​en/​mission/​minustah. 442 Security Council resolution 867 (1993), 23 September 1993, UN Doc. S/​RES/​867. In 1995, unmih assumed its full force with over 20,000 deployed in the country. 443 Security Council Resolution 1063 (1996) of 28 June 1996, UN Doc. S/​RES/​1063. 444 Security Council Resolution 1123 (1997) of 30 July 1997, UN Doc. S/​RES/​1123. 445 Security Council Resolution 1141 (1997) of 28 November 1997, UN Doc. S/​RES/​1141. 446 Security Council Resolution 1529 (2004) of 29 February 2004, UN Doc. S/​RES/​1529. 447 Security Council Resolution 1542 (2004) of 30 April 2004, UN Doc. S/​RES/​1542.

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constitutional and political process (para. 7. i. (a)); to assist in restructuring and reforming the Haitian National Police, in Disarmament, Demobilization and Reintegration (ddr) programmes, and in the restoration and maintenance of the rule of law, public safety and public order in Haiti (paras. 7. i. (b)–​(d)); and to protect UN personnel and civilians under imminent threat of physical violence (paras. 7. i. (e)–​(f)). Secondly, minustah was mandated to support the constitutional and political process in Haiti and assist in the organization, monitoring and implementation of democratic elections on various levels (paras. 7. ii (a)–​(d)). Thirdly, the promotion and protection of human rights, including monitoring and reporting on the human rights situation and investigation of human rights violations was part of minustah’s mandate (paras. 7. iii. and 8.). The mandate of minustah was repeatedly adjusted to adapt to the changing circumstances on the ground and was extended in October 2009 with a view to helping prepare the country for the presidential elections scheduled for 2010. On 12 January 2010, a devastating earthquake shook the country and caused more than 220,000 deaths and left 1.5  million people homeless.448 By resolutions 1908 of 19 January 2010 and 1927 of 4 June 2010, the Security Council increased minustah’s strength to assist the government with immediate recovery and reconstruction. The mission was authorised to consist of a military component of close to 9,000 troops of all ranks and of a police component of over 4,000 police. The resolution reiterated that the ownership and primary responsibility for stabilization and development lay with the government and the people of Haiti, with minustah in a supporting role.449 Following the completion of Presidential elections in 2011 and given a stabilisation of the security situation in Haiti, the Security Council again reduced the overall force levels of minustah with resolution 2070 of 12 October 2012. The mission was authorised until 15 October 2017 and was succeeded by the United Nations Mission for Justice Support in Haiti (minujusth).450 2 minustah Human Rights Mandate and Structure a Human Rights Mandate In his report on the situation of Haiti, the Secretary-​General acknowledged the importance of a strong human rights component for the peace operation to be established. He proposed a human rights office with a promotion, monitoring 448 UN Peacekeeping, minustah Fact Sheet, https://​peacekeeping.un.org/​en/​mission/​ minustah. 449 S/​RES/​1927 (2010) of 4 June 2010, para. 3. 450 Security Council Resolution 2350 (2017) of 13 April 2017, UN Doc. S/​RES/​2350.

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and protection mandate that would not only strengthen the Haitian capacity to monitor, promote and protect human rights, but that would also actively engage on its own in monitoring and reporting on the human rights situation.451 minustah’s mandate in Resolution 1542 then was “one of the strongest human rights mandates in the history of U.N. peacekeeping operations”.452 The human rights section had the mandate (a) to support the Transitional Government as well as Haitian human rights institutions and groups in their efforts to promote and protect human rights, particularly of women and children, in order to ensure individual accountability for human rights abuses and redress for victims; (b) to monitor and report on the human rights situation, in cooperation with the Office of the United Nations High Commissioner for Human Rights, including on the situation of returned refugees and displaced persons;453 Furthermore, minustah should “provide advice and assistance within its capacity to the Transitional Government: (a) in the investigation of human rights violations and violations of international humanitarian law, in collaboration with the Office of the High Commissioner for Human Rights, to put an end to impunity; (b) in the development of a strategy for reform and institutional strengthening of the judiciary;”454 This mandate was “reaffirmed” in subsequent resolutions.455 In 2011, minustah was additionally called “to provide monitoring and support” in the context of respect and protection of human rights by the Haitian National Police and the judiciary.456 The subsequent mandate of 2012 underlined the importance of the 4 51 Report of the Secretary-​General on Haiti, 16 April 2004, S/​2004/​300, para. 96. 452 Harvard Law Student Advocates for Human Rights and Centro de Justica Global, Keeping the Peace in Haiti?, March 2005, at 48. 453 Security Council Resolution 1542 of 30 April 2004, UN Doc. S/​RES/​1542 (2004), para. 7.iii. 454 Ibid., para. 8. 455 Security Council Resolution of 15 August 2006, UN Doc. S/​RES/​1702 (2006), para. 15; Security Council Resolution of 15 February 2007, UN Doc. S/​RES/​1743 (2007) para. 15; Security Council Resolution of 15 October 2007, UN Doc. S/​RES/​1780 (2007) para. 16; Security Council Resolution of 14 October 2008, UN Doc. S/​RES/​1840 (2008) para. 20; Security Council Resolution of 13 October 2009, UN Doc. S/​RES/​1892 (2009) para. 18; Security Council Resolution of 14 October 2010, UN Doc. S/​RES/​1944 (2010) para. 16. 456 Security Council Resolution of 14 October 2011, UN Doc. S/​RES/​2012 (2011), para. 18.

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human rights mandate “as an essential component of the Mission”, recognised that “respect for human rights is an essential element for Haiti’s stability” and reiterated minustah’s task to provide monitoring and support concerning the respect and protection of human rights by the Haitian National Police and the judiciary.457 In April 2017, the Security Council decided to establish a follow-​on peace operation in Haiti, minujusth, and endowed it with a mandate to engage in human rights monitoring, reporting and analysis.458 b Human Rights Structure minustah’s human rights mandate was implemented by the Human Rights Section (hrs), which was staffed and supported by the ohchr. Human rights officers were deployed both in the capital Port-​au-​Prince as well as in the majority of Haiti’s administrative districts. The fight against impunity; human rights in administration of justice; human rights in State public policy and capacity building; and human rights and protection in humanitarian and development response were ohchr’s thematic priorities in Haiti. Over the years, the hrs engaged, according to ohchr, in monitoring, reporting and capacity-​ building as well as in mainstreaming human rights with all mission components and other UN partners in the country.459 Early into its existence, a Joint Special Investigation Unit, composed of human rights and civilian police officers, was established in order to conduct investigations into cases of alleged human rights violations.460 After it had investigated cases of alleged summary executions, later reports remain silent on any further activities of the Unit.461

457 Security Council Resolution of 12 October 2012, UN Doc. S/​RES/​2070 (2012) para. 20. Security Council Resolution of 10 October 2013, UN Doc. S/​RES/​2119 (2013) para. 21; Security Council Resolution of 14 October 2014, UN Doc. S/​RES/​2180 (2014) para. 24; Security Council Resolution of 14 October 2015, UN Doc. S/​RES/​2243 (2015) para. 29; and Security Council Resolution of 13 October 2016, UN Doc. S/​RES/​2313 (2016) para. 32 repeated this human rights mandate. 458 Security Council Resolution of 13 April 2017, UN Doc. S/​RES/​2350 (2017), para. 6. The mandate further recognises the ownership and primary responsibility of Haiti for the country’s development, ibid., para. 16. 459 ohchr, ohchr in Haiti 2015–​2016, http://​www.ohchr.org/​EN/​Countries/​LACRegion/​ Pages/​HTSummary1516.aspx. 460 Report of the Secretary-​General on the United Nations Stabilization Mission in Haiti, 13 May 2005, UN Doc. S/​2005/​313, para. 31. In June 2005, the Security Council requested that the Joint Special Investigation Unit was made operational as soon as possible, Security Council Resolution of 22 June 2005, UN Doc. S/​RES/​1608 (2005), para. 10. 461 In October 2005, the Secretary-​General reported that the Unit had investigated “at least four cases of alleged summary executions”, Report of the Secretary-​General on the United Nations Stabilization Mission in Haiti, 6 October 2005, UN Doc. S/​2005/​631, para. 43.

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3 Potential Human Rights Violations In contrast to the legal framework established for unmik and untaet, in which the respective Regulations provided for an explicit legal basis for human rights obligations of the two missions, a different legal basis has to be established for human rights obligations of minustah. Neither Resolution 1542 as the constituent document nor the sofa explicitly made human rights law directly applicable to minustah. However, as has been established in the previous parts, UN peace operations can still be considered bound by human rights law on the basis of both external and internal law. In case of minustah, a joint reading of Resolution 1542, the sofa (making reference to local laws and regulations of the host country, para. 5)  and internal UN documents on peacekeeping leaves little room for doubt that minustah was, in principle, bound by human rights law.462 a Early Allegations of Human Rights Violations From its very beginning, minustah’s human rights record drew severe criticism. minustah troops were accused of targeting and killing civilians, including children, and of committing sexual misconduct and abuse. According to the UN’s Conduct and Discipline Unit, over 100 cases of allegations of sexual exploitation and abuse were reported for minustah from 2007 to 2017.463 In addition, reports have shown that minustah was complicit in human rights abuses, including disappearances and summary executions, perpetrated by the Haitian National Police and refrained from effectively investigating or reporting these abuses.464 This lack of investigation can, as has been elaborated upon above, amount to a violation of the right to life and physical integrity on the part of minustah. At the very least, the behaviour of minustah actively supported a culture of impunity and was thus in direct violation of its own mandate, which called on minustah to advise and assist the Transitional Government “to put an end to impunity”.465 Furthermore, ohchr as well 462 Going even further, the Harvard Law Student Advocates for Human Rights and Centro de Justica Global argue that minustah’s mandate “contemplates a degree of proactivity” that goes beyond a mere supportive function, but entails “explicit, clearly defined obligations”, see Harvard Law Student Advocates for Human Rights and Centro de Justica Global, Keeping the Peace in Haiti?, March 2005, at 17 f. 463 UN Conduct and Discipline Unit, Allegations per mission, sexual exploitation and abuse, as of November 2017, https://​conduct.unmissions.org/​sea-​overview. 464 Harvard Law Student Advocates for Human Rights and Centro de Justica Global, Keeping the Peace in Haiti?, March 2005, at 22. See also ohchr/​Human Rights Section minustah, Report on Alleged Killings by Haitian National Police and the Response of State Authorities, December 2011. 465 Security Council Resolution of 30 April 2004, UN Doc S/​RES/​1542 (2004), para. 8.a).

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as the Secretary-​General voiced serious concerns regarding the realisation of economic and social rights of the Haitian population.466 In the following, the alleged human rights violations in the context of the cholera will be analysed in more detail. The question is as to what extent the actions and omissions of minustah amount to violations of the right to health, the right to water and the right to life. b

Human Rights Violations in the Context of the Earthquake and the Cholera Outbreak The constantly dire situation reached its point of culmination with the earthquake in January 2010 and the subsequent cholera outbreak. In a report to the Human Rights Council, minustah was heavily criticized for failing to prevent human rights abuses in the idp camps such as sexual violence against women and girls and forced evictions of earthquake victims from idp camps.467 Once more, minustah’s reaction to these allegations remained dissatisfying, or, as a 2011 report has put it: “minustah’s role, however, in addressing the problem [of sexual and gender based violence], however, has ranged from harmful to ineffective.”468 In October 2010, cholera broke out in Haiti, which, before that, did not have any recorded cases of the disease for over 100 years.469 Within the short time of less than three months, over 150,000 people had been infected with cholera and 3,500 had died. By the end of 2013, these numbers rose up to 670,000 and 8500 respectively.470 Cholera is an acutely dehydrating diarrheal disease that can lead to the death of its victims within very short time. The disease is caused by the Vibrio cholera, a bacterium; the most common cause of infection is through contact with water contaminated with faeces containing the bacteria.471 466 E.g. ohchr, ohchr in Haiti (2008–​ 2009), http://​www.ohchr.org/​EN/​Countries/​ LACRegion/​Pages/​HTSummary0809.aspx and ohchr, ohchr in Haiti (2010–​2012), http://​www.ohchr.org/​EN/​Countries/​LACRegion/​Pages/​HTSummary1012.aspx. 467 MADRE et  al., Gender-​Based Violence against Haitian Women & Girls in Internal Displacement Camps, 2011; Amnesty International, Nowhere to Go: Forced Evictions in Haiti’s Displacement Camps, April 2013. 468 HealthRoots Student Organization, minustah: Keeping the peace, or conspiring against it?, October 2011, at 5. 469 D. A. Walton and L. C. Ivers, Responding to Cholera in Post-​Earthquake Haiti, 364 New England Journal of Medicine (2011), 3, at 4. 470 Human Rights Council, Report of the independent expert on the situation of human rights in Haiti, Gustavo Gallón, 7 February 2014, UN Doc. A/​HRC/​25/​71, para. 76. 471 C.-​S. Chin et al., The Origin of the Haitian Cholera Outbreak Strain, 364 The New England Journal of Medicine (2011), 33, at 34.

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It was quickly established and confirmed by the UN’s Independent Panel of Experts on the Cholera Outbreak in Haiti that the Nepalese troops who had arrived at the Mirebalais minustah base in Meille in October 2010 were responsible for bringing cholera to Haiti.472 In March 2012, UN Special Envoy to Haiti, Bill Clinton, stated that peacekeepers carrying the cholera strain were the proximate source of the disease.473 The soldiers coming from Nepal, a country known for being cholera-​stricken, had not been adequately been screened before deployment.474 In fact, the Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti confirmed that medical examination was completed in Kathmandu, but this examination did not include a cholera-​screening.475 In Haiti, the disease spread rapidly, mainly because of the haphazardly constructed sanitation facilities at the peacekeeping base which allowed the leaking of sewage into nearby waterways, which flow into the Artibonite River, Haiti’s most important river and the main source of drinking water.476 While the number of new infections 472 A. Cravioto et  al., Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti, 2010. (The Independent Panel concluded: “[T]‌he evidence overwhelmingly supports the conclusion that the source of the Haiti cholera outbreak was due to contamination of the Meille Tributary of the Artibonite River with a pathogen strain of current South Asian type Vibrio cholerae as a result of human activity.”, p.  29). For an account of the rumours, suppositions and various studies trying to explain the outbreak, see R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 509 ff. The report of the Special Rapporteur, Philip Alston, gives a concise overview over the scientific evidence established by various experts, see Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, paras. 13 ff. with further references. 473 Clinton: UN soldier brought cholera to Haiti, Associated Press, 7 March 2012. 474 ijdh-​b ai, Petition for Relief, 3 November 2011, para. 57; R.  Freedman and N.  Lemay-​ Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 509. According to UN guidelines, a cholera screening is not obligatory for peacekeepers, even if they come from disease-​affected regions, K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 359. See also the who statement relating to international travel and trade to and from countries experiencing outbreaks of cholera, 24 November 2010, http://​www.who.int/​cholera/​technical/​prevention/​choleratravelandtradeadvice231110.pdf (“WHO does not advise routine screening or quarantine of travellers coming from cholera-​affected areas.”, at 1). 475 A. Cravioto et  al., Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti, 2010. The majority of cholera infections are asymptomatic, i.e. victims do not develop any symptoms while they continue to transmit the bacteria through their feces for up to ten days after infection, see who Media Centre, Cholera, Fact Sheet, October 2016, http://​www.who.int/​mediacentre/​factsheets/​fs107/​en/​. 476 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, 30 June 2014, UN Doc. A/​h rc/​27/​55, para. 34.

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has dropped in the meantime, it will take several years to eradicate the disease. In addition to vaccination campaigns that have been launched, large-​ scale investments in the inadequate water and sanitation system are urgently needed.477 The introduction of cholera by peacekeepers can amount to human rights violations, most notably with respect to the right to health,478 the right to water,479 and the right to life. The main obligation to respect, protect and fulfil these rights lies with the State, i.e. Haiti. Even before the earthquake, Haiti’s water and sanitation system was one of the poorest in the world and Haiti had continuously failed to respect, protect and fulfil its population’s rights to clean water and sanitation.480 Nevertheless, it needs to be analysed to what extent the UN committed human rights violations that are independent of Haiti’s failure to adequately respect and protect human rights. i Right to Health The right to the highest attainable standard of health is contained in Article 25 of the udhr, Articles 12 and 7(b) of the icescr and a range of other human rights treaties481 and can be considered part of customary international law.482 According to the Committee on Economic, Social and Cultural Rights (cescr) the right to health must be understood as “a right to the enjoyment of a variety 477 E.g. P. Adams, Haiti prepares for cholera vaccination but concerns remain, 379(9810) The Lancet (2012), 16. For a summary of international aid activities and an evaluation thereof see also R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 511 ff. 478 R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 523 ff. 479 John Marshall Law School International Human Rights Clinic and ijdh, Cholera as a Grave Violation of the Right to Water in Haiti, 28 February 2014. See also in detail Yale Law School Transnational Development Clinic et  al., Peacekeeping without Accountability. The United Nations’ Responsibility for the Haitian Cholera Epidemic, 2013, at 35 ff. The Petition for Relief claimed that the UN violated the right to life, the right to health, the right to an adequate standard of living, and the right to clean drinking water and sanitation, see ijdh-​b ai, Petition for Relief, 3 November 2011, para. 83. The Petition for Relief further argued that the UN violated “international environmental principles” by contaminating Haiti’s most important water system, ibid., para. 82. 480 John Marshall Law School International Human Rights Clinic and ijdh, Cholera as a Grave Violation of the Right to Water in Haiti, 28 February 2014, at 1 ff. 481 E.g. icerd, Art. 5(e)(iv); cedaw, Art. 12; crc, Art. 24; crpd, Art. 25. 482 R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) ljil (2015), 507, at 523. For a detailed analysis of the right to health as customary law see A. Clapham Andrew and R. Garcia, The Obligations of States with Regard to Non-​State Actors in the Context of Right to Health, 2002, at 20 ff.

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of goods, services and conditions necessary for the realization of the highest attainable standard of health.”483 minustah was bound by the right to health on the basis of customary international law.484 In addition, minustah was obliged to respect Haiti’s laws and regulations which include the human rights treaties Haiti had adhered to such as the icescr and the American Convention on Human Rights (achr).485 By its acts and omissions, minustah may have violated its tripartite duty to respect, protect and fulfil the right to health.486 Under its obligation to respect the right to health, minustah would have been required to abstain from performing, sponsoring or tolerating any practice, policy or legal measure violating the integrity of individuals or infringing upon their freedom to use those material or other resources available to them in ways they find most appropriate to satisfy economic, social and cultural rights.487 With respect to the right to health, Article 12 icescr further states that the enjoyment of the highest attainable standard of health is to be realised inter alia through the improvement of environmental hygiene (Art. 12.2.b) and the prevention of epidemic diseases (Art. 12.2.c). These provisions are directly relevant for the Haiti cholera case. First of all, the Nepalese peacekeepers went through inadequate screening for cholera before deployment, which led to the subsequent introduction of the epidemic into Haiti. This means that the prevention of epidemic diseases was inadequate. In addition, the cholera could only spread so quickly because the water and sanitation infrastructure at the minustah camp was insufficient: the poor waste management 4 83 cescr, General Comment No. 14, 11 August 2000, UN Doc. E/​C.12/​2000/​4, para. 9. 484 See R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 515 f.; Yale Law School Transnational Development Clinic et al., Peacekeeping without Accountability. The United Nations’ Responsibility for the Haitian Cholera Epidemic, 2013, at 38 f. 485 Constitution of Haiti of 1987, Art. 276-​2:  “Once international treaties or agreements are approved and ratified in the manner stipulated by the Constitution, they become part of the legislation of the country and abrogate any laws in conflict with them.” The Constitution of Haiti itself also enshrines the right to health, Art. 19. 486 On the tripartite obligation with respect to the right to health see e.g. A.  Müller, The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law, 2013, ­chapter 4. 487 ohchr, Economic, Social and Cultural Rights. Handbook for National Human Rights Institutions, New  York and Geneva, 2005, http://​www.ohchr.org/​Documents/​ Publications/​training12en.pdf, at 15.

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system at the Mirebalais base allowed faeces to contaminate the river that functioned as the main source of drinking water of a large proportion of Haiti’s population. minustah, then, did not take the necessary and appropriate measures to prevent the pollution of the environment, including tributaries and rivers.488 Hence, the UN and minustah did not abstain from performing practices that infringed upon the Haitian’s right to health. As a consequence, there exists widespread consensus that, by not preventing the introduction and the subsequent spread of the cholera, the UN failed to respect the right to health.489 In addition, it has been argued that minustah’s failure to protect the Haitian population from the introduction of the cholera by Nepalese peacekeepers violated its duty to protect the right to health.490 Furthermore, Freedman and Lemay-​Herbert purport that minustah continued to violate its obligation to fulfil since it failed to ensure access to safe and clean drinking water in the aftermath of the pollution of the river.491 In sum, minustah failed to comply with its own duties to respect, protect and fulfil the right to health. ii Right to Clean Water The right to safe and clean water and sanitation has been recognised by the General Assembly492 and the Human Rights Council.493 Already in 2012, Inga Winkler for instance purported that the right to water was part of customary

488 R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 524 f. 489 E.g. M. Garcin, The Haitian Cholera Victims’ Complaints Against the United Nations, 75 ZaöRV (2015), 671, at 696 f.; R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 525. Garcin further describes how the lack of co-​operation with the Haitian government after the cholera broke out constituted additional violations of international law, see M.  Garcin, The Haitian Cholera Victims’ Complaints Against the United Nations, 75 ZaöRV (2015), 671, at 696 f. 490 R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 525. 491 Ibid. 492 General Assembly Resolution 64/​292. The human right to water and sanitation, 3 August 2010, UN Doc. A/​RES/​64/​292, para. 1. 493 Human Rights Council, Human rights and access to safe drinking water and sanitation, 24 September 2010, UN Doc. A/​HRC/​15/​L.14 (“the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity”, para. 3). See also the cescr, General Comment No. 15 (2002): The Right to Water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, UN Doc E/​C.12/​2002/​11.

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international law, at the very least “in statu nascendi”.494 minustah was hence bound by the right to clean water to the extent that it has attained the status of customary international law. In addition, minustah was obliged to respect Haiti’s laws and regulations which include the human rights treaties which Haiti had adhered to, such as the icescr and the achr. The right to water entails access to “adequate water” which includes, according to the cescr, water that is “safe, therefore free form micro-​organisms (…) that constitute a threat to a person’s health.”495 Under the obligation to respect the right to water, authorities must refrain from action that unjustifiably interferes with its enjoyment, for instance, through pollution, diversion or depletion of water resources.496 Furthermore, the obligation to protect the right to water relates inter alia to a duty to protect water distribution or sanitation infrastructure from interference, damage and destruction.497 The cholera was brought to Haiti by Nepalese peacekeepers and spread the country through leaking sewage. The poor waste management system at the Mirebalais base allowed faeces to contaminate the water of the Artibonite River and its tributaries. minustah thus failed to respect and to protect the human right to clean water.498 iii Right to Life The right to life is enshrined in Art. 6 of the iccpr and other human rights treaties499 as well as in Haitian law.500 In General Comment No. 6, the Human Right Committee notes that the right to life should not be too narrowly 494 I. Winkler, The Human Right to Water, 2012, at 97 with further references. See also A.  Kirschner, The Human Right to Water and Sanitation, 15 MPUNYB (2011), 445, who argues that the right to water has passed the age of an emerging right, at 464. 495 cescr, General Comment No. 15 (2002):  The Right to Water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, UN Doc E/​C.12/​2002/​11, para. 12(b). 496 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, 30 June 2014, A/​HRC/​27/​55, para. 17. 497 Ibid., para. 29. 498 E.g. M.  Garcin, The Haitian Cholera Victims’ Complaints Against the United Nations, 75 ZaöRV (2015), 671, at 695 f.  See also Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, 30 June 2014, A/​HRC/​27/​55, para. 34. 499 E.g. achr, Art. 4, para. 1; crc, Art. 6. Moreover, in its General Comment No. 6 on the right to life, the Committee calls for an adoption of measures to eliminate epidemics, hrc, ccpr General Comment No. 6: Article 6 (Right to Life), 30 April 1982, para. 5. 500 Constitution of Haiti of 1987, Art.19.

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construed and includes, for instance, also the duty to take necessary measures to eliminate epidemics.501 By introducing the highly infectious disease into the country, which led to the death of several thousand victims, minustah violated the rights to life of people of Haiti.502 It has additionally been argued that the UN only responded inadequately to the epidemic once it had broken out, i.e. by failing to invest in infrastructure for clean water and sanitation and thereby allowing the cholera to spread further. This constituted an additional breach of the right to life.503 c Findings From its very beginnings, minustah faced serious criticism concerning its human rights record. Against the backdrop of numerous allegations of sexual misconduct, complicity in human rights violations of the Haitian National Police and a devastating situation concerning the implementation of economic and social rights, minustah effectively failed to discharge its human rights functions. While, once more, the situation on the ground was difficult from the outset, the shortcomings in human rights protection did not exclusively happen because of a lack of resources or personnel, but also and most notably because of a lack of political will504 and lack of strategy.505 In the context of the cholera, through various acts and omissions, minustah failed to respect the Haitian population’s right to health, to water, and to life. 4 Reactions and Consequences After the outbreak of the epidemic, the UN did take steps to contain and fight the cholera in Haiti in co-​operation with Haiti’s Ministry of Public Health and Population, the Pan-​American Health Organization, the Centre for Disease Control and Prevention506 and has done “extensive work to counteract the 5 01 hrc, ccpr General Comment No. 6: Article 6 (Right to Life), 30 April 1982, para. 5. 502 M. Garcin, The Haitian Cholera Victims’ Complaints Against the United Nations, 75 ZaöRV (2015), 671, at 697 f. 503 Boston College Law School et al., iccpr Violations in the Context of the Cholera Epidemic in Haiti, 12 September 2014, para. 28 and para. 32. 504 Harvard Law Student Advocates for Human Rights and Centro de Justica Global, Keeping the Peace in Haiti?, March 2005, at 48. Critically also A.  Thompson, Haiti’s Tenuous Human Rights Climate, in: Y. Shamsie and A. Thompson (eds.), Haiti: Hope for a Fragile State, 2011, 51, at 63 f. 505 T. Howland, Peacekeeping and Conformity with Human Rights Law:  How minustah Falls Short in Haiti, 13(4) International Peacekeeping (2006), 462, at 470. 506 E.g. R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 511.

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epidemic and to help the victims”.507 With respect to the alleged human rights violations, the UN at first remained silent and inactive. Therefore, victims have pursued various avenues to seek effective remedy and provoke reactions on the part of the UN. These developments will briefly be traced in the following. a Reactions to Allegations of Sexual Exploitation and Abuse In the context of the allegations of sexual misconduct and abuse, over 100 members of the Sri Lanka peacekeeping contingent were repatriated for investigation.508 Since 2010, the Conduct and Discipline Unit has counted 80 cases of investigation into allegations of sexual exploitation and abuse in the context of minustah, of which 36 have been substantiated, 30 unsubstantiated and 7 pending and “other” respectively.509 In 31 cases involving uniformed personnel of minustah from 2010–​2017, repatriation has taken place, with the remaining cases pending.510 Following from the Memorandum of Understanding (mou) between the UN and the troop-​contributing countries (tcc), the role of minustah and the UN Secretariat is limited beyond initial investigation and, if applicable, repatriation. Further measures such as disciplinary measures or punishment are undertaken by the tcc, according to their respective standards, legislation and procedures.511 On an institutional level, considerable efforts have been undertaken to tackle the issue of sexual exploitation and abuse, although not necessarily as a direct consequence of the cases in Haiti.512 Spurred by another public outcry following allegations of sexual misconduct in the Central African Republic, the Secretary-​General undertook to develop measures to strengthen the UN’s response to sexual exploitation and abuse in the areas of prevention, 507 Human Rights Council, Report of the independent expert on the situation of human rights in Haiti, Gustavo Gallón, 7 February 2014, UN Doc. A/​HRC/​25/​71, para. 76. But see critically, Yale Law School Transnational Development Clinic et al., Peacekeeping without Accountability. The United Nations’ Responsibility for the Haitian Cholera Epidemic, 2013, at 14 f. and 53 f. 508 UN News Centre, Haiti:  Over 100 Sri Lankan blue helmets repatriated on disciplinary grounds  –​UN, 2 November 2007, http://​www.un.org/​apps/​news/​story. asp?NewsID=24514#.WmjZiyOX-​u4. 509 Conduct and Discipline Unit, Sexual Exploitation and Abuse, Investigations, https://​conduct.unmissions.org/​sea-​investigations. 510 Conduct and Discipline Unit, Sexual Exploitation and Abuse, Actions, https://​conduct. unmissions.org/​sea-​actions. 511 International Crisis Group, Towards a Post-​m inustah Haiti, August 2012, at 12. 512 For a summary see e.g. B. Rashkow, Remedies for Harm Caused by UN Peacekeepers, AJIL Unbound, 2 April 2014.

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enforcement and remedial action.513 In 2017, a new strategy to improve the UN’s system-​wide approach to preventing and responding to sexual exploitation and abuse was presented by the Secretary-​General.514 It is not the focus of the present study to evaluate the prospects of success for the current activities. Generally speaking, the UN’s efforts to tackle the problem of sexual exploitation and abuse seem to be credible. The times of systematic lack of investigation and lack of transparency seem to be gone, at least on an institutional level without prejudice to individual cases that continue to happen.515 b UN Reactions in the Cholera Case i The Petition for Relief According to the sofa signed between the UN and the government of Haiti in 2004, minustah itself as well as the peacekeeping troops and other UN personnel enjoy privileges and immunity according to the cpiun.516 Since minustah was thus protected from proceedings in Haitian courts, the sofa called for an alternative mode of dispute settlement to compensate for the immunities guaranteed under the sofa. In order to deal with third-​party claims for property loss or damage and for personal injury, illness or death arising from minustah, i.e. disputes of a private-​law character, the sofa required the establishment of a standing claims commission to hear claims and pay compensation if appropriate.517 So far, no such claims commission has been established in Haiti or in any other country in which the UN has deployed a peace operation. In November 2011, attorneys from the Boston (US)-​based Institute for Justice and Democracy in Haiti (ijdh), from the Haiti-​based Bureau des Avocats Internationaux (bai), and from a US Civil Rights law firm submitted a petition for relief to the minustah claims unit in Haiti and to UN headquarters in 513 See mainly Special measures for protection from sexual exploitation and sexual abuse: a new approach, Report of the Secretary-​General, 16 February 2016, UN Doc. A/​70/​729. For a list of documents and news on the issue see the website on Conduct and Discipline in UN Peacekeeping, http://​www.un.org/​en/​peacekeeping/​issues/​cdu/​. 514 Special measures for protection from sexual exploitation and abuse:  a new approach, Report of the Secretary-​General, 28 February 2017, UN Doc. A/​71/​818. See also Security Council Resolution 2272 of 11 March 2016, S/​RES/​2272 (2016). 515 See, e.g. Update on Allegations of Sexual Exploitation and Abuse in United Nations Peacekeeping Operations and Special Political Mission, 17 May 2016, http://​www.un.org/​ en/​peacekeeping/​documents/​updatesea.pdf. 516 Agreement Between the United Nations and the Government of Haiti Concerning the Status of the United Nations Operation in Haiti, 9 July 2004, 2271 U.N.T.S. 235 (sofa UN-​ Haiti), para. 15. 517 sofa UN-​Haiti, paras. 54 and 55.

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New  York, representing over 5,000 cholera victims and relatives of Haitians who had not survived the disease.518 The petitioners, based on the findings of the UN’s Independent Panel of Experts on the Cholera Outbreak in Haiti, accused the UN of being “liable for negligence, gross negligence, recklessness, and deliberate indifference for the health and lives of Haitian people resulting in petitioners’ injuries and deaths from cholera” (paras. 72 ff.). They further claimed that the UN had “failed to comply with international law and violated Petitioners’ fundamental rights under international human rights law” (paras. 81 ff). They therefore called for a fair and impartial adjudication of the claim, compensation to the Petitioners ($50,000 for injured and $100,000 for deceased), and reparations to victims of cholera at large (Chapter vii, paras. 102 ff.). Over one year later, on 21 February 2013, UN Under-​Secretary-​General for Legal Affairs, Patricia O’Brian sent a response, but the content was sobering: After presenting at length the efforts by the UN to combat the cholera epidemic and to improve sanitation in Haiti, the petitioners’ claim was dismissed with two short sentences: With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters. Accordingly, these claims are not receivable pursuant to Section 29 of the Convention on Privileges and Immunities of the United Nations.519 No further explanation was given for denying the petition. On 7 May 2013, the petitioners responded to the letter and challenged the UN’s argument that the claim was not receivable. “In the absence of more information”, the letter said, the “invocation of Section 29 appears arbitrary, self-​serving and contrary to international principles of due process.”520 In fact, pursuant to Section 29 c­ piun, the UN is under an obligation to “make provisions for appropriate modes of settlement of (…) disputes of a private law character to which the United Nations is a party”. In absence of such a settlement mechanism, the petitioners were left without a venue to pursue their case. The second response of Patricia O’Brian repeated the UN position that the claims were “not receivable” and rejected the establishment of a standing 5 18 ijdh-​b ai, Petition for Relief, 3 November 2011. 519 Letter from Patricia O’Brian, UN Under-​Secretary-​General for Legal Affairs, to Brian Concannon, Attorney for the Haitian Cholera Victims, 21 February 2013. 520 Letter from Mario Joseph et  al. to Patricia O’Brien, Under Secretary-​General for Legal Affairs, 7 May 2013.

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claims commission under the sofa by purporting that there was “no legal basis for the United Nations to establish such a commission in respect of claims that are not receivable.”521 The complete lack of interest to search for a solution is undoubtedly clear: “As these claims are not receivable, I do not consider it necessary to meet and further discuss this matter.”522 Not surprisingly, the UN’s strategy of (non-​)dealing with the claims was met with lack of understanding and severe criticism.523 Bruce Rashkow, former Director of the General Legal Division of the United Nations Office of Legal Affairs, finds it “difficult to understand the United Nations’ position”, since he does “not recall any previous instance where such a formulation was utilized in regard to such claims.”524 Apparently, the UN regarded the claims by the petitioners not to be “of a private law character” as Section 29 cpiun requires. Instead, by referring to the “political and policy matters”, it seemed to consider it as a claim of a public nature –​without giving any explanation for this assumption, which, as has acutely been pointed out, took almost 15 months to crystallize.525 It is hard to follow the postulation that the claim was of a “policy” or “public law” nature.526 The authors of the petition pointed out that the cholera claims “fall squarely under the

521 Letter from Patricia O’Brien, Under Secretary-​ General for Legal Affairs, to Brian Concannon, Director, Institute for Justice & Democracy in Haiti, 5 July 2013. 522 Ibid. 523 Voices on the topic are numerous, see e.g. R.  Freedman and N.  Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, K.  Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991; I. Kurzban, B. Lindstrom, and S. Jonsson, UN Accountability for Haiti’s Cholera Epidemic, AJIL Unbound, 3 April 2014; J. Alvarez, The United Nations in the Time of Cholera, AJIL Unbound, 4 April 2014; K. Boon, UN Flatly Rejects Haiti Cholera Claim, Opinio Juris, 22 February 2013; F. Mégret, La Responsabilité Des Nations Unies Aux Temps Du Cholera, 46(1) Revue belge de droit international (2013), 161; K.  Taylor, Shifting Demands in International Institutional Law, 45 Netherlands Yearbook of International Law (2014), 157. See also the compilation of reports and press coverage by the ijdh, http://​www.ijdh.org/​ cholera/​cholera-​resources/​. 524 B. Rashkow, Remedies for Harm Caused by UN Peacekeepers, AJIL Unbound, 2 April 2014. Another instance in which the UN used this formulation was the response to claims submitted by victims of lead contamination in Kosovo idp camps, see ibid. 525 K. Boon, UN Flatly Rejects Haiti Cholera Claim, Opinio Juris, 22 February 2013. 526 For a different view, see T. Bode, Cholera in Haiti, 47 Georgetown Journal of International Law (2016), 759, at 775 ff. Weighing arguments both in favour and against considering the claims as “private law claims”, see F. Mégret, La Responsabilite Des Nations Unies Aux Temps Du Cholera, 46(1) Revue belge de droit international (2013), 161. Most notably, he points out that the mere fact that the claim also invoked violations of human rights does not automatically make it a public law claim, see Section i.C.

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category of private law claims” since they did not touch upon minustah’s mandate or decisions taken under operational/​military necessity, but result from a tort. Indeed, they argued with a sharp tongue, it would be difficult to imagine what kind of policy is “involved in leaking cholera-​laden waste into a river system”.527 As Kirsten Boon illustrates, a public law claim would typically arise between a State and the UN. Haiti, however, has decided to refrain from participating in the dispute. In contrast, elements that are characteristic of a dispute of a private law character, namely a tort claim, private individuals (represented by an ngo) as claimants and monetary compensation as remedy sought, strongly argue in favour of dismissing the UN’s assumption.528 It is worth noticing that the UN did not dispute the fact that the Nepalese peacekeepers brought cholera into Haiti. Nor did it try to whitewash or explain the untenable condition of the wastewater system at the Mirebalais camp. In other words, the UN did not seek to deny the allegations of human rights violations. What it did, was to prevent individuals from seeking redress for these human rights violations by pointing to the UN’s immunity under the CPIUN and by barring the alternative avenue of a standing claims commission provided for in the sofa.

527 I. Kurzban, B. Lindstrom, and S. Jonsson, UN Accountability for Haiti’s Cholera Epidemic, AJIL Unbound, 3 April 2014. See also Alvarez’ instructive explanation on the nature of tort claims, J. Alvarez, The United Nations in the Time of Cholera, AJIL Unbound, 4 April 2014. In contrast, Stephanie Zable argues that the UN’s position is “not necessarily faulty” from a legal point of view, see S. Zable, UN Accountability and the Haitian Cholera Epidemic, Michigan Journal of International Law, 30 September 2016. 528 K. Boon, UN Flatly Rejects Haiti Cholera Claim, Opinio Juris, 22 February 2013. In the meantime, UN’s Senior Cholera Coordinator, Pedro Merdano, tried to explain the UN’s definition of a private law claim: “In the Practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between two private parties. (…) [W]‌hen assessing a claim under Section 29(a), the Organization does not rely solely on the allegations of the claim itself, but also assesses the character of the claim in the context of all its circumstances. The mere allegation of tortious conduct does not make a claim one of a private law character. The nature of the duty allegedly owed by the Organization, the nature of the conduct or activity at issue, and other relevant circumstances are all pertinent to determining whether the claim involves a dispute of a private law character.”, Letter from Pedro Medrano, Assistant U.N. Secretary-​General, Senior Coordinator for Cholera Response, to Ms. Farha, Mr. Gallon, Mr. Pura and Ms. de Albuquerque, 25 November 2014, paras. 87 and 90. This restrictive interpretation was reinforced by a Letter from U.N. Secretary-​General Ban Ki-​moon to Members of United States Congress, 19 February 2015, quoted in excerpts at http://​cepr.net/​blogs/​haiti-​relief-​ and-​reconstruction-​watch/​ban-​ki-​moon-​explains-​to-​congress-​why-​the-​un-​wont-​be-​ held-​accountable-​for-​cholera-​in-​haiti.

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ii Litigation before US Courts In search of an alternative mode of settlement, the plaintiffs filed a lawsuit against the UN in the Southern District of New York Federal Court in October 2013.529 The class action claimed that the outbreak of the cholera resulted from negligent, reckless and tortious conduct of the UN and of minustah. It was argued that the defendants knew or should have known that the discharge of wastewater and sewage, a result of haphazardly constructed sanitation facilities at minustah’s base leaking into the tributaries of the Arbonite River, created a high risk of contamination. Still, no steps were taken to prevent foreseeable harm to the local population, neither before nor after the outbreak of the cholera. The plaintiffs requested investments in water and sanitation infrastructure in order to fight the further spread of the epidemic; just compensation for the tortious acts and omissions by the UN; and a public acceptance of responsibility of the part of the UN as well as a public apology.530 Reacting to the claim, the US Government filed a Statement of Interest asserting the UN’s absolute immunity under Article 2 of the cpiun.531 The plaintiffs as well as international law and human rights experts who had signed an amicus curiae brief responded by arguing that the UN forfeited immunity when failing to provide victims access to out-​of-​court mechanisms for dispute settlement.532 On 9 January 2015, the case was dismissed for lack of subject matter jurisdiction.533 On 18 August 2016, the Second Circuit Court of Appeals upheld the District Court’s judgement and dismissed the appeal filed by the plaintiffs.534 The lawsuit thus did not address minustah’s potential human rights violations but represented a tort, i.e. a private law claim, which was based on the violation of a standard of care. This is not identical with a human rights claim .

529 Georges v.  United Nations, No. 13-​CV-​7146 (jpo), Southern District of New  York, filed 9 October 2013. 530 Ibid., see also summary of litigation provided by the ijdh, Cholera Claim against the UN, http://​www.ijdh.org/​2013/​10/​topics/​health/​cholera-​complaint-​against-​the-​un/​ #.Ul1FFMakpCY. 531 Georges v. United Nations, Statement of Interest, No. 13-​CV-​7146 (jpo), Southern District of New  York, filed 7 March 2014. For an explanation of the US government’s effort to defend UN immunity see K. Boon, Developments in the Haiti Cholera Case, Opinio Juris, 13 March 2014. 532 idjh, Cholera Litigation, http://​www.ijdh.org/​cholera/​cholera-​litigation/​. 533 Georges v. United Nations, No. 13-​CV-​7146 (jpo), Opinion and Order, 9 January 2015, http://​ www.ijdh.org/​wp-​content/​uploads/​2011/​11/​Dkt62_​Opinion_​and_​Order_​01_​09_​15.pdf. 534 Georges v. United Nations, Second Circuit Court of Appeals Decision on UN immunity, August 18, 2016. For the details of the litigation history and links to original documents see idjh, Cholera Litigation, http://​www.ijdh.org/​cholera/​cholera-​litigation/​.

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which relates to the special relationship between the State and its subjects and the former’s obligation to respect, protect and fulfil the rights of individuals.535 But, as Alvarez highlights, such a distinction is blurred in cases like the ­present one: At what point does a UN peacekeeping mission which seizes the reins of governance in a fragile state whose own government owes its existence to the UN, become responsible de facto for ensuring human rights and not merely for breaches of a standard of care? At what point does it become irrelevant whether that governance institution was negligent? Should the fragility of the Haitian government, including its inability to talk back to its UN benefactor, be relevant to how one reads the sofa’s anticipated remedies or the scope of UN immunity?536 In fact, the outcome of the litigation –​the inadmissibility of the claim because of the UN’s immunity –​does on its part have significant human rights implications, namely in the context of the right to effective remedy.537 Alvarez then does have a point in asking whether in case the claims are human rights claims similar to those usually made against one’s government, “doesn’t this demonstrate their ‘public-​ness’?”538 Critical questions of this kind only accentuate the dire need for institutionalised procedures to handle allegations of wrongdoing by UN peace operations, both in the realm of tort and in the realm of human rights. So far, nothing exists. iii The UN’s New Strategy In August 2016, the UN’s approach to the cholera crisis took somewhat of a turn. In a reply to the Special Rapporteur, the Deputy Secretary-​General announced the adoption of a new approach that would provide additional material assistance and support to the victims in Haiti. He also promised to intensify efforts in response to the cholera.539 Shortly after, then-​Secretary-​General Ban Ki-​moon repeated the promise of an assistance and support package to be forthcoming soon and expressed regret over the cholera epidemic in Haiti. At

5 35 J. Alvarez, The United Nations in the Time of Cholera, AJIL Unbound, 4 April 2014. 536 Ibid. 537 See infra, iv.3. 538 J. Alvarez, The United Nations in the Time of Cholera, AJIL Unbound, 4 April 2014. 539 Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 75.

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the same time, his statement fell short of acknowledging any legal responsibility for having introduced the epidemic.540 On 1 December 2016, Ban Ki-​moon apologized for not having done more in the Haiti cholera crisis.541 He also announced further steps to be taken, including supporting the construction of better water sanitation and a “material assistance package” for those Haitians most directly affected by cholera.542 It is true that the Secretary-​General apologized, but, as Alston points out, the Secretary-​General merely apologized that the UN had not done more to eradicate cholera, but not for causing the disease in the first place. It can therefore only be considered a “half-​apology”.543 Others have contended that the apologies could be considered as an “implicit form of reparation”, but admit at the same time that such the UN has not endorsed such an interpretation.544 iv Result: Denial of the Victims’ Right to Effective Remedy Victims of the cholera and their relatives have until today not received effective remedy such as compensation or an apology.545 With the petition “not receivable” and US domestic court proceedings inadmissible at the highest instance, standards avenues for redress are barred.

540 K. Boon, Haiti cholera update, Opinio Juris, 20 September 2016. The Special Rapporteur similarly criticized that the UN’s new strategy had yet to lead to a public apology and acceptance of responsibility, Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 75. He claimed that the “denial of anything other than a moral responsibility is a disgrace”, ohchr, UN human rights expert:  “UN lawyers undermine a just solution for the victims of cholera in Haiti” 25 October 2016. 541 He stated: “On behalf of the United Nations, I want to say very clearly: We apologize to the Haitian people (…) we simply did not do enough with regard to the cholera outbreak and its spread in Haiti. We are profoundly sorry for our role.”, quote documented in K. Boon, UN Apologizes for Role in Cholera Outbreak, Opinio Juris, 7 December 2016. 542 K. Boon, UN Apologizes for Role in Cholera Outbreak, Opinio Juris, 7 December 2016. 543 chr&gj, Good news and bad news for persons affected by cholera in Haiti, declares Alston, 1 December 2016, http://​chrgj.org/​good-​news-​and-​bad-​news-​for-​haiti-​cholera-​ victims/​. Alston further deplored that the “determination not to accept legal responsibility entrenches a scandalous legal maneuver designed to sidestep the UN’s legal obligations.” 544 Pierre Bodeau-​Livinec, UN Apologies for Cholera Outbreak:  Moral Responsibility and Legal Escapism, Opinio Juris, 12 December 2016. Similarly, Daugirdas, who argues that the initiative to eradicate cholera from Haiti and the acknowledging of a moral responsibility “could be characterized as an incomplete effort to make reparations”, K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL 25 (2014), 991, at 1015. 545 For up-​to-​date information on current developments, see idjh, Cholera Litigation, http://​ www.ijdh.org/​cholera/​cholera-​litigation/​.

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In addition to the reputational damage on the organization, which will be discussed in detail below,546 the lack of legal remedy for past human rights abuses constitutes a human rights violation on its own. The right to an effective remedy is enshrined Article 8 of the udhr as well as in in Article 2.3 of the iccpr and other human rights treaties.547 It guarantees legal remedies not only for human rights violations committed by a State but regardless of the status of the human rights violator. This includes the violation of human rights by non-​state actors.548 The obligation to provide effective remedy is clearly binding also upon the UN,549 not only based on human rights obligations but also following from UN policies550 and –​last but not least –​following from the cpiun and the sofa between the UN and Haiti. Under Article 29 cpiun, the UN “shall provide for appropriate modes of settlement” of private law claims. This obligation is tantamount to an acknowledgement of the right to access to a court, as August Reinisch explains in his Introductory Note on the cpiun.551 The sofa provides that disputes that cannot be resolved informally are to be settled through a standing claims commission.552 However, no such claims commission has ever been established in any country in which a peace operation was deployed, despite 32 signed sofas that provide for the establishment of a claims commission.553 5 46 See infra Chapter 5.iii. 547 E.g. echr Article 6(1); achr Article 25(1). 548 Instead of many, Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, 30 June 2014, UN Doc. A/​HRC/​27/​55, para. 32. 549 See e.g. the Memorandum of Law of Amici Curiae Former United Nations Officials in Support of Plaintiffs-​Appellants, available at http://​opiniojuris.org/​wp-​content/​uploads/​ UNOfficialsAmicus1.pdf (the UN has “an affirmative obligation to be accountable for wrongs it commits”, at 9). 550 Such as the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by General Assembly Resolution 60/​147 of 16 December 2005, UN Doc. A/​RES/​60/​147. 551 A. Reinisch, Introductory Note on Convention on the Privileges and Immunities of the United Nations and Convention on the Privileges and Immunities of the Specialized Agencies, United Nations Audiovisual Library of International Law, 2009, at 2. 552 sofa UN-​Haiti, paras. 54 f. 553 Instead, internal claims review boards have been established in several peace operations, including Haiti. While these internal claims review boards perform the same functions like a standing claims commission would, the former have been heavily criticised for lack of procedural safeguards, see e.g. T. Bode, Cholera in Haiti, 47 Georgetown Journal of International Law (2016), 759, at 772. See also in detail T. Dannnebaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 126 f.

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For Haiti, vociferous calls by a variety of actors to finally provide appropriate accountability mechanisms and to pay compensation to the victims continue to go unheard.554 As a consequence, affected individuals are “left in a worse position than they were in before the UN intervened”555 –​a deeply unsettling result. 5 Results When minustah closed down in October 2017 after over 13 years, the formal declarations and statements556 could not belie the impression that the mission had already for a long time outlived its welcome.557 minustah’s human rights record is part of this sobering result. From very early on, allegations of sexual exploitation and abuse as well as complicity in human rights violations by the Haitian National Police accompanied any assessment of minustah’s efforts in Haiti. This case study did not intend to further elaborate on these allegations. Instead, it focussed on human rights violations in the context of the cholera. It has been established without much room for doubt that the cholera was brought to Haiti by a contingent of Nepalese peacekeepers, who were 554 E.g. Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, 30 June 2014, UN Doc. A/​HRC/​27/​55, para. 34; Human Rights Council, Report of the independent expert on the situation of human rights in Haiti, Gustavo Gallón, 7 February 2014, A/​HRC/​25/​71, para. 77. In 2016 the Independent Expert called for the establishment of a commission for redress “as a matter of urgency, to quantify the harm done, establish compensation, identify responsible parties, halt the epidemic and take other measures in line with the principles adopted by the General Assembly in December 2005”, Report of the Independent Expert on the situation of human rights in Haiti, 12 February 2016, UN Doc. A/​HRC/​31/​77, para. 102. The former UN High Commissioner for Human Rights, Navi Pillay, stated that she had “used [her] voice both inside the United Nations and outside to call for the right –​for an investigation by the United Nations, by the country concerned,” and that she still stood by the call that victims of the cholera be provided with compensation, quoted in Daniel Trenton, UN Official Makes Rare Case For Compensation For Haiti Cholera Victims, Huffington Post, 8 October 2013. See also Boston College Law School et al., iccpr Violations in the Context of the Cholera Epidemic in Haiti, 12 September 2014, pp. 16f. and Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, paras. 38 ff. with further examples. 555 K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 347. 556 Justice Support Operation to Replace Stabilization Mission in Haiti on 15 October, Special Representative Tells Security Council, SC/​13026, 12 October 2017, https://​www.un.org/​ press/​en/​2017/​sc13026.doc.htm. 557 International Crisis Group, Towards a Post-​m inustah Haiti, August 2012, at 12.

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deployed to Haiti in the aftermath of the 2010 earthquake. Careless construction of sanitation facilities allowed the cholera to spread with the sewage leaking into Haiti’s main source of drinking water. It was argued here that minustah’s acts and omissions were not merely negligent behaviour but amounted to violations of the victims’ right to health, the right to water and the right to life. Up until today, the UN has acted reluctantly when it comes to reacting to the allegations, for instance, by compensating the victims. Instead, the Secretariat rejected the petition for relief as non-​receivable and half-​apologized for the UN’s role in the outbreak of the cholera. Attempts to bring civil claims before US courts were dismissed due to the UN’s absolute immunity before domestic courts. As a result, victims have not been able to seek remedy. iv

The Three Gaps

Case studies are chosen to test theoretical arguments against practical circumstances. Their selection is made according to specific criteria and overall suitability for the purpose at hand. Case studies cannot, however, serve as pars pro toto for all examples of a given set. This holds also true for peace operations. The cases of Kosovo, Timor-​Leste and Haiti have been chosen for this book because they represent pertinent examples for the issue of human rights in peace operations. The findings gained in the three case studies, however, cannot be easily transferred to some or all other peace operations. Violations of human rights by untaet do not automatically hint at human rights violations by the successor mission. Human rights infringements in one integrated mission cannot simply be transferred to other integrated missions. The settings and mandates of peace operations, not only but also with respect to their human rights obligations, are too diverse to allow for an easy comparison. Nevertheless, throughout the case studies, three main gaps have been revealed that may be pertinent not only in the cases analysed, but also for peace operations in general. These three gaps are the protection gap (1), the accountability gap (2), and the remedy gap (3). 1 The Protection Gap Reports on human rights problems in the context of peace operations resound through the literature for many of past and present peace operations. The case studies on unmik, untaet and minustah intended to go beyond these general accounts and to find out whether concrete human rights can be ­established.

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For unmik, the detailed findings of the hrap allowed insights on a case-​ by-​case basis, which was not possible for untaet, due to a lack of detailed data and information. Nevertheless, also for untaet, it became obvious that the peace operation was responsible for human rights infringements that most likely amounted to human rights violations in individual cases. For minustah, human rights violations in the context of the cholera can hardly be disputed. Thus, human rights violations could have been shown in all three case studies. Three further observations deserve particular mention. First, it is noteworthy that the peace operations not only violated their obligations to respect human rights, but also showed significant shortcomings with respect to their positive duties to protect and fulfil human rights. For unmik and untaet, this finding may not be too surprising. As transitional administrations, they were endowed with widespread administrative and legislative powers and in essence acted as surrogate States. In that function, their obligation not only to respect, but also to protect and fulfil human rights can be considered a natural consequence of their broad powers. In the case of minustah, positive obligations were applicable to the extent that the peace operation had the power and the competence to guarantee these rights. Given Haiti’s weak governmental structures and lack of State authority, Haiti was not in a position to regulate or to control the UN.558 This State weakness moreover led to situations in which minustah found itself face-​to-​face with the local population.559 In these instances, minustah assumed powers comparable to the State and could, to that extent, also be held responsible for violations of the duty to protect human rights. Secondly, one of the preliminary assumptions at the outset of this book was that UN officials would, in reacting to allegations of violations, deny being bound by human rights in the first place. This assumption could not be verified. In fact, neither in the official reactions by the srsg to the findings of the hrap in Kosovo, nor in the statements regarding the claims made by the cholera victims in Haiti, arguments purporting an inapplicability of human 558 Yale Law School Transnational Development Clinic et  al., Peacekeeping without Accountability. The United Nations’ Responsibility for the Haitian Cholera Epidemic, 2013, at 38. 559 Mégret points out that it is more and more symptomatic that UN peace operations find themselves in situations where the state is weak or absent, leading to a direct face-​to-​face between the UN and the local population (“Le face-​à-​face onu/​populations est souvent déterminant dans la dynamique contemporaine des omp, (…) à des degrés divers on peut dire que l’ONU se retrouve de plus en plus souvent dans des zones de ‘vide d’Etat’ où celui-​ ci est faible et non existant.”), F. Mégret, La Responsabilite Des Nations Unies Aux Temps Du Cholera, 46(1) Revue belge de droit international (2013), 161, Section ii.A.

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rights obligations to the respective peace operations could have been discovered. Official reactions to allegations of human rights violations by untaet were scarce, to begin with, and refutations concerning untaet’s general human rights obligations have not been revealed. Therefore, it can be concluded that the widespread academic consensus, which has emerged during the last years, that the UN is bound by human rights is matched by the UN’s own understanding. The developments and instruments described in Chapters 1 and 2 have already pointed in this direction. The results of the present part underline this result. Thirdly, it became clear that the overall acceptance of human rights obligations for peace operations is a necessary, but not sufficient precondition for the effective protection of human rights. A  case in point is the comparison between unmik and untaet: while both missions served as transitional administrations and had almost identical functions and tasks, only unmik had a clear human rights task in its mandate. As a legal source for human rights obligations, this difference is negligible, since the human rights obligations of both unmik and untaet are derived both from general international law and the internal rules of the peace operations, most notably the respective Regulations.560 However, the importance attributed to respect for and protection of human rights seemed to have been significantly lower within untaet than within unmik. As has been shown in the case study on untaet, human rights played a marginalised role, both within the mission as well as in reporting activities to the Security Council. For unmik, the clear human rights mandate did of course not prevent human rights violations per se, but it helped to bring human rights considerations more to the centre of attention. 2 The Accountability Gap A unifying element in all three case studies was the lack of meaningful reaction to allegations of human rights violations on the part of the UN. This is deeply problematic from an accountability perspective, as will further be discussed in the next part. Despite being only a snapshot of the large number of past and present peace operations, the case studies presented a rather homogeneous picture: For minustah, the UN took plenty of time to react to the petition for relief by the cholera victims; the answer that emerged eventually from the Secretariat did not take a stand regarding human rights violations. Nor did the UN defend itself against the claims brought before US courts or otherwise

560 Esp. unmik Regulation No. 1999/​24, On the Applicable Law in Kosovo of 12 December 1999, UNMIK/​REG/​1999/​24.

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commented on the subject with reference to human rights. For untaet, the non-​existence of concrete, i.e. case-​by-​case allegations of human rights violations brought forward before a judicial or quasi-​judicial body made it easy for the UN to renounce any reaction to alleged human rights violations that emanated from ngos or the academic community. No official reaction to or critical engagement with untaet’s own human rights record has taken place, at least not publicly. In the case of unmik, human rights violations in many cases have been clearly spelt out and brought to unmik’s attention, thanks to the work of the hrap. Still, the reaction on the part of the srsg was deeply dissatisfying since it amounted to little more than standard formulations and delegation of responsibility to its successor eulex. Internally, the case studies suggest that human rights reporting takes place uncritically. The reports of the Secretary-​General to the Security Council documented human rights activities and, in some instances, mentioned existing human rights problems. A critical analysis of the mission’s own human rights record, however, does not seem to take place at all in these reporting procedures. The question whether the shortcomings in the protection of human rights are not only a violation of international law, but also amount to a non-​fulfilment of the peace operations’ mandates, is apparently not considered relevant within the UN. Therefore, a critical engagement with the objectives laid down in the mandates seems to be lacking, even though this could yield valuable insights, especially when revisions and/​or extensions of mission mandates are due. As a result, the UN remains unaccountable twice: first for its violations of international human rights law and secondly, it remains unaccountable internally, i.e. to its member States. The latter is problematic not only from a legal, but also from a practical perspective: prolonged non-​fulfilment of parts of mandates means that missions continue to be extended, stretching the organization’s capacities. In the worst case, a country may fall back into conflict, not least because the peace operation could not uphold stability and build the foundations of long-​term peace. This means that human and financial resources of the UN and of tcc are further strained. Both untaet and minustah are examples that missions can only be successful if they engage in a holistic approach to peace that takes into account the “peace dividend” for the local population. Here, a human rights-​based approach, grounded on human rights as a normative framework and a mainstreaming of human rights seems to have found entry into peace operations doctrine.561 In practice, however, it has yet to be implemented and accounted for. 561 See supra, Chapter 1.iiI.

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3 The Remedy Gap The lack of accountability that was found for all three case studies leads to a further common problem: the lack of remedy as a consequence of the UN’s absolute immunity. The case studies, most notably the Haiti cholera case, have shown that victims of human rights violations regularly do not have the chance to seek redress internally, either because their claims are deemed “not receivable” or because of a lack of claims commissions that could hear their claims. The alternative way to bring claims before national courts is barred because of the UN’s absolute immunity. This leads to another violation of human rights, namely the right to a remedy. This “remedy gap”,562 that became obvious not only in the Haiti cholera case but also in the Srebrenica cases before Dutch courts,563 has spurred immense attention in legal literature564 and will briefly be reflected here. Section 2 of the cpiun provides for “immunity from every form of legal process” while Section 29 requires the UN to “make provisions for appropriate modes of settlement”. As has already been alluded to above, the latter provision mitigates the UN’s de facto absolute immunity and “can be regarded as

562 E.g. K.  Lundahl, The United Nations and the Remedy Gap, 88(3–​4) Die Friedenswarte (2013), 77; B. Kombo, Closing the ‘Remedy Gap’ –​The Limits and Promise of Diplomatic Protection for Victims of the Cholera Epidemic in Haiti, 5(1) Groningen Journal of International Law (2017), 115. 563 In Mothers of Srebrenica v.  The State of the Netherlands and the United Nations, the Dutch Court of Appeals considered whether a denial of the right to access to justice can be used as a ground to revoke the immunity of the UN, see Appeal Court in The Hague, Mothers of Srebrenica v.  The State of the Netherlands and the United Nations, Judgement of 30 March 2010, Case number/​cause-​list number:  200.022.151/​ 01, para. 5.11. The Dutch Supreme Court overruled the Appellate Court and upheld the UN’s absolute immunity, Supreme Court of the Netherlands, Mothers of Srebrenica Association v. the State of the Netherlands, Judgment, 13 April 2012, (First Division 10/​ 04437 EV/​AS). 564 E.g. K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341; M. Garcin, The Haitian Cholera Victims’ Complaints Against the United Nations, 75 ZaöRV (2015), 671; J. Paust, The U.N. Is Bound By Human Rights: Understanding the Full Reach of Human Rights, Remedies, and Nonimmunity, 51 Harvard Int’l Law Journal Online (2010), 1; R.  Freedman, UN Immunity or Impunity? A  Human Rights Based Challenge, 25 EJIL (2014), 239, at 248; S. Hollenberg, Immunity of the UN in the Case of Haitian Cholera Victims, 19(1–​2) Journal of International Peacekeeping (2015), 118; R. Freedman, Haiti Cholera Claims: Absolute Immunity vs Human Rights, IntLawGrrls, 9 July 2013; K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991; B. Rashkow, Remedies for Harm Caused by UN Peacekeepers, AJIL Unbound, 2 April 2014.

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an acknowledgment of the right of access to court as contained in all major human rights instruments.”565 It has been argued that given the lack of alternative modes of settlement, the victims’ right to access to a court cannot be fulfilled as long as UN is granted absolute immunity.566 Immunity, as a consequence, not only protects the UN from national jurisdictions, as originally intended, but also shields it from assuming responsibility.567 With its judgements in Waite and Kennedy and Beer and Regan, the ECtHR has for the first time acknowledged the conflict between immunities of international organizations before domestic courts and the human rights-​based obligation of States to guarantee individuals’ access to a court, as for instance enshrined in Art. 6 (1) echr. The ECtHR showed some willingness to limit the otherwise absolute immunities of international organizations (here, the European Space Agency), when no “reasonable alternative means” were available.568 Since these rulings, the “alternative means test” has gained considerable importance regarding immunities of international organizations in Europe.569 In domestic courts, UN immunity has been maintained.570 Most notably in the Mothers of Srebrenica case, the Dutch Supreme Court found at the highest instance that the UN’s immunity was absolute.571 The application of the Mothers of Srebrenica to the ECtHR was declared inadmissible.572 In 565 A. Reinisch, Introductory Note on Convention on the Privileges and Immunities of the United Nations and Convention on the Privileges and Immunities of the Specialized Agencies, United Nations Audiovisual Library of International Law, 2009. 566 As but one example, R. Freedman, UN Immunity or Impunity? A Human Rights Based Challenge, 25 EJIL (2014), 239, at 253. 567 E.g. K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 347. 568 ECtHR, Beer and Regan v. Germany, App. No. 28934/​95 and Waite and Kennedy v. Germany, App. No. 26083/​94, Judgement of 18 February 1999. 569 E.g. the case comment by T. Neumann and A. Peters, Beer and Regan v. Germany, App. No. 28934/​95 and Waite and Kennedy v. Germany, App. No. 26083/​94, European Court of Human Rights, 18 February 1999, in: C. Ryngaert, i. Dekker, R. Wessel, and J. Wouters, (eds.) Judicial decisions on the law of international organizations, 2016, Chapter 7.4. 570 As to the general trends of immunity of IOs before domestic courts, see C.  Ryngaert, The Immunity of International Organizations Before Domestic Courts, 7 International Organizations Law Review (2010), 121. 571 Supreme Court of the Netherlands, Mothers of Srebrenica Association v. the State of the Netherlands, Judgment, 13 April 2012, (First Division 10/​04437 EV/​AS) (“That [the UN’s] immunity is absolute”, para. 4.3.6). 572 ECtHR, Stichting Mothers of Srebrenica and Others v.  the Netherlands, (no.  65542/​12), Decision of 11 June 2013. In so doing, the Court acknowledged that “it is beyond doubt that no such alternative means existed either under Netherlands domestic law or under

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the U.S., courts have likewise not undertaken a reinterpretation of the UN’s immunity. In fact, following a 2010 ruling that upheld the UN’s absolute in immunity in an employment case,573 both the United States District Court for the Southern District of New  York574 and the Appellate Court575 dismissed the claims in the Haiti cholera case by relying on absolute immunity of the UN.576 Hence, the balancing act that has emerged in doctrine and jurisprudence between immunity of international organizations on the one hand and the individuals’ right of access to court on the other one does not apply, for the time being, to the immunity of the UN as an organization sui generis.577 The cpiun allows under Section 30 a request by the UN or by member States for an advisory opinion by the icj on the interpretation or application of the Convention. Such action, especially by an organ of the UN, however, seems highly unlikely.578 Yet, the intense debate on the scope of the UN’s immunity may still lead to an improvement of the individuals’ right to remedy –​not necessarily by weakening the UN’s immunity, but rather in strengthening the calls for providing alternative remedy.579

5 73 574 575 576 577

5 78 579

the law of the United Nations.”, para. 163. It continued that it “does not follow, however, that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court.”, para. 164. The Court further explained that what was at issue were “operations established by the Security Council resolutions under Chapter vii of the United Nations Charter [that] are fundamental to the mission of the United Nations to secure international peace and security.” The Court added that, “the Convention cannot be interpreted in a manner that would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the United Nations.”, para. 154. Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010). United States District Court for the Southern District of New York, Delama Georges et al. v. United Nations et al., 13-​CV-​7146 (jpo), Opinion and Order, 9 January 2015. United States Court of Appeals, Second Circuit, Delama Georges et al. v. United Nations et al., No. 15-​455-​cv, Judgement of 18 August 2016. Explaining why the Court in Georges v. United Nations had to follow the reasoning in Brzak v. United Nations, see T. Bode, Cholera in Haiti, 47 Georgetown Journal of International Law (2016), 759, at 780 f. A. Momirov, Mothers of Srebrenica v.  The Netherlands & the UN, LJN:  BW1999, Dutch Supreme Court, 13 April 2012 and Stichting Mothers of Srebrenica and Others against the Netherlands, App. No. 65542/​12, European Court of Human Rights, 11 June 2013, in: C. Ryngaert, i. Dekker, R. Wessel, and J. Wouters, (eds.) Judicial decisions on the law of international organizations, 2016, Chapter 7.10. K. Boon, Haiti cholera update, Opinio Juris, 20 September 2016. Along these lines see most notably F. Mégret, La Responsabilite Des Nations Unies Aux Temps Du Cholera, 46(1) Revue belge de droit international (2013), 161, also available at https://​ssrn.com/​abstract=2242902, “Conclusion”.

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Despite these developments, under the current state of affairs, victims of human rights violations by UN peace operations continue to be denied their right to remedy. Freedman sums it up nicely by stating that the “UN has either ignored or missed the point that all individuals have access to a remedy”.580 By continuing to uphold immunity, in combination with a refusal to provide alternative measures to hear claims, these rights continue being denied. The case studies in this part have revealed a protection gap, an accountability gap, and a remedy gap. To be sure, these results do first and foremost apply to the cases analysed, namely unmik, untaet and minustah. Not all peace operations have exactly the same scope of obligations as the ones just presented, and not all peace operations violate human rights to the extent just presented. Still, the findings bear relevance for UN peace operations in general. The cases serve as an indicator that human rights violations by UN peace operations should not be considered as rare and exceptional incidents, happening only in very special and detrimental circumstances. Furthermore, one of the striking results of the case studies was that the UN does not take meaningful reactions, even when confronted with substantiated allegations of human rights violations. It is thus crucial to examine more closely the underlying reasons for these structural human rights violations and the lack of adequate response. 580 R. Freedman, Haiti Cholera Claims: Absolute Immunity vs Human Rights, IntLawGrrls, 9 July 2013.

­c hapter 5

Considerations beyond Lex Lata Against all hopes and assumptions of the positive onlooker, the previous chapters showed that the UN, in certain instances, does not comply with its obligations under international law. This not only holds true for its primary human rights obligations but also for secondary obligations under the law of responsibility. The obvious lack of any satisfactory mechanism to account for human rights violations by UN peace operations is striking; equally remarkable is the virtually complete lack of State action in reaction to violation of human rights by the UN. It is not the main focus of interest for scholars of international law to explain why States take or do not take particular actions. Still, it would be dissatisfying to stop at this point and merely take the lack of action as a matter of fact. As Devika Hovell has aptly remarked: “The ‘j’accuse’ moment was seized by a range of academics and practitioners, and has passed.”1 The next steps could include a re-​evaluation of the normative framework governing the extended powers and activities of the UN2 or an empirical focus on the shortcomings of existing mechanisms for accountability.3 Both approaches promise valuable insights. The present work intends to go a step further. This chapter aims at shedding light on the underlying reasons that have led to the dissatisfying state of things. Strictly doctrinal approaches exclusively focussing on the law come to their limits here. Therefore, in the remainder of this book, insights from international relations theories will be borrowed to understand the present situation better and to explain the lack of compliance by the UN. i

The Meaning of Compliance

Compliance means the adherence to norms, rules or standards. It has to be distinguished from the implementation of rules of international law on the

1 D. Hovell, Due Process in the United Nations, 110(1) ASIL (2016), 1, at 1. 2 E.g. D. Hovell, Due Process in the United Nations, 110(1) ASIL (2016), 1. 3 As suggested e.g. by R. Freedman, UN-​Accountable?: A Response to Devika Hovell, 110(8) AJIL Unbound (2016). Cp. also Dieter Fleck, who proposes the creation of effective international jurisdiction for contentious cases, D. Fleck, The Law Applicable to Peace Operations, in: A. Clapham and P. Gaeta (eds.) The Oxford Handbook of International Law in Armed Conflict, 2014, 206, at 246.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433090_007

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one hand and the effectiveness of such rules on the other one.4 The implementation of international law describes the incorporation into domestic law through national legislation, jurisprudence, administrative regulations or other procedures. Compliance is a broader concept and includes not only the formal implementation but also the factual conformity between the norm and the conduct of a State or another subject of international law.5 According to Oran Young, [c]‌ompliance can be said to occur when the actual behavior of a given subject conforms to prescribed behavior, and non-​compliance or violation occurs when actual behavior departs significantly from prescribed behavior.6 Not in the centre of attention is the question of the effectiveness of a norm or a legal instrument. Effectiveness describes the degree to which a norm induces a change in behaviour towards the desired outcome. In other words, how much the rule contributes to achieving the purpose behind that rule. This can be independent of compliance since the correlation between compliance and effectiveness is neither necessary nor sufficient.7 As Shelton underlines, compliance is possible without the implementation of an international legal rule into national law (e.g. the mere abstention from chemical, biological or nuclear weapons, even without a formal law). At the same time, implementation of a legal rule can take place without corresponding

4 See D.  Shelton, Introduction:  Law, Non-​Law and the Problem of “Soft Law”, in:  D. Shelton (ed.), Commitment and Compliance. The Role of Non-​Binding Norms in the International Legal System, 2000, 1, at 5; K. Raustiala and A.-​M. Slaughter, International Law, International Relations and Compliance, in: W. Carlsnaes, T. Risse, and B. A. Simmons (eds.), Handbook of International Relations, 2002, 538, at 539; M. Zürn, Introduction: Law and Compliance at Different Levels, in: M. Zürn and C. Joerges (eds.), Law and Governance in Postnational Europe, 2005, 1, at 8 f. 5 Zürn distinguishes four types of compliance: „good compliance“, „recalcitrant compliance“, „initial non-​compliance“, „compliance crisis”, see M. Zürn, Introduction: Law and Compliance at Different Levels, in: M. Zürn and C. Joerges (eds.), Law and Governance in Postnational Europe, 2005, 1, at 9. 6 O. Young, Compliance and Public Authority: A Theory with International Applications, 1979, at 4 f. 7 K. Raustiala and A.-​M. Slaughter, International Law, International Relations and Compliance, in: W. Carlsnaes, T. Risse, and B. A. Simmons (eds.), Handbook of International Relations, 2002, 538, at 539.

314 chapter 5 compliance (e.g. the legal but not factual ending of trade in endangered species).8 While States are free to choose their means of implementing international legal rules, there exist various mechanisms and instruments that are intended to facilitate or ensure compliance. These include traditional dispute settlement procedures (like mediation, inquiry, and arbitration), unilateral enforcement such as reprisals as well as judicial dispute settlement. More recently, we have seen highly specialised mechanisms and regulatory regimes that are intended to support compliance with specific treaties.9 The fragmentation of international law went hand in hand with a fragmentation of compliance mechanisms.10 In the following chapter, the focus will be not on these instruments but rather on the underlying factors that provoke compliance of international law. ii

Explaining (Non-​)Compliance

The explanation of (non-​compliant) State behaviour or activities of IOs does not lie in the centre of interest of international law scholars working under a doctrinal perspective. For a long time, legal scholarship has seemed content with the famous and often-​cited line by Louis Henkin that “[a]‌lmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”11 Thus implying that States obey international law because they feel bound by it. Two main strands of theory seek to explain the binding force of law. The first one goes back to Hans Kelsen who in his Pure Theory of Law (“Reine Rechts­ lehre”) perceives of the legal order as a hierarchy of laws with a Basic Norm (“Grundnorm”) at the top. The Grundnorm in international law incorporates custom of States as norm-​creating fact.12 Any other norm derived from this Grundnorm is a legal norm. The derived norm of pacta sunt servanda allows 8

9 10 11 12

D. Shelton, Introduction: Law, Non-​Law and the Problem of “Soft Law”, in: D. Shelton (ed.), Commitment and Compliance. The Role of Non-​Binding Norms in the International Legal System, 2000, 1, at 5, see also K. Raustiala and A.-​M. Slaughter, International Law, International Relations and Compliance, in: W. Carlsnaes, T. Risse, and B. A. Simmons (eds.), Handbook of International Relations, 2002, 538, at 539. For an overview see M. Bothe, Compliance, mpepil, October 2010, MN 19 ff. Ibid., MN 147. L. Henkin, How Nations Behave, 1968, at 42. H. Kelsen, Reine Rechtslehre, 2nd ed. 1967, at 324 (“als die vorausgesetzte Grundnorm des Völkerrechts [muss] eine Norm gelten, die durch das gegenseitige Verhalten der Staaten konstituierte Gewohnheit als rechtserzeugenden Tatbestand einsetzt”).

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States to create further law based on treaties.13 Secondly, the binding force of international law and compliance by States is generally explained by State consensus: Norms of international law are considered to be law and create binding force because States have consented to this.14 Once a State has agreed to a particular rule, this consent creates a legal obligation to obey this rule.15 In the modern world, this conception of law and its focus on States is only partly convincing. International law no longer exclusively is the law between States in a traditional Westphalian sense. Instead, the world at the beginning of the 21st century is “an increasingly crowded stage”.16 With new actors like IOs on the rise, the international legal order has, to a certain extent, emancipated itself from the consent of States, which leads to diminishing importance of the traditional consent-​based theories.17 Indeed, the reliance on the claim of pacta sunt servanda as well as the reiteration of the notion of consensus (viz. consent-​based theory of compliance) have little explanatory force with respect to why and when States (do not) comply with international law.18 Against this background of a “lack of theory”,19 the question of compliance has come more to the fore of scholarly debate in the last years.20 It 13

14 15

16 17 18 19 20

J. Kammerhofer, Hans Kelsen’s place in international legal theory, in: A. Orakhelashvili, Research Handbook on the Theory and History of International law, 2011, 143. Cp. Art. 26 vclt (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith”). A. Orakhelashvili, The origins of consensual positivism, in:  A. Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, 2011, 93. Guzman calls these arguments advanced by consent-​based theorists “logically flawed, because they confuse a (possibly) necessary condition for states to be bound with a sufficient condition (…) Consent, by itself, does not provide states with an incentive to obey the law”, A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002) 1823, at 1834. A.-​M. Slaughter, A New World Order, 2004, at 39. M. Krajewski, Völkerrecht, 2016, at 50 MN 13. See A. Guzman, How International Law Works, 2008, at 15. A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1826. B. Simmons, International Law, in. W. Carlsnaes, T. Risse and B. Simmons (eds.), Handbook of International Relations 2013, 352, at 365 (“One of the greatest growth sectors in the study of international law and international relations in the past decade has been on the question of compliance and effectiveness”). Prominent pieces of scholarship on this issue include A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823; A. Chayes and A. Chayes, The New Sovereignty, 1995; R. Howse and R. Teitel, Beyond Compliance: Rethinking Why International Law Really Matters, 1(2) Global Policy (2010), 127; H. Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal (1997), 2599. Early and ground-​breaking works related to this subject are H. Hart,

316 chapter 5 has been greatly influenced by international relations theories and has led to a fruitful cross-​fertilisation between different theoretical schools and concepts. This study does not intend to disappear down the rabbit-​hole of the detailed analysis of international relations theory, nor does it aim at giving a complete account of all nuances of compliance theory that have emerged. What it does intend and what will be done in the following, is to present and subsequently borrow from these theories to find potential explanations for UN behaviour concerning human rights compliance in peace operations. 1 Enforcement Theories The first strand of compliance theories is based on a (neo-​)realist theory of international relations, which conceives of States as principal actors in a world of anarchy characterised by the absence of a central government. States are mainly concerned with security and use all means and instruments of choice to pursue their own interests in power and wealth. International law and international co-​operation may play a role for States if and to the extent that they serve these interests.21 To explain why States obey international law, international relations scholars and legal scholars use rational choice theory and models of the “prisoner’s dilemma” to show that States obey international law when it is in their short or long-​term interest to do so.22 Such interest is influenced by the existence of material pressures, such as sanctions. In addition to the threat of sanctions, also positive incentives like improved conditions

21 22

The Concept of Law, 1961; I. Brownlie, The Reality and Efficacy of International Law, 52 British Yearbook of International Law (1981), 1. For further contributions see W. Bradford, International Legal Compliance: An Annotated Bibliography, 30 North Carolina Journal of International Law and Commercial Regulation (2004), 379. K. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93(2) American Journal of International Law (1999) 361, at 364 f. Summarised by H. Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal (1997), 2599, at 2632. See also H. Morgenthau, Politics among Nations, 1985 (“The great majority of the rules of international law are generally observed by all nations without actual compulsion, for it is generally in the interest of all nations concerned to honor their obligations under international law”, at 312 f). Prominent proponents of such a view include international relations theorist like R.  Keohane, After Hegemony, 1984; id. International Institutions and State Power, 1989; D.  Snidal, The Game Theory of International Politics, 38(1) World Politics (1985), 25. Among legal scholars, Kenneth W. Abbott has to be mentioned, e.g. K. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale Journal of International Law (1989).

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for trade or development aid or increased co-​operation on other matters can induce compliance.23 Equally based on the logic of “compliance-​by-​coercion”24 is the assertion that States comply with international law because of the principle of reciprocity. If both parties are aware that a violation of an agreement by one party will lead to a subsequent violation on the part of the other one, both parties can be expected to forgo the violation in the first place.25 The third element of compliance brought forward by realists, most notably Andrew Guzman, is the factor of reputation.26 Reputation is defined as a “judgement about an actor’s past behaviour used to predict future behaviour.”27 It is argued that non-​compliance with international law leads to reputational damage, which in turn affects future relationships and potentially increases the future costs, for instance, with respect to less favourable terms of co-​operation or complete exclusion from future co-​operation.28 In other words, a good reputation makes promises more credible and future co-​operation both easier and less costly.29 Since, in the modern world, co-​operation is inevitable for States to achieve their principal purposes, as Chayes and Chayes purport, they need to maintain (or achieve) a status as a member in good standing in the international community.30 In a similar vein, it is argued that IOs raise the costs of non-​compliance because of reputational consequences. Since States benefit from co-​operation in IOs, they strive to preserve their reputation of compliance in order to continue to benefit from IOs in the future.31 In arguing that under this perspective both 23 24 25 26 27 28 29 30

31

J.  von Stein, Compliance with International Law, in:  Oxford Research Encyclopedia of International Studies, 2018, at 6 f. B. Simmons, International Law, in. W. Carlsnaes, T. Risse and B. Simmons (eds.), Handbook of International Relations 2013, 352, at 366 f. J.  von Stein, Compliance with International Law, in:  Oxford Research Encyclopedia of International Studies, 2018, at 8. See especially A.  Guzman, How International Law Works, 2008, who discusses the Three Rs of compliance: Retaliation, Reciprocity and Reputation. See also K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL, 2014, 991. G. Miller, Hypotheses on Reputation, 12 Security Studies (2003) 40, at 42. R. Brewster, Unpacking the State’s Reputation, 50 Harvard International Law Journal (2009), 231, at 231 f. A. Guzman, How International Law Works, 2008, at 33. A. Chayes and A.  Chayes, The New Sovereignty, 1995, at 28. Furthermore, “in the last analysis, the ability of a state to remain a participant in the international policy-​making process-​and thus its status as a member of the international system-​depends in some degree on its demonstrated willingness to accept and engage the regime’s compliance procedures.” Ibid., at 230. L. Martin and B. Simmons, International Organizations and Institutions, in: W. Carlsnaes, T. Risse and B. Simmons (eds.), Handbook of International Relations, 2013, 326, at 337.

318 chapter 5 compliance and non-​compliance can be explained, Andrew Guzman claims that if “the direct and reputational costs of violating international law are outweighed by the benefits thereof, a state will violate that law.”32 Ian Johnstone follows a related path by contending –​in combining rational-​choice and constructivist theories –​that States have an interest in maintaining a reputation of compliance with international law and internalise this interest in bureaucratic, political and legal routines.33 In sum, (neo-​)realist approaches to compliance contend that States will comply with international law when this compliance furthers their interests or when they otherwise have to fear detrimental consequences such as sanctions, reciprocal violations or reputational damage. 2 Liberal Theories The second theoretical strand has its origins in liberal international relations theory and argues that the determinative factor of State compliance lies in the domestic structure of that State. States characterised as “liberal”, i.e. having some form of representative government, respecting human rights and protecting the rule of law through an independent juridical system, are more likely to comply with international law rules than other, non-​liberal States.34

32

33 34

Martin and Simmons also note that most empirical studies “assert rather than document actual reputational damage” which is difficult to observe empirically, after all. Scepticism about the causal impact of human rights treaties for the protection of human rights has been brought forward by O.  Hathaway, Do Human Rights Treaties Make a Difference?, 111(8) Yale Law Journal (2002), 1935. Beth A. Simmons, in contrast claims to show evidence for an impact of human rights treaties, B. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics, 2009. A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1846. Proponents of strict rational-​choice theory doubt the role of reputation, as explained by R.  Brewster, Unpacking the State’s Reputation, 50 Harvard International Law Journal (2009), 231, at 234. See also J.  Goldsmith and E.  Posner, The Limits of International Law, 2006, at 101 ff. Critical, yet for different reasons, also Krajewski who questions whether the assumptions of rational-​choice modelled for individual behaviour can be applied to states, M. Krajewski, Völkerrecht, 2016, at 58, MN 45. I. Johnstone, The Power of Deliberation, 2011, at 7. Similarly, Bothe: “Reputation matters for States and for the persons action on behalf of States”, M. Bothe, Compliance, mpepil, October 2010, MN 11. Summarised by H. Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal (1997), 2599, at 2633. These theories have been mainly advanced by A.  Moravcsik, Liberalism and International Relations Theory, Working Paper No. 92–​6 (1992) and A.-​M. Slaughter, International Law in a World of Liberal States, 6 EJIL (1995), 503. For a critique see J. Alvarez, Do Liberal States Behave Better? A Critique of Slaughter’s Liberal Theory, 12 EJIL (2001), 183.

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Equally going back to a liberal, or Kantian, understanding of international relations is the notion of rule-​legitimacy.35 According to Jürgen Habermas, legitimacy means the recognition of a political authority or norm, based on good, rationally ascertainable grounds.36 Thomas M. Franck asserted that legitimacy “exerts a pull toward compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process”.37 This compliance-​pull is related to the quality of the rule which can be determined by four indicators: the clarity of the rule (“determinacy”); its “symbolic validation” by rituals and other formalities; its conceptual coherence; and its adherence to “right process”.38 The determining factor for compliance thus lays in the rules themselves and the process of law-​making of the rule.39 Beth A. Simmons accurately notes that the concept of legitimacy is especially convincing for compliance with rules of customary international law, since opinio iuris, i.e. the conviction that a given rule is a norm of international law and has to be observed, is an essential component of customary international law.40 Still, the fact that States and other actors violate norms of international law, including customary international law, suggests that legitimacy alone cannot explain compliance. Zürn and Neyer conclude that legitimacy, on its own, is “neither necessary nor sufficient for improving compliance rates”.41 35

T. Franck, Legitimacy in the International System, 82 AJIL (1988), 705; id., The Power of Legitimacy Among Nations,1995; id., Fairness in International Law and Institutions, 1998. 36 J. Habermas, Legitimationsprobleme im modernen Staat, in:  P.G. Kielmansegg, Legitimationsprobleme politischer Systeme, 1976, 39, at 39 (“die auf gute, rational erfassbare Gründe gestützte Anerkennungswürdigkeit einer politischen Instanz oder Norm”). 37 T. Franck, The Power of Legitimacy Among Nations, 1995, at 24. But see also Guzman, who counters that “the claim that legitimacy is the driving force behind compliance is an assertion, rather than the result of a theoretical framework or empirical study”, A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1835. 38 H. Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal (1997), 2599, at 2628 f. 39 B. Delcourt, Compliance, Theory of, mpepil, September 2013, MN 10. In this sense, Simmons argues that the notion of legitimacy is especially strong with customary international law since one condition for the existence of customary international law is opinio juris, i.e. the belief that the rule in question has to be complied with, B. Simmons, International Law, in:  W. Carlsnaes, T.  Risse and B.  Simmons (eds.), Handbook of International Relations 2013, 352, at 369. 40 B. A. Simmons, International Law, in: W. Carlsnaes, T. Risse, and B. A. Simmons, Handbook of International Relations 2013, 352, at 369. 41 M. Zürn and J.  Neyer, Conclusions  –​the conditions of compliance, in:  M. Zürn and C. Joerges (eds.), Law and Governance in Postnational Europe, 2005, 183, at 200.

320 chapter 5 3 Constructivist Theories A third theoretical perspective is constructivist in nature and relies on the assumption that States and their interests are not exogenously given, but are instead socially constructed through norms, values, and the social structure of the “international society”.42 They are not static and objective but contingent and subjective.43 While constructivists acknowledge that States and other actors create norms and institutions to further their interests, the latter are reshaped or redesigned by the norms and institutions created.44 Paul Schiff Berman explains the impacts of law from a constructive view: “law has an impact not merely (…) because it keeps us from doing what we want. Rather, law changes what we want in the first place.”45 In other words, a norm may become so widely accepted that it has achieved “a ‘taken-​for-​granted’ quality that makes conformance with the norm almost automatic.”46 The norm has become internalised.47 According to this understanding, States do not comply with a norm because it is in their rational interest to do so, but because of a normative conviction that the norm has to be observed.48 Strongly related to the international relations constructivist approach are the legal theories that can be summarised under the notion of transnational legal process theories. As put forward by one its main proponents, Harold H.  Koh, discourse and interaction of transnational actors shape principles, 42 43

44 45 46 47 48

For an insightful account of constructivist theories see J.  Brunnée and S.  Toope, Constructivism and International Law, in: J. Dunoff and M. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations, 2012, 119. K. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93(2) American Journal of International Law (1999) 361, at 367. Related to constructivist theories, but not in the focus of the present study, is the “English school” of international relations which puts an emphasis on the subjective elements of the different actors in the international society, see for an account, P. Wilson, The English School’s approach to international law, in:  C. Navari, (ed.), Theorising International Society: English School Methods, 2009, 167. K. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93(2) American Journal of International Law (1999), 361, at 368. P. Schiff Berman, Review Essay:  ‘Seeing Beyond the Limits of International Law,’ Jack L. Goldsmith and Eric A. Posner, ‘The Limits of International Law’, 84 Texas Law Review (2006), 1265, at 1280 f. M. Finnemore and K. Sikkink, International Norm Dynamics and Political Change, 52(4) International Organization (1998), 887, at 904. See, with further references, J. von Stein, Compliance With International Law, in: Oxford Research Encyclopedia of International Studies, 2018, at 16 f. T. A.  Börzel, Compliance (International), in:  K. Dowding (ed.), Encyclopedia of Power, 2011, 128, at 128.

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norms, identities and patterns of behaviour of these actors. The interaction and internalisation into domestic legal and political structures then lead to compliance.49 Instead of calculating whether or not compliance furthers the interest of a State –​like a rationalist/​realist would do –​a “repeated habit of obedience” shapes the interest in a way that norm compliance becomes a value in itself.50 We will come back to this further below. Last but not least to be mentioned here is the approach to compliance brought forward by Abram Chayes and Antonia Handler Chayes. In their managerial model, they argue that States can only achieve their principal purposes such as security, economic well-​being, and a decent level of amenity for their citizens by co-​operation.51 A “propensity to comply” with international law follows from considerations of efficiency, interest and norms. Compliance also adheres to efficiency concerns, as it saves transaction costs since it avoids the need for continuous recalculation of the costs and benefits of the original decision to cooperate. Secondly, treaties as consensual instruments further the interests of the States that have agreed to the treaty. Therefore, it lies in the interest of States to follow the fundamental norm of pacta sunt servanda.52 In this understanding, further compliance simply is efficient and consolidates in an “iterative discursive process” between member States and other actors (e.g. an international organization or the wider public).53 If one submits to States’ general propensity to comply, then the decisive factor for compliance lies in the ability or capacity to adhere to a norm. As Jana von Stein submits, empirical studies of human rights treaties have shown that a lack of compliance can often be traced back to structural challenges like a lack of financial or administrative capacities.54 Börzel, Hofman and Sprungk argue, based on their analysis of more than 5500 infringements of European law, that the capacity of a State has a generally positive effect on compliance.55 At the same time, they point out that their data do not allow a distinction between 49 50 51 52 53 54 55

E.g. H. Koh, Transnational Legal Process, 75 Nebraska Law Review (1996) 181, at 203 f. H. Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal (1997), 2599, at 2634. See also I. Johnstone, The Power of Deliberation, 2011, at 47 f. A. Chayes and A. Chayes, The New Sovereignty, 1995, at 27. Ibid., at 3 ff. B. Delcourt, Compliance, Theory of, mpepil, September 2013, MN 9. J.  von Stein, Compliance With International Law, in:  Oxford Research Encyclopedia of International Studies, 2018, at 16 with further references. T.A. Börzel, T. Hofmann, and C. Sprungk, Einhaltung von Recht jenseits des Nationalstaats. Zur Implementationslogik marktkorrigierender Regelungen in der EU, 10(2) Zeitschrift für Internationale Beziehungen (2003), 247, at 271.

322 chapter 5 voluntary and involuntary infringements and hence between a lack of willingness or a lack of capacity to comply with the law.56 As a consequence, insufficient compliance cannot be explained with a lack of capacity alone. Furthermore, it has to be acknowledged that the model proposed by the Chayeses fails to account for other types of international agreements besides international treaties.57 In conclusion, it has to be admitted that the managerial approach alone cannot sufficiently explain compliance. 4 The Particular Case of Human Rights Compliance Despite their focus on compliance, for the theories presented above it more or less remains “one of the great puzzles” why States decide to bind themselves to international human rights obligations58 and under which circumstances they comply with these obligations.59 From a realist perspective, material enforcement measures play a central role, also for human rights law. Goldsmith and Posner, for instance, claim that “most human rights practices are explained by coercion or coincidence of interest.”60 Some empirical studies sought to prove this correlation by finding little progress in human rights protection after treaty ratification,61 or by observing a correlation between trade agreements with rigid human rights provisions and human rights improvements.62 Other scholars, however, doubt the simple assertion that coercion increases compliance, inter alia by showing that States often refrain from using enforcement mechanisms even when they are available.63

56 57

Ibid., at 276. E.g. A.  Guzman, A  Compliance-​Based Theory of International Law, 90 California Law Review (2002) 1823, at 1831. Delcourt further brings to mind that a cooperative political background might have already existed before the international treaty that provides the transaction costs saving organizational structures, forums, and procedures has come into being. This, she contents, “obfuscates the role of legal norms as such.”, B. Delcourt, Compliance, Theory of, mpepil, September 2013, MN 9. 58 F. Mégret, International Human Rights Law Theory, in:  A. Orakhelashvili, Research Handbook on the Theory and History of International Law, 2011, 199, at 213. 59 As to a short summary of measures to ensure compliance with international human rights obligations, i.e. treaty-​based procedures and other procedures, see e.g. M. Bothe, Compliance, mpepil, October 2010, MN 76 ff. 60 J. Goldsmith, E. Posner, The Limits of International Law, 2005, at 134. 61 O. Hathaway, Do Human Rights Treaties Make a Difference?, 111(8) Yale Law Journal (2002), 1935. 62 E. Hafner-​Burton, Trading Human Rights, 59(3) International Organization (2005), 593. 63 See most notably B.  Simmons, International Law, in. W.  Carlsnaes, T.  Risse and B. Simmons (eds.), Handbook of International Relations 2013, 352, at 366. An influential

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It is difficult to argue that a State is acting in its primary interest when it commits itself to a particular treatment of its citizens and when such self-​ constraint does not result in increased power, wealth or influence. A simple cost-​benefit analysis is hence not sufficient to explain compliance.64 Coercion in the form of sanctions as an explanation for compliance is of limited use since human rights law generally lacks strong enforcement mechanisms. Furthermore, human rights do not primarily establish a relationship of reciprocity, which in other instances can further compliance.65 A violation of human rights law does not directly cause harm to another State, nor can the latter violate human rights law on its part as retaliation.66 Accordingly, in the context of human rights law, “reciprocity is almost certainly irrelevant”.67 Still, States do not constantly violate human rights law. As an explanation, the loss of reputation may play a role since it represents a negative deterrent in the form of value deprivation. The naming and shaming approaches of many human rights mechanisms build upon this assumption.68 Thus, while traditional rationalist thinking in general only provides minimal insight into compliance with human rights law, the role of reputation may be a promising approach. This assumption will be discussed in more detail in the next section. Explanations focussing on domestic rather than international mechanisms have also been brought forward. According to liberal theories, it can be argued that the nature of political regimes serves as a reliable indicator of whether or not States will abide by international human rights law.69 As Simmons explains, non-​compliance with international law can cause “audience cost” with domestic electorates and can hence push governments to comply with international law even if this is not in their primary interest.70 This idea harmonises

study explaining compliance beyond the use of coercion is provided by A. Chayes and A. Chayes, The New Sovereignty, 1995. 64 M. Bothe, Compliance, mpepil, October 2010, MN 14. 65 See e.g. U.  Fastenrath, Entwicklung und gegenwärtiger Stand des internationalen Menschenrechtsschutzes, in:  U. Fastenrath (ed.), Internationaler Schutz der Menschenrechte, 2000, 9, at 40 f. 66 J. Tasioulas, Human Rights, Legitimacy, and International Law, 58(1) American Journal of Jurisprudence (2013), 1, at 17. 67 A. Guzman, How International Law Works, 2008, at 45. 68 M. Bothe, Compliance, mpepil, October 2010, MN 107. 69 F. Mégret, International Human Rights Law Theory, in:  A. Orakhelashvili, Reasearch Handbook on the Theory and History of International Law, 2011, 199, at 213. 70 B. Simmons, International Law, in: W. Carlsnaes, T. Risse and B. Simmons (eds.), Handbook of International Relations 2013, 352, at 368 f.

324 chapter 5 with liberal theories and explains why democratic States usually comply more with treaty obligations than non-​democratic States.71 Other approaches with strong explanatory power trace back to constructivist theories. While differing in some assumptions or theoretical affiliation,72 all emphasise the “indirect” effects of human rights law in shaping and promoting discourse on domestic and international levels among and across various actors in law, politics, academia, and civil society.73 In her comprehensive empirical analysis of the effect of human rights treaties ratification, Simmons has argued that the public commitment to human rights law as expressed in treaty ratification shaped the behaviour of the ratifying States and thus played a constraining role, even absent formal coercion mechanisms.74 But even beyond treaties, human rights law creates increased expectations of compliance, by providing “states, individuals, and other actors with understandings of what is important or valuable and what are effective and/​or legitimate means of obtaining those valued goods.”75 Human rights law thus represents the will of the international community and exerts a compliance pull because of an increased expectation of compliance.76 To sum up, when explaining human rights compliance of States, liberal and constructivist theories offer some valuable insights. Compliance-​by-​coercion approaches, in contrast, appear to be of little help, except the aspect of 71

72

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A.-​M. Slaughter, International Law in a World of Liberal States, 6 EJIL (1995), 503; A. Moravcsik, Explaining International Human Rights Regimes, 1(2) European Journal of International Relations (1995), 157. But see also F. Mégret, International Human Rights Law Theory, in:  A. Orakhelashvili, Reasearch Handbook on the Theory and History of International Law, 2011, 199, who recalls human rights violations by liberal democracies in the context of the war on terror or vis-​à-​vis indigenous, religious, or migrant communities, at 214. Simmons points out that most scholars in the field of compliance theory borrow from and combine various theoretical approaches which “has largely promoted theoretical rigor, not undercut it”, B. Simmons, International Law, in: W. Carlsnaes, T. Risse and B. Simmons (eds.), Handbook of International Relations 2013, 352, at 372. D. Cassel, Does International Human Rights Law Make a Difference, 2(1) Chicago Journal of International Law (2001), 121, at 122. Cassel admits, however, that an empirical/​quantitative proof for these assumptions is difficult if not impossible to obtain because of difficulties in methodology and availability of data, ibid., at 131. B. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics, 2009. Simmons limits her findings to treaty law without easily extrapolating to other sources of human rights law, since the latter lack a similar explicit commitment to be bound, which she considers decisive, at 363 f. M. Finnemore, National Interests in International Society, 1996, at 15. See also D. Cassel, Does International Human Rights Law Make a Difference, 2(1) Chicago Journal of International Law (2001) 121, at 127 f.

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reputation which does add to our understanding of human rights compliance. Their applicability to international organizations such as the UN will be discussed next. iii

UN Compliance

The compliance theories presented in the previous section exclusively relate to compliance of States. As it stands, international relations as well as legal scholarship has not paid much interest thus far to the question of compliance of IOs, let alone developed a theory of compliance.77 Therefore, the attempt to explain the UN’s non-​compliance with human rights obligations cannot simply be made by applying existing theories but has to borrow from and adapt available compliance theories modelled around States. In doing so, it is relevant how the UN as an IO is conceptualised. As precisely pointed out by Goldmann, it could make a good share of a difference whether the IO is considered as a mere tool of its member States that is able to reduce transaction costs (the rationalist-​functional conception) or whether it is understood as being able to develop into a more independent being, triggering dynamics beyond an intergovernmental relationship between the member States (a constructivist approach).78 Arguably, the UN combines elements of both approaches; hence, considerations of UN compliance will have to include ideas from more than one theoretical strand. Besides, it has become evident that none of the existing theories can convincingly explain human rights compliance by the UN on its own. For State compliance, liberalist and constructivist approaches are valuable, as is the factor of reputation coming from the enforcement theories. This latter aspect of reputation seems to be of even greater importance with respect to the UN. As will be shown in greater detail below,79 the costs of a loss of reputation can be immediate and significant. Since member States have a vital interest in the survival of an international organization, and the UN in particular, the loss of reputation can play a crucial role. Still, it has so far not received much scholarly attention. Therefore, reputation as a factor of compliance will be discussed in 77

K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 993. Bothe calls this “one of the underdeveloped areas of international law”, M. Bothe, Compliance, mpepil, October 2010, MN 93. 78 M. Goldmann, A Quantum of Solace: Guzman on the Classical Mechanics of International Law, 1 Göttingen Journal of International Law (2009), 219. 79 See infra, 2.b.

326 chapter 5 more detail in the following. For a comprehensive picture, the results of this discussion will be related to other aspects of compliance in the conclusion of this chapter. 1 Reputation as a Factor of IO Compliance Common reasoning on the role of reputation as a factor of compliance mostly centres around the assertion that the participation of States in an IO (or similar regime) raises the costs of non-​compliance because of reputational consequences: since States benefit from co-​operation in IOs, they strive to preserve their reputation of compliance in order to continue to benefit from IOs in the future.80 This in itself does not yet serve to explain compliance by the IO. In taking the argument one step further, it can be maintained that, especially under such a rationalist-​functionalist conception of the IO, the legitimacy of an IO is crucial for (the effectiveness of) an IO in its efforts to secure co-​operation and support from its member States to carry out decisions and undertake operations. This very legitimacy, in turn, depends to a considerable extent on its reputation for complying with international law.81 From this perspective, which has, for instance, been advanced by Kristina Daugirdas, compliance theories based on reputation are a useful tool in explaining compliance (or non-​compliance) by IOs.82 Without being perceived as 80

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L. Martin and B. Simmons, International Organizations and Institutions, in: W. Carlsnaes, T. Risse and B. Simmons (eds.), Handbook of International Relations, 2013, 326, at 337; K.  Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1008. Martin and Simmons also note that most empirical studies “assert rather than document actual reputational damage” which is difficult to observe empirically, after all. Scepticism about the causal impact of human rights treaties for the protection of human rights has been brought forward by O.  Hathaway, Do Human Rights Treaties Make a Difference?, 111(8) Yale Law Journal (2002), 1935. Beth A. Simmons, in contrast, claims to show evidence for an impact of human rights treaties, Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics, 2009. K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 993 and 1007; with further references. See similarly M.  Darrow and L. Arbour, The Pillar of Glass: Human rights in the development operations of the United Nations, 103 AJIL (2009), 446, at 461. For a different view see P. Stephan, Reputation and Responsibility: Moving the Goalposts, EJIL:Talk!, 26 March 2015 (“For purposes of maximizing the value of prospective cooperative projects, a reputation for being a good, cooperative partner may matter more ‒ perhaps much more ‒ than a reputation for strictly adhering to the letter of a commitment. In other words, a reputation for complying with international law might not be nearly as desirable, and therefore nearly as strong a motivational force, as a reputation for willingness to invest in cooperative projects. The two are distinct.”). K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991. Similarly I. Johnstone, Do International Organizations have Reputations?,

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legitimate, Daugirdas claims, IOs will find it difficult to receive either State co-​operation or financial support. In the long run, this may have highly detrimental effects for the IO, since an apparent illegitimate and therefore less effective IO may even face termination/​dissolution.83 The risk of shutting down the UN is, of course, rather limited. Yet, the UN may face other negative consequences such as stripping away its currently all-​encompassing immunities if a reputation of non-​compliance persists.84 In fact, the case of Haiti has spurred considerable debate in this direction, with the voices calling for a limitation of the UN’s absolute immunity becoming louder and louder.85 On the other side of the coin, member States have an interest in a legitimate and therefore effective IO. They rely on the IO for co-​operation and the fulfilment of certain tasks (such as peacekeeping). The termination and/​ or replacement of an IO is difficult and incredibly costly. For the UN, the only truly universal and generally most important IO, such scenarios seem unlikely. Therefore, member States cannot easily treat the UN as dispensable and accordingly have an interest in investing in the reputation of the IO.86 As a consequence, member States, both host States of peace operations as well as other member States, should be expected to make an effort to ensure that the IO complies with international law or, once a violation has occurred, that the IO appropriately responds to this violation.87 Can this assumption be verified in the context of human rights violations in UN peace operations?

83 84 85

86 87

7 International Organizations Law Review (2010), 235. For reservations about the idea of applying rational choice theory to IOs, see J. Klabbers, Kristina Daugirdas, Reputation and the Responsibility of International Organizations, EJIL:Talk!, 25 March 2015. K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1007 f. (“For an IO, the cost of a bad reputation may include termination.”, at 1010). Ibid., at 1010. E.g. K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016) 341, at 367, calling for a limited immunity that takes into account considerations of accountability, rule of law and human rights. She warns that if “effective means of redress are unavailable within the U.N. system, it may lead to a situation where member states are constitutionally unable to uphold the U.N.’s immunities, because they conflict with the U.N.’s own human rights norms.”; R. Freedman, UN Immunity or Impunity? A Human Rights Based Challenge, 25 EJIL (2014), 239. K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1011. Ibid., at 1008 (“IOs and their member states will take pains to ensure that IOs avoid –​or respond to –​credible charges that they are violating international law.”).

328 chapter 5 Member States’ Interest in Compliance during and after Peace Operations Two categories of member States can be distinguished when examining their interest in compliance with human rights during peace operations: host States of peace operations on the one hand and other (troop-​contributing and/​or financially contributing) member States on the other one. 2

a Host States For the case studies examined here, there do not appear to have been any insistent calls by the respective host States that the peace operations comply with human rights obligations. To begin with, in the international transitional administrations of Kosovo and East-​Timor, the UN literally was the host State, since it had assumed overall authority for the interim administration of the respective territories. Hence, there was no other host State that could have pressed for human rights compliance for the period of the peace operations. After the handing over of responsibility (Kosovo) or gaining of independence (Timor-​Leste), neither entity was likely to challenge the UN’s human rights record during the territorial administration since they continued to rely heavily on financial and technical support from the UN. Severing close ties to the UN because of past human rights violations hence cannot lay in the principal interest of Kosovo or Timor-​Leste. In Haiti, the population still suffers from the consequences of the cholera outbreak, even a decade after the outbreak of the epidemic. The country relies heavily on international assistance for the construction and maintenance of public health services. Against this background, it seems unlikely that the government of Haiti will risk deterioration of its relationship with the UN by pressing for accountability.88 Hence, Haitian Prime Minister Laurent Lamothe chose his words carefully when he addressed cholera in a speech before the General Assembly in September 2013: “While we continue to believe that the United Nations has a moral responsibility in this epidemic, it nevertheless remains true that the UN remains supportive of the efforts of the Government and various national and international agencies involved to eradicate this scourge”.89 Commentators like Special Rapporteur Philip Alston90 and a group 88 89 90

J. Alvarez, The Impact of International Organizations on International Law, 2017, at 386 with further references. UN News Centre, At UN, Haitian Leader Urges “Second Look” at Island Nation, Where Real Progress is Taking Hold, 26 September 2013, www.un.org/​apps/​news/​story. asp?NewsID=46067. Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 88 (“The Haitian authorities, including the present interim

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of ngos encourage the Haitian authorities to stand up against the UN and demand the establishment of a standing claims commission, the provision of compensation and access to justice for the cholera victims, and accountability for human rights violations by minustah, if need be by renegotiating the sofa and by raising objections to the renewal of minustah’s mandate.91 Yet, it remains to be seen whether this or any future government will, in fact, follow this call. To Mégret, the situation in Haiti, characterised by the silence of the State in the face of human rights violations, can be considered symptomatic, as the UN is increasingly intervening in situations where the State is weak or absent.92 b Other Member States The record of other member States besides the peace operations’ host States is not more assertive, either. According to Garcin, member States have “a positive duty to enforce the UN’s Charter’s human rights obligations”.93 Still, they have also been commonly reluctant –​to say the least –​when it comes to invoking responsibility for human rights violations by the UN. This issue is closely related to the question of UN immunity, which naturally comes to the fore when stakeholders try to seek remedy outside of (non-​ existent) UN mechanisms. The complex and at times heated debate about UN immunity and lack of effective remedy is not the focus of the present chapter. However, the arguments put forward by the proponents and adversaries of a softening of the UN’s absolute immunity are instructive to understand the apparently small impact of reputational concerns and the reluctance of States when it comes to the UN’s accountability. The reasons for this are manifold. First of all, it is argued that holding the UN accountable by invoking responsibility under international law would pose a serious financial burden on the UN since it would entail the payment of reparation to the victims and their relatives. The alternative way of settling the issue by way of private claims in domestic courts would lead to similar results. Critics of such an approach have warned that successful litigation

91 92 93

Government, needs to overcome the reluctance of previous Governments to press the international community to ensure that the human rights of its citizens are upheld.”). Boston College Law School et al., iccpr Violations in the Context of the Cholera Epidemic in Haiti, 12 September 2014, at 18. F. Mégret, La Responsabilite Des Nations Unies Aux Temps Du Cholera, 46(1) Revue belge de droit international (2013), 161. M. Garcin, The Haitian Cholera Victims’ Complaints Against the United Nations, 75 ZaöRV (2015), 671, at 691.

330 chapter 5 could “bankrupt” the UN. By relying on the sums claimed by the victims of the Haiti cholera in their US litigation cases, which amount to $100,000 for deceased victims and $50,000 for each victim who suffered illness or injury, the UN could face a compensation claim of almost $40 billion.94 With a proposed total net budget of $24.7 billion ($24 679 773.5 thousand usd) for 2016–​17 and an estimated peacekeeping budget of $116 million ($116 119.9 thousand usd) for the biennium,95 the figure of $40 billion is understandably considered “prohibitive and unrealistic”.96 It would, if successful, “place an extraordinary burden on the Organization”.97 Since the member States fund the organization, these costs would ultimately be borne by the member States. The case of Haiti may be a particularly devastating case of human rights violations with an extremely high toll of victims. Nevertheless, the above numbers underscore that the threats of UN bankruptcy are not easily dismissed. Other instances of human rights violations could cause similar sums to be claimed by victims, especially if the number of victims is high. As a result of large-​scale payments for victims of past human rights violations, future peace operations may have to cope with less financial support or will not be deployed at all which adds an inter-​generational aspect to the debate.98 Against this background, it bears no wonder that the warning of a “chilling effect on the Organization”99 is widely echoed in the literature. However, the looming risk of unbearable claims should not prevent the UN and its member States from providing a meaningful remedy to victims of human rights violations. Alston, for instance, suggests the negotiation of one-​time lump-​sum agreements with host States, a mechanism that has already worked in the past.100 Boon argues in favour of purchasing litigation insurance by the UN or maintaining a larger contingency fund for torts cases.101 It is not the 94

Boon points out that any sums paid out as compensation or reparation must come from existing budgets because the UN is self-​insured, K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 346. 95 Secretary-​General, Proposed programme budget for the biennium 2016–​2017, 15 May 2015, UN Doc. A/​70/​6 (Introduction), Annex, Schedules 1 and 2. 96 Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 59. 97 K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 372. 98 Ibid., at 368. 99 Ibid., at 346. 100 Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, paras. 60 ff. 1 01 K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 370 ff.

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right place here to discuss the details of potential solutions for financial burdens faced by the UN. What is argued here is that the very high amounts and the bankruptcy scenarios brought forward by some help explain why member States are reluctant to invoke responsibility of the UN or claim accountability by other means. A second argument regularly presented invokes the image of the proverbial floodgates.102 If financial compensation is awarded in one case (for instance in the case of Haiti through successful litigation), a massive occurrence of similar litigation suits that would bind UN capacities and strain resources is predicted to happen. A “bad precedent” must thus be avoided. This narrative, however, is not convincing. First of all, it does not let the UN appear in a good light since it implies that the UN has in many further cases denied remedy and that a great number of similar cases would have to be expected. Secondly, it overlooks the fact that the circumstances in Haiti are rather unique and that it remains under the full control of the UN whether it chooses to comply with its obligations under Section 29 of the cpiun to provide some form of redress.103 Hence, if current and future claims are settled in a regular and fair procedure, massive litigation claims are not to be expected or dreaded. A third argument warns that troop-​contributing countries (tcc) will be less willing to contribute to future peace operations if UN liability is accepted. In the worst case, the claims could fall back on tcc when UN absolute immunity is upheld and remedy is sought by piercing the institutional veil. While sharing responsibility and holding tcc responsible may indeed put off potential States from contributing to peace operations,104 there is no such evidence 102 This argument is presented and subsequently rebutted by Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, paras. 55 ff. 103 United States Court Of Appeals, Second Circuit, Delama Georges et al. against the United Nations et al, Memorandum of Law of Amici Curiae Former United Nations Officials in Support of Plaintiffs-​Appellants,15-​455-​cv, at 12 f. 104 C. Ahlborn, To Share or Not to Share? The Allocation of Responsibility between International Organizations and their Member States, 88(3/​4) FW 45. Ahlborn therefore advocates in favour of a principle of “joint and several responsibility” instead of shared responsibility which brings more costs than benefits. Similar concerns were voiced by the Dutch Supreme Court in The State of the Netherlands v. Hasan Nuhanovic of 6 September 2013. The Court took into account the expectation of “an adverse effect on the implementation of United Nations peace operations, in particular on the willingness of Member states to provide troops”, still this should not “prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent.”, para. 3.18.3. See also on the argument of less support for peace operations, T. Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harvard International Law Journal (2010), 113, at 184 ff.

332 chapter 5 concerning a standard remedy procedure led by the UN or a regular treatment of third-​party tort cases under the aegis of the UN.105 Alston notes that troop-​ contributing countries should consider that the reputational damage on themselves is “surely even greater” when legitimate claims are rejected instead of settled in a just procedure.106 Still, considerations of this kind help understand the lack of action on the part of UN member States. Summing up, several arguments serve as an explanation for the reluctance of member States when it comes to pressing for UN compliance or accountability. Even though these arguments can be rebutted logically, they are still out in the world and reiterated so often that the lack of empirical evidence in support of these arguments is secondary. They may also indicate that in the context of peace operations, activities serving the UN’s primary goal of maintaining peace and security are considered more important for the IO’s legitimacy than compliance with international human rights law in doing so.107 In any case, the see-​saw of opinions does only partly elucidate behaviour. It is not sufficient to explain why the UN can maintain non-​compliance with human rights law and avoid responsibility. A closer look at the conditions for compliance is therefore required. 3 The UN’s Reputation in the Context of Peace Operations Apart from the role of reputation in the relationship between the UN and its member States, reputation may also be a factor for the organization as such.108 Following this approach, the UN should refrain from violations of international

105 K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 374. 106 Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 58 (“A festering sore is much worse than a wound that is healed”). 107 Similarly K. Daugirdas, Response, EJIL:Talk!, 27 March 2015. Klabbers notes that the legitimacy of an IO depends on various factors, with compliance with international law only being one of them, see J. Klabbers, Kristina Daugirdas, Reputation and the Responsibility of International Organizations, EJIL:Talk!, 25 March 2015. See also T.  Dannenbaum, Legality, Legitimacy, and Member State Cooperation in International Organisations, EJIL:Talk!, 24 March 2015 (stating that organisations like the UN can “derive legitimacy from sources alternative to legal compliance”). For a succinct overview on the notion of legitimacy refer to D. Hovell, Due Process in the United Nations, 110(1) ASIL (2016), 1. 108 Klabbers warns that that an organization and its member states cannot be portrayed as being completely distinct from each other, since it is member states who form the plenary organ or are represented in further organs, see J. Klabbers, Kristina Daugirdas, Reputation and the Responsibility of International Organizations, EJIL:Talk!, 25 March 2015. This work does not intent to make this separation, but still acknowledges a certain life of the UN on its own, as inspired from constructivist thinking.

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human rights law to avoid reputational damage, because this, in turn, could lead to weakened legitimacy and a loss of effectiveness.109 However, the anecdotal evidence gained from the case studies points in another direction. It has become clear that UN peace operations have not only on different occasions violated human rights law, but that they have also abstained from credibly reacting to these violations. The question that results from this is whether this has led to a loss of reputation? As has been mentioned above, reputation cannot easily be measured empirically nor quantitively. Therefore, it is difficult to give a clear answer to the question of whether human rights violations in (several different) peace operations have damaged the UN’s reputation. Nevertheless, some points can be made. The human rights violations in Kosovo and Timor-​Leste do not seem to affect the UN’s overall reputation significantly. Of course, the issue of human rights violations has been brought up and discussed by practitioners and scholars alike. Yet, the reputational damage has never appeared to be substantial enough to compromise the UN’s legitimacy to an extent that would threaten its effectiveness. States, for instance, are not known to have limited their financial and personnel support to peace operations because of the UN’s unfavourable human rights record. Neither has the UN felt compelled to change its behaviour meaningfully. As one possible reaction to the allegation of human rights violations, the UN could have contested being bound in the first place –​a strategy that the International Monetary Fund (imf), for instance, pursued rigorously when having been confronted with allegations of human rights violations caused by its lending policies.110 Since only if an IO is (considered) bound by a norm, the violation of that norm leads to reputational damages.111 In the peace operations analysed, the UN has not reacted in any particularly discernible way. Vociferous contestations of having violated international human rights law –​or being bound in the first place –​were not generally detected. In the case of Haiti, the UN did at first embark on this avenue and tried to deny the violation of any primary obligations.112 In summer 2016, commentators noted a “significant and

109 Cp. D.  Cassel, Does International Human Rights Law Make a Difference, 2(1) Chicago Journal of International Law (2001), 121, at 129 (violations of international human rights law “creates additional stigma”). 110 E.g. A. Clapham, Human Rights Obligations of Non-​State Actors, 2006, at 137–​150. 111 K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1014 f. 112 At the outset, the UN mainly denied a causal link between the cholera outbreak and the blackwater coming from the minustah base.

334 chapter 5 welcome shift in the UN’s approach” when Ban Ki-​moon announced a compensation package for victims of cholera.113 Yet, the legal issues remain untackled despite calls for a reconsideration of the UN’s legal position.114 Although the UN does not seem to openly contest the violation of international law any longer, this does not amount to a true or complete shift of its position since the legal questions remain unresolved.115 Apart from that, the UN could have made efforts to comply with human rights obligations in the future without explicitly admitting a change of course and without any reference to previous allegations of violations of international law.116 Furthermore, it could have decided to simply cease the activity causing a violation of international law.117 In the context of alleged human rights violations in peace operations, the UN has not directly pursued either of these two options. It cannot be claimed that the UN had, after human rights violations of unmik were brought up by the hrap, significantly changed its course of

1 13 K. Boon, Haiti cholera update, Opinio Juris, 20 September 2016. 114 Alston demands that the UN issues an apology and accepts responsibility. He notes that “the element of doubt as to the responsibility of the United Nations for the introduction of cholera has been definitively removed.” Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 79. 115 An observation that was also made by Daugirdas for other examples of IO change of approach (“A course correction by the IO, then, is not necessarily coupled with an authoritative resolution of the underlying legal issues.”), K.  Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014) 991, at 1014. 116 As for instance the Security Council has done with respect to allegations of human rights violations in its Al Qaida target sanctions regime, by establishing a mechanism to receive de-​listing requests (Security Council Resolution 1730 of 19 December 2006, UN Doc. S/​RES/​1730 (2006)) and by creating an Ombudsperson to deal with these requests, Security Council Resolution 1904 of 17 December 2009, UN Doc. S/​RES/​1904(2009) and Security Council Resolution 1989 of 17 June 2011, UN Doc. S/​RES/​1989 (2011). For a description of the office of the U.N. Ombudsperson for the Al Qaida regime, see http://​ www.un.org/​en/​sc/​ombudsperson/​; K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1014. See also J. Alvarez, The Impact of International Organizations on International Law, 2017, at 109 ff. 117 An example would be the gradual moving away from comprehensive economic embargoes that have previously caused allegations of violations of human rights by the Security Council, see Committee on Economic, Social and Cultural Rights, General Comment 8:  The Relationship Between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN Doc. E/​C.12/​1997/​8, 12 December 1997; instead of many, see A.  Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95(4) AJIL (2001), 851. See K.  Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1013 f.  for further examples of when an IO ceases the activity challenged as unlawful.

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action in order to guarantee compliance with human rights law in the future. For unmik, this was difficult to impossible for practical reasons, because of the time delay of the hrap. Furthermore, it goes without saying that the UN has not decided to cease its peace operations due to allegations of human rights violations, neither in a particular mission nor as an activity as such. This notwithstanding, the UN has undertaken some first steps towards a change of direction in future operations. Whereas unequivocal guidelines for human rights obligations in peace operations (comparable to the Secretary-​General’s Bulletin) are still owed, initiatives such as the Human Rights Up Front Action Plan or the 2011 Policy on human rights in peace operations can be considered as indicators for a modest adaptation of policy and doctrine with respect to human rights in peace operations.118 It thus has to be conceded that the UN has not undertaken credible steps to react to the risk of reputational damage that has potentially arisen from violations of international law. It has neither chosen to make efforts to comply with its human rights obligations nor ceased the activity leading to violations altogether. Only in the case of Haiti did the UN try to deny a violation at the outset. Currently, it seems that the UN is in a process of changing direction, including activities falling in the realm of reparation.119 So far, however, these measures have not been meaningful enough for this purpose. As a preliminary result, it thus can be stated that prima facie the risk of reputational damage does not seem to have influenced the UN’s compliance behaviour. Assessing the Reputational Impact of Human Rights Violations in Peace Operations In the previous sections, it has been shown that reputational damage on the UN because of human rights violations in peace operations and the related denial of assuming responsibility for these violations is apparently not high enough for the UN to change behaviour. Likewise, member States, including both host States and tcc, ostensibly have no interest in pushing for future compliance or responsibility. How can this be reconciled? According to Guzman, several factors influence the reputational impact of a violation, namely (a) the severity of the violation, (b) the reasons for the violation, (c) the extent to which others know of the violation, and (d) the clarity of 4

1 18 See supra Chapter 1. 119 K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1015.

336 chapter 5 the commitment.120 They will be analysed in the following with the aim of gaining further insights into reputational impacts of UN human rights violations.121 a The Severity of the Violation The severity of the violation describes the harm suffered by others. A violation that causes significant harm to others has a greater negative impact on reputation than a “victimless” violation or one that causes comparably little harm.122 It is difficult to compare the severity of the violations committed by the respective peace operations because they are not to be distinguished in legal categories: in all instances analysed, the violations concerned infringements of human rights. The victims of these violations were individuals in the respective host States and –​depending on one’s approach to inter-​state relations in the human rights realm –​also the respective host States themselves. The type of violation is, therefore, identical in all cases. Trying to measure the “harm” caused by these violations goes beyond legal categories and would involve a moral judgement. Is a violation of the right to health (Haiti) less “harmful” than a violation of the right to a fair trial (Timor-​ Leste), even if the former leads to fatal outcomes? What about the violations of property rights (Kosovo) compared to violations of the right to clean water (Haiti)? These questions cannot and should not be answered by a legal scholar –​if considerations of this kind are helpful at all. Another approach would be to consider the factual impact of the violations. In Haiti, the UN peace operation caused at least 9,000 deaths by cholera and over 700,000 victims have fallen sick since 2010, with public health implications for the country that will last for years.123 In the case of Srebrenica, which has not been in the focus of this book but surely is familiar to the reader, UN failure led to the death of around 7,000 men and boys at the hands of Serb forces after the peacekeepers abandoned the “safe area”.124 The victims are still the individuals of the respective host States, but the sheer magnitude of the consequences of the violation 120 A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1861. 121 In doing so, this book does not intend to provide factual evidence in a strict sense, nor is it able to prove irrefutable causal links. What is does intend is to highlight trends and examples that might serve at understanding compliance decisions by the UN. 122 A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1862. 123 Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 2. 124 See most notably the Report of the Secretary-​General Pursuant to General Assembly Resolution 53/​35. The Fall of Srebrenica, 15 November 1999, UN Doc. A/​54/​549 (1999).

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makes it difficult for other States not to react. In these two instances, UN reputation can indeed be said to have suffered.125 Beyond such exceptional cases, however, the (anyways doubtful differences in the) severity of the violation is not decisive for the differences in reputational damages. b Special Circumstances Accompanying the Violation Secondly, if a State or an IO finds itself in special circumstances, such as a severe national crisis, the violation of human rights will be viewed as less damaging to reputation as if it had taken place in a situation of normalcy.126 Generally speaking, peace operations are deployed to post-​conflict territories with the usual challenges to be found in these circumstances. Beyond that, the natural disaster, that is the earthquake in Haiti, for instance, could have provoked a special situation. However, the Nepalese troops were deployed after the earthquake, and the negligent behaviour in the treatment of blackwater cannot be related to the natural disaster. Still, it has repeatedly been pointed out that the UN acts under special conditions during any peace operation in general since the latter takes place in a situation between conflict and peace not comparable to normal peacetime situations. While these special circumstances commonly do not amount to a state of public emergency, which would allow for lawful derogation, they have regularly served as an explanation for UN human rights infringements in the literature.127 Accordingly, the perceived “good reasons” for the UN to compromise on human rights protection may help explain the limited damage to reputation. c Knowledge about the Violation Thirdly, the extent to which other States or actors know of the violation has an impact on the reputational consequences. The less other actors know about the violation, the smaller the loss of reputation.128 The degree to which the

125 See among many others, UN Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, who has stated that the organization will lose “its moral force if it fails to respond when those within the United Nations system violate human rights.”, quoted in ijdh-​b ai, Petition for Relief, 3 November 2011, para. 93. The petitioners added that the “lack of accountability for human rights violations in Haiti has not only impacted minustah, but has undermined the reputation of the UN as a whole”, ibid. For more examples see infra, d. 126 A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1862 and A. Guzman, How International Law Works, 2008, at 78 f. 127 See supra Chapter 2.iv.3. 128 A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1862 f. A. Guzman, How International Law Works, 2008, at 96 f.

338 chapter 5 human rights violations of UN peace operations are known to other international actors cannot be generalised. To begin with, peace operations report to dpo and the Secretary-​General in regular reports. In these reports, shortcomings and setbacks in the realm of human rights are not described as (potential) violations. Beyond these reporting procedures, investigation of the human rights record of peace operations is the exception rather than the rule. Only on rare occasions do institutionalised bodies such as the Kosovo hrap undertake a thorough examination of the human rights performance of a peace operation. Absent such a body, the record of a peace operation’s human rights performance is largely left to human rights activists and the desk analysis of academics. The discussion in the literature sometimes leads to a sound level of knowledge among the academic community. Still, it is unclear to which extent scholarly writings become known to and influence State actors.129 The level of knowledge of a violation is raised significantly when victims of the violation try to take measures to claim responsibility for such violations. This has prominently been the case in the Dutch court proceedings concerning the massacre of Srebrenica and the related failure of the peace operation to save the male population.130 Even though the proceedings were only partially successful from the victims’ perspective, the failures of the peace operation and the UN as an organization have become widely known to all States and the public. The case of the Rwandan genocide is another example in which the failure of the UN has been brought to the fore and become known to the world.131 Last but not least, in the Haiti cholera incident, the failures of the UN have become widely known thanks to the UN’s own efforts to take account of 129 Guzman, however, notes that the work of human rights ngos such as Amnesty International can and does influence State behaviour by reducing uncertainty and increase knowledge (see in more detail below), A. Guzman, How International Law Works, 2008, at 99. 130 Foundation Mothers of Srebrenica v. The Netherlands and the UN, Case No. 295247/​HA ZA 07-​2973, Judgement in the incidental proceedings of 10 July 2008; Hague Appeals Court, Nuhanović v. Netherlands & Mustafić-​Mujić v. Netherlands, 5 July 2011, Case no. 200.020.174/​ 01; Dutch Supreme Court in The State of the Netherlands v.  Hasan Nuhanovic of 6 September 2013. See also Report of the Secretary-​General Pursuant to General Assembly Resolution 53/​35: The Fall of Srebrenica (1999), 15 November 1999, UN Doc. A/​54/​549. 131 Report of the Independent Inquiry on the 1994 Genocide in Rwanda (1999), UN Doc. S/​1999/​12571; but see also the well-​known memoires of Canadian unamir force commander Roméo Dallaire, Shake Hands with the Devil:  The Failure of Humanity in Rwanda, 2003. The Human Rights Up Front Action Plan explicitly refers to the failures in Rwanda and in Srebrenica when calling for a stronger focus on human rights, Deputy Secretary-​General’s remarks at briefing of the General Assembly on Rights Up Front, 17 December 2013, https://​www.un.org/​sg/​en/​content/​dsg/​statement/​2013-​12-​17/​ deputy-​secretary-​generals-​remarks-​briefing-​general-​assembly-​rights.

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the facts132 and in no small extent because of public campaigns and academic literature in the context of the litigation before U.S. courts.133 In these cases, knowledge of the violation led to a damage to the reputation of the UN. Notions of reputational damage and loss of legitimacy have accompanied the reporting and discussion from the beginning, not only on the part of global press, who noted that “by refusing to acknowledge responsibility, the United Nations jeopardizes its standing and moral authority”134 or called it the “UN’s Watergate”,135 by which the “peacekeeping brand has been stained indelibly”.136 In his report, Alston quotes a letter of a bipartisan group of 158 members of the US Congress of June 2016 who state that “each day that passes without an appropriate U.N.  response is a tragedy for Haitian cholera victims and a stain on the U.N.’s reputation”.137 Alston himself is no less critical by calling the UN’s approach “morally unconscionable, legally indefensible and politically self-​defeating”.138 In another instance, he warns that the “credibility of UN peacekeeping and the overall reputation of the UN are at stake” if the UN does not manage to compensate the victims.139 Also the academic community condemned “peacekeeping without accountability”140 and lamented the “repeated failures (…) to provide adequate due process to those affected by its

132 A. Cravioto et  al., Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti, 2010. See in detail supra, Chapter 4.iii.3.b. 133 See supra, Chapter 4.iii.4.b. 134 Editorial, United Nations must admit its role in Haiti’s cholera outbreak, The Washington Post, 16 August 2013. 135 A. Rosen, How the UN caused a massive cholera outbreak in Haiti, Business Insider, 9 April 2015. 136 A. Rock, We must fix the UN’s culture of coverups around peacekeeping, Ottawa Citizen, 13 June 2016. 137 Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 44. See similarly the Amici Curiae Brief of Former United Nations Officials, United States Court Of Appeals, Second Circuit, Delama Georges et al. against the United Nations et al, Memorandum of Law of Amici Curiae Former United Nations Officials in Support of Plaintiffs-​Appellants,15-​455-​cv, at  3 (“the UN’s failure to address [the] claims will irrevocably damage its reputation and undermine its mission.”). 138 Report of the Special Rapporteur on extreme poverty and human rights, 26 August 2016, UN Doc. A/​71/​367, para. 3. 139 Anam Salem, Good news and bad news for persons affected by cholera in Haiti, declares Alston, chr&gj, 1 December 2016, http://​chrgj.org/​good-​news-​and-​bad-​news-​for-​haiti-​ cholera-​victims/​. 140 E.g. Yale Law School Transnational Development Clinic et  al., Peacekeeping without Accountability. The United Nations’ Responsibility for the Haitian Cholera Epidemic, 2013; J. Alvarez, The United Nations in the Time of Cholera, AJIL Unbound, 4 April 2014 (“public relations as well as public health disaster”).

340 chapter 5 decision-​making [which] has had a detrimental effect on the Organization and its activities”.141 Boon concludes that the UN’s “public legitimacy is damaged” when programmatic principles are not applied consistently.142 Other missions and any potential human rights violations have received less public attention. The results of the Kosovo hrap were not covered by the global media, even though academic literature abounds. Timor-​Leste, on its part, did not see an institutional examination of the peace operation’s human rights record, to begin with. As a small island virtually at the other end of the world, media interest is limited even though it did receive considerable scholarly attention. Knowledge about human rights violations thus varies significantly. d Clarity of Obligations Last but not least, the degree of clarity of the international obligation and its violation are related to the dimension of reputational damage. The loss of reputation is most severe when the obligation is clear, and the violation is unambiguous:  The higher the uncertainty about the obligation and violation, the smaller the reputational consequences.143 The role of information and communication are crucial in this context since they can resolve ambiguities in interpretation and help establish consensus on what constitutes legal obligations and violations of such obligations.144 This aspect is of particular importance for human rights violations by the UN. A clear legal framework for human rights in peace operations, comparable to the Secretary-​General’s Bulletin is still due.145 Some doubts therefore still exist. Moreover, the truly vast amount of literature on this topic reflects the desire for more clarity and at the same time, a continuing lack thereof. These considerations might explain the (relatively small) reputational consequences of UN human rights violations. In many instances, even if human rights 1 41 D. Hovell, Due Process in the United Nations, 110(1) ASIL (2016), 1, at 1. 142 K. Boon, The United Nations as Good Samaritan, 16(2) Chicago Journal of International Law (2016), 341, at 384. 143 A. Guzman, A Compliance-​Based Theory of International Law, 90 California Law Review (2002), 1823, at 1863; A. Guzman, How International Law Works, 2008, at 93–​96. 144 A. Guzman, How International Law Works, 2008, at 98 f.; Chayes and Chayes in their managerial approach also focus on the role of information, A. Chayes and A. Chayes, The New Sovereignty, 1995, esp. at 154 ff. See also M. Bothe, Compliance, mpepil, October 2010, MN 101. 145 The Leuven Manual on the International Law Applicable to Peace Operations, edited by T. D. Gill, D. Fleck, W. H. Boothby and A. Vanheusden (cup 2017) goes an important step into that direction, but it has not (yet) been adopted by the UN as the leading guidance for conduct of UN peace operations, which could compensate for a Bulletin. See also supra Chapter 2.

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violations seem to be detected, uncertainty about the true extent of human rights obligations often resonates with the argumentation. The lack of certainty among scholars exacerbated by a denial to take a clear stance by the UN itself decreases the reputational impacts on the UN. e Findings: Factors Relevant for UN Reputational Damage After having discussed some of the factors affecting the dimension of reputational damage following a violation of international law (the severity of the violation; the reasons for the violation; the extent to which others know of the violation; the clarity of the commitment), a few points can be made. The case of Haiti seems to take an exceptional position in the context of compliance and its effect on reputation. Accounts of reputational damage and loss of legitimacy have accompanied the reporting and discussion from the beginning, both in the press and in legal scholarship. At the time of writing, the UN had not yet pursued a true shift in its handling of the cholera case, although some efforts towards more accountability are visible.146 It thus seems that the reputational damage resulting from its behaviour has contributed to a readjustment of strategy, which will possibly result in future compliance. In this respect, the case of Haiti is fundamentally different from the other examples presented here. The reputational impact of UN violations of human rights was significantly lower regarding the other cases analysed. Accordingly, no noteworthy move to compliance was found in either of the latter cases. What distinguishes Haiti from the other cases? One critical element influencing the reputational damage suffered from human rights violations in peace operations seems to be the clarity of the obligation. Haiti clearly stands out in this respect, first of all given the amount of scientific evidence produced by the different commissions that left little doubt concerning the causal link between the deployment of the Nepalese battalion and the outbreak of the cholera. Moreover, the transnational legal discourse within and outside the UN, which was spurred by the ijdh petition, the litigation claims before U.S. courts and the supporting amicus brief by a group of international law scholars and practitioners, shed light on the UN’s primary legal obligations including human rights obligations.147 At the same time, in the years between the creation of unmik and untaet in 1999 and the beginning of the legal investigation of the cholera incident from 2011 onwards, we have seen a quantum leap in the general legal 1 46 See supra Chapter 4.iii.4.b. 147 K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1001 ff.

342 chapter 5 assessment of UN human rights obligations. Fifteen years ago, scepticism about whether or not the UN and its organs were bound by human rights law was common. For those advocating in favour of an application of human rights law to UN peace operations, uncertainty about the exact contour of such an obligation prevailed.148 Today, the sources of UN human rights obligation as well as the exact scope and content are, of course, still far from established and scholarly debate continues. Nevertheless, there is little doubt that the UN is generally bound by human rights law, as has already been shown above.149 On the part of the UN, seminal documents issued since 1999 such as the 2005 Human Rights in Integrated Missions, the 2011 Joint Policy of Human Rights in Peacekeeping Operations and the 2014 Human Rights Up Front Action Plan have significantly contributed to a shared consensus on the existence of UN human rights ­obligations.150 To conclude, two points merit attention: first, in the case of Haiti, the level of clarity concerning the obligations of the UN was high compared to missions that had spurred less public attention and less transnational legal discourse. Second, the overall level of clarity concerning the human rights obligations of UN peace operations can be considered substantially higher today than at the turn of the millennium. The clarity of obligations hence seems to play a decisive role in the reputational impact of human rights violations by the UN. iv

A Case for Discourse

The previous sections have shown that international law has yet to come up with an established theory of human rights compliance. Traditional theories can only explain to a limited extent why States –​let alone why IOs –​decide to comply with their respective human rights obligations. More recent approaches focussing on the role of reputation offer categories of analysis that help explain why States choose to comply with international law and with human rights law in particular. Drawing from these approaches, it has been argued that reputation can also be considered a valuable concept for explaining compliance by the UN. For a majority of cases analysed, however, the risk of reputational damage flowing from human rights violations did not suffice to bring the UN into compliance with international law. Nor did member States effectively push for compliance to deflect threats to legitimacy and preserve 1 48 See supra, Chapter 2. 149 See supra, Chapter 2. 150 As presented supra, Chapter 1.

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the UN’s effectiveness  –​in contrast to the prediction for instance made by Daugirdas.151 A closer look at the factors influencing the level of reputational loss has revealed that in the context of peace operations, the clarity of obligations played a decisive role. Furthermore, the level of knowledge about human rights obligations also seemed to be a crucial factor. Transparency, information, and public reporting, as well as academic and non-​academic debate beyond a limited circle of internal review and academic specialists are important for the UN to increase the risk of reputational damage and thus spur compliance in the future. The elements mentioned above can be summarised under the category of transnational legal discourse. This notion describes legal discourse between a variety of actors (States, IOs, academics, ngos, individuals) in different fora (e.g. IOs, domestic, regional and international courts, media). A  strong feeling for the importance of discourse brings together international relations theorists and scholars of international law. Constructivists, representing the former, describe social interactions that shape, mould or constrain the choice of actors. Discourse, in their view, does not necessarily cause specific actions but shapes the interests of States (in contrast to exogenously fixed interests as maintained by realists).152 For international legal scholars forwarding legal process theories, transnational discourse plays a role in affecting States’ interests through norm internalisation.153 Of course, the relevance of discourse is not shared among all scholars. Goldsmith and Posner lead the choir of those who discount the significance of international discourse with their much-​quoted line that “a kind of empty happy talk is common in the international arena”.154 Despite being catchy, this claim is not persuasive, least when it comes to IOs. Chayes and Chayes highlight the importance of discourse for influencing States towards compliance with their respective obligations.155 In their managerial model, they show how discourse in the forms of institutionalised mechanisms such as reporting and data collection; verification and monitoring; instruments of active management 151 K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 993. 152 Giving an illuminating account of constructivist theories, J.  Brunnee and S.  Toope, Constructivism and International Law, in: J. Dunoff and M. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations, 2013, 119, esp. at 125 ff. 153 K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014) 991, at 1008, making reference to I. Johnstone, The Power of Deliberation, 2011. 154 J. Goldsmith and E. Posner, The Limits of International Law, 2005, at 180. 155 A. Chayes and A. Chayes, The New Sovereignty, 1995, at 28.

344 chapter 5 (capacity building and technical assistance, dispute settlement, treaty adaptation); policy review and assessment; and engagement with ngos influence compliance.156 IOs depend on compliance for the legitimacy and ultimately their effectiveness, as has already been shown above. These functions of discourse are clearly more than “overblown rhetoric” as sometimes ridiculed by its critics.157 Instead, discourse in an IO serves several functions, as Chayes and Chayes submit: first, intensive discourse about the scope and meaning of a particular norm within the different bodies and fora of an IO enhances the authoritative character of such a norm. Secondly, the content of a norm becomes more transparent through the interpretation, elaboration, reformulation and application of norms. In other words, discourse increases the clarity of the meaning of the norm.158 Thirdly, in cases of asserted non-​compliance, discourse defines and specifies the performance required by the non-​complying party to keep its good standing. Absent a comprehensive judicial authority on the international level –​comparable to domestic courts at the national level –​discourse takes over this function. It establishes the acceptable grounds or justifications for non-​performance or for the contested action.159 The findings of Chayes and Chayes, that focus on compliance by States, can be transferred to IOs: as the case of Haiti has shown, by debating the avenues of appropriate reaction to the cholera epidemic, discourse helps to establish necessary actions on the part of the UN for the latter to limit its reputational damage and remain in good standing of the international community. Discourse thus takes over the function of some kind of accountability forum. Similar conclusions hold true for the Kosovo hrap, which structured its reports along the lines of a judgement and recommended actions to be taken by the “defendant”, i.e. unmik. As a result, “discursive accountability” can be enabled.160 1 56 Ibid., Part ii, at 154 ff. 157 This formulation is used by Chayes and Chayes, A.  Chayes and A.  Chayes, The New Sovereignty, 1995, at 126. 158 Daugirdas similarly claims that discourse of the consequences of violations of international law by IOs in the context of the ario leads to more discourse and greater clarity with respect to primary norms binding IOs, at 999. Taking Haiti as an example, she shows that discourse has led to greater clarity concerning the primary obligations of the UN, K. Daugirdas, Reputation and the Responsibility of International Organizations, 25(4) EJIL (2014), 991, at 1001–​1006 (“And to the extent that the IO Responsibility Articles are prompting this transnational discourse about the UN’s legal obligations, the IO Responsibility Articles are helping to achieve greater clarity about these legal obligations.”, at 1006). 159 A. Chayes and A. Chayes, The New Sovereignty, 1995, at 122–​126. 160 J. Klabbers, Alison Duxbury and Ian Johnstone: A Rejoinder, EJIL:Talk!, 21 August 2015.

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In conclusion, this book posits that discourse in the context of human rights obligations of UN peace operations in general and by way of numerous pieces of academic literature on particular countries and missions have indeed led to greater clarity about the scope and content of human rights obligations of UN peace operations. While clear causal links cannot be proven empirically,161 it seems reasonable to assume that the elaboration of recent documents on the issue on the part of the UN (e.g. the 2011 Joint Policy or the 2014 Human Rights Up Front Action Plan) has also been encouraged by the ongoing discourse about UN human rights obligations in various fora. To sum it up in one short line: “talk matters a lot.”162 161 On this drawback, see P. Stephan, Reputation and Responsibility: Moving the Goalposts, EJIL:Talk!, 26 March 2015. 162 P. Stephan, Reputation and Responsibility:  Moving the Goalposts, EJIL:Talk!, 26 March 2015.

Findings and Conclusions i

Findings

The previous chapters examined the human rights obligations of UN-​led peace operations and their compliance therewith. More specifically, the book analysed the institutional framework of human rights in the UN, before evaluating the lex lata concerning the human rights obligations of the UN as an organization and of its peace operations in particular. It assessed, to the extent possible, the scope and content of UN human rights obligations in abstracto. The legal consequences of human rights violations and other forms of accountability were discussed. By way of three case studies, the human rights mandates and records of three peace operations were examined, including the UN’s reaction to findings of human rights violations. The last part identified reasons for the lack of UN compliance with human rights obligations. 1 The Institutional Framework Human rights have come to play a significant role in UN peace operations. In the course of the last decades, the once-​dominant distinction between the pillar of human rights on the one hand and the pillar of peace and security on the other hand has eroded. The increasing willingness of the Security Council to determine human rights violations as a threat to international peace and security, combined with a paradigm shift in the conception of security from State-​centred security to a more individual-​focused security have been crucial in this development. A variety of actors are involved in the UN peace operations enterprise, most notably the Security Council, the Secretary-​General, the Department of Peace Operations (dpo, until 31 December 2018: Department of Peacekeeping Operations (dpko)) as part of the Secretariat, and the Office of the High Commissioner for Human Rights (ohchr). All of them contribute to the institutional setting of human rights in peace operations. The Security Council, to start with, has, since onusal as the first mission endowed with a human rights mandate, regularly included human rights into mission mandates. Currently, all active missions that have been established after 1991 include human rights provisions. Human rights have hence acquired a firm place within peace operations mandates. However, due to the underlying dynamics in the mandate drafting process, the mandates do –​in the majority of cases  –​not serve as strategic guidance for the missions. Instead, mission tasks have proliferated and template language seems to prevail. Clear guidance

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433090_008

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as to the role of human rights and the level of priority attributed to them, also in comparison to other mission tasks, is lacking in the mission mandates. As a consequence, the effect of the per se laudable development of regularly including human rights into peace operations mandates is diminished because of a lack of strategic guidance for the implementation of the mandate and a lack of attention to the realities on the ground. The strategic framework provided for by the Security Council remains vague. The Secretary-​Generals have contributed significantly to the anchoring of human rights in peace operations doctrine. In the course of the different stages of peacekeeping reform, the importance of human rights for the achievement of lasting peace and thus for the success of UN peace operations as a whole, has become undoubted. The idea of human rights mainstreaming has been the leading paradigm for over a decade now. Yet, the concept fails to provide strategic and doctrinal clarity as to the concrete role of human rights within peace operations. This book purports that the role of human rights has undergone some evolution in the doctrine of peace operations as developed by the Secretary-​Generals, in particular by Boutros Boutros-​Ghali, Kofi Annan, and Ban Ki-​moon. Their understanding has developed from means to achieve sustainable peace to a stronger focus on human rights as an end in themselves. Most notably, the Secretary-​Generals have come to consider human rights as universally applicable standards that have been adopted under the auspices of the United Nations and must therefore serve as the normative basis and standard of accountability for all United Nations activities. dpo is responsible for the operationalisation and management of peace operations on the ground. In addition, it develops peace operations doctrine by way of policies and guidelines to be applicable in UN peace operation. dpko/​d po peacekeeping doctrine conceives of human rights as are part of the catalogue of tasks to be fulfilled by a peacekeeping mission. Underspecified, however, remains the priority defining the order of different tasks. The role of human rights is mainly understood as means to serve the overall goal of sustainable peace and, as a more recent development, as a normative baseline for all peace operations activities. The idea that human rights can also serve as benchmarks for evaluation of mission success and potential exit strategies was brought up by dpko but does not seem to be followed up upon. ohchr is tasked with the implementation of the human rights mandate. In doing so, it closely collaborates with dpo in providing guidance and training to all mission components and by advising dpo staff in planning and management. Yet, shortcomings remain with respect to a lack of regular public

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reporting on human rights as well as briefing and reporting to the Security Council on human rights developments. Moreover, the current structure of dpo allows co-​operation with ohchr on a less institutionalised and rather ad hoc basis. This can offer flexibility, but also bears the risk of marginalising human rights issues structurally. Given the overall management of peace operations by dpo, the lack of institutionalised human rights representation within dpo may continue or even reinforce potential marginalisation of human rights issues in the field –​despite an official policy to the contrary. This book showed that human rights are part and parcel of today’s UN peace operations. They have come to play an indispensable role, as means to achieve sustainable peace, as an end per se and as a normative baseline and standard for accountability. Shortcomings, however, remain in particular concerning doctrinal clarity as to the role of human rights. Major steps in the development of human rights in peace operations like the creation of integrated missions and the concept of mainstreaming human rights have succeeded in increasing the visibility of human rights, but have added little to an enhanced understanding of the concrete function of human rights in peace operations. An overall institution-​wide coherent strategy for human rights in peace operations is still lacking. The consequences thereof are essentially two-​fold:  The first one relates to the practical effects. The lack of human rights strategy combined with a general lack of strategic guidance both generally and for each peace operation individually leads to uncontrollable and unpredictable ambiguities in the implementation of the mandate. It is quite obvious that peace operations cannot fulfil all the mandated tasks immediately and at once. In fact, different mission functions call for different priorities. With the development of tailored priorities for each peace operation still being a challenging task for mission planning and mandating, priorities are set on an ad hoc basis, with the risk of human rights being considered of lower priority than other, e.g. security-​related tasks. Such a juxtaposition of human rights versus security is not only in contrast with a broad, individual-​centred understanding of security, but also underestimates the importance of human rights for the attainment of security and sustainable peace. The second consequence is a more fundamental one: One of the biggest flaws of the UN peace operation enterprise is the lack of a universal overarching legal framework, combined with the lack of strategy and doctrinal clarity provided by the Security Council. Thus, from an institutional perspective, uncertainties persist concerning the scope and content of obligations of peace operations personnel. As a consequence, clarity concerning accountability of peace operations personnel remains wanting.

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2 The Legal Framework The legal framework appears blurry at the outset but was made more palpable in this study. As a bearer of rights and duties under international law, the UN may assume obligations derived from the traditional sources of international law, i.e. international human rights treaties, customary international law, and general principles of international law. Beyond this, however, there exists some uncertainty with respect to making human rights obligations under international law applicable to the UN. Especially the attempt to directly apply human rights treaties to the UN is characterised by –​an understandable, yet legally dissatisfying –​wishful thinking. To the extent that human rights norms are considered customary international law, an application to the UN is legally justifiable. This, however, is only a very low common denominator, with important questions still unresolved (e.g. which human rights norms exactly have to be considered customary international law). A similar finding can be made with respect to human rights as general principles of international law. The UN Charter has proven to deserve closer attention. It serves as a further source of obligations as the constituent instrument of the organization. A literal interpretation of the UN Charter alone does not go very far in trying to establish human rights obligations on the UN. Instead, when applying a purposive interpretation of the human rights provisions in the Charter, a binding force can be established. This result is affirmed when considering the unilateral acts of the UN that together form internal customary law that considers the UN bound by human rights and estoppes the organization from acting against this legal expectation. In contrast to a variety of legal scholars, this book does not consider the special role of the Security Council to represent insurmountable stumbling blocks with respect to human rights obligations. It is argued that not only the UN as a whole but also the Security Council as an organ of the organization is bound by human rights law. This claim is upheld even in recognition of the special status of the Security Council and its responsibility for the maintenance of peace and security. Neither Article 103 of the Charter nor its broad powers under Chapter vii allow the Security Council to easily dismiss these obligations. What remains open to debate, however, is the exact content of its human rights obligations beyond the minimum standard of jus cogens norms. The human rights obligations of peace operations are based on the obligations of their mother organization, the UN. However, since an assessment of the scope and content of these obligations has been shown to be difficult in abstracto, a more detailed discussion of the human rights obligations of the peace operations resulting from the legal regime governing peace operations is required.

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The study has worked out several noteworthy findings: first, human rights have found entry into the great majority of mandates, which mirrors the general acknowledgement of the important role of human rights in peace operations. Judging from the mere number, the task of monitoring, reporting and investigating lies at the heart of human rights work in peace operations. Since all of the present mandates issued after 1991 feature these tasks (with slight variations), the triad of monitoring, reporting and investigating seems to have evolved into a standard provision of peace operations mandates. Apart from this result, however, a great variety in the wording of the human rights provisions of formulations can be noticed. Since mandates are drafted for each situation individually instead of following a predetermined blueprint, this diversity does not come as a surprise. However, it does not seem that a specific type of conflict or a certain set of circumstances is reflected in a corresponding human rights mandate. By the same token, it cannot be claimed that human rights mandate drafting has seen a coherent evolution over time, maybe along the so-​called generations or other classifications of peace operations. Instead, trends in formulations can be noted in mandates that have been drafted around the same time. However, it cannot be ruled out that popular formulations of one period do not recur in the following one, only to reappear even later. The most pertinent example of this claim is the use of the notion of promote and protect. This term is understood both as an umbrella term for a set of different human rights tasks and as a single human rights task next to others. The approach chosen during mandate drafting does not seem to follow a rule but appears to be quite random. Furthermore, it appears to be rather striking that an explicit and preferably standardized reference to human rights as a normative framework for the work of peace operations does not regularly find entry into mandates. Summing up, while human rights have evolved into a well-​established part of peace operations mandates, mandate drafting with respect to human rights does not happen in a coherent and predictable manner. The reasons for this are to be found in the political process of mandate drafting and institutional dynamics in the Security Council as well as between the Security Council and the Secretariat. The quest for clearly defining the scope and content of human rights obligations of peace operations has led to indefinite results: While being reasonably clear with regard to the minimum core of obligation, ambiguity grows as the circle of potential obligations expands. Neither considering human rights provisions drafted into peace agreements nor the human rights obligations of host States or those of troop-​contributing countries further clarify the issue. It thus has to be acknowledged that the range of obligations on UN peace operations cannot be determined in abstracto. Instead, it must be established on a

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case-​by-​case basis by taking into account the specific circumstances and actual competences of a mission. A crucial factor thereby is the level of control exercised by the respective peace operation. 3 Responsibility and Accountability In the case of established human rights violations, an interested observer and commentator would expect a certain kaleidoscope of reactions by the UN, such as the denial of facts or a rejection of the argumentation brought forward in the allegation. A denial of being bound by human rights in a particular case or to a certain extent would have been imaginable. In fact, this was one of the original assumptions at the outset of this study. Yet, as examples from practice show, the reaction by the UN was hardly noticeable. In instances in which the UN did make a statement, the legal quality of the argument was at best doubtful, as the case of the Haiti petition showed. If the UN was to actually justify its behaviour in legal terms, it could have relied on potential circumstances precluding wrongfulness, claim to have derogated from human rights norms or argue that it had been forced to compromise on human rights because of the fulfilment of another, greater good. This book argued that none of the circumstances precluding wrongfulness was applicable to the infringement of human rights law by UN peace operations, at least not in the cases analysed. The prima facie plausible balancing of human rights on the one hand and peace and security on the other hand has proven to be legally untenable. In conclusion, the human rights violations by UN peace operations could not be legally justified. As a consequence, the law of responsibility comes into play. This set of rules and procedures applicable in reaction to violations of international law provides that not only the violative behaviour must be ended, but also that victims of violations can seek some form of redress. In the case of human rights violations by UN peace operations, however, accountability does neither take place in the form of legal responsibility, nor through alternative forms of accountability in a meaningful way. Practice: the Protection Gap, the Accountability Gap, and the Remedy Gap The abstract and at times dissatisfying findings regarding the legal framework of UN peace operations in general and the doctrinal legal consequences under the law of responsibility become more tangible with a look at concrete examples. The present book examined the United Nations Mission in Kosovo (unmik), the United Nations Transitional Administration in East Timor (untaet), the United Nations Stabilization Mission in Haiti (minustah). 4

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By way of analysing selected cases that have been brought before the hrap, it was shown that unmik violated its human rights obligations in various ways and instances. The findings are relevant for a number of reasons: first, the hrap took into account the interim character of the transitional administration and the special circumstances under which it operated. However, in many cases, these factors did not serve as a justification for the violation of international human rights law. This is an important development since it contradicts regular attempts pledging for a limited accountability for peace operations because of the special nature and circumstances. Secondly, it has been shown that unmik not only violated obligations to respect human rights but also its duties to protect and to fulfil human rights. The second part of the case study has further established that the UN’s reactions to the findings of human rights violations were dissatisfying from an accountability perspective. With respect to legal remedies offered to the victims of human rights violations, the immunities granted to unmik by Regulation 2000/​47 effectively prevented the people in Kosovo from bringing potential civil claims before a court. Other forms of redress were unavailable. In essence, unmik remained largely unaccountable for its human rights violations, despite the efforts of the hrap. This left the people in Kosovo with a lack of effective remedies for human rights violations and thus with a significant gap in human rights protection. In the context of untaet, an assessment of the human rights record has proven to be more difficult because of a scarcity of data and information. Nevertheless, it has been shown by way of some illustrative examples that gaps in human rights protections existed. Most notably, untaet did not –​in contrast to unmik –​make an institutionalised effort to ensure compliance with human rights standards. Neither untaet’s Human Rights Unit nor the Ombudsperson institution undertook viable human rights monitoring. Equally ineffective as a control mechanism were the regular reports to the Security Council prepared by the Secretary-​ General and the reports by the High Commissioner for Human Rights. The sections on human rights did in general not take much space within the reports and were largely uncritical. The analysis of the (scarce) reactions to allegations of human rights violations revealed considerable uncertainty about the general applicability and the level of human rights obligations binding upon the mission. This may be grounded in untaet’s mandate which only provided for human rights responsibilities in a vague and indeterminate way. Therefore, one of the main conclusions drawn from the case study on untaet in Timor-​Leste is the crucial

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importance of a clear recognition of the mission’s own human rights obligations in the mandate. The case of minustah offered a wealth of information thanks to the efforts by several ngos to seek legal remedy for alleged violations of human rights. As of today, victims of the cholera and their relatives have not received effective remedy such as compensation or an apology. Their petition to the UN was deemed “not receivable” and courts have declared the case inadmissible at the highest instance. Hence, the standard avenues for redress are barred. This denial of legal remedy for past human rights abuses constitutes a human rights violation on its own. The right to an effective remedy guarantees legal remedies not only for human rights violations committed by a State, but regardless of the status of the human rights violator, including if human rights are abused by non-​state actors. The obligation to provide effective remedy is also binding upon the UN. Still, calls to finally provide appropriate accountability mechanisms, either through a claims commission or through other judicial and extra-​ judicial mechanisms continue to go unheard. The case studies in this book were chosen to test the hypotheses that gaps in human rights protection exist in UN peace operations and that the reactions of the UN to these findings remain incomplete for several reasons. The case studies cannot, however, serve as pars pro toto for all UN peace operations. The findings gained are thus not easily transferable to other peace operations. The settings and mandates of peace operations, not only but also with respect to their human rights obligations, are too diverse to allow for an easy comparison. Nevertheless, throughout the case studies, three main gaps have been revealed that may be pertinent not only in the cases analysed but also for peace operations in general. These three gaps are the protection gap, the accountability gap, and the remedy gap. It was thus important not only to shed light on the consequences of human rights violations under international law but also to examine more closely the underlying dynamics for human rights compliance by the UN. 5 Explaining (Non-​)Compliance The last part undertook to explain the lack of UN compliance with its human rights obligations. Whereas traditional theories of international law can only to a limited extent explain why IOs decide to comply with their respective human rights obligations, approaches focussing on the role of reputation were found to offer insightful categories of analysis. It has been argued that reputation can be considered a valuable concept for explaining compliance by the UN. For a majority of cases analysed, however, the risk of reputational damage

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flowing from human rights violations did not seem sufficient to bring the UN into compliance with international law. Nor did member States effectively push for compliance with a view to deflect threats to legitimacy and preserve the UN’s effectiveness. A closer look at the factors influencing the level of reputational loss has revealed that in the context of peace operations, the clarity of obligations played a decisive role. Furthermore, the level of knowledge about the human rights obligations also seemed to be a crucial factor. Transparency, public reporting and what can be called transnational legal discourse beyond a limited circle of internal review and academic debate is of importance in this context. Over the last years, discourse in the context of human rights obligations of UN peace operations has led to a greater clarity about the scope and content of human rights obligations of UN peace operations. In addition to a great amount of academic scholarship on this issue, it seems reasonable to assume that the elaboration of recent documents on the issue on the part of the UN (e.g. the 2011 Joint Policy or the 2014 Human Rights Up Front Action Plan) has also been encouraged by the ongoing discourse about UN human rights obligations in various fora. As a result, the analysis of the role of discourse for UN human rights obligations has revealed that (1) discourse matters because (2) it diminishes the lack of clarity of obligations and (3) the lack of knowledge about violations, and consequently (4) increases the risk of reputational damage in cases of non-​ compliance, which, in turn, (5) serves as an incentive for norm compliance. ii

Conclusions and the Way Ahead

It has been shown that the mere identification of gaps in human rights protection in UN peace operations does not automatically lead to better compliance in the future. From the different factors influencing the reputational consequences of non-​compliance with human rights obligations, it is purported here that the clarity of obligations and the knowledge about the violation play a crucial role. As a conclusion of this book, it is thus argued that one way of changing UN behaviour in the direction of better human rights compliance is to influence the risk of reputational damage for the UN. This can be achieved by improving the clarity of obligations and spreading knowledge about potential violations. 1 Norm Clarification through Mandates Issued by the Security Council First of all, the Security Council could provide an interpretation or clarification of the peace operations’ human rights obligations in the mandates. Such

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a clarification would be useful not only for the respective peace operation but also with respect to defining the scope and content of UN human rights obligations in general. In similar situations, the Security Council has in the past, through consistent application and interpretation of a concept that lacked explicit reference in the Charter, clarified and given content to that concept.1 This could also be the case for the understanding of the UN’s human rights obligations. The Council, however, has to date refrained from clarifying human rights obligations in peace operations mandates. As has been shown in detail, the mandates do not follow a consistent approach to human rights tasks nor do they provide a clear statement with respect to the scope and content of human rights obligations. What is more, in instances where the Council significantly departed from established peacekeeping practice, the Council explicitly ruled out any precedential force of its activities for future situations.2 The Security Council has thus not made use of its chance to clarify the overall framework of human rights applicable to peace operations. Its willingness to do so in the future is difficult to predict. 2 A Peacekeeping Bill of Rights Another approach would be the drafting of a Peacekeeping Bill of Rights3 that clarifies the scope and content of the human rights applicable to UN peace operations. This could, for instance, take the form of a Secretary-​General’s Bulletin, comparable to the Secretary-​General’s Bulletin on ihl.4 For this framework to be useful on the ground, it may be necessary to not only include the international human rights standards to which the mission is bound (“the lofty ideals”),5 but also transparent rules and procedures governing potential 1 J. Alvarez, The Impact of International Organizations on International Law, 2017, Chapter ii, at 53 ff. Examples of activities with an impact on law-​making include the Security Council’s decision to “contract out” force in case of Iraq; its activities with respect to extradition; the establishment of war crimes tribunals; its development of the “right to democracy”; its activities in the context of “smart” sanctions; the Security Council as legislator and its stance on human security. 2 E.g. when authorising the Intervention Brigade in the drc, in 2013, the Council did so “on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping”, Security Council Resolution 2098 of 28 March 2013, UN Doc. S/​RES/​2098 (2013), para. 9. For further examples, see J. Alvarez, The Impact of International Organizations on International Law, 2017, at 100. 3 Suggested already a few years ago by C. Bongiorno, A Culture of Impunity, 33 Columbia Human Rights Law Review (2002), 623, at 629 and 677. 4 Secretary-​General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law of 6 August 1999, UN Doc. ST/​SGB/​1999/​13. 5 M. Benzing, Midwifing a New State, 9 MPUNYB (2005), 295, at 436.

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derogations from the set standards. While the idea of derogating from the full set of human rights obligations seems counterintuitive at first, it has been shown throughout this book that such an approach would serve at better acknowledging existing realities on the ground. For different reasons, human rights are not always the first priority in the face of the myriad of tasks and challenges faced by a peace operation.6 As a consequence, whether desirable or not, balancing processes  –​between human rights and security/​peace7 as well as within human rights8 –​take place on the ground. To take account of these circumstances, clear and transparent rules are necessary, analogous to the derogation provisions in human rights treaties. Moreover, the common understanding about the applicability of human rights as universal standard does not preclude the mission –​comparable to States –​from taking its own decisions as to when and how these rights are to be implemented once a minimum standard is fulfilled.9 Transparency and consistency in this process are, once more, vital in order to avoid arbitrariness and legal uncertainty. To date, however, no such Peacekeeping Bill of Rights has been drafted. 3 Secretariat Policy Documents A number of other policy documents, such as the 2011 Joint Policy on Human Rights in Peacekeeping Operations and Political Missions, have been issued in the context of human rights obligations of peace operations, accompanied by initiatives like the Human Rights Up Front Action Plan. These policy documents finally provide a clear statement from within the UN that human rights obligations apply to peace operations. In the academic discourse, the existence of such obligations has largely been derived from interpretation of traditional legal sources such as the Charter and customary international law. The UN’s internal documents do not add to these obligations but rather confirm their validity and contribute to greater clarity. 6 Instead of many, H. Strohmeyer, Making Multilateral Interventions Work, 25(2) Fletcher Forum of World Affairs (2001), 107, at 121 f. 7 On the balancing of peace and human rights see thoroughly H. Henninger, Menschenrechte und Frieden, 2013. 8 It has repeatedly been shown that economic and social rights usually take a backseat in comparison to civil and political rights, see, as but one example, A. Devereux, Searching for clarity, in: N. White and D. Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 316. See also S. Maus, Institutionalising human rights in United Nations peacekeeping operations, in: W. Benedek, M. Kettemann, and M. Möstl, Mainstreaming Human Security in Peace Operations, 2010, 57. 9 Cp. A.  Devereux, Searching for clarity, in:  N. White and D.  Klaasen (eds.) The UN, human rights and post-​conflict situations, 2005, 293, at 313.

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They cannot be considered as authoritative interpretations of the Charter since the Secretary-​General is not an organ explicitly authorised to issue such interpretations.10 Still, the Secretary-​General’s guidelines, which are part of the UN’s consistent practice (internal customary law), unfold legal significance beyond their characterisation as legally binding sources under Article 38.11 Whether or not conceived of as soft law, the normative effects of guidance notes and similar documents can hardly be neglected.12 Similar to interpretative resolutions adopted by a vast majority of States in the General Assembly, interpretative guidelines produced by the Secretariat influence the understanding of existing (hard) law by “creating linguistic conventions or by configuring the parameters of understanding.”13 In offering more interpretative clarity about the human rights obligations of UN peace operations they amount to, as Alvarez nicely puts it, “law-​making by subterfuge”.14 4 Courts and Quasi-​Juridical Bodies The issue of human rights obligations of UN peace operations in general has not yet been examined by an international court such as the icj. To date, the issue has been brought up before national courts, most notably the proceedings before Dutch courts in the context of the UN’s failure in Srebrenica and in the efforts for judicial review of the Haiti cholera case before US courts.15 Against this background, the findings of the hrap in Kosovo serve as an important source for norm clarification by a quasi-​judicial body. With the echr as general normative framework, the hrap applied the facts of a case to the relevant norms and reached conclusions. In doing so, the hrap also had to go beyond the mere wording of the treaty since it had to apply the provisions of the echr, which are addressed to States, to the UN. Apart from the mere interpretation of the provisions of the echr, the hrap in some instances also made general statements, which may have implications beyond the actual case. Most 10 11 12 13

U. Fastenrath, Lücken im Völkerrecht, 1991, at 196 f. J. Alvarez, The Impact of International Organizations on International Law, 2017, at 351. See supra, Chapter 2.iii.3. U. Fastenrath, A Political Theory of Law, in: U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, 2011, 58, at 70. 14 J. Alvarez, International Organizations as Law-​makers, 2005, at 596. 15 Cp. Freedman and Lemay-​Herbert who note that the Haiti litigation claims before US courts were not concerned with potential violations of human rights on the part of the UN, but only addressed private law. Therefore, they were of limited relevance for developing normative expectations in the context of human rights violations by the UN, R. Freedman and N. Lemay-​Herbert, The United Nations and the Right to Health in Haiti, 28(3) LJIL (2015), 507, at 513.

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notably, the hrap repeatedly pointed out that unmik’s interim character and the special circumstances it was faced with could not serve as justification for compromising human rights.16 This unequivocal statement is important since arguments pointing towards the special situation of an interim administration in contrast to a “normal” government are regularly brought forward in an attempt to justify human rights restrictions in peace operations.17 Furthermore, in a number of cases, the hrap found violations of human rights in all three dimensions, despite the often-​voiced assertion to the contrary, based on the assumption that the amount of authority exercised by a peace operation could not be equated with the authority of a State.18 The hrap findings showing that unmik had obligations to respect, to protect, and to fulfil thus made an important determination concerning the scope of unmik’s human rights obligations. Arguably, the work of the hrap can have an impact beyond unmik per se. From a strictly positivist view, norm application as undertaken by the hrap does not have any influence on future bodies of this kind, since the principle of stare decisis is non-​existent with former and current international courts. In effect, Article 59 of the icj Statute points out that the ruling in a particular case has “no binding force except between the parties and in respect to that particular case.” Still, a number of international courts and quasi-​judicial bodies such as human rights bodies seem to follow prior rulings and opinions, not as a result of a legal obligation, but rather as relying on a jurisprudence constante.19 A citing of or reference to prior opinions can equally be observed for the non-​ binding views and reports issued by human rights treaty bodies,20 which have, for instance, even been referred to by the icj.21 Through their reasoning in the 16 E.g. Cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010, para. 44. 17 See supra, esp. Chapter 4.i. 18 See supra, Chapter 4.i.3.e. 19 J. Alvarez, The Impact of International Organizations on International Law, 2017, at 287. Ingo Venzke sees international courts and tribunals under the “spell of precedents”, see I. Venzke, Making General Exceptions: The Spell of Precedents in Developing Article XX GATT into Standards for Domestic Regulatory Policy, 12(5) German Law Journal (2011), 1111. 20 E.g., Karin Oellers-​Frahm, Lawmaking Through Advisory Opinions?, 12(5) German Law Journal (2011), 1033. 21 In Diallo, the Court took notice of the considerable body of interpretative case law by the hrc and stated that “[a]‌lthough the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency

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context of the case (ratio decidendi) and everything else said on the side (obiter dicta), international courts participate in a legal discourse by way of which they create, develop or change normative expectations for actors beyond the parties to the dispute and beyond the case itself.22 Some courts even go a step further and develop abstract concepts or issue categorical statements to serve as reference points for future legal practice.23 They at times also engage, as Kuhli and Günther frame it, in a discourse of norm justification, which goes beyond the typical activity of (mere) norm application.24 In fact, as Alvarez shows by way of various and numerous examples, international judges exercise considerable discretion when applying and interpreting international law. Their role is far from being purely technical but includes a strong creative element. Moreover, the case law they produce becomes in itself a source of law, “de facto, if not de jure”.25 The law-​making function of international courts is recognised by a growing group of international scholars,26 since “[a]‌ny judicial activity is intrinsically affiliated with law-​making”.27 John Dugard claims: “suffice it to say that all lawyers know that judges make law.”28 From this perspective, a certain jurisgenerative effect of the hrap activities has to be affirmed. Future human rights review bodies, should they ever exist,

22

23 24 25 26

27 28

of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.”, icj, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment of 30 November 2010, icj Reports 2010, at 639, para. 66 (emphases added). A.  von Bogdandy and I.  Venzke, Beyond Dispute:  International Judicial Institutions as Lawmakers, 12(5) German Law Journal (2011), 979, at 987 f.; see also M.  Kuhli and K. Günther, Judicial Lawmaking, Discourse Theory, and the icty on Belligerent Reprisals, 12(5) German Law Journal (2011) 1261, at 1261, J.  Alvarez, The Impact of International Organizations on International Law, 2017, at 288. Mainly A. von Bogdandy and I. Venzke, Beyond Dispute: International Judicial Institutions as Lawmakers, 12(5) German Law Journal (2011) 979, at 988. M. Kuhli and K.  Günther, Judicial Lawmaking, Discourse Theory, and the icty on Belligerent Reprisals, 12(5) German Law Journal (2011) 1261, at 1265. J. Alvarez, The Impact of International Organizations on International Law, 2017, at 30. For a description of the functions ascribed to international courts, see e.g. A von Bogdandy and Ingo Venzke, On the Functions of International Courts, 26 LJIL (2013), 49. Milan Kuhli and Klaus Günther distinguish between norm application or norm identification on the one hand and norm justification one the other one. If a court engages the latter, it engages in law-​making, M. Kuhli and K. Günther, Judicial Lawmaking, Discourse Theory, and the icty on Belligerent Reprisals, 12(5) German Law Journal (2011), 1261, at 1266. U. Fastenrath, A Political Theory of Law, in: U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, 2011, 58, at 60. J. Dugard, Review: Realizing Utopia: The Future of International Law, 107 AJIL (2013), 478, at 482.

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or other international juridical bodies tasked with an evaluation of the human rights record of UN peace operations will at least have to take this prelude into account. The view of one single body may not suffice to establish a jurisprudence constante that would be difficult to rebut. In addition, findings that are valid for a territorial administration may not easily be transferred to other peace operations. The level of authority exerted by an international transitional administration like unmik differs significantly from that of “normal” peace operations. Nevertheless, a future adjudicator will have to deal with the reasoning put forward by the hrap and explain why such reasoning will have to be followed or refuted. 5 Non-​State Actors and the Academic Community ngos as well as the academic community regularly contribute to norm clarification. The Institute for Justice and Democracy in Haiti (ijdh), for instance, played a strong role in the context of the Haiti cholera claims and filed the request for relief and reparations on behalf of over 5,000 cholera victims.29 In their petition, the ijdh claimed that the UN violated fundamental rights under human rights law and directly applied the treaty provisions to the UN.30 They equally interpreted the rights to effective remedy as enshrined in various human rights treaties as binding upon the UN. Interestingly, the petition not only claimed that the UN was obliged to provide effective remedy under human rights law, but also justified this claim with reference to the interest and reputation of the UN.31 The petition thus engaged in a discourse beyond mere norm application and also explained why the UN should be considered bound to provide remedy –​an activity that falls under the notion of norm justification and thus carries a jurisgenerative element.32 Such activities of non-​State actors may have an impact on international law. For instance, ngos can with their statements and interpretations of the law influence public opinion and thereby norm-​interpreters and appliers, like judges or States.33 ngos further participate in processes of secondary law-​making that takes place in international organizations; they thus participate in law-​making, as Fastenrath purports, “through ‘voice’ not ‘vote’ ”.34 29 30 31 32 33 34

ijdh-​b ai, Petition for Relief, 3 November 2011. Ibid., para. 83. Similar claims have been brought forward by HealthRoots Student Organization, minustah: Keeping the peace, or conspiring against it?, October 2011. ijdh-​b ai, Petition for Relief, 3 November 2011, paras. 89 ff. Cp. M.  Kuhli and K.  Günther, Judicial Lawmaking, Discourse Theory, and the icty on Belligerent Reprisals, 12(5) German Law Journal (2011), 1261, at 1272. E.g. A. Guzman, How International Law Works, 2008, at 99. U. Fastenrath, A Political Theory of Law, in: U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, 2011, 58, at 72 with further references. The idea of ngo participation

Findings and Conclusions

361

In addition to interpretative statements concerning the UN’s material human rights obligations, the Haiti case has generated a considerable amount of legal literature analysing minustah’s human rights violations and questioning the UN’s absolute immunity when seeking remedy for these violations.35 In considering international law, in the words of Martti Koskenniemi, as “an argumentative practice”,36 this implies “that the discourse of academics is international law and not just talking about international law.”37 By struggling for content and effectively attributing a specific meaning to a legal norm, international scholars and practitioners engage in interpretative law-​making.38 Without overestimating the impact of law-​making by the “invisible college of international lawyers”39 and aware of the limits of such an understanding of international law,40 new normative statements are created. At the very least it is safe to argue that the line between lex lata and de lege ferenda in this case is blurring. A discourse of norm violation is not sufficient to lead to a change in behaviour. For better compliance with human rights obligations in the future, the clarity of obligations on the UN, on peace operations and on every single mission must be increased. In addition, transparency concerning gaps in human rights protection and potential human rights violations by UN peace operations is vital. This task should not be left to ngos and the academic community but should also take place through institutionalised mechanisms by the UN. in law-​making by ‘voice’, not ‘vote’ has been brought forward by A. Peters, Membership in the Global Constitutional Community, in: J. Klabbers, A. Peters, and G. Ulfstein, The Constitutionalization of International Law, 2009, 153, at 225 ff. 35 In addition to the literature, the amicus curie briefs signed by a great number of prominent international, European, and constitutional law scholars, experts and practitioners as well as human rights organizations, which were filed in support of the plaintiffs in the US cholera litigation, need to be mentioned. For a list of the amicus curiae briefs see the ijdh’s website, http://​www.ijdh.org/​cholera/​cholera-​litigation/​. 36 M. Koskenniemi, International Legal Theory and Doctrine, mpepil, November 2007, MN 1. 37 A. Peters, Realizing Utopia as a Scholarly Endeavour, 24(2) EJIL (2013), 533, at 539. 38 U. Fastenrath, A Political Theory of Law, in: U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, 2011, 58, at 77. 39 The still famous term was introduced by Oscar Schachter, The Invisible College of International Lawyers, 72(2) Northwestern University Law Review (1977–​78), 217. 40 See most notably, A. Peters, Realizing Utopia as a Scholarly Endeavour, 24(2) EJIL (2013), 533. Peters explicitly warns about academic law-​making: “The normative analysis we need should not take the shape of academic law-​making attempts. (…) An unconscious attempt to steal authority is present when scholars sell emerging norms for law as it stands”, at 551 (footnotes omitted). See also Benoît Mayer, who criticized the self-​referentiality within the epistemic community, B. Mayer, Realizing Whose Utopia?, 27 LJIL (2014), 537, at 547 f.

362 

Findings and Conclusions

Member States could assume a stronger role in requesting human rights compliance by UN peace operations, structural reforms within the organization, and the establishment of effective remedy procedures. The effects on the UN’s legitimacy and effectiveness and on the overall reputation of the organization should not be underestimated.

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Security Council Resolution 693 (1991) of 20 May 1991 (onusal). Security Council Resolution 696 (1991) of 30 May 1991 (unavem ii). Security Council Resolution 717 (1991) of 16 October 1991 (unamic). Security Council Resolution 733 (1992) of 23 January 1992 (on Somalia). Security Council Resolution 743 (1992) of 21 February 1992 (unprofor). Security Council Resolution 745 (1992) of 28 February 1992 (untac). Security Council Resolution 794 (1992) of 3 December 1992 (on Somalia, unitaf). Security Council Resolution 797 (1992) 16 December 1992 (onumoz). Security Council Resolution 827 of 25 May 1993, UN Doc. S/​RES/​827 (icty). Security Council Resolution 867 (1993) of 23 September 1993, UN Doc. S/​RES/​ 867 (unmih). Security Council Resolution 929 (1994) of 22 June 1994, UN Doc. S/​RES/​929 (1994) (on Rwanda). Security Council Resolution 955 of 8 November 1994, UN Doc. S/​RES/​955 (1994) (ictr). Security Council Resolution 976 (1995) of 8 February 1995 (unavem iii). Security Council Resolution 981 (1995) of 31 March 1995, UN Doc S/​RES/​981 (1995) (uncro). Security Council Resolution 983 (1995) of 31 March 1995, UN Doc S/​RES/​983 (1995) (unpredep). Security Council Resolution 1035 (1995) of 21 December 1995, UN Doc S/​RES/​ 1035 (1995) (unmibh). Security Council Resolution 1037 (1996) of 15 January 1996, UN Doc. S/​RES/​1037 (untaes). Security Council Resolution 1063 (1996) of 28 June 1996, UN Doc. S/​RES/​1063 (unsmih). Security Council Resolution 1118 (1997) of 30 June 1997, UN Doc. S/​RES/​1118 (monua). Security Council Resolution 1123 (1997) of 30 July 1997, UN Doc. S/​RES/​1123 (untmih). Security Council Resolution 1132 of 8 October 1997, UN Doc. S/​RES/​1132 (1997) (Sierra Leone). Security Council Resolution 1141 (1997) of 28 November 1997, UN Doc. S/​RES/​ 1141 (miponuh). Security Council Resolution 1199 (1998) of 3 September 1998, UN Doc. S/​RES/​ 1199 (Kosovo). Security Council Resolution 1244 (1999) of 10 June 1999, UN Doc. S/​RES/​1244 (unmik, kfor). Security Council Resolution 1264 (1999) of 15 September 1999, UN Doc. S/​RES/​ 1264 (East Timor, interfet).

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Documents

411

Security Council Resolution 1820 (2008) of 19 June 2008, UN Doc. S/​RES/​1820 (2008) (on women, peace and security). Security Council Resolution 1840 (2008) of 14 October 2008, UN Doc. S/​RES/​ 1840 (2008) (minustah –​cont.). Statement by the President of the Security Council, 26 November 2008, UN Doc S/​PRST/​2008/​44. Security Council Resolution 1861 (2009) of 14 January 2009, S/​RES/​1861 (2009) (minurcat –​cont.). Security Council Resolution 1888 (2009) of 30 September 2009, UN Doc. S/​ RES/​1888 (2009) (on women, peace and security). Security Council Resolution 1889 (2009) of 5 October 2009, UN Doc. S/​RES/​ 1889 (2009) (on women, peace and security). Security Council Resolution 1892 (2009) of 13 October 2009, UN Doc. S/​RES/​ 1892 (2009) (minustah –​cont.). Security Council Resolution 1904 (2009) of 17 December 2009, UN Doc. S/​RES/​ 1904(2009) (Ombudsperson for de-​listing). Security Council Resolution 1923 (2010) of 25 May 2010, UN Doc. S/​RES/​1923 (2010) (minurcat –​cont.). Security Council Resolution 1927 (2010) of 4 June 2010, UN Doc. S/​RES/​1927 (2010) (minustah –​cont.). Security Council Resolution 1944 (2010) of 14 October 2010, UN Doc. S/​RES/​ 1944 (2010) (minustah –​cont.). Security Council Resolution 1960 (2010) of 16 December 2010, S/​RES/​1960 (2010) (on women, peace and security). Security Council Resolution 1940 of 26 February 2011, UN Doc. S/​RES/​1940 (ICC referral of the situation in Libya). Security Council Resolution 1989 (2011) of 17 June 2011, UN Doc. S/​RES/​1989 (2011) (on Ombudsperson for de-​listing). Security Council Resolution 1990 (2011) of 21 June 2011, UN Doc. S/​RES/​1990 (2011) (unisfa). Security Council Resolution 2012 (2011) of 14 October 2011, UN Doc. S/​RES/​2012 (2011) (minustah-​cont.). Security Council Resolution 2070 (2012) of 12 October 2012, UN Doc. S/​RES/​ 2070 (2012) (minustah –​cont.). Security Council Resolution 2098 (2013) of 28 March 2013, UN Doc. S/​RES/​2098 (2013) (Intervention Brigade in DR Congo). Security Council Resolution 2106 (2013) of 24 June 2013, UN Doc. S/​RES/​2106 (2013) (on women, peace and security). Security Council Resolution 2119 (2013) of 10 October 2013, UN Doc. S/​RES/​2119 (2013) (minustah –​cont.).

412 Documents Security Council Resolution 2122 (2013) of 18 October 2013, UN Doc. S/​RES/​2122 (2013) (on women, peace and security). Security Council Resolution 2127 (2013) of 5 December 2013, UN Doc. S/​RES/​ 2127 (misca). Security Council Resolution 2140 (2014) of 26 February 2014, UN Doc. S/​RES/​ 2140 (Yemen). Security Council Resolution 2155 (2014) of 27 May 2014, UN Doc. S/​RES/​2155 (2014) (unmiss). Security Council Resolution 2180 (2014) of 14 October 2014, UN Doc. S/​RES/​ 2180 (2014) (minustah –​cont.). Security Council, Minutes of UNSC 7448th meeting, 26 May 2015, S/​PV.7448. Security Council Resolution 2223 (2015) of 28 May 2015, UN Doc. S/​RES/​2223 (unmiss –​cont.). Security Council Resolution 2243 (2015) of 14 October 2015, UN Doc. S/​RES/​ 2243 (2015) (minustah –​cont.). Security Council Resolution 2272 (2016) of 11 March 2016, S/​RES/​2272 (2016) (on sexual exploitation and abuse by UN peacekeepers). Security Council Resolution 2313 (2016) of 13 October 2016, UN Doc. S/​RES/​2313 (2016) (minustah –​cont.). Security Council Resolution 2350 (2017) of 13 April 2017, UN Doc. S/​RES/​2350 (minujusth). Security Council, Justice Support Operation to Replace Stabilization Mission in Haiti on 15 October, Special Representative Tells Security Council, 12 October 2017, SC/​13026, https://​www.un.org/​press/​en/​2017/​sc13026. doc.htm.

UN Secretary-​General

The Effects of Gross Violations of Human Rights on International Peace and Security, Note by the Secretary General, 9 June 1982, UN Doc. E/​CN.4/​SUB.2/​ 1982/​18. Report of the Secretary-​General, Model Status-​of-​Forces Agreement for Peace-​ keeping Operations, 9 October 1990, UN Doc. A/​45/​594, Annex. Report of the Secretary-​General on the Work of the Organization, UN Doc A/​ 46/​404 (1991), 45 UNYB 3 (1991). An Agenda for Peace –​Preventive Diplomacy, Peacemaking and Peace-​keeping, Report of the Secretary-​General Pursuant to the Statement adopted by the Summit Meeting of the Security Council on 31 January 1992, 17 June 1992, UN Doc. A/​47/​277–​S/​24111 (1992) (Agenda for Peace).

Documents

413

Report of the Secretary-​General on the Work of the Organization, UN Doc A/​ 47/​407 (1992), 46 UNYB 3 (1992). Report of the Secretary-​General on the Work of the Organization, Supplement No. 1, 10 September 1993, UN Doc. A/​48/​l (1993). Supplement to an Agenda for Peace, Position Paper of the Secretary-​General on the Occasion of the Fiftieth Anniversary of the United Nations, 3 January 1995, UN Doc. A/​50/​60–​S/​1995/​1 (1995) (Supplement to an Agenda for Peace). Report of the Secretary-​General, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, 20 September 1996, UN Doc. A/​51/​389. Report of the Secretary-​General, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, 21 May 1997, UN Doc. A/​51/​903. Renewing the United Nations –​A programme for reform, 14 July 1997, UN Doc. A/​51/​950. Analytical report of the Secretary-​General on Minimum Humanitarian Standards submitted pursuant to Commission on Human Rights Resolution 1997/​21, 5 January 1998, UN Doc. E/​CN.4/​1998/​87. Report of the Secretary-​General of 4 October 1999, UN Doc. S/​1999/​1024 (East Timor). Secretary-​General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law of 6 August 1999, UN Doc. ST/​SGB/​1999/​13. Report of the Secretary-​General on the Protection of Civilians in Armed Conflict, 8 September 1999, S/​1999/​957. Secretary-​General Presents his Annual Report to General Assembly, Speech by Kofi Annan, 20 September 1999, UN Doc. SG/​SM/​7136. Report of the Secretary-​General Pursuant to General Assembly Resolution 53/​ 35. The Fall of Srebrenica, 15 November 1999, UN Doc. A/​54/​549 (1999). Report of the Secretary-​General on the implementation of the report of the Panel on United Nations peace operations, 20 October 2000, UN Doc. A/​55/​502. Report of the Secretary-​General, No Exit Without Strategy:  Security Council Decision-​Making and the Closure or Transition of United Nations Peacekeeping Operations, 20 April 2001, UN doc. S/​2001/​394. Report of the Secretary-​General, 17 April 2002, UN Doc. S/​2002/​432 (East Timor). Report of the Secretary-​General, Strengthening of the United Nations: an agenda for further change, 9 September 2002, UN Doc. A/​57/​387. Regulations of the United Nations in Status, Basic Rights and Duties of United Nations Staff Members, 1 November 2002, UN Doc. ST/​SGB/​2002/​13 https://​ conduct.unmissions.org/​sites/​default/​files/​keydoc3.pdf.

414 Documents Report of the Secretary-​General on Haiti, 16 April 2004, S/​2004/​300. Secretary-​General, The Rule of Law and Transitional Justice in Conflict and Post-​Conflict Societies, 23 August 2004, UN Doc S/​2004/​616. Progress report of the Secretary-​General on the United Nations Mission of Support in East Timor, 18 February 2005, UN Doc. S/​2005/​99. In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-​General, 21 March 2005, UN Doc. A/​59/​2005. Report of the Secretary-​General on the United Nations Stabilization Mission in Haiti, 13 May 2005, UN Doc. S/​2005/​313. Report to the Secretary General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-​Leste (the then East Timor) in 1999, 26 May 2005, UN Doc. S/​2005/​458 Annex 1 (CoE-​Report). Report of the Secretary-​General on the United Nations Stabilization Mission in Haiti, 6 October 2005, UN Doc. S/​2005/​631. Decision No. 2005/​24, Human Rights in Integrated Missions, 26 October 2005. Secretary-​General’s Note of Guidance on Integrated Missions, clarifying the Role, Responsibility and Authority of the Special Representative of the Secretary-​General and the Deputy Special Representative of the Secretary-​ General/​ Resident Coordinator/​ Humanitarian Coordination, 17 January 2006, https://​undg.org/​wp-​content/​uploads/​2016/​09/​Guidance-​on-​the-​ role-​of-​SRSG-​and-​DSRSG_​RC_​HC.pdf. Report of the Secretary-​General, Overview of the financing of the United Nations peacekeeping operations: budget performance for the period from 1 July 2004 to 30 June 2005 and budget for the period from 1 July 2006 to 30 June 2007, 24 February 2006, UN Doc. A/​60/​696. Report of the Secretary-​General on Justice and Reconciliation for Timor-​Leste, 26 July 2006, UN Doc. S/​2006/​580. Report of the Secretary-​General on Timor-​Leste pursuant to Security Council resolution 1690 (2006), 8 August 2006, UN Doc. S/​2006/​628. Report of the Secretary-​General, Uniting our strengths: Enhancing United Nations support for the rule of law, 14 December 2006, UN Doc. A/​61/​636–​S/​ 2006/​980. Report of the Secretary-​General, Comprehensive report on strengthening the capacity of the United Nations to manage and sustain peace operations, 13 April 2007, UN Doc. A/​61/​858. Report of the Secretary General, Securing peace and development: the role of the United Nations in supporting security sector reform, 23 January 2008, UN Doc. A/​62/​659–​S/​2008/​39. Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 24 November 2008, UN Doc. S/​2008/​692.

Documents

415

Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 10 June 2009, UN Doc. S/​2009/​300. Report of the Secretary-​General on peacebuilding in the immediate aftermath of conflict, 11 June 2009, UN Doc. A/​63/​881–​S/​2009/​304. Report of the Secretary-​General, Towards an accountability system in the United Nations Secretariat, 29 January 2010, UN Doc. A/​64/​640, Annex 1. Report of the Secretary-​General, Human Security, 8 March 2010, UN Doc. A/​ 64/​701. Letter from Patricia O’Brian, Under-​Secretary-​General for Legal Affairs, ‘Claim for Compensation on behalf of Roma, Ashkali and Egyptian residents of Internally Displaced Person (idp) camps in Mitrovice, Kosovo’, 25 July 2011, http://​www.sivola.net/​download/​UN%20Rejection.pdf. Report of the Secretary-​General’s Internal Review Panel on United Nations Actions in Sri Lanka, November 2012, http://​www.un.org/​News/​dh/​infocus/​ Sri_​Lanka/​The_​Internal_​Review_​Panel_​report_​on_​Sri_​Lanka.pdf. Policy on Human Rights Screening of UN Personnel (Decision No. 2012/​18), 11 December 2012. Letter from Patricia O’Brian, Under-​Secretary-​General for Legal Affairs, to Brian Concannon, Attorney for the Haitian Cholera Victims, 21 February 2013, http://​opiniojuris.org/​wp-​content/​uploads/​LettertoMr.BrianConcannon. pdf. Human Rights Due Diligence Policy on United Nations Support to non-​United Nations Security Forces, 5 March 2013, UN Doc. A/​67/​775 S/​2013/​110. Letter from Patricia O’Brien, Under Secretary-​General for Legal Affairs, to Brian Concannon, Director, Institute for Justice & Democracy in Haiti, 5 July 2013, http://​www.ijdh.org/​wp-​content/​uploads/​2013/​07/​20130705164515.pdf. Deputy Secretary-​General’s remarks at briefing of the General Assembly on Rights Up Front, 17 December 2013, https://​www.un.org/​sg/​en/​content/​dsg/​ statement/​2013-​12-​17/​deputy-​secretary-​generals-​remarks-​briefing-​general-​ assembly-​rights. Secretary-​General’s remarks to Security Council open debate on Conflict Prevention, 21 August 2014, https://​www.un.org/​sg/​en/​content/​sg/​statement/​ 2014-​08-​21/​secretary- ​generals-​remarks- ​security-​council-​open-​debate-​ conflict. Letter from Pedro Medrano, Assistant U.N. Secretary-​General, Senior Coordinator for Cholera Response, to Ms. Farha, Mr. Gallon, Mr. Pura and Ms. de Albuquerque, 25 November 2014, http://​opiniojuris.org/​wp-​content/​uploads/​Haiti-​Nov14-​explanation-​to-​SRs.pdf. Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 30 January 2015, UN Doc. S/​2015/​74.

416 Documents Letter from U.N. Secretary-​General Ban Ki-​moon to Members of United States Congress, 19 February 2015, quoted in excerpts at http://​cepr.net/​blogs/​ haiti-​relief-​and-​reconstruction-​watch/​ban-​ki-​moon-​explains-​to-​congress-​ why-​the-​un-​wont-​be-​held-​accountable-​for-​cholera-​in-​haiti. International Law Commission, Third report on identification of customary international law by Michael Wood, Special Rapporteur, Sixty-​seventh session, 27 March 2015, UN Doc. A/​CN.4/​682 (2015). Proposed programme budget for the biennium 2016–​2017, 15 May 2015, UN Doc. A/​70/​6 (Introduction), Annex, Schedules 1 and 2. Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 3 November 2015, UN Doc. S/​2015/​833. Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 1 February 2016, UN Doc. S/​2016/​99. Special measures for protection from sexual exploitation and sexual abuse. A new approach, Report of the Secretary-​General, 16 February 2016, UN Doc. A/​70/​729. Report of the Secretary-​General on the United Nations Interim Administration Mission in Kosovo, 29 April 2016, UN Doc. S/​2016/​407. Secretary-​General, Human Rights Up Front Initiative, https://​www.refworld. org/​pdfid/​549141f84.pdf. Secretary-​General, Action for Peacekeeping (A4P), Declaration of Shared Commitments on UN Peacekeeping Operations, https://​peacekeeping.un.org/​sites/​default/​files/​a4p-​declaration-​en.pdf. Report of the Secretary-​General on restructuring of the United Nations peace and security pillar, 13 October 2017, UN Doc. A/​72/​525.

UN dpo (dpko)/​d fs

Memorandum of Understanding Between the Office of the High Commissioner for Human Rights and the Department of Peace-​Keeping Operations, 5 November 1999. dpko, Peacekeeping Best Practices Unit, Lessons Learned from United Nations Peacekeeping Experiences in Sierra Leone, September 2003. dpko, Peacekeeping Best Practices Unit, Handbook on United Nations Multidimensional Peacekeeping Operations, December 2003. dpko, United Nations Peacekeeping Operations –​Principles and Guidelines, approved on 18 January 2008 (Capstone Doctrine). ohchr/​d pko/​d pa Policy directive on public reporting by human rights components of United Nations Peace Operations, 1 July 2008, Ref. 2008.25, https://​cms.unov.org/​LLSULinkbase/​ContentTree.aspx?nodeID=89761.

Documents

417

dpko/​d fs, Policy on Mainstreaming the protection, rights and well-​being of children affected by armed conflict within UN Peacekeeping Operations, 1 June 2009, Ref. 2009.17. dpko/​d fs, A New Partnership Agenda: Charting a new Horizon for UN Peacekeeping, July 2009. dpko/​d fs, Integrated Training Service –​Policy Evaluation and Training Division, e-​Guide to the United Nations Departments of Peacekeeping Operations and Field Support. A Resource for New Staff at Headquarters, January 2015. dpko/​d fs, The New Horizon Initiative: Progress Report No. 1, October 2010, https://​peacekeeping.un.org/​ sites/​default/​files/​newhorizon_​update01_​ 0.pdf. dpko/​d fs, The New Horizon Initiative: Progress Report No. 2, December 2011, https://​peacekeeping.un.org/​sites/​default/​files/​newhorizon_​update02_​0.pdf. dpko-​d fs, Standard Operating Procedure on Integrated Reporting from dpko-​led Missions to UNHQ, effective 1 March 2012, https://​cms.unov.org/​ LLSULinkbase/​ContentTree.aspx?nodeID=89757. Peacekeeping Information Management Unit, United Nations Peacekeeping Group: Capacities to Ensure Integration (dpko/​d fs Organizational Chart), last updated:  28 August 2015, http://​www.un.org/​en/​peacekeeping/​documents/​dpkodfs_​org_​chart.pdf. ohchr/​d pko/​d pa/​d fs, Policy on Human Rights in Peace Operations and Special Political Missions, 1 September 2011, Ref. 2011.20.

UN Commission on Human Rights/​Human Rights Council

Commission on Human Rights, Resolution 5 (xxxii) on Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of a Long-​Term Programme of Work of the Commission, (escor 32nd Session Supp 3, 60), UN Doc. E/​5768. Commission on Human Rights, Situation of Human Rights in East Timor. Report of the High Commissioner for Human Rights, 29 March 2000, UN Doc. E/​CN.4/​2000/​27. Commission on Human Rights, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, 6 February 2001, UN Doc. E/​CN.4/​2001/​37. Commission on Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, 1 March 2002, UN Doc. E/​CN.4/​2002/​39. Human Rights Council, Promotion of the right of peoples to peace, 20 June 2010, UN Doc. A/​HRC/​RES/​14/​3.

418 Documents Human Rights Council, Human rights and access to safe drinking water and sanitation, 24 September 2010, UN Doc. A/​HRC/​15/​L.14. Human Rights Council, Report of the independent expert on the situation of human rights in Haiti, Gustavo Gallón, 7 February 2014, UN Doc. A/​HRC/​ 25/​71. Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, 30 June 2014, UN Doc. A/​HRC/​27/​55. Report of the Independent Expert on the situation of human rights in Haiti, 12 February 2016, UN Doc. A/​HRC/​31/​77.

unmik

hpcc, Final Report of the Housing and Property Claims Commission, Pristina, 2007, https://​pca-​cpa.org/​wp-​content/​uploads/​sites/​175/​2016/​01/​HPCC-​Final-​Report-​2007.pdf. hrap, Milije Vučković against unmik, case no. 03/​07, Opinion of 13 March 2010. hrap, Nadica Kušić against unmik, case no. 08/​07, Opinion of 15 May 2010. hrap, Simo Mitrović against unmik, case no.  06/​07, Opinion of 17 December 2010. hrap, cases No. 38/​08, Petko Milogorić; 58/​08, Milisav Živaljević; 61/​08, Dragan Gojković; 63/​08, Danilo Ćukić; and 69/​08, Slavko Bogićević against unmik, Opinion of 24 March 2010. hrap, Nexhmedin Spahiu against unmik, case no. 02/​08, partial opinion of 20 March 2009. hrap, Simo Mitrović against unmik, case no.  06/​07, Opinion of 17 December 2010. hrap, Gani Emini against unmik, case no. 17/​08, Opinion of 18 June 2010. hrap, Jahja Morina against unmik, case No. 36/​08, Opinion of 10 May 2012. hrap, Snežana Zdravkovic against unmik, case No. 46/​08, Opinion 25 February 2013. hrap, Momčilo Milenkovič against unmik, case no.  312/​09, Opinion of 6 June 2013. hrap, Shaip Canhasi against unmik, case No. 04/​08, Opinion of 12 November 2008. hrap, Svetlana Jočić against unmik, case no. 34/​09, Opinion of 23 April 2013. hrap, Ruhan Ruhani against unmik, case no. 85/​09, Opinion of 5 June 2013. hrap, S.P. and V. Ð. against unmik, case no. 06/​09 and case no. 55/​09, Opinion of 6 June 2013.

Documents

419

hrap, Nadica Nedeljković against unmik, case no.  46/​09, Opinion of 6 June 2013. hrap, Dušan Tomanović, Jelena Tomanović-​Koković and Verica Tomanović against unmik, cases nos 248/​ 09, 250/​09 and 251/​ 09, Opinion of 25 April 2013. hrap, N.M. and Others v. unmik, case No. 26/​08, Opinion, 26 February 2016. hrap, Dušan Tomanović, Jelena Tomanović-​Koković and Verica Tomanović against unmik, cases nos 248/​09, 250/​09 and 251/​09, Opinion of 25 April 2013. hrap, Annual Report 2008, http://​www.unmikonline.org/​hrap/​Eng/​Documents/​annual_​report2008.pdf. hrap, Annual Report 2010, http://​www.unmikonline.org/​hrap/​Eng/​Documents/​annual_​report_​2010.pdf. hrap, Annual Report 2013, http://​www.unmikonline.org/​hrap/​Eng/​Documents/​Annual_​report_​2013.pdf. hrap, Annual Report 2014, http://​www.unmikonline.org/​hrap/​Eng/​Documents/​Annual_​report_​2014.pdf. hrap, The Human Rights Advisory Panel:  History and Legacy, Kosovo, 2007–​2016, Final Report, 30 June 2016, http://​www.unmikonline.org/​PublishingImages/​2016/​HRAP%20Final%20Report/​HRAP%20Final%20Report%20(final%20version%2030%20June%202016).pdf. unmik, srsg’s comments on hrap opinion in the case of Nadica Kušic (case no.  08/​07), http://​www.unmikonline.org/​hrap/​Eng/​Cases%20Eng/​DC_​No_​ 08-​07-​SRSG-​comments.pdf. unmik, srsg’s decision in the complaint of Jordanka Pavic (No. 98/​09), http://​ www.unmikonline.org/ ​ h rap/ ​ E ng/ ​ C ases%20Eng/ ​ D C_ ​ No_ ​ 9 8- ​ 0 9- ​ S RSG_​ comments.pdf. unmik, srsg’s Statement to the Press on the Occasion of the Publication of the Final Report of the Human Rights Advisory Panel, 22 July 2016, https://​ unmik.unmissions.org/​srsg’s-​statement-​press-​occasion-​publication-​final-​ report-​human-​rights-​advisory-​panel. Ombudsperson Institution in Kosovo, Special Report No. 1 on the compatibility with recognized international standards of unmik Regulation No. 200/​ 47 on the Status, Privileges and Immunities of kfor and unmik and Their Personnel in Kosovo (18 August 2000) and on the implementation of the above Regulation, 26 April 2001, http://​www.ombudspersonkosovo.org/​repository/​docs/​E4010426a_​86354.pdf. Ombudsperson Institution in Kosovo, Special Report No. 2 on Certain Aspects of unmik Regulation No. 2000/​59 Amending unmik Regulation No. 1999/​24 on the Law Applicable in Kosovo (27 October 2000), 31 May 2001, http://​ www.ombudspersonkosovo.org/​repository/​docs/​E4010530a_​588907.pdf.

420 Documents Ombudsperson Institution in Kosovo, Second Annual Report 2001–​2002, 10 July 2002, http://​www.ombudspersonkosovo.org/​repository/​docs/​E6020710a_​ 845763.pdf. Ombudsperson Institution in Kosovo, Fourth Annual Report 2003–​2004, 12 July 2004, http://​www.ombudspersonkosovo.org/​repository/​docs/​E6040712a_​ 128340.pdf. Ombudsperson Institution in Kosovo, Fifth Annual Report 2004–​2005, 11 July 2005, http://​www.ombudspersonkosovo.org/​repository/​docs/​E6050711a_​ 776058.pdf. Ombudsperson Institution in Kosovo, Sixth Annual Report 2005–​2006, 11 July 2006, http://​www.ombudspersonkosovo.org/​repository/​docs/​E6060711a_​ 415674.pdf. unmik Regulation No. 1999/​23 on the establishment of the housing and property directorate and the housing and property claims commission, 15 November 1999, unmik/​REG/​1999/​23. unmik Regulation No. 1999/​24 on the Applicable Law in Kosovo, 12 December 1999, unmik/​REG/​1999/​24. unmik Regulation No. 2000/​1 on the Kosovo Joint Interim Administrative Structure, 14 January 2000, unmik/​REG/​2000/​1. unmik Regulation No. 2000/​38 on the Establishment of the Ombudsperson Institution in Kosovo, 30 June 2000, UNMIK/​REG/​2000/​38, as amended by unmik Regulation No. 2003/​8, 15 April 2003, UNMIK/​REG/​2003/​8. unmik Regulation No. 2000/​47 on the Status, Privileges and Immunities of kfor and unmik and their Personnel in Kosovo, 18 August 2000, UNMIK/​ REG/​2000/​47. unmik Regulation No. 2000/​60, Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission, 13 October 2000, UNMIK/​REG/​ 2000/​60. unmik Regulation No. 2001/​9 on a Constitutional Framework for Provisional Self-​Government in Kosovo, 15 May 2001, UNMIK/​REG/​2001/​9. unmik Regulation No. 2006/​12 on the Establishment of the Human Rights Advisory Panel, 23 March 2006, UNMIK/​REG/​2006/​12. unmik Administrative Direction 2009/​1, 17 October 2009. Report Submitted by unmik Pursuant to Article 2.2 of the Agreement Between unmik and the Council of Europe Related to the Framework Convention for the Protection of National Minorities (Council of Europe Doc. ACFC(2005)003, Prishtina, 30 May 2005). osce Mission in Kosovo, “Kosovo/​Kosova:  As seen as told”, osce Office for Democratic Institutions and Human Rights, 1999, http://​www.osce.org/​ odihr/​17772?download=true.

Documents

421

osce, Kosovo, Review of the Criminal Justice System, 1 September 2001–​28 February 2001, http://​www.osce.org/​kosovo/​23307?download=true. Kosovo: The Human Rights Situation and the Fate of Persons Displaced from their Homes, Report by the CoE Commissioner for Human Rights, Mr. Àlvaro Gil-​Robles, Doc. CommDH(2002)11, 16 October 2002, http://​www.refworld.org/​pdfid/​415971228.pdf. Report to the Committee on Legal Affairs and Human Rights of the Council of Europe’s Parliamentary Assembly, Protection of human rights in Kosovo, 6 January 2005, Doc. 10393, http://​assembly.coe.int/​nw/​xml/​XRef/​X2H-​Xref-​ ViewHTML.asp?FileID=10755&lang=en#P435_​55979. Parliamentary Assembly of the Council of Europe, Resolution 1417 (2005), Protection of human rights in Kosovo, adopted on 25 January 2005, http://​assembly.coe.int/​Mainf.asp?link=/​Documents/​AdoptedText/​ta05/​ERES1417. htm. Committee on Legal Affairs and Human Rights of the Council of Europe’s Parliamentary Assembly, Protection of human rights in Kosovo, 6 January 2005, Doc. 10393, http://​assembly.coe.int/​nw/​xml/​XRef/​X2H-​Xref-​ViewHTML.asp?FileID=10755&lang=en#P435_​55979.

untaet

untaet Regulation No. 1999/​1 on the Authority of the Transitional Administration in East Timor, 27 November 1999, UNTAET/​REG/​1991/​1. untaet Regulation No. 2000/​11 on the Organization of the Courts in East Timor, 6 March 2000, UNTAET/​REG/​2000/​11. untaet Regulation No. 2000/​15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000, UNTAET/​REG/​ 2000/​15. untaet Regulation 2000/​16 on the Organisation of the Public Prosecution Service in East Timor, 6 June 2000, UNTAET/​REG/​2000/​16. untaet Regulation 2001/​10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, 13 July 2010, UNTAET/​REG/​ 2001/​10. untaet, The Human Rights Unit report, March 2001, http://​www.library. ohiou.edu/​indopubs/​2001/​04/​28/​0006.html. Final Report of the Commission for Reception Truth and Reconciliation of Timor-​Leste, “Enough!”, October 2005, http://​www.cavr-​timorleste.org/​en/​ chegaReport.htm. unmit, Joint Transition Plan (jtp) between the Government of the Democratic Republic of Timor-​Leste and unmit of 19 September 2011, mapping out

422 Documents the priorities and objectives until unmit’s departure, available at https://​ www.laohamutuk.org/​reports/​UN/​UNMIT/​JTPSep2011En.pdf. Report of the United Nations Independent Special Commission of Inquiry for Timor-​Leste, established by the United Nations High Commissioner for Human Rights, 2 October 2006, http://​www.ohchr.org/​Documents/​Countries/​ COITimorLeste.pdf.

Human Rights Committee (hrc)

hrc, ccpr General Comment No. 5: Article 4 (Derogations), 31 July 1981. hrc, ccpr General Comment No. 6: Article 6 (Right to Life), 30 April 1982. María del Carmen Almeida de Quinteros et al. v. Uruguay, Communication No. 107/​1981, CCPR/​C/​OP/​2 (1990). Sergio Euben Lopez Burgos v. Uruguay, View of 29 July 1981, Communication No. R.12/​52, UN Doc. Supp. No. 40 (A/​36/​40) at 176 (1981). hrc, Report to the UN General Assembly, 10 October 1991, UN Doc. A/​46/​40. hrc, ccpr General Comment No. 26 (1997) on continuity of obligations, 8 December 1997, CCPR/​C/​21/​Rev.1/​Add.8/​Rev.1. hrc, Concluding Observations:  Israel, 18 August 1998, UN Doc. CCPR/​C/​79/​ Add.93. hrc, ccpr General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, UN Doc CCPR/​C/​21/​Rev.1/​Add.11. hrc, ccpr General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/​C/​21/​ Rev.1/​Add. 13. hrc, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, 12 August 2004, CCPR/​CO/​81/​SEMO. hrc, Report Submitted by the United Nations Interim Administration Mission in Kosovo to the Human Rights Committee on the Human Rights Situation in Kosovo since June 1999, 13 March 2006, CCPR/​C/​UNK/​1. hrc, Concluding Observations of the Human Rights Committee: Kosovo (Republic of Serbia), 14 August 2006, CCPR/​C/​UNK/​CO/​1. hrc, ccpr General Comment No. 32: Article 14 (Right to equality before courts and tribunals and to a fair trial), 16 December 2014, CCPR/​C/​GC/​32. hrc, ccpr,General comment No. 35: Article 9 (Liberty and security of person), 16 December 2014, UN Doc. CCPR/​C/​GC/​35.

Documents



423

cescr

cescr, General Comment No. 3 on the nature of State Parties’ obligations, 14 December 1990, UN Doc. E/​1991/​23. cescr, General Comment No. 8: The Relationship Between Economic Sanctions and Respect for Economic, Social and Cultural Rights, 12 December 1997, UN Doc. E/​C.12/​1997/​8. cescr, General Comment No. 14, 11 August 2000, UN Doc. E/​C.12/​2000/​4. cescr, General Comment No. 15 (2002): The Right to Water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, UN Doc E/​C.12/​2002/​11. Human Rights Instruments, Core Document Forming Part of the Reports of States Parties: Timor-​Leste, 16 July 2007, UN Doc. HRI/​CORE/​TLS/​2007, Annex 1.

Decisions of International Courts and Tribunals

Permanent Court of International Justice

pcij, The Factory at Chorzów (Germany v. Poland), (Claim for Indemnity) (The Merits), Judgement of 13 September 1928, pcij Ser. A., No. 17 (1928). pcil, Nationality Decrees Issued in Tunis and Morocco (French Zone), Advisory Opinion of 8 November 1921, pcij Series B, no. 4 (1923).

International Court of Justice

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, icj Reports 1949, p. 174. Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgement of 15 June 1962, icj Reports 1962, p. 6. Certain Expenses of the United Nations, Advisory Opinion of 10 July 1962, icj Reports 1962, p. 151. Barcelona Traction, Light and Power Company, Limited, Judgement of 5 February 1970, icj Reports 1970, p. 3. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, icj Reports 1996, p. 226. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, icj Reports 2004, p. 136. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement, 19 December 2005, icj Reports 2005, p. 168. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement of 26 February 2007, icj Reports 2007, p. 43. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgement of 24 May 2007, icj Reports 2007, p. 582.

icty

Prosecutor v. Dusko Tadić a.k.a. “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Decision of 2 October 1995.

Decisions of International Courts and Tribunals



425

ECtHR/​ECmHR

ECmHR, Lawless v.  Ireland, Report of the Commission, 19 December 1959, (ECtHR) Series B No 1. ECtHR, Lawless v. Ireland (No 3), (no 332/​57), Judgement of 1 July 1961, Series A No 3. ECmHR, The Greek Case, Sub-​Commission Report of 5 November 1969. ECmHR, Cyprus v. Turkey (no. 6780/​74 and 6950/​75), Decision as to the Admissibility of 26 May 1975. ECtHR, Loizidou v.  Turkey (no.  15318/​89), Judgement on Preliminary Objections, 23 March 1995. ECtHR, McCann and Others v. United Kingdom (no. 18984/​91), Judgement of 27 September 1995. ECtHR, Matthews v. the United Kingdom, (no. 24833/​94), Judgement of 18 February 1999. ECtHR, Kaya v. Turkey (no. 158/​1996/​777/​978), Judgement of 19 February 1998. ECtHR, Yasa v. Turkey (no. 22495/​93), Judgement of 2 September 1998. ECtHR, Beer and Regan v.  Germany, (no.  28934/​95) and Waite and Kennedy v. Germany, (no. 26083/​94), Judgement of 18 February 1999. ECtHR, Çakici v. Turkey (no. 23657/​94), Judgement of 8 July 1999, echr, 1999-​IV. ECtHR, Kelly v. the United Kingdom, (no. 30054/​96), Judgement of 4 May 2001. ECtHR, Cyprus v. Turkey, (no. 25781/​94), Judgement of 10 May 2001. ECtHR, Menson v. United Kingdom, (no. 47916/​99), Decision on admissibility of 6 May 2003. ECtHR, Issa v. Turkey (no. 31821/​96), Judgement of 16 November 2004. ECtHR, Öcalan v. Turkey (no. 46221/​99), Judgement of 12 May 2005. ECtHR, Isaak v. Turkey (no. 44587/​98), Decision on admissibility of 28 September 2006. ECtHR, Behrami v. France and Saramati v. France, Germany and Norway (nos. 71412/​01 and 78166/​01), Decision on Admissibility of 2 May 2007. Observations of the Federal Republic of Germany concerning application no. 78166/​01: Saramati v. France, Germany and Norway. ECtHR, Šilih v. Slovenia, (no. 71463/​01), Judgement of 28 June 2007. ECtHR, Angelova and Illiev v.  Bulgaria, (no.  55523/​00), Judgement of 26 July 2007. ECtHR, Case of Bijelic v. Montenegro and Serbia (no. 11890/​05), Judgment of 28 April 2009. ECtHR, Al-​Saadoon and Mufdhi v. United Kingdom (no. 61498/​08), Decision on Admissibility, 30 June 2009.

426 

Decisions of International Courts and Tribunals

ECtHR, Medvedev v. France (no. 3394/​03), Judgement of 29 March 2010. ECtHR, Al-​Skeini and others v. UK (no. 55721/​07), Judgement of 7 July 2011. ECtHR, Al-​Jedda v. UK (no. 27021/​08), Judgement of 7 July 2011. ECtHR, Hirsi Jamaa and others v. Italy (no. 27765/​09), Judgement of 23 February 2012. ECtHR, Stichting Mothers of Srebrenica and Others v. the Netherlands, (no. 65542/​ 12), Decision of 11 June 2013.

Others

Court of Appeal of East Timor, Julio Fernandes and 19 Others v Prosecutor General, Criminal Appeal No 1 of 2001, 14 Feburary 2001. IACtHR, Velásquez-​Rodríguez v.  Honduras, Judgement of 29 July 1988, Series C No. 4. IACtHR, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion, OC-​8/​87, 30 January 1987. District Court of The Hague, The Netherlands, Mothers of Srebrenica et  al v. State of the Netherlands and the United Nations, Case No. 295247/​HA ZA 07-​2973, Judgement in the Incidental Proceedings, 10 July 2008. Court of Appeal of The Hague, The Netherlands, Mothers of Srebrenica v. The State of the Netherlands and the United Nations, Judgement of 30 March 2010, Case number/​cause-​list number:  200.022.151/​01, translation of the Dutch judgement available at http://​www.haguejusticeportal.net/​Docs/​ Dutch%20cases/​Appeals_​Judgment_​Mothers_​Srebrenica_​EN.pdf. Supreme Court of the Netherlands, Mothers of Srebrenica Association v.  the State of the Netherlands, Judgement, 13 April 2012, (First Division 10/​ 04437 EV/​AS), http://​www.asser.nl/​upload/​documents/​20120905T111510-​ Supreme%20Court%20Decision%20English%2013%20April%202012.pdf. Court of Appeal of The Hague, Nuhanović v.  Netherlands & Mustafić-​Mujić v. Netherlands, Judgement of 5 July 2011, Case no. 200.020.174/​01. Supreme Court of the Netherlands, The State of the Netherlands v. Hasan Nuhanović, Judgement of 6 September 2013, case no. 12/​03324. Court of Appeal of The Hague, Stichting Mothers of Srebrenica et al. v. the State of the Netherlands and the United Nations, Judgment of 27 June 2017, Case nos. 200.158.313/​01 and 200.160.317/​01. United Kingdom House of Lords, Al-​Skeini v. Secretary of State for Defence United Kingdom House of Lords, 13 June 2007, [2007] UKHL 26.

Decisions of International Courts and Tribunals

427

United Kingdom House of Lords, Al-​Jedda v.  Secretary of State for Defence, Opinions of the Lords, 12 December 2007, [2007] UKHL 58. United States District Court for the Southern District of New  York, Delama Georges et al. v. United Nations et al, No. 13-​CV-​7146 (JPO) (S.D.N.Y. filed 9 Oct 2013), http://​www.ijdh.org/​wp-​content/​uploads/​2013/​10/​Georges-​v.-​United-​ Nations-​Complaint.pdf. United States District Court for the Southern District of New  York, Georges v. United Nations, Statement of Interest, No. 13-​CV-​7146 (jpo), filed 7 March 2014, http://​www.ijdh.org/​wp-​content/​uploads/​2011/​11/​Georges-​v.-​UN-​13-​ Civ.-​7146-​SDNY-​Statement-​of-​Interest.pdf. Unites States District Court, Eastern District of New York, Laventure v. United Nations, No. 14-​CV-​1611 (E.D.N.Y.  filed 11 March 2014), https://​www.documentcloud.org/​documents/​1073738-​140311-​laventure-​v-​un-​filed-​complaint-​ 2.html. United States District Court for the Southern District of New  York, Delama Georges et al. v. United Nations et al., 13-​CV-​7146 (jpo), Opinion and Order, 9 January 2015, http://​www.ijdh.org/​wp-​content/​uploads/​2011/​11/​Dkt62_​ Opinion_​and_​Order_​01_​09_​15.pdf. United States Court Of Appeals, Second Circuit, Delama Georges et al. v. the United Nations et al, Memorandum of Law of Amici Curiae Former United Nations Officials in Support of Plaintiffs-​Appellants, No. 15-​455-​cv, http://​ opiniojuris.org/​wp-​content/​uploads/​UNOfficialsAmicus1.pdf. United States Court of Appeals, Second Circuit, Delama Georges et al. v. United Nations et al., No. 15-​455-​cv, Judgement of 18 August 2016.

Index 14,000 cases 220 A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping 43–​44, 66–​68 Abductions and forced disappearances (in Kosovo) 225, 227, 231, 237, 243 Academic community 306–​307, 337–​338, 360 Access to information, obligation to provide 232–​233 Access to justice 216, 222, 240, 308n563, 328–​329 see also effective remedy Accountability  and transitional justice 5, 152–​154n382, 263–​264 and rule of law 53–​54 for human rights violations 2, 7, 169n12, 197, 351 gap 306, 351, 353 lack of 202, 308 of international organizations 188–​189, 344 litigation 201 member States’ control over 328–​331 of UN 244, 279–​280n433, 326–​327n85, 341, 346 immunity laws as impediment to 326–​327n85, 329, 353 Security Council acts 108, 108n162 peace operations 2, 53–​54, 61, 63, 76, 78, 169n12, 176, 199, 213–​214, 234–​235, 242–​244, 279–​280, 303, 312, 338–​341, 347–​348, 351 Secretary-​General’s reports 53–​54, 59–​61, 63 post-​conflict 5, 45, 152–​154, 263–​264, 276–​278, 284 achr 117–​119, 290–​292, 292–​293n499, 302n547 Action for Peacekeeping (A4P) 59, 77 Adequate standard of living  Right to 233, 243, 289n479, 291–​292n493 Admission to UN Membership (Advisory Opinion of the icj, 1984) 110

African Charter on Human and Peoples’ Rights 154–​156 Ahmadou Sadio Diallo (case before the icj, 2007) 193–​194n116, 358–​359n21 Al-​Jedda v. UK (case before the ECtHR, 2011) 114n192, 171–​172 Al-​Saadoon and Mufdhi v. UK (case before the ECtHR, 2009) 147–​149 Al-​Skeini v. UK (case before the ECtHR, 2011) 114, 138–​139, 147–​149 American Convention on Human Rights see achr Amici/​amicus curiae 299, 302n548, 331n103, 338–​341, 361n35 Amnesties 159n402 Amnesty International 225–​227, 238–​239, 272–​273, 337–​338n129 An Agenda for Peace 11–​12n17, 16n54, 24n87, 30, 46–​47 Annan, Kofi 30–​31, 33–​34, 37, 50–​52, 55–​56, 62–​63, 183, 347 Angola 154–​156 UN missions in 12, 39, 153 Apartheid 25–​26 Applicability 228–​229, 250–​251, 272, 324–​325 of human rights obligations to the UN 2–​3, 63, 80, 112, 119, 125, 144, 161–​162, 164, 186, 188, 209, 281, 305–​306, 352–​353, 355–​356 and jurisdiction 144, 150 of human rights treaties to the UN 85, 209 of customary international law to the UN 88 of international humanitarian law 4 Arbitration 314 ario 103, 167–​168 and peacekeeping missions 169 circumstances precluding wrongfulness under 177 legal consequences of an internationally wrongful act 187, 192 see also responsibility Armed conflict 4–​5, 119–​120, 178, 181, 218, 220–​221, 224, 229–​230

Index children in 15–​16 internal 29 protection of civilians in 15–​16n40 Armistice see ceasefire Arria formula 142–​143 ars 167–​168, 177, 193 Articles on Diplomatic Protection 194 Articles on the Responsibility of International Organizations ilc see ario Articles on Responsibility of States for International Wrongful Acts (ilc) see ars See also responsibility Attribution of conduct 169 to international organizations/​peace operations 150 dual or multiple attribution 150–​151, 173–​175n43 ECtHR jurisprudence on 171–​172 effective control 140, 170–​175 ilc ario: general rules on 169–​171, 175 national jurisprudence on 172–​175 presumptive 173–​176 to States 150 Australia 10–​11n16, 13–​14, 181, 245–​246, 276–​277 Ban Ki-​moon 37, 56–​58, 63, 76, 300–​301, 333–​334, 347 Banković and others v. Belgium et al. (case before the ECtHR, 2011) 138–​139, 145–​147 Barcelona Traction (case before the icj, 1970) 135–​136, 190–​191 Behrami v. France and Saramati v. France, Germany, and Norway (cases before the ECtHR, 2007) 145–​147, 171 Bilateral relationship between States 190–​191 Binding obligations  emanating from practice 99–​100, 357 of human rights 83, 85, 100, 102, 107–​108, 137, 157, 163–​164, 209, 274, 302, 349, 352–​353 under internal law 102, 107, 357 emanating from peace agreements 157 R2P 33–​34 UN Charter 92, 108, 112, 137, 164, 349 unilateral declarations 104, 357 Bosnia and Herzegovina 152–​155

429 unprofor 1–​2, 13, 39 UN missions in 13, 39 Boutros-​Ghali, Boutros 9, 24, 30, 37, 47–​49, 347 Brahimi report (2000) 17n58, 41–​43, 48, 51, 58–​59, 62–​63, 74–​75 Burundi 40 153–​156 Bulletin on the Observance by United Nations Forces of International Humanitarian Law (UN Secretary-​General, 1999)  104–​106, 160–​161, 340–​341, 355–​356 Cambodia 155, 260–​261 UN missions in 12, 39, 153–​156 Capacity  of the UN/​its organs 47–​49, 51–​52, 58–​59, 66–​68, 73–​74, 150, 163, 210, 227, 258–​261 to comply with legal norms 321–​322 treaty-​making 158 Capacity building 64, 72, 97, 129, 246–​247, 251, 275–​278, 283–​285 Capstone Doctrine (by dpko, 2011) 64–​67, 182–​183 Ceasefire 11–​12, 44–​45, 49–​52, 152 cedaw 232, 289–​290n481 Central African Republic 1–​2, 27–​28 UN missions in 16, 39, 57–​58 Certain Expenses (Advisory Opinion of the icj, 1962) 82, 183–​184 cescr 136–​137, 289–​290, 292, 334–​335n117 Chapter vii (of the UN Charter) 10, 13, 17, 25–​29, 108–​109n165, 112, 115, 123–​125, 164, 171 Children 15–​16, 125–​126, 128–​129, 132–​135, 156, 159–​160, 232, 256, 277–​278, 284, 286–​287 Cholera 1–​2, 179, 201–​202, 204, 287, 293–​ 294, 301, 303–​308, 328–​329, 336–​342, 344 litigation against the UN because of 299, 309–​310, 329–​330, 353, 357, 360 UN reaction to 295, 300, 333–​334, 338–​341 Civil claims, against UN peacekeeping personnel see litigation Civilians 15–​16, 27–​28, 49, 134–​135n300, 225, 286–​287 protection of 15–​16, 47, 54–​55, 62, 69–​70, 74, 132–​133, 200–​201, 282–​283

430 Index Circumstances precluding wrongfulness 7, 177, 351 see also consent, countermeasures, distress, force majeure, necessity, self-​defence Clarity  doctrinal 61, 76, 78, 347–​348 lack of 53–​54, 79–​80, 163–​164, 166–​167 of a rule/​obligation 318–​319, 335–​336, 340–​345, 354, 361–​362 Coercion 317–​318, 322–​324 compliance-​by-​coercion 317–​318, 324–​325 Cold War 21, 23–​24, 26–​27, 37, 47–​49 Commission on Human Security 30–​31 Committee on Economic, Social and Cultural Rights see cescr Community 118–​121 academic 306–​307, 337–​338, 360 international 15–​16, 33–​35, 52–​53, 87, 100, 132–​133, 136–​137, 158, 180–​181, 189, 260–​261, 317–​318, 324, 344 reconciliation processes 254–​255 Compensation 170, 187–​188, 199, 223–​224, 234–​235, 237–​238, 241–​242, 271–​272, 295, 297–​298, 301, 303, 328–​329, 331, 333–​334, 353 see also damages Compensation claims 220–​221, 329–​330 Competence 57, 140, 145–​147, 165–​166, 213–​214 of international organizations 103–​104 see also legal personality of international organizations of peace operations 134, 163–​164, 235, 305, 350–​351 Compliance 2–​3, 5, 7–​8, 57, 84–​85, 107, 131, 133, 191, 211–​212, 312 meaning of 312 explanations for 314 with human rights 322, 334–​335 by the UN 325 see also responsibility of international organizations Compliance-​by-​coercion 317–​318, 324–​325 Compliance-​pull 318–​319 Conduct 59–​60, 99–​100, 103–​104, 222, 267, 286–​287, 294, 299, 312–​313 attribution of see attribution codes of 55–​56n266, 65, 102

Confiscation of property 223 Congo  Democratic Republic of 1–​2 UN missions in the 11–​12, 15–​16, 39, 82, 178 Consent 83, 158, 314–​315 as circumstance precluding wrongfulness 177 of host States of peace operations 9–​10, 49 Constituent instrument 286 of the UN 6–​7, 79–​80, 90, 96, 99–​100, 103, 108, 110–​111, 349 implied powers 99–​100 Constitutionalism/​constitutionalist approach 87, 90–​92, 137 Constitutional framework (of the UN Charter) 110 Constructivist theories (of international relations) 320, 324–​326, 343 Control see effective control Convention on the Elimination of All Forms of Discrimination Against Women see cedaw Convention on the Privileges and Immunities of the United Nations see cpiun Convention on the Rights of the Child see crc Côte d’Ivoire 155 UN missions in 15–​16, 39, 153 Council of Europe 216–​217 European Commission for Democracy through Law of the (Venice Commission) 205, 212–​213, 216–​217, 219 Countermeasures 178 see circumstances precluding wrongfulness Courts  international 264–​265, 343, 358–​359 and accountability of international organizations 188–​189 jurisprudence on peace agreements 157 on extraterritorial application of human rights 145–​147, 150 on jurisdiction 144–​145 hybrid 253 see also national courts Coutume constitutionelle 103–​104 see also internal law

Index cpiun 81, 199, 216–​217, 250–​251, 295–​299, 302, 308–​310, 331 Crimes against humanity 34, 159, 231, 253–​255 Criminal law 53–​54, 69 crc 232, 289–​290n481, 292–​293n499 Croatia  unprofor 1–​2, 5, 13 UN missions in 13, 153–​156 Cultural rights 35–​36, 62, 100, 131–​132, 134, 136–​137, 156, 256, 278, 289–​290 violations of 78, 258 see also icescr Customary international law 6–​7, 180, 187, 194, 318–​319 applicability to IOs 86–​88 creation of 86 human rights 122–​123, 191, 289–​292 human rights obligations arising from 79–​81, 85, 90, 94–​95, 107–​108, 150–​151, 164, 349, 356 privileges and Immunities under 250–​251 Cyprus  UN mission in 11–​12 Cyprus v. Turkey (case before the ECtHR, 2001) 138, 144–​145n343, 147–​149, 230 Damages 201, 241–​242, 271–​272, 333–​334, 336–​337 see also litigation Darfur 27–​28, 154–​156 UN missions in 15–​16, 39, 153 ddr 12, 44–​45, 49–​50, 53–​54, 65–​69, 282–​283 Decolonization 21–​22n79, 245 Democracy 62–​63, 210, 212–​213, 295–​296, 360 Democratic People’s Republic of Korea see dprk Democratic Republic of Congo  see Congo, Democratic Republic of Department of Field Support see dfs Department of Peace Operations see dpo see also dpko Department of Peacekeeping Operations see dpko see also dpo Derogation 229–​230 from human rights 117, 266–​267n369 in peace operations 337, 355–​356 under Chapter vii 115 and the UN 119

431 Derogable human rights  see non-​derogable rights Destruction of property 220–​221, 259, 262–​263 Detention (in UN peace operations) 171–​ 172, 258–​259, 266, 271–​273 dfs 19, 43–​44, 63–​64, 66–​68, 71–​72, 104–​106 Diplomatic protection 192 and claims against international organizations 193 for violations of human rights 193 see also immunity; privileges and immunities Disarmament, Demobilization and Reintegration see ddr Discourse 5, 320–​321, 324, 341–​342, 354, 356, 358–​362 transnational legal 342–​343, 354 Displaced persons 128–​129, 134–​135, 206, 218–​219, 232, 248–​249, 342 see also idp see also refugees Displacement 27–​28, 219, 245–​246, 262–​263 Disaster 206, 337 Dispute settlement 115, 295–​296, 299, 302, 314, 343–​344 Dissolution (of an IO) see termination Distress 179, 231–​232, 237 see also circumstances precluding wrongfulness Divided and tailored approach (to human rights application) 138, 151 Doctrine 2–​3, 5, 125–​126, 134–​135, 310 of peace operations 6, 20, 38, 46, 60, 63–​64, 70–​71, 76, 167, 307, 335, 347 see also Capstone Doctrine Domaine réservé 24, 94 Domestic courts see national courts Domestic jurisdiction 23–​25, 309–​310n572 Domestic law 312–​313 dpko 6, 20, 43–​44, 57, 63–​64, 68, 70–​72, 104–​106, 182–​183, 249–​250, 281, 346–​347 dpo 6, 18–​20, 38, 46–​47, 53–​54, 63, 71, 75–​76, 124, 165–​166, 337–​338, 346–​348 dprk 28–​29 Draft Articles on the Responsibility of International Organizations see ario Dual attribution of conduct see attribution

432 Index Due diligence 56, 84–​85 see also Human Rights Due Diligence Policy Due process 296, 338–​340 Duty to investigate 227–​230, 240, 262, 272 Earthquake (in Haiti) 179, 283, 287, 289, 303–​304, 337 East Timor  UN missions in 13–​14, 39, 244–​246, 249–​250, 275–​276 untaet 7, 204 human rights violations by 255, 351 see also Timor-​Leste echr  applicability of 215–​216, 357–​358 derogation 117–​119, 121–​122 fair trial (Art. 6) 220–​221, 223–​225, 234–​235, 309 jurisdiction 144–​149, 209 prohibition of torture (Art. 3) 230–​232 reference to in peace agreements 154–​156 right to effective remedy (Art. 13) 220, 224–​225, 234–​235 right to life (Art. 2) 227–​230, 232 ECmHR 119–​121, 145–​147n351 ECtHR  on attribution of conduct 171–​172 on derogation 119–​121 on extraterritorial application of human rights obligations 138–​139 on human rights obligations of the Security Council 114–​115 interpretative rule 114–​115 on jurisdiction 144n341, 144–​149 on legal immunity of international organizations 83–​85, 309–​310 on succession 162 on the duty to investigate 228–​233 Economic and social rights 256, 272, 280–​281, 293, 355–​356n8 Effective control  and extraterritorial human rights obligations 139, 145–​147, 149 for attribution of conduct 140, 170–​175 Effective remedy 195–​196, 212–​213, 220, 224–​225, 234–​235, 293–​294, 301, 329, 353, 360–​362 Effective investigation 262–​265

Effectiveness  of an IO 326–​327, 332–​333, 353–​354, 361–​362 of legal rules 312–​314 of peace operations 69–​70 El Salvador 154–​156 UN missions in 12, 38–​41, 153 Elections 1–​2, 9–​10, 12, 44–​45, 49–​52, 125–​126, 152, 206, 257–​258, 277, 282–​283 Emergency  state of/​public 117–​121, 229–​230, 337 situation in peace operation comparable to 45n199, 223–​224 Enforcement 275–​277, 294–​295, 314 lack of 188–​189, 219, 227 measures under Chapter vii UN Charta 25, 109 mechanisms 188–​189, 322–​323 theories 316, 325–​326 see also peace enforcement Erga omnes 34, 189–​192 Estoppel, principle of 106–​107, 116–​117, 349 Ethnic cleansing 34, 205 eulex (EU Rule of Law Mission in Kosovo) 207, 226, 235–​237, 306–​307 European Convention on Human Rights see echr European Court of Human Rights see ECtHR European Union Rule of Law Mission in Kosovo see eulex Exhaustion of local remedies rule 208 applicability to international organizations 195–​196 Extraterritorial application  of human rights obligations 138–​139, 143 Extraterritorial obligations  of States 143 of UN peace operations 150 European Commission of Human Rights see ECmHR Fair trial  right to 132, 220, 243, 272, 274–​275, 280–​281, 336–​337 access to translation as part of 268 political interference as violation of 269 and pre-​trial detention 266 See also due process

433

Index Federal Republic of Yugoslavia (fry) see Yugoslavia Force, use of 9–​10, 135–​136, 228 authorizations for  in UN peace operations 13, 17 Forced disappearances 225, 227, 230–​231, 243, 286–​287 Force majeure, invocation by international organizations 178 see also circumstances precluding wrongfulness France 171 Functional necessity doctrine 201–​202 Functions  of discourse 343–​344 of human rights components 74–​75, 211–​212, 248–​249 of international organizations 97–​98, 169–​170, 197, 201–​202 of peace operations 9–​10, 12, 16, 49–​50, 58–​59, 61, 65–​67, 72, 77, 126–​127, 131, 206, 218–​219, 277–​278, 293, 306, 348 of the Security Council 115 of the UN 99–​100, 201–​202 Gaja, Giorgio 173–​175, 191, 194 General Assembly 10, 17n55, 19, 22–​25, 30–​31, 33–​36, 46–​47, 97–​98, 100, 126–​127, 357 on peace as a human right 35–​36 on third-​party liability 238 Resolution 60/​147 on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 240–​242 Special Committee on Peacekeeping Operations (C-​34) 19 General principles of law 6–​7, 79–​80, 82, 85, 88, 108, 150, 164, 349 Genocide 27–​28, 132, 199–​200, 253, 338–​340 amnesties for 159 and R2P 34 case (before the icj, 1993) 113 failure to prevent 1–​2, 13 Germany 83–​84, 171 Good faith principle 90–​91, 95, 104–​106, 116–​117 Grave violations of human rights 

see human rights, grave violations of Guatemala 154–​156 UN mission in 39, 153 Guéhenno, Jean-​Marie 242 Guterres, António 58–​60, 70, 75–​77 Haiti 179, 200–​202, 309–​310, 326–​331, 333–​342, 344, 357, 360–​361 UN missions in 1–​2, 27–​28, 39 minustah 7, 282, 304–​306, 308 Hammarskjöld, Dag 10 Health  right to 179, 232–​235, 243, 256, 287, 289, 292–​293, 303–​304, 336–​337 High-​level Independent Panel on Peace Operations see hippo High-​level Panel on Threats, Challenges and Change 30–​31, 33–​34 hippo 41–​44, 48, 58, 63 Host country/​state  of UN peace operations 59–​60, 124, 139–​140, 151, 159–​160, 190–​192, 195, 216–​217, 327, 335–​336, 350–​351 and interest in compliance 328, 330–​331 human rights obligations of 160 see also sofas Housing, right to 62, 218, 225, 232–​233, 243 Housing and Property Directorate (hpd) (in Kosovo) 218–​219 Housing and Property Directorate/​ Claims Commission (hpd/​CC) (in Kosovo) 218–​219 hrap 204–​205, 213–​216, 220–​225, 227–​238, 240–​244, 255, 275, 279, 305–​307, 334–​335, 337–​338, 340, 344, 352, 357–​360 hrc 120–​121, 139, 149, 210, 226, 229–​231, 267, 269 hroc 211–​212 hrs 285 Human Development Report 30 Human rights  compliance 322 component of peace operations 51–​52, 64, 67–​68, 72–​73, 75–​76, 125–​126, 159–​160, 283–​284 derogable see non-​derogable grave violations of 23 infringement see violation

434 Index Human rights (cont.) institutions 248–​249 see also Ombudsperson law 5, 22–​23, 31, 54–​55, 65, 69, 72, 79–​80, 83–​84, 88, 102, 104–​107, 128–​129, 131, 133, 160–​161, 164, 168–​169, 187, 240, 258, 322, 341–​342, 360 compliance with 322, 332–​335, 342–​343 Security Council bound by 108, 111, 115, 117, 123–​124, 349 mandate of peace operations 39, 64, 124–​126, 141–​142, 208, 243, 247, 278, 281, 283, 346–​348, 350 monitoring 17–​18, 72, 97, 126–​130, 141, 211–​212, 251, 272–​274, 277, 282–​285, 350, 352 non-​derogable 122–​123, 135–​137, 266–​267 obligations of international organizations  extraterritorial application of 143, 150–​151 customary international law 6–​7, 79–​80, 85, 90, 94–​95, 107–​108, 122–​123, 151, 164, 191, 289–​290, 349, 356–​357 general principles of law 88, 90, 164 treaties 83, 90, 94–​95, 107–​108, 191 promotion and protection of 20, 22–​23, 41, 51–​52, 54–​55, 62–​64, 67–​68, 71–​72, 76–​77, 98–​100, 126, 130–​131, 141–​142, 152–​154, 214–​215, 239, 243, 247–​250, 274–​275, 278, 282–​284, 350 review and complaints mechanism  212–​213, 215–​216, 359–​360 violations of 2–​3, 150, 166, 181–​182, 187, 212–​214, 254–​255, 262, 272–​273, 275, 281, 286, 340, 361–​362 accountability for 197, 307 as a threat to peace and security 23 by international organizations, claims resulting from 295–​296, 299 invocation of responsibility for  190–​191, 194–​196 justifications for 178, 181, 187, 351–​352 Human Rights Advisory Panel (in Kosovo) see hrap Human Rights Committee see hrc Human rights court 212–​213

Human Rights Due Diligence Policy 56–​57, 59–​60, 73–​74, 106–​107n148, 133 Human Rights Oversight Committee (in Kosovo) see hroc Human rights section (of minustah) see hrs Human Rights Up Front Action Plan 56, 63, 73–​74, 335, 341–​342, 345, 354, 356 Human rights-​based approach 307, 309 Humanitarian assistance 49–​50, 246–​247 Humanitarian intervention 34 see also R2P Hybrid court 253 IACtHR 119, 227–​228, 262, 262–​263n346 iccpr 21–​22, 162, 232 extraterritorial application of 144, 149 on derogation 117–​119, 135–​137 prohibition of torture 230–​231 right to effective remedy 302 right to fair trial 266–​269 right to life 229–​230, 262–​264, 292–​293 icescr 21–​22, 232, 256 right to health 233–​234, 289–​291 right to an adequate standard of living 233–​234 icj 24–​25, 357 on agents of an organization 170 on diplomatic protection 193 on erga omnes 190–​191 on extraterritorial obligations 149 on general principles of international law 88–​89 on human rights obligations 95–​96 on immunities of the UN 310 on jus cogens 135–​136 on legal personality of UN 81–​82 on obligations of the UN 125, 183–​184 on practice of the UN 99–​100 on Security Council 110 Statute 85–​86, 88–​90, 101, 103–​104, 358–​359 icrc 19, 226–​227 ictr 27–​28, 274–​275 icty 27–​28, 110, 274–​275 idp 62, 132–​134, 232–​235, 243, 287 ila, on accountability of international organizations 188–​189, 197

Index ilc  Draft Conclusions on Identification of Customary International Law 86 Rules on Responsibility of States 167–​168 Rules on Responsibility of International Organizations 167–​171, 173–​176 See also ario See also ars Immunity  of UN 2, 329, 331–​332 as obstacle to judicial review of accountability and the right of effective remedy 201–​202, 216–​217, 234–​235, 298–​299, 304, 308, 352, 361 functional 201–​202 limitation of 326–​327, 331–​332 peacekeeping personnel 160, 250–​251, 295 see also diplomatic protection Impartial 73–​74, 160, 248, 266, 269, 295–​296 Impartiality 9–​10 Implementation  of legal rules 312–​313 of human rights law 22–​23, 57, 132–​133, 184–​186, 293 of peace agreement 12, 51–​52, 152 of peace operations mandates 18–​20, 37, 41–​42, 44–​46, 65, 67–​68, 76, 142–​143, 165–​166, 208, 230–​231, 240, 346–​347 Implied powers doctrine 99–​100 Impunity 45, 72, 128–​129, 134–​135 culture of 227, 261, 286–​287 for human rights violations in East Timor 262–​264 for human rights violations in Haiti 284–​287 for human rights violations in Kosovo 219, 226 In Larger Freedom 33–​34, 48, 55, 62–​63, 183 Independence 14, 211–​212, 245–​247, 249–​250, 256–​259, 270–​272, 274–​276, 280, 328 declaration of 205, 207 Indivisibility of human rights 45, 131–​132, 135, 159–​160 Indonesia 245–​246, 249–​250, 253, 256–​257, 260–​261, 264–​265, 271–​272

435 Inhuman and degrading treatment 230, 232 Institutional framework (of human rights in peace operations) 5–​6, 79, 346 Institutional practice see binding obligations, emanating from practice Institutional responsibility see responsibility, of international organizations Integrated missions 16, 50, 61, 66–​67, 163–​164, 277, 304, 348 Decision on Human rights in (by the Secretary-​General, 2005) 16, 71–​72, 102, 341–​342 Note of Guidance on (by the Secretary-​ General, 2006) 16 Intentional killings 227 Inter-​American Commission on Human Rights 139 Inter-​American Court of Human Rights see IACtHR interfet 13–​14 Interim administration see international territorial administration Internal customary law 103–​104, 349, 357 see also coutume constitutionelle Internal laws/​rules of international organizations 6, 101–​108, 113–​114, 164, 286, 306 Internally displaced persons see idp International armed conflict see armed conflict International Commission on Intervention and State Sovereignty 32 International Committee of the Red Cross see icrc International community 15–​16, 33–​35, 52–​53, 87, 100, 158, 180–​181, 189, 260–​261, 324, 344 International Court of Justice see icj International Covenant on Civil and Political Rights see iccpr International Covenant on Economic, Social and Cultural Rights see icescr International Criminal Tribunal for Rwanda see ictr International Criminal Tribunal for the Former Yugoslavia see icty International Force for East Timor, see interfet 13–​14

436 Index International human rights treaties see human rights International Law Association see ila International Law Commission see ilc see also ario see also ars International peace and security 35–​36 maintenance of 10, 20–​21, 37, 115–​116, 183–​184 threat to 23, 29, 346 International territorial administration 7, 14, 228, 244, 328, 351, 359–​360 International human rights law  see human rights, law International humanitarian law 27–​28, 240 Secretary-​General’s Bulletin on the Observance by United Nations Forces of 104–​106 Internationally wrongful acts see wrongful acts of international organizations International relations 20–​21 theories of 312, 315–​321, 325, 343 Intervention brigade 17 Investigating 64, 126, 128–​130, 141, 262, 350 Investigation see effective investigation Iraq 13–​14, 26–​27, 171–​172 Issa v. Turkey (before the ECtHR, 2004)  145–​147 judicial review 213 of UN acts 108n162, 216–​217, 344, 357 Jurisdiction 138, 144, 161–​162, 209–​210, 222, 253, 259, 299 criminal 170, 173–​175 domestic/​national 23–​25, 175, 309 extraterritorial 144, 147–​149, 151 gradual 138–​141, 151 personal 138–​139, 144–​145, 151 spatial 138–​139, 144–​145, 151 Jus cogens 111, 113, 119, 122–​124, 132, 135–​137, 164, 349 kfor (Kosovo Force, nato) 13–​14, 171, 206, 210, 212–​213, 216–​217, 220–​221, 223–​224, 226, 238 Kosovo  Constitution (2008) 207 declaration of independence 207 European Union Rule of Law Mission in (eulex) see eulex

nato forces in (kfor) see kfor UN missions in 7, 13–​14, 39, 328, 336–​337 unmik 171, 178, 205 human rights violations by 214, 304, 306, 308, 333, 340, 344, 352 Kosovo Force (nato) see kfor Legal immunity see immunities Legal personality 158 of the UN 81 Legal regimes 4–​5, 314 of UN peace operations 80, 124, 143, 160, 165, 349 Legal remedy 2, 216, 302, 353 see also effective remedy Legitimacy 2, 83, 186, 318–​319, 326–​327, 332–​333, 338–​344, 353–​354, 361–​362 rule-​legitimacy 318–​319 Liability 170, 172–​173, 197, 201, 238–​239, 331–​332 see also third-​party liability Liberal theories (of international relations) 318, 323–​326 Liberia 154–​156, 159–​160 UN missions in 39, 153 Liberty  deprivation of 178, 266–​267 right to 132 Libya 27–​28, 35 Life  right to 227, 232, 243, 272, 289, 292, 303–​304 procedural obligation 227–​229 obligation to investigate as part of 228–​231, 262, 286–​287 Limitations 95, 159–​160 of immunities 326–​327 of powers 110–​111, 115–​116 of rights 268 under Art. 103 UN Charter 112 Litigation 198, 201, 299, 329–​331, 338–​340 see also immunity Local claims review boards 199–​201 Lockerbie cases (before the icj, 1992) 110 Loss or damage 238, 295 Mainstreaming (of human rights) 56, 61, 71, 73–​74, 76, 125–​126, 130–​131, 165–​166, 275–​276, 285, 307, 347–​348 Mandates 100

Index human rights, in peace operations 38, 46, 65, 74, 76, 104–​106, 124, 159–​160, 165–​166, 250 of peace operations 58–​60, 66–​67, 77, 206, 246–​247, 250, 282, 307, 346–​347, 350, 354 shortcomings in 41, 44 Managerial model 321–​322, 343–​344 Matthews v. the United Kingdom (before the ECtHR, 1999) 84–​85 Mine action 53–​54, 66–​69 Minimum core obligations 137–​138, 233–​234, 256, 350–​351 Minorities 134, 152–​154, 181–​182 minustah 7, 282, 304–​306, 308 claims for compensation 299, 306–​307, 357 human rights violations by 286, 304 Monitoring see human rights, monitoring Mothers of Srebrenica see Srebrenica Moral damage 187–​188, 235, 241–​242 see also reputational damage Mozambique 154–​156 UN mission in 153 Multiple attribution of conduct see attribution N.M. and Others (case before the hrap in Kosovo) 232 Naming and shaming 323 Namibia  Advisory Opinion (of the icj, 1970) 95 UN mission in 12 National courts 218–​222, 270, 343–​344 and accountability of international organizations 188–​189 and immunity 309–​310 on attribution 172 seeking remedy before 201–​204, 255, 295, 299, 304, 306–​308, 329–​330, 338–​341, 353, 357 National human rights commissions  152–​154 Nationality of claims 194 nato 145–​147, 205–​206, 225 nato-​led Kosovo Force (kfor) see kfor Necessity 117–​118n204, 297–​298 as justification for human rights violations 180–​182 see also circumstances precluding wrongfulness

437 Negligence 295–​296 Neutrality 9–​10 ngos 188–​189, 201, 297–​298, 306–​307, 328–​329, 343–​344, 353, 360–​362 Non-​adversarial nature 214 Non-​derogable rights/​principles see human rights, non-​derogable Non-​discrimination 72, 93n77, 152–​154 Non-​execution of decisions 223 Non-​governmental organizations see ngos Non-​intervention principle 23–​25, 32 Non-​state actors 157–​159, 302, 353, 360 Non-​use of force, principle of 9–​10 Normative framework 63–​65, 76–​77, 102, 104–​106, 131, 141–​142, 307, 312, 350, 357–​358 North Atlantic Treaty Organizations see nato ocha 100 Obligation  minimum core see minimum core obligations of means 228–​229, 264–​265 to respect, protect and fulfil 215–​216, 289, 299–​300 Office for Coordination of Humanitarian Affairs see ocha Office of the High Commissioner for Human Rights see ohchr Ogata, Sadako 30–​31 ohchr 6, 18–​20, 37, 38, 50–​52, 57, 68–​71, 75–​76, 104–​106, 126–​127, 130–​131, 165–​166, 285–​287, 346–​348 implementation of human rights mandates by 37 Ombudsperson 152–​154, 198 in Kosovo 205, 212–​217, 223–​224 in East Timor 252, 255, 272–​273, 352 Omissions, as wrongful act 168, 171–​172, 177, 197–​198, 209, 213, 221, 235, 261–​262, 287, 290, 293, 299, 303–​304 Operation Allied Forces (nato) 205–​206 Operational necessity 297–​298 Organization for Security and Co-​operation in Europe see osce osce 211–​212 Outcome Document 33–​34 Ownership 264–​265, 283 local 52–​55n262, 283

438 Index Pacta sunt servanda, principle of 158, 314–​315, 321 Pacta tertiis principle 83 Payments of compensation/​reparation 199, 235, 238, 329–​330 Peace  agreement 12, 45, 51–​52, 77, 152 obligations arising from 152 enforcement 16, 149 human right to 35 negative 185–​186 positive 185–​186 threat to 23, 29 Peacebuilding 16, 41, 49–​52, 66–​67, 69–​70 Peacekeeping bill of rights 355 Peace operations  of UN  accountability of 197 see also accountability attribution of conduct in 150, 169 see also attribution command and control structures of 3, 10–​11, 13–​14, 150–​151, 171, 173–​175 history of 4, 11 human rights violations in see human rights legal framework of 6–​7, 78–​79, 111, 143, 168, 270, 286, 340–​341, 348–​349, 351 customary international law applicable to 85 internal rules applying to 101 international human rights treaties applicable to 83 mandates of 58–​60, 66–​67, 77, 206, 246–​247, 282, 284, 307, 346–​347, 350, 354 Memorandum of Understanding with host State 294 personnel involved in 10–​11, 19, 41–​42, 45–​46, 49, 51–​52, 65, 82, 104–​106, 176, 333, 348 conduct of 63, 103–​104, 106–​107 individual harm caused by  199–​201 training for 72, 102 screening of 56–​57, 59–​60, 73–​74 privileges and immunities of  216–​217, 295

reforms of 15–​16, 19, 47–​48, 50–​52, 63, 66–​67, 70, 200–​201, 347 sofas 6–​7, 80–​82, 124, 160, 163, 199, 286, 295–​298, 300, 302, 328–​329 UN-​mandated 3, 10–​11, 13–​14, 17, 150 UN-​led 3, 10–​11, 13–​14, 82, 115, 150, 173–​175, 346 Perez de Cuellar, Javier 37 Persistent objector 88 Personality see legal personality Petition for relief 295, 304, 306–​307 Physical integrity 199, 232–​233, 286–​287 Policy document by the Secretariat 356 Policy on Human Rights in Peace Operations and Special Political Missions (2011 Policy) 71–​73, 75, 102, 104–​107, 335, 356 Policy on Human Rights Screening of UN Personnel 56–​57, 73–​74 Post-​conflict phase/​situation 4–​5, 16–​18, 45, 47, 52–​53, 78, 121–​122, 220, 227, 229–​230, 233, 337 Power/​powers 213–​214, 252, 316–​317, 323 assumed/​exercised by peace operations 63, 138–​139, 147–​149, 207, 246–​247, 250–​251, 257–​258, 271, 281–​282, 305 disciplinary 170 enforcement 219 exercise of public 145–​147 implied 99–​100 or effective control 149 of international organizations 84–​85, 87, 97–​98, 197, 312 of the Security Council 10, 21, 23–​26, 110–​113, 116, 122–​124, 164, 171–​172, 349 Pragmatic approach 91–​92, 186 Prioritization 77, 135, 183, 186 lack of 45–​46 Privileges and immunities  of the UN 81 of peace operations 160, 216–​217, 250–​251, 296 see also immunity Prohibition of torture and inhuman treatment 135–​136, 230, 243 Promotion and protection (of human rights) see human rights Property rights 218–​219, 223–​225, 336–​337

Index Proportionate approach (to human rights application) see divided and tailored approach Protection gap 304, 311, 351, 353 Protection of civilians see civilians, protection of Public  apology 237, 254–​255 emergency 117–​121, 229–​230, 337 inquiries 199–​200, 248–​249 quasi-​judicial bodies 205, 213, 218–​219, 243, 255, 306–​307, 357 R2P 15–​16, 32, 132–​133 Ramos-​Horta, José 41–​42n178, 58–​59 Rational choice theory 316–​318, 326–​327n82 Realist theories 316–​317 Reciprocal character of obligations  190–​191, 318 Reciprocity 323 Reconciliation 62–​63, 227, 261, 277 Commission for Reception, Truth and (cavr) 251, 254 Referendum 245–​246 Refugee/​s 1–​2, 132–​133, 218, 225, 232 law 31, 57, 248–​249 protection of 125–​126 return of 49–​50, 62, 128–​129, 134–​135, 181–​182, 206, 218–​219, 284 UN High Commissioner for 30–​31, 100, 211–​212 Regulations  local laws and 160–​161, 163, 286, 290 of srsg  in Kosovo 163, 208–​209, 213–​217, 223, 229–​230, 234–​236, 238, 306, 352 in East Timor 163, 250–​253, 256, 270–​271, 306 Rehabilitation 47–​50, 62, 237–​238, 240, 246–​247 Remedy  gap 308, 311, 351, 353 see also effective remedy Renewing the United Nations 50 Reparation 187–​189, 201, 235, 237, 240, 254–​255, 295–​296, 301, 329–​330, 335, 360 Reparations for Injuries (Advisory Opinion of the icj, 1949) 81, 86, 99–​100, 125, 170

439 Reporting 57, 59–​60, 64, 72, 75–​76, 97, 126–​130, 141, 165–​166, 241, 254–​255, 275, 282–​287, 307, 337–​338, 343–​344, 347–​348, 350, 354 Reputation 5, 317–​318, 323–​325, 332, 342–​343, 360–​362 as a factor of compliance 326, 353–​354 Reputational damage 302, 336–​340 Responsibility  and accountability 197, 202, 351 for human rights violations 94, 140–​141, 167, 200–​202, 235, 262, 299, 331–​332, 338–​340 and immunity 309 for the maintenance of peace and security 110–​111, 349 of international organizations 173–​176, 187, 236, 351 invocation of 188, 196, 329–​331 of member States for human rights 84–​85, 228–​229 of UN peace operations 176 and attribution of conduct 169 ila Committee on 197 see also ario; ars; attribution of conduct; reparation, restitution, compensation, satisfaction Responsibility to Protect see R2P Restitution 187–​188, 237–​238, 240 of property 181–​182 Rhodesia, UN Security Council Resolutions on 25–​26 Rights see human rights Right to access to justice see access to justice Right to an adequate standard of health see health, right to Right to an adequate standard of living see adequate standard of living,right to Right to an effective remedy see effective remedy Right to fair trial see fair trial Right to housing see housing, right to Right to life see life, right to Right to peaceful enjoyment of possessions see property rights Roma, Ashkali and Egyptian communities (in Kosovo) 226, 232–​235 Rule of law 17–​18, 47, 52–​55, 62, 65, 67–​70, 116, 121, 207, 210, 215, 226, 248, 261, 282–​283, 318–​319 see also eulex

440 Index Rwanda 27–​28, 57–​58 genocide in (1994) 1–​2, 13, 57–​58, 199–​200, 338–​340 International Criminal Tribunal for see ictr responsibility of UN in 200–​201 Sanctions 111n179, 127, 246, 316–​318, 323 Saramati v. France, Germany, and Norway (before the ECtHR, 2007) 171 Satisfaction 259–​260 of needs 134 under the law of responsibility 187–​188, 237–​238, 240 Secretary-​General  Bulletins 104–​106, 160–​161, 340–​341, 355–​356 on human rights in peace operations 46 Secretary-​General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law see Bulletin Security 9–​10, 17, 55–​56, 62, 65, 207, 218, 233, 243–​244, 246–​247, 257–​258, 276–​277, 283, 316–​317, 321 -​first approach 186 -​related tasks of peace operations 44–​45, 53–​54, 65–​69, 77, 182–​183, 348 and human rights 32, 37, 56 balance between human rights and  182–​186, 281, 348, 351, 355–​356 collective 10–​11 forces 56–​57, 59–​60, 133, 205–​206 Human Rights Due Diligence Policy on Support to non-​UN 56, 133 meaning 20–​21 –​ national 29 –​human (Commission on Human Security, Human Security Now) 29, 32, 132–​133 –​ State 29–​32 peace and 1, 10, 15–​16, 20–​21, 23, 35–​37, 47, 50–​52, 56, 58–​59, 77, 180–​186, 245–​246, 332, 346, 349, 351 personnel 19 Security Council 3, 6, 9–​10, 17, 51–​52 and human rights 21–​22, 26–​29, 108, 112, 115, 142, 164 jus cogens 112, 136

derogation from 115 framework in peace operations 38, 131, 142 as political organ 109 peace operations as Subsidiary organ of 82, 124, 171 see also attribution norm clarification by 354 special status of 108, 164 Security sector reform 17–​18, 44–​45, 47, 53–​54, 66–​69, 125–​126, 278–​280 Self-​defence 9–​10, 13–​14, 17, 178 right to 135–​136 see also circumstances precluding wrongfulness Self-​determination  right to 27–​28, 89n52, 135–​136 Sen, Amartya 30–​31 Sequencing of tasks 43–​45, 77 Serbia 145–​147, 205, 241 Serbia and Montenegro 230–​231 succession in obligations of 209–​210 Serious Crimes Process (in Timor-​ Leste) 253–​255, 259–​261, 263–​264, 274–​275 Sexual and gender-​based abuse/​exploitation/​ violence 58–​59, 72, 74, 128–​129, 134–​135, 245–​246, 253, 287, 294 Sexual misconduct and abuse 1–​3, 55–​56, 132, 134–​135, 199–​201, 286–​287, 293–​294, 303 Sierra Leone 27–​28, 154–​156, 158, 260–​261 UN missions in 39, 153 sofas 6–​7, 80–​82, 124, 160, 163, 199, 286, 295–​298, 300, 302, 328–​329 Soft law 107, 357 Somalia 26–​27 UN missions in 10–​11n16, 13–​14, 153–​156 Sources, of international law 6–​7, 82, 90, 101–​104, 112–​113n184, 349, 356–​357 South Africa 21–​22n79, 25–​26 South Sudan 154–​156 UN missions in 13, 16, 39, 134–​135n300, 153, 159–​160 Southern Rhodesia see Rhodesia Sovereignty 23–​24, 206, 249–​250 of states 24, 29, 32, 34, 160–​161 transfer to international organizations 161–​162

Index Special Committee on Peacekeeping Operations (C-​34) 19, 76 Special Representative of the Secretary-​ General see srsg Srebrenica 1–​2, 13, 57–​58, 199–​200 Stichting Mothers of 114n192, 173 Case concerning Nuhanović v. Netherlands & Mustafić-​Mujić v. Netherlands 151n371, 172 Responsibility of UN 200–​201 Sri Lanka 57–​58, 294 srsg 46–​47, 50–​51, 165–​166 of unmik 207, 211–​213, 216–​219, 221, 229–​230, 233–​244, 305–​307 Regulations 208 of untaet 246–​247, 250–​251, 257–​258, 261–​262 of unmit 277 Standing claims commission 295–​298, 302, 328–​329 State practice 86, 162, 171–​173, 175, 191n105 State succession 161–​163 States  and accountability for acts of international organizations 328–​331 attribution of conduct to 117, 150–​151, 173–​175n43 contributing to UN peace operations 19, 42–​43, 58–​60, 124–​125, 142–​144, 150–​151, 173–​175, 294, 307, 328, 331–​332, 335, 350–​351 jurisdiction over personnel of 170, 173–​175 MoU with UN 294 organs put at disposal of international organizations 82, 170 extraterritorial obligations of 143 hosting UN peace operations 9–​10, 49 sofas 6–​7, 80–​82, 124, 160, 163, 199, 286, 295–​298, 300, 302, 328–​329 responsibility for human rights violations 84–​85, 228–​229 invocation of responsibilities in connection with acts of an international organization 189 sovereignty of 24, 29, 32, 34, 160–​161 Status of Forces Agreement see sofa Subject of international law 81, 84–​85, 87, 169 see also legal personality

441 Subsidiary organ 82, 170–​171, 176–​177, 250–​251 Succession  functional treaty 84–​85 see also state succession Sudan 154–​156 UN missions in 15–​16, 39, 153 Supplement to An Agenda for Peace 47–​48 Surrogate State 216–​217, 275, 279–​280 Tadić (decision of the icty, 1995) 110 tcc 19, 42–​43, 58–​60, 124–​125, 142–​144, 150–​151, 173–​175, 294, 307, 328, 331–​332, 335, 350–​351 Termination/​dissolution (of an IO)  326–​327 Territorial administration see international territorial administration Territories 156, 337 effective control of 144–​145 international administration of 328 Theory/​Theories  of compliance 315–​319, 325, 342–​343 of functional treaty succession 85 of international law 314–​315, 353–​354 on international organizations  201–​202n168, 326–​327n82 Threat to international peace and security see international peace and security, threat to Timor-​Leste 27–​28 UN missions in 39, 178 untaet 245, 247 Tort 297–​300, 330–​332 Torture 245–​246, 253, 259–​261 Prohibition of 132, 135–​136, 230, 243 Transitional administration 13–​14, 204, 206, 234–​235, 250–​252, 352 see also international territorial administration Transnational legal process 320–​321, 343 Transparency 9–​10, 53–​54, 294–​295, 343, 354–​356, 361–​362 Treaties  between States and International Organizations or between International Organizations, Vienna Convention on the Law of 103, 157, 159 between UN and States 103–​104

442 Index Treaties (cont.) human rights obligations arising from 6–​7, 79–​80, 82–​83, 89, 94–​95, 191, 196–​197, 349, 360 on human rights 21–​22, 24, 54–​55, 117–​118, 154–​156, 162–​163, 208–​209, 250–​251, 290, 321 compliance with 314, 321, 324 extraterritorial application of 143 erga omnes 190–​191 Vienna Convention on the Law of 90–​91, 99–​100, 157, 159 Vienna Convention on Succession of States in Respect of 162 Troop-​contributing country/​countries see tcc Trusteeship 249–​250 Turkey 26–​27 Cyprus v., (case before the ECtHR, 2001) 138, 230 Issa v., (case before the ECtHR, 2004) 145–​147 Twin-​track approach 253 udhr 21–​22, 54–​55, 137, 154–​156, 250–​251, 289–​290, 302 UK 171–​172 unhcr 100, 211–​212 unicef 100 United Kingdom see UK unmik  and attribution of conduct 171 human rights violations by 214, 243 self-​commitment to human rights 163 unmit 277–​280 untaet  human rights violations by 255, 280, 304 self-​commitment to human rights 163 UN  as subject of international law 81, 84–​85, 87, 169 Charter  constitutionalist understanding of 87, 90–​91, 137 obligations under 92, 108, 112, 137, 164, 349 on human rights obligations of UN 92 on responsibilities and powers of Security Council 10, 21, 23–​26, 110–​116, 122–​124, 164, 171–​172, 349

on values of international system 20–​21, 58–​59, 92, 320 purposes and principles 21, 57, 92, 95–​96, 110–​111, 133 supremacy of 112 Children’s Fund see unicef Commission on Human Rights 35–​36 see also UN Human Rights Council Conduct and Discipline Unit 286–​287, 294 General Assembly see General Assembly High-​level Panel on Threats, Challenges and Change 30–​31, 33–​34 High Commissioner for Refugees see unhcr Human Rights Council 35–​36, 287, 291–​292 immunities and privileges of organization and staff see immunities and privileges Integrated Mission in Timor-​Leste see unmit legal personality of 81–​82 Mission in Kosovo see unmik Office of the High Commissioner for Human Rights see ohchr peace(keeping) operations of see also peace operations Secretary-​General see Secretary-​General Security Council see Security Council Stabilization Mission in Haiti see minustah Transitional Administration in East Timor see untaet Territorial administrations by see international territorial administration Unilateral  acts 101, 164, 349 declaration 104 United States  -​led Multinational Interim Force 282 intervention 13–​14 litigation before courts 299, 309–​310, 329–​330, 338–​341 immunities 201–​202, 301, 304, 309–​310 minustah: claims for compensation 299, 306–​307, 357 Universal Declaration of Human Rights see udhr

443

Index Values, of international system 20–​21, 58–​59, 92, 320 vclt 90–​91, 99–​100, 157, 159 vclt-​i o 103, 157, 159 Velásquez-​Rodríguez v. Honduras (case before the IACtHR, 1988) 227–​228, 262n346 Venice Commission see Council of Europe –​ European Commission for Democracy through Law Vienna Convention on the Law of Treaties see vclt Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations see vclt-​i o Vienna Convention on Succession of States in Respect of Treaties 162 Vieira de Mello, Sergio 250–​251, 261–​262, 279–​280n433 Violence, sexual see sexual abuse/​ exploitation/​violence Violations of human rights see human rights, violations

Waite and Kennedy v. Germany (case before the ECtHR, 1999) 83–​84, 309 War crimes 34, 159, 226, 231, 253 Water  –​right to 291, 293, 302–​304, 336–​337 Women 15–​16, 45, 92, 125–​126, 128–​129, 132–​135, 156, 159–​160, 232, 277–​278, 284, 287 World Summit Outcome (2005) 30–​31 Wrongful acts by international organizations 188–​189 circumstances precluding responsibility for 177 see also circumstances precluding wrongfulness obligation to make reparations for  187–​188 responsibility for 168, 187 invocation by States 189 see also ario; responsibility Yemen 27–​28 Yugoslavia 13, 27–​28, 205–​206, 232 see also icty 27–​28