Peacekeeping and Accountability

International Law Programme Meeting Summary Peacekeeping and Accountability Scott Sheeran University of Essex, United Kingdom Prof. Liesbeth Zegveld University of Amsterdam, The Netherlands Dr Marten Zwanenburg Ministry of Foreign Affairs, The Netherlands Chair: Elizabeth Wilmshurst, CMG Associate Fellow, International Law Programme, Chatham House 28 May 2014 The views expressed in this document are the sole responsibility of the speaker(s) and participants do not necessarily reflect the view of Chatham House, its staff, associates or Council. Chatham House is independent and owes no allegiance to any government or to any political body. It does not take institutional positions on policy issues. This document is issued on the understanding that if any extract is used, the author(s)/ speaker(s) and Chatham House should be credited, preferably with the date of the publication or details of the event. Where this document refers to or reports statements made by speakers at an event every effort has been made to provide a fair representation of their views and opinions. The published text of speeches and presentations may differ from delivery. 10 St James s Square, London SW1Y 4LE T +44 (0)20 7957 5700 F +44 (0)20 7957 5710 www.chathamhouse.org Patron: Her Majesty The Queen Chairman: Stuart Popham QC Director: Dr Robin Niblett Charity Registration Number: 208223

2 Peacekeeping and Accountability Introduction This is a summary of an event held by the International Law Programme at Chatham House. 1 The meeting was organized to discuss the issue of peacekeeping and accountability, specifically in relation to United Nations peacekeeping missions. The content of this summary has been compiled from what was expressed throughout the entirety of the meeting by the participants present and seeks to amalgamate the main strands of discussion. The summary is divided according to the main themes discussed during the meeting, which were, 1. Peacekeeping and the accountability of the United Nations 2. Accountability of individual peacekeepers 3. The accountability of the state 4. Attribution of conduct The meeting was not held under the Chatham House rule. However, the comments and expressions that were presented by each speaker were made in their own personal capacity and in no way reflect the views of their respective institutions, employers or governments. Peacekeeping and the accountability of the United Nations When discussing the applicable standards of law for United Nations (UN) peacekeeping operations, it is important to note that the UN is not party to any human rights treaty and that there is no instrument recording the human rights obligations peacekeepers must abide by once deployed. Neither peacekeeping, nor an accompanying legal regime, is expressly mentioned in the Charter of the United Nations; there is instead an ad hoc legal regime, the development of which is significantly driven by practice. Consequently, those approaching the subject are left with a lack of clarity as to the legal obligations of the UN and its peacekeepers. This raises several questions concerning its accountability for actions taken during peacekeeping operations. Crucial to this discussion are the immunities the UN is able to rely upon. The 1946 Convention on Privileges and Immunities of the United Nations (the General Convention) gives the UN and its officials and experts a very wide scope of immunities, 2 the immunity of the UN having been a central issue in the European Court of Human Rights (ECtHR) 3 and the Dutch Supreme court 4 in recent cases. A certain inconsistency may be found between the origin of these immunities and the context in which they are now applied in contemporary peacekeeping operations. Persons subject to immunity can be either members of military contingents, who enjoy immunity by virtue of the status of forces agreements (SOFAs) between the UN and the country in which they are operating, or UN officials and experts, who are given immunities under the General Convention and SOFA. There was discussion in the meeting about the role of the Secretary-General of the UN in waiving immunity under the General Convention. 1 This summary was prepared by Carl Lewis. 2 Article II, section 2 provides: The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution. 3 See Stichting Mothers of Srebrenica and Others against the Netherlands App No. 65542/12 (ECtHR, 11 June 2012). 4 See Mothers of Srebrenica et al v State of The Netherlands and the United Nations Case No. 10/04437 (2012)(Supreme Court of The Netherlands).

3 Peacekeeping and Accountability The convention provides that there lies a duty for the Secretary-General to waive immunity for certain cases. 5 Yet, the convention leaves the discretion to the Secretary-General. One is therefore left pondering whether such a duty really exists. Additionally, neither the UN nor the Secretary-General can waive the immunity of many individual peacekeepers, as each soldier within the mission is subject to the exclusive criminal jurisdiction of their respective state and it is for that state to decide whether to waive immunity. In the light of the strength of these immunities, one issue which arises is that of justice. It would seem only right that there be a procedural avenue to allow those who have been harmed by action undertaken during UN peacekeeping operations to make a claim and if valid receive redress. One such avenue can be found through Article VIII, Section 29 of the General Convention. 6 The provision has led to the creation of Local Claims Review Boards, set up by the UN during peacekeeping operations. However, these Local Claims Review Boards have been solely composed of UN personnel. This is in contrast to the Claims Commissions envisaged in the SOFAs concluded between the UN and corresponding host states, but which have in practice never been established. These agreements provide that such Claims Commissions would consist of personnel from both the host state and the UN. Criticisms pointing to both a lack of independence and impartiality of the Local Claims Review Boards have been voiced. Even the UN Secretary-General has commented on the issue of perceived impartiality when such commissions offer no representation from the host state. Furthermore, what legal standards are these local claims review boards applying? Once again, adequate clarification has not been provided by the UN. There are limited types of claims that the UN is willing to entertain. For example, the UN was unwilling to receive claims submitted in relation to the cholera outbreak in Haiti, on the ground that they would raise certain policy questions (an apparently unprecedented argument by the international organization). The cholera outbreak in Haiti and the medical protocols relating to it raise further questions of UN accountability. One problem raised was that the Nepalese peacekeepers, who were considered to have been the cause of the cholera outbreak, 7 were deployed under UN medical protocols criticized for their inadequacy. There further appeared to have been no medical screening or testing for either cholera or typhoid prior to the mission beginning. Under pressure, the UN responded to the outbreak by deploying a panel of independent experts to investigate the situation in Haiti. 8 Their reports included recommendations for change in regards to the UN medical protocols and UN fields support manuals for the disposal of human waste. However, these changes have not yet been implemented. The UN Office of Internal Oversight Services has a useful function, and while its power is far from strong, it does occasionally release some interesting publications. The report of March 2014, for example, which 5 Article VI, section 23 of the General Convention: The Secretary-General shall have the right and the duty to waive the immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations. 6 The United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; (b) disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General. 7 See R Chan MD, MPH, et al, Peacekeeping without Accountability: The United Nations Responsibility for the Haitian Cholera Epidemic (Transnational Development Clinic, Jerome N. Frank Legal Services Organization, Yale Law School, Global Health Justice Partnership of the Yale Law School and the Yale School of Public Health, and Association Haitïenne de Droit de L Environnment, 2013) 17-25, http://www.law.yale.edu/documents/pdf/clinics/haiti_tdc_final_report.pdf. 8 See Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti, (2011) http://www.un.org/news/dh/infocus/haiti/un-cholera-report-final.pdf.

4 Peacekeeping and Accountability concentrated on peacekeeping mandates for the protection of civilians, stated that in the majority of cases peacekeepers do not fulfil their mandates. 9 But as a whole the UN system now in place has an unfortunate absence of accountability and the case of Haiti is a clear example of that. There are but a very limited set of avenues for those who have been harmed during UN peacekeeping operations to hold the UN directly responsible, and therefore accountable, for actions committed during peacekeeping operations. As the Haiti case demonstrates, discussion of peacekeeping and accountability is not only concerned with the human rights aspect of achieving justice, but also a broader issue of reaching a stage where the UN is a transparent and accountable international organization. Accountability of individual peacekeepers States contributing troops for UN peacekeeping operations retain exclusive criminal jurisdiction over their military and are thus the only ones able to prosecute their individual peacekeepers. However, a contributing state s ability to bring forward investigations and consequently prosecute, does not necessarily lead to it exercising such jurisdiction. It has been noted that since 2007, once having signed the Memorandum of Understanding (MoU) with the UN, troop-contributing states are required to ensure the exercise of their jurisdiction over cases where crimes have been committed by their forces in peacekeeping missions. States also provide assurances that they will forward to their respective national authorities any case presented to them by the UN and promptly notify the Secretary General about what is being done. Yet, in 2012 the UN noted that, concerning the several cases which they had forwarded to states, 50 per cent of the states concerned returned and completed the notification procedures, with few prosecutions having taken place. The MoU places the investigations process primarily in the hands of the troop contributing state. 10 There was very little support for an alternative approach in discussions in 2007. The UN can only proceed with any significant form of investigation once it is clear that the sending state is either unable or unwilling to do so and while there may be a certain justification for this for example the difficulty of extraterritorial investigations and the inability of the UN to prosecute, the concern is that this system can be, and is, abused by states. This may give rise to a demand to reform the scope of immunities to allow the host states of peacekeeping operations to both investigate and prosecute individual peacekeepers. However, if this were to be pursued as a workable solution, the legal systems of the host states where peacekeeping operations are deployed would have to be considered. It is questionable whether all the states concerned would be able to produce both a fair and effective trial for the individuals concerned. This would present a challenging backdrop for the realization of such a solution. Another suggestion would be for the UN to have a system in place to ensure that the troop-contributing countries in fact hold individual peacekeepers accountable for human rights abuses committed during UN peacekeeping operations. A blacklisting method was suggested that would have the UN blacklist countries 9 UN General Assembly, Report on the activities of the Office of Internal Oversight Services (7 March 2014) 68 th Session (2012) (A/68/787). 10 UN General Assembly, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations. (27 October 2011) 66 th Session (2011)(A/C.5/66/8), Art. 7 quarter of the Memorandum of understanding between the United Nations and [participating State] contributing resources to [the United Nations Peacekeeping Operation], 187.

5 Peacekeeping and Accountability that consistently fail to hold their nationals accountable for abuses and in so doing would stop a particular state from being able to contribute to peacekeeping operations until inadequacies were rectified. The problem with this is the UN s difficulty in securing contributions of troops from states. States which are calling for reforms in order to improve an accountability gap are usually not the ones which contribute troops. Such a blacklisting strategy could work in principle; but in practice it could have the unfortunate effect of making states even more reluctant to contribute their troops. A further suggestion was the recommendation of a name and shame policy, a policy proposed in the Zeid report but that the General Assembly did not adopt. 11 Such a policy refers to publicly identifying troopcontributing states that failed to hold accountable their individual peacekeepers who committed offences during peacekeeping operations. The policy may have a positive effect, but at the same time could make states wary and less willing to contribute peacekeepers. This is the political dilemma which the UN finds itself in with regard to these types of suggestions. Another view was that there was a regrettable reluctance to directly identify those who have conducted wrongful behaviour. Naming and shaming the offenders would be extremely useful in providing victims with the recognition of the wrong which they have faced. Yet, is it possible to name and shame without being in the possession of the facts? Criticisms have been made about the UN s inadequacy at fact-finding when it comes to its own behaviour, an inadequacy in need of a concentrated political will in order to be corrected. The context in which individual peacekeepers have been placed when undertaking peacekeeping operations is also worth remembering. Often the Security Council mandates extremely difficult missions, for a relatively small number of soldiers. A name-and-shame policy might work well; but it may have a better chance of success if the incentives for contributing to peacekeeping were better. The issue is not simply the men in blue helmets ; military contingents are not the only contributing actors in peacekeeping operations. Police officers, civilians, experts on missions and contractors may also be involved. Throughout peacekeeping operations, while military forces are directly covered by the jurisdiction of their sending state, this may not always be the case for these other actors. This leaves a jurisdiction gap. One example of how a gap of this kind has been addressed is how New Zealand handled the sending of its police officers to East Timor. For this situation, New Zealand legislation was passed that extended the country s criminal laws to cover the entirety of its contingents present on that mission, including its police officers. At the international level, there was an attempt by experts in 2006 to introduce a draft convention to establish greater accountability including an extradite or prosecute regime. The drafting itself was commendable, but there was insufficient political support among UN members and the convention was not pursued. 11 UN General Assembly, Report of the Secretary-General s Special Advisor, Prince Zeid Ra ad Zeid al- Hussein on A Comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations (24 March 2005) 59 th Session (2005) (A/59/710) 27.

6 Peacekeeping and Accountability The accountability of the state In two landmark judgements on 6 September 2013, the Dutch Supreme Court ruled that the Netherlands, through its battalion (Dutchbat), was responsible for the death of three civilians while contributing to the United Nations Protection Force (UNPROFOR) in the former Yugoslavia. 12 What was communicated to the court by the Dutch government was that, if the court proceeded and did indeed hold the state accountable for the conduct in relation to that specific peacekeeping operation, the Netherlands, as well as other states, would be extremely cautious when considering contributing troops for further peacekeeping operations. The question is whether these judgments will indeed affect the will of states to contribute their troops for peacekeeping operations. The court s position on whether to accede to the view of the government was firm: Such far-reaching restraint is unacceptable. Nor is this altered by the fact that the State expects this to have an adverse effect on the implementation of peace operations by the United Nations, in particular on the willingness of member States to provide troops for such operations. This should not, after all, prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent. 13 The facts of these cases were briefly recalled in the meeting. Dutchbat s mandate from the UN Security Council was to deter attacks against the safe areas. 14 On 11 July 1995, under the orders of General Mladic, Srebrenica was taken by force by the Bosnian-Serbs. Fleeing refugees from Srebrenica headed towards the compound where Dutchbat were situated. Roughly 5,000 refugees were admitted to the compound, 239 of them men of military age 15. The three men were expelled from the compound by Dutchbat on 13 July 1995. They were then taken away by the Bosnian-Serbs, never to be seen alive again. Relatives of these men later sued the Dutch state under private law for these actions. The legal debate largely concerned the issue of attribution of conduct and whether the conduct of Dutchbat was to be attributed to the UN or the Netherlands. The Netherlands position was that the conduct of Dutchbat should be attributed to the UN, relying on the fact that command and control rested in the hands of the UN as soon as the troops were contributed for the peacekeeping mission by the Netherlands. It was therefore the UN, who led UNPROFOR and by that logic Dutchbat, not the state of the Netherlands. This argument was rejected by the Supreme Court. What was established, under principles of international law, was that conduct was to be attributed to the seconding state if it exercised factual control over the conduct; whether that was the case depended on the circumstances. The factors cited by the Dutch Supreme Court which convinced the court that the conduct of Dutchbat should be attributed to the Netherlands rather than the UN were as follows. 12 See The State of the Netherlands v Nuhanović Case No. 12/03324 (2013) (Supreme Court of the Netherlands) (Henceforth the Nuhanovic Decision); see also The State of the Netherlands v Mustafić Mujić et al Case No.12/03329 (2013)(Supreme Court of the Netherlands). 13 The Nuhanovic Decision (n12) 36. 14 UN Security Council Res 836 (4 June 1993) UN Doc S/Res/836, 3. 15 The Nuhanovic Decision (n 12) 5.

7 Peacekeeping and Accountability First, the peacekeeping mission which warranted the mandate for Dutchbat had ceased to exist. It had failed when Srebrenica fell to the Bosnian-Serb forces. Due to the evacuation of Dutchbat, the peacekeeping mission had no real possibility of resuming in that area. At this juncture, from the peacekeeping mission to the evacuation, the Dutch government, along with the UN, had control over Dutchbat, exercising its control through the evacuation of its own military, attempting to ensure the safety of its own troops. The Netherlands was highly interested in the safe return of its troops. However, an understanding remained that Dutchbat were not to leave while the refugees were still present in the compound. In this context, several communications and instructions provided evidence of control emanating from The Hague, which had a consequential result over what happened in Srebrenica and the actions of the Dutchbat commander. The court concluded that the Netherlands could therefore have prevented the wrongful conduct of Dutchbat and thus the conduct could be attributed to the state. According to this case, responsibility for the actions of military contingents cannot therefore be simply passed on to the UN by the state. It is the exercise of effective control which is crucial. Whoever exercises effective control can be held responsible. The case also raises an interesting point of dual attribution. The judgment does not mean that, if a state is found to be accountable for the conduct of its troops, the UN is therefore free from being held accountable too. Should effective control and the factual context be established for both the state and the UN, then both may be held accountable. While the claimant and the court focused on the behaviour of the Netherlands and not on the behaviour of the UN, it may be that the UN may still be accountable for the events which took place in this case. The UN enjoys immunity from national jurisdiction; therefore it is not surprising that the court did not analyse its behaviour it lacked the competence to do so. The effect this had on the facts of the case however was detrimental to the Netherlands. Questions which may arise as to what contribution the UN had towards the actions of Dutchbat have been left unanswered. The UN remained silent in this case. If the UN does not provide the facts which could affect the complete story and the factual context to which effective control may be asserted, states, like the Netherlands, will undoubtedly be left feeling frustrated. In conclusion, a state may be held accountable for the actions of its military personnel contributed to peacekeeping operations. However the legal systems of troop contributing states vary; some of these legal systems, like the Dutch one, may be relatively open to claims brought against the state but others may not be so open. Attribution of conduct The attribution of conduct is an important issue when discussing accountability. While operating in peacekeeping missions, the military contingents of any contributing state are characterized by a state of duality: they are both the military contingent of their respective contributing state and yet at the same time part of an organ of the UN. The applicable legal standards of attribution themselves are also a focus of interest.

8 Peacekeeping and Accountability First, there is the notion of ultimate authority and control that was addressed in the Behrami and Saramati 16 cases in the ECtHR. Here it was stated that where the UN had this level of control over the conduct of the troops, then such conduct should be attributed to the UN and not the troop contributing states. Second, there is effective control, a standard to which the Dutch courts have given a broad definition: if the conduct could have been prevented by the state, such conduct can be attributed to it too. Finally, there is the standard of overall control, which provides a looser notion of attribution than that of effective control. The importance highlighted is the lack of certainty in establishing what standard of attribution will be used in future cases to attribute the conduct of individual peacekeepers. Both the UN and states will undoubtedly have a great interest in having this ambiguity clarified. Conclusion It was acknowledged that UN peacekeeping is a difficult task, often undertaken with limited resources in challenging environments. The expectations are high, and peacekeepers are not always well empowered to deliver. The burden of carrying out peacekeeping falls most heavily on a small number of developing nations, while financing the operations is a preoccupation of key Western countries. While many peacekeepers promote the standards of the UN, and contribute to peace and protection of civilians, there are problems, mistakes and incidences of serious misconduct. As can be seen, various suggestions were made throughout the meeting to address the accountability gap in peacekeeping operations. What remains is the knowledge that, for the realization of any proposal which seeks to counter this gap, strong political will is needed to make any change. Without confidence in the ability to hold the relevant actors in peacekeeping operations accountable, some may begin to question the feasibility of such operations. 16 Behrami and Behrami v. France App no. 71412/01 and Saramati v. France, Germany and Norway App no. 78166/01 (ECtHR, 2 May 2007).