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Announcements: Critical Perspectives on Race and Human Rights Conference; UN Audiovisual Library of International Law; Judicial Power of Africa’s Supranational Courts Conference; Politics and the Histories of International Law Conference

Published on September 16, 2018        Author: 
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1. Critical Perspectives on Race and Human Rights Conference. UCLA’s Critical Race Studies Program, Promise Institute for Human Rights, International and Comparative Law Program and Journal of International Law and Foreign Affairs are planning a one-day conference at UCLA School of Law on Friday, 8 March 2019. Critical Perspectives on Race and Human Rights: Transnational Reimaginings will explore critical topics in contemporary international human rights law from the joint perspectives of Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL). The deadline for submissions is Monday 1 October, 2018, by 5pm Pacific Time.  The call for papers is available here

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Dr. Hussein Hassouna on “The International Law Commission: Challenges and Achievements”, Mr. Pavel Šturma on “Succession of States and State Responsibility” and Mr. Yacouba Cissé on “La problématique de la délimitation des frontières maritimes: généralités et contexte africain”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. The Judicial Power of Africa’s Supranational Courts Conference. Africa boasts a high number of supranational courts, but at the same time there appears to be a widespread lack of willingness among Member States to comply with rulings issued by these courts. The conference will address this paradox and investigate which forms of judicial power are being favoured by African States on the one hand and African supranational courts on the other. The conference will be held at the University of Luxembourg on 21 September 2018. It will analyse to what extent approaches of activism or, conversely, restraint, are being considered as legitimate and effective by these actors. The conference will address dynamics that are potentially common to supranational institutions operating in different fields of law, such as the African Court of Human and Peoples’ Rights, the Court of Justice of the Economic Community of West African States (ECOWAS), the Court of Justice and Arbitration of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA), and the East African Court of Justice. Further information is here

4. Politics and the Histories of International Law Conference. On 15 and 16 February 2019, an international conference will be held at the Max Planck Institute for International Law in Heidelberg, Germany, under the auspices of the Journal of the History of International Law. The conference deals with the correlation of politics and international law and its implication for the writing of the history of international law. Scholars from all over the world will discuss their thoughts on the subject in a variety of panels. The conference organizers encourage interested scholars to apply for participation as engaged listeners. More information can be found here

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The Bolton Speech: The Legality of US Retaliatory Action Against Judges and Officials of the International Criminal Court?

Published on September 14, 2018        Author: 
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The speech given on Monday by John Bolton, US National Security Adviser, threatening action by the US against the International Criminal Court (ICC) in response to potential ICC investigation of US personnel with regard to the situation in Afghanistan has generated a lot of interest (see herehere, here and here). There are a plethora of policy and political issues raised by the looming clash between the ICC and the US which have been set out on other blogs in recent days (here and here). In terms of the legal issues, we are back to the old debate about whether the ICC is entitled to exercise jurisdiction over nationals of non-party states, in the absence of a referral by the UN Security Council (on which see this 2003 article of mine and this recent post in response). This post addresses whether the actions that Bolton says the US will take against Judges and ICC officials would be lawful under international law. Bolton says that the US:

“… will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”

In particular, I wish to focus on whether the US would violate international law by banning ICC judges and officials from entering the US. Even if the US were to seek to prosecute ICC personnel, it is unlikely that it would obtain custody over them (unless other states cooperate with the US). The primary effect of such attempted prosecutions would be to prevent those people from entering the US, in fear of being arrested.

Barring ICC personnel from entry into the US is a significant issue because (i) the meetings of the ICC Assembly of States Parties are held at the United Nations Headquarters in New York every other year; (ii) the ICC Prosecutor goes to the Security Council, at its request, to report to the Council on the situations referred to the Court by the Council; and (iii) the President of the ICC presents a report, on the work of the Court, to the UN General Assembly annually. All of these activities and visits will have to stop if the threat by John Bolton (either to prosecute or to ban ICC judges and officials) were to be carried out.

Does the US have International Legal Obligations Preventing  it from taking Retaliatory Action  Against ICC Personnel?

To the extent that US retaliatory actions against ICC personnel  take place within the US, the starting position would be the US can control entry into the US, prosecute people who in its view threaten US security (probably based on the protective principle of jurisdiction) and sanction funds in the US unless such acts are inconsistent with contrary obligations under international law.

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From the Indigenous Peoples’ Environmental Catastrophe in the Amazon to the Investors’ Dispute on Denial of Justice: The Chevron v. Ecuador August 2018 PCA Arbitral Award and the Dearth of International Environmental Remedies for Private Victims

Published on September 13, 2018        Author: 
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The recent 30 August 2018 Chevron v. Ecuador arbitral award is yet another example of the ongoing asymmetries of protection in the much-beleaguered investor-State dispute settlement system, in which States have generously afforded protections to foreign investors to bring suits directly against States, without creating parallel avenues for affected local communities and/or indigenous peoples to initiate arbitration proceedings directly against either foreign investors or irresponsible States. Despite all our collective best efforts at ongoing reform in UNCITRAL (see updates on Working Group III’s mission on ISDS Reform here), ICSID (see their latest rules amendment project here) and elsewhere, I retain serious doubts as to whether investor-State dispute settlement could ever symmetrically represent the environmental and cultural interests of indigenous peoples and local communities, as effectively as it does investors’ claims to treaty protection and (significantly substantial) compensatory relief.  Today, environmental plaintiffs have to navigate between an unwieldy, unpredictable, and quite disparate mix of remedies before domestic (administrative or judicial) courts or tribunals of their home States, potentially some regional courts (such as the Inter-American Court of Human Rights) or treaty monitoring bodies (whether those specifically created in environmental treaties or human rights treaties), other foreign courts in other countries that permit some environmental tort claims, and possibly, any cases that their home State can bring under diplomatic protection to pursue remedies against foreign nationals or the home States of these foreign nationals.  And all these frequently take place in the context of abject differences of power, resources, and capacities between environmental and human rights victims as claimants against either States and/or foreign investors, vis-a-vis foreign investors as claimants or States as respondents.  It’s not at all hyperbolic to observe that, with respect to the international environmental system, the deck already appears heavily stacked against environmental plaintiffs at the outset.  

The Chevron v. Ecuador arbitration presents a crystal example of how what was originally an environmental dispute seeking remediation for one of the worst environmental disasters in history involving oil spillage into 4,400 square kilometers of the Amazon rainforest – ultimately mutated into the investors’ denial of justice claim in investor-State arbitration.  At least, in my view, while  the erudite tribunal in this case thoroughly set out the technical legal reasoning in its award on the precise legal issues of the investment treaty breaches alleged, the award itself more broadly demonstrates that we may well be at the point that a dedicated separate international dispute settlement system might already be necessary to properly adjudicate victims’ claims in human rights and environmental disputes. (Notably, other scholars refer to this dispute to highlight the illegitimacy or alleged exces de poivre of arbitral tribunals making assessments and evaluations of the acts or decisions of domestic courts and judicial systems ipso facto – a significant  heavily disputed structural matter about the current investor-State dispute settlement system, which is, however, not the law and policy observation I make here.) Some efforts looking beyond the narrow ISDS framework, among others, include projects such as the drafting of the new Hague Rules on Business and Human Rights Arbitration; the tentative and non-binding 15 September 2016 policy paper of the Office of the Prosecutor of the International Criminal Court exploring the possibility of prosecuting environmental crimes; as well as the Permanent Court of Arbitration’s suite of environmental dispute resolution procedures (interstate arbitration under environmental treaties, mixed dispute resolution under environmental instruments and contracts, specialized environmental rules for arbitration and conciliation).  To date, these initiatives have not gone much further beyond their incubation.

The most difficult aspect of the Chevron v. Ecuador case is the fact that the arbitration turned on the issue of Ecuador’s investment treaty breaches over what Chevron alleged were very troubling serious acts of fraud and corruption committed by lawyers and judges to produce a favorable 2011 Ecuador court judgment for the environmental plaintiffs.  The fraud and corruption allegations have long since overshadowed the urgency of decades of environmental damage that have largely gone without significant and continuing remedy, alongside ongoing health problems from toxic contamination that have impacted indigenous peoples and local communities for generations. (Note: this pollution disaster originated long before I or generations of current international lawyers were even born.) The Chevron v. Ecuador arbitration succeeded in laying the blame on Ecuador since, for the tribunal, Chevron had already been released from its obligations of remediation under the 1995-1998 Settlement Agreements.  Unfortunately, the arbitral award does not lay out any detailed environmental analysis to explain why contracts such as the 1995-1998 Settlement Agreements would be sufficient to release private parties from short-term, medium-term, and long-term remediation efforts to restore the ecosystem, and whether such releases were at all consistent with international public policy and Ecuador’s own commitments under international law (especially international environmental treaties and customary international environmental law).  Neither did the tribunal explore whether Ecuador alone had the right to conclude the Settlement Agreements on behalf of all the environmental plaintiffs and affected communities, or if Ecuador could indeed effectively and exclusively represent the environmental plaintiffs and affected communities in the investor-State arbitration considering how its government agents exercised oversight (or lack thereof) with respect to the environmental disaster.  Because environmental plaintiffs, indigenous peoples, and affected communities continue to be dependent on the host State of the investment to vindicate their claims against foreign investors, the investor-State dispute settlement system simply cannot lend any of these environmental, indigenous, and local plaintiffs any real, much less effective, voice over their fight to restore the Amazon to health.  While plaintiffs are mired in multiple litigations and arbitrations around the world to seek accountability from either Chevron and its affiliates or their own government in Ecuador, there is virtually no dedicated State, inter-State, regional, or public-private partnership cooperative efforts to try and achieve environmental restoration in the affected 4,400 square kilometers of the Amazon, as depicted in the map below (source here):

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Global Marine Plastic Waste and the Newly Recommended Amendment to the Basel Convention: a Bandage or a Bandaid?

Published on September 12, 2018        Author: 
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The management of plastic waste is a global problem, but it lacks a global legal framework. In particular, the ubiquitous transboundary movement of plastic waste is of major concern; gaps in environmentally sound waste management, and often the insufficient capacity of importing States to deal with the plastic they receive, is a significant factor contributing to vast amounts of plastic making its way into oceans across the world. An international legal instrument regulating the movement and management of waste is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention); with 186 State parties it includes all top plastic waste exporters except the United States. However, most plastic waste is not subject to the Convention.

Last week, a meeting of the Convention’s Open-Ended Working Group Meeting decided to recommend an amendment to the Convention for adoption at the next Conference of States Parties in May 2019 that would significantly widen the scope of plastic waste covered. The blog post will outline the legal implications of this important amendment, before addressing the broader question of whether the regime created by the Basel Convention, in conjunction with the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), is the appropriate avenue for such an approach seeking to reduce the impact of marine plastic litter.

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The Oral Hearings in ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’

Published on September 11, 2018        Author: 
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The oral hearings in the advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 took place at the ICJ last week. Readers will recall the two questions posed by the General Assembly in its request for an Advisory Opinion (Resolution 71/292) and the procedural and propriety issues raised by this case, as discussed by Marko, Dapo and Antonios – here, here and here. A host of States – and the African Union – participated in the proceedings and their voluminous written and oral statements/comments will surely keep interested scholars busy for a long time to come. In this post, I will try to restrict myself to the task of offering a few initial comments on the self-determination arguments made in relation to the first question (essentially, was the decolonization of Mauritius lawfully completed when it acceded to independence in 1968, following the detachment of the Chagos Archipelago?). For this purpose, I will focus on the claims made by the UK and Mauritius for the sake of brevity, and not because I agree with the UK’s contention that Mauritius is the ‘de facto claimant’ in this case (Transcript p. 36).

When approaching the claims and counter-claims concerning the Chagos Archipelago – or the British Indian Ocean Territory (‘BIOT’) – it is worth bearing in mind at least two important considerations. First, the UK is clearly on the wrong side of history as far as both the creation and maintenance of the BIOT are concerned. Secondly, the closest comparable case in the ICJ’s jurisprudence, the Western Sahara Advisory Opinion, is different in one key respect. The Western Sahara Opinion was sought while the General Assembly was actively engaged in a fraught and flawed attempt at decolonization and it was delivered when the crisis was still unfolding. In contrast, in the present proceedings, the ICJ has been invited to answer questions which not only require it to establish the legal significance of events which occurred largely between 1965-1968 but also to assess their present consequences. Undoubtedly, this is a difficult task and we shall have to wait and see whether the Court responds positively to the Request or whether it adopts a more non-committal approach, as it did in its Kosovo Advisory Opinion.

Self-determination and Customary International Law

The UK argued that the right of self-determination had not crystallized as a norm of customary international law (CIL) by either 1965 or 1968 (e.g. Transcript, p. 48). Specifically, it denied that the Colonial Declaration (GAR 1514 (XV)(1960)) generated any binding legal obligations as far as Mauritius’ decolonization was concerned. The 1960 Declaration proclaimed the core right – that ‘all peoples have the right to self-determination’ (para. 2) – while stating that: ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the [UN] Charter’ (para. 6). The UK claimed that the right of self-determination only acquired CIL status with the adoption of the Declaration on Friendly Relations (GAR 2625 (XXV)(1970). It relied on voting records, and the statements made, by State representatives, in the context of the development and adoption of these, and other, resolutions (and contemporaneous academic opinions) in support of its preferred interpretation. Read the rest of this entry…

 

The Bashir Appeal at the ICC

Published on September 10, 2018        Author: 
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This morning, the ICC Appeals Chamber of the International Criminal Court (ICC) begin its hearings in the appeal of Jordan against the decision of the Pre-Trial Chamber that Jordan failed to comply with its obligations under the ICC Statute by failing to arrest Sudanese President Omar Al-Bashir when he visited Jordan. The hearings raise the question whether a party to the Statute must respect the immunity of the head of state of a non-party to the statute when the arrest of the latter is sought by the ICC. These are issues that have been discussed with respect to President Bashir from the moment when the warrant for his arrest was issued by the ICC. They have also been the subject of four (conflicting) decisions by the Pre Trial Chambers. It is now hoped that the Appeals Chamber will issue a decision that will settle the position of the ICC with respect to this issue. Over the course of this week, the Appeals Chamber will hear not only from Jordan and the Prosecutor but also from the African Union, the League of Arab States, and a number of academics that have been permitted to make submissions to the Chamber.

In July, AJIL Unbound, the online supplement to the American Journal of International Law, published a symposium on “The Rome Statute of Twenty”. That symposium, edited by Judge Theodor Meron & Professor Maggie Gardner, is composed of essays mostly by serving and past judges of the ICC and the ad hoc tribunals. It was a pleasure to be asked to contribute to that symposium. In my contribution, titled, “The Immunity of Heads of States of Non-Parties in the Early Years of the ICC”, I chose to write on the issues that have arisen in the Bashir Appeal. I have written on these issues before and summarise my views in the limited space I had in the AJIL Unbound essay. My introduction to the essay is as follows: Read the rest of this entry…

 

Announcements: Nottingham International Law and Security Centre Interdisciplinary Conference; UNIJURIS Seminar on Jurisdictional Reasonableness

Published on September 9, 2018        Author: 
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1. Nottingham International Law and Security Centre Interdisciplinary Conference. The Nottingham International Law and Security Centre (NILSC) welcomes submissions for its 2018 conference, which will take place at the School of Law, University of Nottingham on 9 November 2018. The theme of the conference is the ’70th Anniversary of the Genocide Convention’. This theme can be conceived broadly. Submissions from multiple backgrounds and disciplines are encouraged. Proposals taking normative, conceptual, doctrinal, and historical perspectives are particularly welcome. The conference will also include a keynote debate between Professors Olympia Bekou, Marko Milanovic and David Fraser on the concept of genocide’s value, chaired by Dr Cosmin Cercel. Abstracts of strictly no more than 500 words and a biography of no more than 100 words should be sent to nilsc {at} nottingham.ac(.)uk The deadline for submission of abstracts is midnight on Saturday 15 September 2018. For further information please visit the NILSC website.

2. UNIJURIS Seminar on Jurisdictional  Reasonableness. The  project  on  ‘Unilateral  Jurisdiction  and  Global  Values’  (UNIJURIS),  funded  by  the  European Research  Council  and  the  Dutch  Organization  for  Scientific  Research  (PI:  Prof.  Cedric  Ryngaert), organizes  a  half-day  seminar  on  jurisdictional  reasonableness  on  30  October  2018,  at  Utrecht University.  The  aim  of  the  seminar  is  to  have  speakers  with  diverse  backgrounds  reflect  on  the  value  and  role  of reasonableness  in  preventing  and  settling  jurisdictional  disputes  in  various  fields.  Is  reasonableness  used in  fact,  and  if  so,  is  it  properly  applied?  Is  reasonableness  a  legal  concept,  and  if  so,  what  is  its  source (public  international  law,  European  law,  domestic  law)?  What  is  its  relationship  with  comity?  Does  it go  beyond  the  remit  of  courts  and  administrative  agencies  to  engage  in  the  sort  of  (sovereign)  interestbalancing  which  reasonableness  prescribes? Can  reasonableness  be  applied  as  a  general  principle,  or should  it  be  operationalized  by  specific  norms? The  seminar  consists  of  three  thematic  panels: (1) transnational  civil  litigation; (2)  criminal  law; (3)  regulatory  law. To register, please  send  an  email  to  secretariaat.ier {at} uu(.)nl
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The Iranian Suit against the US Sanctions and the 1955 Treaty of Amity: Brilliant Plan or Aberration?

Published on September 7, 2018        Author: 
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The Iranian economy is already feeling the effects of the United States economic sanctions that are successively being reinstated following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) on 8 May 2018. In an attempt to save what can be saved, Iran seized the International Court of Justice in July requesting the latter to order and declare that the 8 May and subsequent sanctions are unlawful; that the United States shall stop its threats with respect to the further announced sanctions and that it shall compensate Iran. The claim is accompanied by a request for provisional measures by which Iran seeks to obtain, in particular, the immediate suspension of the sanctions and the non-implementation of the sanctions announced. Last week, both parties met in court for the hearings on the provisional measures request.

Iran has not claimed a violation of the JCPOA but alleges breaches of the Treaty of Amity, Economic Relations, and Consular Rights signed by Iran and the United States in 1955. The reason is simple: neither Iran nor the United States accepts the compulsory jurisdiction of the ICJ, both states having withdrawn their optional clause declarations. A compromis not being in sight, Iran can only ground the ICJ’s jurisdiction on a compromissory clause. While the JCPOA does not contain such a clause, the Treaty of Amity stipulates in its Article XXI (2) that “[a]ny dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

The case, and the provisional measures request, raises many interesting questions, including  for example, whether the mainly economic damages alleged by Iran are irreparable as is required for the indication of such measures, and whether the request could possibly pre-empt the decision on the merits. However, this post is uniquely concerned with whether the idea to rely on the Treaty of Amity helps overcome the hurdle of jurisdiction. While the existence of jurisdiction need only be proved prima facie in the provisional measures phase, the Court will at a later stage have to take a definite decision (assuming the case is not dismissed for manifest lack of jurisdiction at the provisional measures stage). One of the most problematic issues is whether the dispute is about the interpretation or application of the Treaty of Amity despite the existence of the JCPOA. If this is the case, invoking the Treaty of Amity was a smart move by Iran.

The Iranian idea can potentially be attacked in two places: the actual scope of the application and the request, as well as the potential inapplicability of the Treaty of Amity. Read the rest of this entry…

 

Insights from the Bifurcation Order in the Ukraine vs. Russia Arbitration under Annex VII of UNCLOS

Published on September 6, 2018        Author:  and
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By Procedural Order of 20 August 2018 (“Bifurcation Order”), the arbitral tribunal established under Part XV and Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in the “Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation)” ordered a bifurcation of the proceedings so that Russia’s preliminary objections concerning the arbitral tribunal’s jurisdiction ratione materiae will be examined in a preliminary phase  prior to the merits (see also this statement by Ukraine’s Ministry of Foreign Affairs). This development brought with it some much needed transparency in the arbitration instituted by Ukraine against Russia on 16 September 2016, since the written submissions of both parties remain confidential. What appears from the public statements of Ukraine’s government (here and here), is that Ukraine is claiming that Russia violated Ukraine’s rights under UNCLOS with respect to Russian activities in the Black Sea, the Sea of Azov and Kerch Strait, in particular, involving issues such as the seizure and exploitation of oil fields on Ukraine’s continental shelf, usurpation of fisheries jurisdiction off the coast of Crimea, issues of navigation through Kerch Strait, the construction of Kerch Bridge and related structures, and the conduct of studies of archeological and historical sites in the Black Sea.

The Bifurcation Order discusses (and cites from) a variety of the parties’ arguments concerning jurisdiction ratione materiae, several of which inevitably disclose some of the parties’ substantive positions. With respect to Russia’s request that the arbitral tribunal “adjudge and declare that it is without jurisdiction in respect of the dispute submitted to this Tribunal by Ukraine”, it should be recalled that, under Article 288(1) UNCLOS, the arbitral tribunal’s jurisdiction is limited to “any dispute concerning the interpretation or application of [UNCLOS]”. As Russia’s request to decline jurisdiction is not confined to specific issues or narrow questions of fact or law, it appears that Russia is challenging the arbitral tribunal’s jurisdiction in its entirety. The Bifurcation Order lists six separate preliminary objections. Read the rest of this entry…

 

Failure to Protect Civilians in the Context of UN Peace Operations: A Question of Accountability?

Published on September 5, 2018        Author: 
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On 31 July 2018, thirty-two States asked the United Nations (UN) Secretary-General António Guterres to go a step further in addressing the failures of UN peace operations to protect civilians. In particular, they stressed the importance of holding those accountable who have failed to protect civilians in line with their mission’s mandate (see Letter to the UN Secretary-General). In 2015, the same States already adopted the Kigali Principles, a set of eighteen pledges for the effective implementation of protection of civilians mandates (PoC Mandates) in UN peace operations.

Since the failures of UN peacekeeping in Rwanda and Srebrenica in the 1990s, the UN Security Council has provided UN peace forces with more robust mandates to protect civilians. These PoC Mandates have been carried out with varying degrees of success. To illustrate: in 2013, the UN Security Council authorised the UN Mission in the Republic of South Sudan (UNMISS) to protect civilians by not only deterring violence against civilians (e.g. through proactive deployment and patrols), but also by protecting civilians under imminent threat of physical violence (UNSC Res. 1996 (2011), para. 3(b)). Nevertheless, between 8 and 11 July 2016 hundreds of civilians were killed and raped in Juba, the capital of South Sudan. Allegations were made that UNMISS did not respond effectively to protect civilians from the intense fighting that contributed to the collapse of the fragile ceasefire that existed at that time. An Independent Special Investigation established by the UN Secretary-General inter alia found that “a lack of leadership on the part of key senior Mission personnel culminated in a chaotic and ineffective response to the violence” (UN Doc. S/2016/924 (2016), Annex, para. 7). This also echoes the conclusion of the 2014 Evaluation of the implementation and results of PoC mandates in UN peacekeeping operations by the internal oversight body of the UN (OIOS) (UN Doc. A/68/787 (2014), para. 79). Other recent examples whereby UN peace forces failed to intervene to protect civilians took place in Darfur, Sudan (2004) and in North Kivu, the Democratic Repbublic of the Congo (DRC) (2008). Read the rest of this entry…

 
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