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Home Archive for category "Peace Keeping"

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

Published on September 5, 2018        Author: 

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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Revising the Treaty of Guarantee for a Cyprus Settlement

Published on June 21, 2017        Author: 

On June 28th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us. Read the rest of this entry…

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Pre-Trial Chamber of the International Criminal Court Authorizes Initiation of Investigation in Georgia

Published on February 1, 2016        Author: 

On 27 January 2016, the ICC Pre-Trial Chamber I (PTC) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to open an investigation into the situation in Georgia, specifically focusing on allegations of war crimes and crimes against humanity during and in the immediate aftermath of the August 2008 armed conflict. In the absence of a state party or the Security Council referral, the OTP filed the request for authorization in October 2015, seven years after initiating its preliminary examination. The investigation can cover alleged crimes by three groups: South Ossetian forces, armed forces of Georgia and armed forces of the Russian Federation. Georgia is a party to the Rome Statute, while the Russian Federation is not.

This post focuses only on the aspects of the PTC decision and the OTP’s request that raise the most questions, namely selection of crimes and of potential cases and admissibility of those cases, with specific emphasis on complementarity.

Crimes within the Jurisdiction of the ICC

The primary targets for the OTP’s investigation appear to be alleged crimes against ethnic Georgians, including forcible displacement and destruction of property, between 8 August and 10 October 2008 in the Russian occupied South Ossetia and adjacent areas. Read the rest of this entry…

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UN Peace Operations: Tracking the Shift from Peacekeeping to Peace Enforcement and State-Building

Published on September 2, 2015        Author: 

On June 16, the UN secretary General’s High-Level Independent Panel released its eagerly awaited review of UN-mandated peacekeeping: ‘Uniting our Strengths for Peace’. A comprehensive assessment of the UN’s evolving role in conflict management and a detailed set of reforms to its peacekeeping architecture, the report has already generated thoughtful analysis, with many observers highlighting the Panel’s principal conclusion that “lasting peace is achieved not through military and technical engagements, but through political solutions” (Executive Summary). This post examines three significant trends in peacekeeping mandates – the use of force, state-building and criminal jurisdiction – which will likely remain contested aspects of UN-mandated conflict resolution going forward. Against the backdrop of the report’s main findings, it argues that the UN’s large-scale operations increasingly blur the lines between political mediation and classical peace-keeping on the one hand, and peace-building, peace enforcement and state-building on the other.

As is well known, peacekeeping missions have operated in increasingly hostile environments since the end of the Cold War. Beginning with the Balkans, Rwanda and Somalia in the 1990s, peacekeepers have often been deployed to areas with little or no peace to keep, while taking on a continuously expanding set of peace-building tasks. This trend has only intensified in the last few years, starting with the UN’s longstanding mission in the Democratic Republic of Congo (MONUSCO), its revamped mission in South Sudan (UNMISS), as well as newly established missions in Mali (MINUSMA) and in the Central African Republic (MINUSCA).

Yet, despite its expanding role in conflict-management, a striking feature of recent UN operations has been the Security Council’s practice of enshrining the classic principles of peacekeeping into mission mandates. Starting with the 2013 renewal of MONUSCO’s mandate, the Security Council has consistently re-affirmed the ‘trinity of virtues’ – impartiality, host state consent and non-use of force beyond self-defence and defence of the mission mandate – in the preambles of its largest peacekeeping operations (DRC: 2013, 2014, 2015; Mali: 2013, 2014, 2015; CAR: 2014, 2015; South Sudan: 2014, 2015). Although their status under international law remains contested, the three classic principles are grounded in an (almost) by-gone era of conflict-management, where UN peacekeepers monitored mutually agreed cease-fires.

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Ripples in the East and South China Seas: Aid, ADIZs, Aircraft Carriers, and Arbitration

Published on December 1, 2013        Author: 

0912ChinaSeaTerritory2In the past few weeks throughout November 2013, various incidents have sharply demonstrated China’s foreign policy preferences in relation to disputes with neighbors over the East and South China Seas (pictured above left, credit), as well as its self-perception of its broader hegemonic role in the Asian region.  I recently spoke on regulatory freedom and control under the new ASEAN regional investment treaties at the international investment law panel organized and led by Dr. Stephan Schill of the Max Planck Institute and Professor M. Sornarajah of the National University of Singapore, at the Fourth Biennial Conference of the Asian Society of International Law (AsianSIL) held in New Delhi, India from 14 to 16 November, 2013.  In the same conference, I witnessed firsthand the rare exchange  between China’s Judge Hanqin Xue of the International Court of Justice during the presentation made by my former University of the Philippines colleague Professor H. Harry Roque on the Philippine arbitration claim filed against ChinaIn a detailed reply after Professor Roque’s presentation, Judge Xue noted that there was no other Chinese scholar or delegate in the AsianSIL conference, and said she would thus take the opportunity to analyze the Chinese position on the Philippine arbitration.  She did stress, however, that her remarks were made in her personal capacity, and not in any way reflective of her views as a Member of the Court and certainly not representative of China’s official position on the South China Sea.)

First, Judge Xue observed that the questions in the Philippine claim, taken in their totality, in reality amount to territorial questions that fall well outside the scope of the subject-matter jurisdiction of the UN Convention on the Law of the Sea.  Second, she stressed that around forty states (including China) had not accepted compulsory jurisdiction under the UNCLOS dispute settlement procedure.  Third, she related her experiences as China’s Ambassador to ASEAN during the passage of the Declaration of the Code of Conduct on the South China Sea, where, in her view, the littoral States signing the declaration clearly assumed the obligation to resolve the South China Sea disputes through negotiations and not through compelled arbitration.  Finally, she expressed that China decided not to participate in the UNCLOS arbitration initiated by the Philippines because no country could have “failed to see the design” of the Philippine claim which “mixed up jurisdiction and merits”, and that it tended to complicate the full range of regional maritime issues and inhibit confidence-building measures between the seven States parties to the dispute.  Judge Xue stressed that all parties to the South China Sea dispute would do better to cooperate on issues gradually (such as, first, through rapid response disaster risk reduction in maritime disasters and maritime-related environmental hazards) to build confidence steadily among the States enough to reach multilateral agreement on joint resource management and resource uses over the disputed area.  Even though issued in her personal capacity, the remarks of China’s most senior international judge certainly suggests, at least, that there is some groundswell towards peaceful cooperative actions for resolving maritime disputes in the Asian region.

Subsequent actions taken by the Chinese government in the past week, however, seem to demonstrate some equivocation to the above views.  On November 23, 2013, China announced that it was marking its own “air defense identification zone” (ADIZ) to include airspace over the disputed islands (Senkaku Islands according to Japan, Diaoyu islands according to China) in the East China Sea.  Similar to other ADIZs established by the United States, Canada, Russia, among others, China established its ADIZ by declaration, and not by treaty.  An ADIZ may be established over territorial waters or land, but it may also be declared over high seas or extended into international airspace adjacent to national airspace. (Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Martinus Nijhoff, 2002, at pp. 341-342.)  In the latter instance, foreign aircraft passing through the ADIZ would be required to provide the State administering the ADIZ with advance warning information only if the aircraft’s final destination is the said State. Read the rest of this entry…

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Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention

Published on September 6, 2013        Author: 

Manuel J. Ventura is a Director of The Peace and Justice Initiative and Dapo Akande is editor of EJIL:Talk!

The June 2013 decision of the European Court of Human Rights (ECtHR) in Stichting Mothers of Srebrenica and Others v. The Netherlands is the latest phase in the attempts by the relatives of those killed in Srebrenica, Bosnia and Herzegovina to hold the UN (and/or The Netherlands) responsible for the inaction of the UN Protection Force (UNPROFOR) – made up of Dutch peacekeepers – who stood aside while Srebrenica was overrun in July 1995. The subsequent events at the Srebrenica ‘safe area’ and the deaths of between 7,000-8,000 persons are by now well known. In the underlying proceedings in the Dutch Courts, the complainants did not seek to hold the UN responsible for the commission of genocide, but rather for the failure, in the applicant’s view, of the UN’s duty to prevent genocide. The Dutch courts held that the UN had immunity from domestic suit, even in the face of violations of jus cogens norms. The ECtHR agreed with the Dutch rulings on the immunity of the UN. It followed the ICJ’s holding in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) that ‘[i]nternational law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’ [para. 158, ECtHR decision]. It also held that the recognition of immunity does not ipso facto constitute a violation of the right of access to a court [para. 164]. As a result, the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate.’ [para. 169]

However, the decisions of the Dutch courts and the ECtHR are unsatisfactory in one respect. They all ignore an important issue: the exact status of the obligation to prevent genocide in international law. These courts simply assumed that just as the obligation not to commit genocide is a rule of jus cogens, the obligation to prevent genocide is also a norm of jus cogens. The ECtHR simply stated (at para. 157) that: “The Court has recognised the prohibition of genocide as a rule of ius cogens  . . .” However to suggest that a jus cogens norm is involved simply because the prohibition of genocide is a jus cogens norm is a big legal leap that simply cannot be assumed. Otherwise we simply have jus cogens by association! To come to that conclusion, careful analysis was required as it is a proposition that is not at all clear from international law as it presently stands. Read the rest of this entry…

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The Hague Court of Appeal on Dutchbat at Srebrenica Part 2: Attribution, Effective Control, and the Power to Prevent

Published on November 10, 2011        Author: 

 Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers51 Harv. Int’l L.J. 113 (2010)

Introduction:

In an earlier post, I reported on the Hague Court of Appeal’s decisions in Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands regarding the wrongdoing of Dutchbat at Srebrenica. Here, I examine the Court’s holding on the attribution of that wrongdoing to the Dutch state.

The decisions provide stronger and clearer jurisprudential affirmation of the principles of “effective control” and dual attribution than does the Grand Chamber’s judgment in Al-Jedda v. United Kingdom (handed down just two days later). Moreover, the Court of Appeal’s elaboration of “effective control” establishes several key features of the concept as applied in the peacekeeping context. First, the “effective control” analysis should be applied equally to the contributing state and the receiving international organization. Second, “effective control” includes not just giving orders, but also the capacity to prevent the wrongdoing. Third, though the Court’s position on this is slightly more ambiguous, troop-contributing states may sometimes hold that “power to prevent” in virtue of their authority to discipline and criminally punish their troops for contravening U.N. orders. I would go beyond the Court’s reasoning on this third feature to add that the state’s authority with respect to selecting and training troops and contingent commanders is also relevant in this regard.

Since the decisions do not differ on any significant matters of substance, the citations below are to Nuhanović, but apply equally to Mustafić-Mujić. Read the rest of this entry…

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Attribution of Conduct to International Organizations in Peacekeeping Operations

Published on March 10, 2009        Author: 

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. He has an LLM from New York University Law School. During the 57th session of the International Law Commission (2005), he was research assistant to Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of United Nations for wrongful non-forcible measures by the Security Council.

A recent article by White and MacLeod in the EJIL (EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility) discusses, in part, the attribution of conduct of Private Military and Security Companies (PMSCs) to an International Organization (IO) in the context of a peacekeeping operation (PKO). The authors take issue with Article 5 of the International Law Commission’s  (ILC) Draft Articles on the Responsibility of International Organizations (DARIO) and the high threshold of “effective control” that this provision requires for attribution of conduct to an IO. However, Article 5 DARIO is specifically adopted to deal with the attribution to an IO of the conduct of a military contingent belonging to a State, and does not apply in the case of attribution of PMSC conduct. It is Article 4 DARIO that applies in such a case. Paragraph 1 of that provision states that:

The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

 This being the case, attribution of conduct by a PMSC hired by an IO to the IO is, ostensibly, automatic and thus much easier than attribution of PMSC conduct to a State. In the latter case one would have to argue basically either that the PMSC exercises elements of governmental authority or that it is directed or (effectively) controlled by that State (see the discussion here, here, here, and here). Could it in fact be so, and how can this difference be explained?

  Read the rest of this entry…

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