Finding UN responsibility for its stabilization activities

United Nations (UN) peace operations have changed in recent years and several missions now pursue stabilization mandates. These stabilization missions uniquely work alongside the host government, promote the rule of law, engage in counter-terrorism activities, and use robust force to counter spoilers to the peace process. Stabilization mandates often expressly call for the missions to assist with the extension of state authority, assist with the redeployment of host state forces, conduct joint operations and share information.

Such UN cooperation with host state forces, and other international forces operating in the territory, poses challenges to the responsibility of international organisations, particularly where those forces commit wrongful acts while receiving close support from the UN mission.

The level of support needed to implicate the UN in internationally wrongful acts committed by non-UN entities receiving support is unclear. In the past, the UN has ceased support where civil war has broken out or human rights abuses by the host state have multiplied. However, in recent years, support for host states during stabilization missions has continued despite violations of humanitarian and human rights law. How, then, does international law account for wrongful acts made possible by an international organisation’s support in the context of a UN peace operation?

MINUSMA, logistical and technical assistance, and intelligence sharing

In recent years, MINUSMA has worked alongside French troops deployed as part of Operation Barkhane (previously Operation Serval) and a regional counter-terrorism force, the G-5 Sahel Force (FC-G5S), that includes forces from the host state, Mali. The UN Security Council stated that the FC-G5S would “facilitate the fulfilment by MINUSMA of its mandate to stabilize Mali”. In February 2018, a technical agreement was signed for MINUSMA to provide operational and logistical support to FC-G5S. In 2018 uniformed MINUSMA personnel assisted FC-G5S with preparing their operational bases, and the Secretary-General called for coordination between the forces to be boosted further. Support then continued with an “enhanced support mandate” from 2020.

MINUSMA has also supported the host state in its fight against terrorism. For instance, MINUSMA has given technical assistance to Mali’s Specialized Judicial Unit to Combat Terrorism and Transnational Organized Crime. But the UN recognises that the host state’s counter-terrorism activities have led to “repeated allegations of violations of international human rights law and international humanitarian law”. The allegations include executions, torture, enforced disappearances and varying levels of ill-treatment and arbitrary arrests.

MINUSMA has supported counter-terrorism by identifying groups and individuals considered a threat to the mission and includes them in ‘targeting packs’. MINUSMA has a sophisticated intelligence system that has included a German UAV unit and a Swedish reconnaissance company of armoured vehicles, amongst others. The targeting packs are compiled by MINUSMA’s dedicated intelligence unit, the All Sources Information Fusion Unit (ASIFU), which collects actionable intelligence. ASIFU’s targeting packs have been informally shared with Operation Barkhane and were reported to the UN as possibly having “serious operational, political and legal implications”.

Nevertheless, the UN continued to discuss the importance of sharing information between MINUSMA and its international partners fighting terrorism in the region. A Coordinating Body for Mali was created in January 2019 to improve information sharing. Where intelligence is included this would raise the question of whether the UN can be responsible for wrongful acts committed by states that rely on that intelligence? In essence, the wrongful act may not have been possible without the intelligence provided by the UN mission.

Would it then be possible to find ancillary responsibility where the UN has facilitated wrongful acts to be committed by the host state or other international forces?

Applying the Draft articles on the Responsibility of International Organizations

The UN has long held that it is Article 6 of the Draft articles on the Responsibility of International Organizations (DARIO) that applies to UN peacekeepers because when forces are put at the disposal of the UN, they are transformed into a subsidiary organ of the UN. Despite being able to attribute responsibility under Article 6, accountability is then avoided because the UN asserts its peacekeeping forces, as subsidiary organs, enjoy the privileges and immunities of the UN under the 1946 Convention on the Privileges and Immunities of the United Nations.

The International Law Commission (ILC) believes that Article 7 DARIO must also apply to UN peacekeeping forces. Article 7 of DARIO allows for responsibility to be allocated to whoever has effective control over the organ, which may be the UN or the troop-contributing country (TCC), depending on who, at the time of the wrongful act, has command and control of the forces. This has been important in situations such as the Mothers of Srebrenica case where questions were raised over the attribution of the Dutch contingent (Dutchbat) of UNPROFOR to the Netherlands or the UN.

To be able to apply Article 7 DARIO to the above situation of MINUSMA, the host state or other international forces would need to be regarded as organs or agents of the UN. The UN has a tight definition of who is to be considered an agent of the organisation and has criticised the ILC’s broad use of the term ‘agent’ in DARIO.

Even when those forces carry out functions alongside UN personnel, the UN would still not automatically regard them as agents for attribution. There would need to be a degree of control of the non-UN forces by the UN mission’s chain of command to be regarded as more than merely partners achieving a common goal. As a result, the actions of non-UN forces will only be attributable to the organisation under Article 7 if there is a sufficiently close relationship or the UN has effective control over the forces. This is unlikely.

Another route to find responsibility is Article 14 of DARIO. An international organisation can be held responsible where it ‘aids or assists’ a state in the commission of an internationally wrongful act if: (a) the organisation does so with knowledge of the circumstances of the internationally wrongful act, and (b) the act would be internationally wrongful if committed by that organisation.

The type of aid or assistance encapsulated by Article 14 is not defined by the ILC but can include providing material resources, such as weapons, as well as financial, logistical, and technical support. However, not all assistance will result in responsibility as UN forces must make a ‘significant’ contribution to the wrongful act. This results in a de minimis threshold where remote or minimal aiding will not be sufficient for responsibility whilst the upper end of the scale may see a particularly serious piece of assistance resulting in joint responsibility for the wrongful act instead of ancillary responsibility under Article 14.

The biggest question surrounding the application of Article 14 is that of the knowledge and intent required. The ILC explains, based on its previous commentary on Article 16 of ARSIWA, that if the “assisting or aiding State is unaware of the circumstances in which its aid or assistance is intended to be used by the other State, it bears no international responsibility.” The same understanding is in place for Article 14 DARIO. The ILC further notes the organisation must have “intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State”. However, no guidance is given on how knowledge and intent are to be adduced or the significance of the assistance is to be judged.

The ILC’s commentaries on DARIO and ARSIWA are inconsistent as the Articles themselves do not include a requirement of intent resulting in ‘uneven use of the terms “knowledge” and “intent” within the commentary.’ If intent were not to be required, states and organisations would feel as if aiding and assisting is too risky and therefore international law serves to discourage international cooperation. If intent is required, states and organisations could rely on a strict interpretation of direct intent to deny responsibility for blatant wrongdoing that would not otherwise be possible without the assistance. Nevertheless, using the action of providing intelligence as an example, Milanovic explains this ‘is always intentional under some description’. The crux of the issue then is what degree of intent and knowledge is required under Article 14?

Where a state or organisation provides assistance with actual knowledge that the aid will be used to commit a wrongful act, we can infer that the state intends to facilitate the act as the assistance has nevertheless been provided. Similarly, if the assistor is practically or virtually certain that the state is committing the act this will also result in the required level of knowledge to infer intent as it is acting with indirect or oblique intent. The assistor needs to not only know the state is committing wrongful acts but must know the assistance is being used to facilitate the acts. The assistor therefore either has actual knowledge or is virtually certain wrongful acts are being facilitated but provides the assistance nonetheless, consciously accepting its own contribution to the wrongful act committed by the state.

The UN will then meet the requirements of Article 14 if it is actually or virtually certain that the non-UN entity receiving assistance is committing or intends to commit the wrongful act and that the entity is using the UN’s assistance to facilitate the wrongful act. The UN does not need to share the full intent of the entity committing the wrongful act but must have sufficient foresight and certainty. The mere possibility that the wrongful acts are taking place and that assistance is facilitating the acts would be insufficient.

An example of the risk posed by Article 14 arose in MONUC, where the mission needed to decide whether to adhere to its mandate requiring it to provide support to host state forces who were likely to commit serious violations or refuse to do so. The UN Office of Legal Affairs decided that where there is reason to believe a host state is engaged in serious violations, the UN forces cannot lawfully continue to provide support. Similarly, in 2014 the UN Security Council terminated assistance to the South Sudanese government provided by UNMISS after civil war broke out and government forces committed widespread violations of human rights and humanitarian law.

The ILC relies on the example of MONUC to illustrate Article 14 but does not expressly state whether continued assistance by MONUC would have led to ancillary responsibility under Article 14. Importantly, no mention of intent is made by the UN Legal Counsel.

Instead, it appears the UN would agree that where there is ‘reason to believe’ wrongful acts are being committed this a) equates to actual knowledge or virtual certainty and b) that the UN does not need to share intent of the non-UN entity by wishing to facilitate wrongful acts for the organisation to regard the assistance as unlawful.

While it is impossible to extrapolate all the scenarios in which Article 14 would apply, it can be speculated on the types of scenarios that would cross the threshold. If a UN mission is mandated to extend state authority it may provide logistical and technical assistance to the host state in establishing military bases, as the case with MINUSMA and FC-G5S. The bases may be established in territory previously controlled by armed groups to allow the host state forces and their allies to project state authority. If those forces were to commit wrongful acts, such as human rights abuses against the local population, we would need to establish several facts before responsibility could be found under Article 14.

First, the UN would need to have actual knowledge or be virtually certain the wrongful acts were being committed (the knowledge and intent). Second, the wrongful acts must have been made possible by the assistance proffered by the UN (the significance). If these two requirements are met, the UN mission must cease its support. It would be insufficient for the UN to merely suspect wrongful acts are likely based on the record of the host state’s forces, nor would we be able to use Article 14 where UN support had a minimal impact on the capacity of the host state forces to commit the wrongful acts. It must be the case the UN assistance made the establishment of the bases and consequent projection of state authority possible.

Above, the question was raised whether the UN can be responsible for wrongful acts committed by states that rely on intelligence provided by the UN mission? The simple answer is yes, if, as with the preceding example, the UN has actual knowledge or is virtually certain the state in question is committing wrongful acts that would otherwise have not been possible without the shared intelligence. For instance, if MINUSMA were to share intelligence with international forces countering terrorism and those forces were to commit acts of torture, the UN would need to a) have actual knowledge or be virtually certain those forces were or were intending to use torture and b) that those individuals would otherwise not have been apprehended without the sharing of intelligence.

The UN’s Human Rights Due Diligence Policy

Despite the exact requirements of Article 14 being woefully underexplored by the UN in the context of its peace operations, the UN is aware of the risk of responsibility. Actions that may invoke Article 14 ARIO are inexplicably linked to the operation of the UN’s Human Rights Due Diligence Policy (HRDDP). The HRDDP requires that UN assistance can only be given to non-UN entities upon their respect for human rights, humanitarian law, and refugee law. Notably, the policy allows the UN to distance itself from a host state that is violating international law and show communities that the UN is not synonymous with the host state.

Missions such as MINUSMA, MONUSCO, and MINUSCA have all indicated that the support offered to the host state complies with the HRDDP. Here the HRDDP operates as the unspoken shield against responsibility under Article 14 indicating that where support continues, the UN believes it does not possess sufficient knowledge or has not made a significant contribution to any wrongful acts.

With regards to MINUSMA, activities such as drawing up a plan for the redeployment of Malian forces to the north of Mali were said to be ‘fully in line with the human rights due diligence policy of the Organization’. But the UN recognises Mali’s counter-terrorism activities have led to “repeated allegations of violations of international human rights law and international humanitarian law.” The allegations include executions, torture, enforced disappearances, and varying levels of ill-treatment and arbitrary arrests, all of which bring into question the extent to which UN assistance facilitated these wrongful acts.

A review of MINUSMA in 2018 recommended that clear parameters are established on the provision of services by the UN to non-UN entities. As military cooperation becomes more prevalent, particularly alongside counter-terror operations, the UN must take steps to make clear how Article 14 and the HRDDP interact. The UN Office for Legal Affairs will need to evaluate in what specific circumstances UN stabilization missions can continue to provide support to their host states where wrongful acts are committed and demonstrate how the UN either has insufficient knowledge or did not significantly contribute to the acts.

Where next for UN responsibility?

Stabilization missions present numerous risks for the UN as an organisation where UN peacekeepers are working alongside host states on mandated tasks, and one such risk is ancillary responsibility of the UN for wrongful conduct. Providing support is necessary for building the state’s capacity to assume responsibility for the protection of civilians, undertaking security sector reform, and more. This means it is all the more concerning that the architecture in place through DARIO, ARSIWA, and the HRDPP provides insufficient clarity on UN responsibility for these activities.

Clarity is needed on where the UN’s support for host states and other actors will cross into ancillary responsibility under Article 14. The UN must develop a definitive test for applying the HRDPP to situations of ongoing abuses committed by UN partners that mirrors its obligations under Article 14. Only then can the UN incorporate further safeguards into its activities to prevent unresolvable questions on UN responsibility where violations of human rights and humanitarian law by the host state and other international forces persist.