Law Enforcement within the Framework of Peace Support Operations

I N T E R N AT I O N A L AND C O M PA R AT I V E CRIMINAL LAW SERIES

Editorial Board Series Editor

M. Cherif Bassiouni President, International Human Rights Law Institute, DePaul University President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy, President, International Association of Penal Law, DePaul University Professor of Law, DePaul University, Chicago, IL, USA

Diane Amann Professor of Law University of California School of Law Davis, CA, USA

Mario Pisani Professor of Criminal Procedure Faculty of Law, University of Milan Milan, Italy

Christopher L. Blakesley Cobeaga Law Firm Professor of Law William S. Boyd School of Law University of Nevada, Las Vegas, NV, USA

William Michael Reisman Myres S. McDougal Professor of International Law and Jurisprudence, Yale Law School New Haven, CT, USA

Roger S. Clark Board of Governors Professor The State University of New Jersey Rutgers School of Law Camden, NJ, USA

Leila Sadat Professor of Law Washington University in St. Louis School of Law St. Louis, MO, USA

John Dugard Member, International Law Commission, Geneva; Emeritus Professor of Law, University of Witwatersrand, South Africa; and Professor of Public International Law, University of Leiden, The Netherlands

Michael P. Scharf Professor of Law and Director of the Frederick K. Cox International Law Center Case Western Reserve University Cleveland, OH, USA

Albin Eser Professor of Criminal Law, Albert Ludwig University; Director, MaxPlanck Institute for International and Comparative Criminal Law Freiburg, i. B., Germany Alfredo Etcheberry Professor of Criminal Law, National University of Chile; President, Chilean Lawyers’ Association, Santiago, Chile Jordan Paust Professor of Law University of Houston Law Center Houston, TX, USA

Kuniji Shibahara Professor Emeritus University of Tokyo, Faculty of Law Tokyo, Japan Brigitte Stern Professor of International Law University of Paris I Panthéon, Sorbonne Paris, France Otto Triffterer Professor of International Criminal Law and Procedure, Faculty of Law, University of Salzburg Salzburg, Austria

LAW ENFORCEMENT WITHIN THE FRAMEWORK OF PEACE SUPPORT OPERATIONS

Edited by R O B E R TA A R N O L D

Library of Congress Cataloging-in-Publication Data Arnold, Roberta, 1974– Law enforcement within the framework of peace support operations / Roberta Arnold. p. cm. — (International and comparative criminal law series ; 28) Includes bibliographical references and index. ISBN 978-90-04-16510-6 1. Criminal justice, Administration of—International cooperation. 2. Law enforcement—International cooperation. 3. Humanitarian intervention. 4. United Nations—Peacekeeping forces. I. Title. K5001.A96 2008 341.5'84—dc22 2008001620

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TABLE OF CONTENTS List of Acronyms and Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xv

Introduction

xxi

...................................................... PART I: LAW ENFORCEMENT—A PSO TASK?

Chapter 1:

The Transposition of Inter-State Self-Defense and Use of Force onto Operational Mandates for Peace Support Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Geert-Jan Alexander Knoops A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Equation of Peace Support Operations and Self-Defense by States . . . C. Use of Force by Peacekeepers Engaged in (International) Armed Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Normative Framework for Peacekeepers . . . . . . . . . . . . . . . . . . . . . 2. Defining Peacekeepers as “Combatants” . . . . . . . . . . . . . . . . . . . . . . . . 3. Discretionary Boundaries for Peacekeepers to Engage in Combat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Use of Force by Peacekeepers Beyond the Framework of an Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Use of Force Against Non-State Actors. . . . . . . . . . . . . . . . . . . . . . . . . . 2. Defining “Armed Attack” Against Peacekeepers . . . . . . . . . . . . . . . . . . 3. Self-Defense Pursuant to Article 51 as an Operational Mandate for Peacekeepers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Mandating the Use of Force by Peacekeepers Based upon “Hostile Act” and “Hostile Intent” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Law of Occupation and Peace Support Operations—At Odds?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sigmar Stadlmeier and Franz Leidenmuehler A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Law of Occupation—Scope of Application and Contents . . . . . . . . . . . C. Limits to Legislative Action by the Occupying Power— The “Principle of Preservation” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. The Law of Occupation and Peace Support Operations . . . . . . . . . . . . . . . . . E. Legal Basis for Derogation from the Classic Law of Occupation . . . . . . . . . F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 3 4 6 6 9 10 13 13 16 17 19 21

Chapter 2:

Chapter 3:

The Prosecution of Criminals as a Peace-Building Tool: v

23 23 24 26 27 28 31

vi

Law Enforcement Within the Framework of Peace Support Operations

Cooperation with the ICC and the Case of the LRA in Northern Uganda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Emmanuel Kasimbazi A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Overview of International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . C. The Lord’s Resistance Army Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Conditions for the ICC to Prosecute LRA Rebels . . . . . . . . . . . . . . . . . . . . . 1. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Other Conditions Under the ICC Statute. . . . . . . . . . . . . . . . . . . . . . . . . E. Alleged Crimes Committed by the LRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Prospects of the LRA Prosecution by the ICC Towards the Peace-Building Process in Northern Uganda . . . . . . . . . . . . . . . . . . . . . . . . . G. Challenges of the ICC as a Peace-Building Tool in Northern Uganda . . . . . H. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 33 34 35 38 38 39 40 43 45 48

PART II: LAW ENFORCEMENT WITHIN THE FRAMEWORK OF PSOs—LIMITS AND POSSIBILITIES Chapter 4:

The Limits on Law Enforcement by Peacekeeping Operations in Accordance with SOFAs, ROEs and SOPs . . . . . . . . . . . . . . .

Ulf Häussler A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Transitional Authority: Sources and Limits . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The International Mandate and SOFAs as Sources of Transitional Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The International Mandate and SOFAs as Inherent Limits of Transitional Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Limits of Transitional Authority Deriving from General Principles of International Humanitarian and Human Rights Law . . . . . . . . . . . . . C. The Practice of International Peacekeeping—Key Examples . . . . . . . . . . . . 1. The KFOR Law and Order Mission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Protection and Defense of Designated Property . . . . . . . . . . . . . . . . . . . 3. Operational Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Assessment and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Impact of Organized Crime on Peace Support Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fabian Kuehner A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Organized Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Peace Support Operations (PSOs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. The Post-Conflict Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. The Impact of Organized Crime on PSOs—A Closer Look . . . . . . . . . . . . . 1. How Does Organized Crime Affect PSOs? . . . . . . . . . . . . . . . . . . . . . . .

53 53 54 55 58 60 63 63 68 70 72

Chapter 5:

75 75 75 76 76 77 78 78

Table of Contents 2. 3.

E.

F.

The Legal Framework of PSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Military and Civilian Peace Supporting Operators and Their Tasks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Other Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Bosnia and Herzegovina (BiH) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Organized Crime Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Law Enforcement Institutions and Their Legal Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Dilemmas and Problems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Organized Crime Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Law Enforcement Institutions and Their Legal Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Dilemmas and Problems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Afghanistan (ISAF) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Organized Crime Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Law Enforcement Institutions and Their Legal Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Dilemmas and Problems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 6:

Peace Support Forces—Assisting the Civilian Authorities in Criminal Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Kwai Hong Ip A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Authorized Tasks and International Obligations. . . . . . . . . . . . . . . . . . . . . . . C. Initial Phase of Operations—Control of the Ground Environment and Post-Conflict Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Securing Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Mass Graves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Applicable Criminal Procedure and Admissibility of Evidence . . . . . . . . . . E. Intelligence Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Threat and Criminal Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Sharing Intelligence and Technical Means—Cooperation Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Classification and Declassification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Crime Scenes and Physical Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G. PSF Participation in Searches and Arrests—Coordination Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

vii 78 80 81 82 82 82 83 86 87 87 90 93 94 94 97 101 102 105 105 106 108 108 109 110 112 112 114 114 115 116 117 119 119

viii

Law Enforcement Within the Framework of Peace Support Operations PART III: LAW ENFORCEMENT AND FORCE PROTECTION BY PSO FORCES: PRACTICAL TOOLS

Chapter 7:

The Maintenance of Law and Order in the Aftermath of International Armed Conflict— Lessons Learned from Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nicholas J. Mercer A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Planning—Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Training/Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Nation-Building—Practical Difficulties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Constitutional/Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Courts/Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Prisons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. International Oversight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Apprehension of Indicted War Criminals: Lessons from the Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . Benjamin Perrin A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Law Enforcement Challenges in the International Context . . . . . . . . . . . . . . C. Legal Framework for the Arrest, Detention, Surrender and Transfer of Suspects and Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Determining the Enforcement Authority of the Arrest Warrant. . . . . . . 2. Rules Governing the Arrest of Suspects and Accused at the ICTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Arrest, Detention and Questioning of Suspects . . . . . . . . . . . . . . . b. Sealed and Public Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Execution of Arrest Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Apprehending Indicted War Criminals in Practice . . . . . . . . . . . . . . . . . . . . . 1. Voluntary Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Arrest by Domestic State Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Arrest by International Peace Support Forces. . . . . . . . . . . . . . . . . . . . . 4. At Large. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Novel Approaches to Apprehending Indicted War Criminals . . . . . . . . . . . . 1. Diplomatic and Economic Sanctions Against Non-Cooperative States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freezing Assets and Restricting Travel of Accused and Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Deception and Trickery of Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

123 123 124 125 126 129 130 132 133 135 136 136 137

Chapter 8:

139 139 139 141 141 142 143 143 144 145 145 146 147 148 148 149 150 151

Table of Contents 4. 5. F.

Transnational Abductions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public Involvement: Financial Rewards and Web Sites of Sightings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Law Enforcement in Post-Conflict Bosnia and Herzegovina: War Crimes Prosecutions and Judicial Restructuring . . . . . . . Christopher Harland A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Brief History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. The “Rules of the Road” System: Balancing War Crimes Trials and Freedom of Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Proposed Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Outcome of the RoR Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Conclusions and Prospects for Use in Other Contexts . . . . . . . . . . . . . . D. Vetting of Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Reselection System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Results of the Reselection System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Conclusions Regarding Future Use of such a System . . . . . . . . . . . . . . E. A New War Crimes Chamber: Linking International and Domestic War Crimes Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Proposed Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Results of the War Crimes Chamber to Date . . . . . . . . . . . . . . . . . . . . . 4. Conclusions Regarding Future Uses of such a System . . . . . . . . . . . . . F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix 152 154 154

Chapter 9:

Chapter 10: Forensic Anthropology in Peace Support Operations . . . . . . . . Mercedes Doretti and Jennifer Burrell A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Argentine Case and the Formation of EAAF. . . . . . . . . . . . . . . . . . . . . . C. Methodologies and Phases of Forensic Anthropology Investigation of a Human Rights Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Preliminary Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Archaeological Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Laboratory Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Identifications: Problems and Dilemmas . . . . . . . . . . . . . . . . . . . . . . . . 5. Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Criteria for Case Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Psychological Assistance to the Relatives of Victims . . . . . . . . . . . . . . D. Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

157 157 158 159 160 161 162 165 166 166 167 168 170 171 171 174 175 176 177 179 179 180 182 182 184 187 188 190 190 191 192

x

Law Enforcement Within the Framework of Peace Support Operations

Chapter 11: The Treatment of Detainees by Peacekeepers: Applying Principles and Standards at the Point of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bruce “Ossie” Oswald A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Defining and Classifying Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. The Treatment of Detainees: Legal Principles and Standards . . . . . . . . . . . . 1. General Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Specific Principles and Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Principles Relevant to the Treatment of Detainees . . . . . . . . . . . . . i. Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii. Prohibition of Torture and Ill-Treatment . . . . . . . . . . . . . . . . . iii. Protection from the Environment and Other Threats. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv. Reasons for Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v. Registration of Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi. Notification of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii. Medical Treatments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii. Categories of Persons Entitled to Special Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix. Reprisals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x. Release or Ongoing Custody . . . . . . . . . . . . . . . . . . . . . . . . . . xi. Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii. Handover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii. Remedies if There Has Been Ill-Treatment. . . . . . . . . . . . . . . b. Accountability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i. Recording and Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii. Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii. Monitoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 12: IHL v. Human Rights: The Al Jedda Case and Issues Arriving from an Operational Perspective . . . . . . . . . . . . . . . . . James AE Johnston A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Divisional Court Proceedings: July 20–21, 2005 . . . . . . . . . . . . . . . . . . . . . . D. Court of Appeal Proceedings: January 16–18, 2006 . . . . . . . . . . . . . . . . . . . E. Operational Issues Arising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 13: Witness Protection by Peace Missions . . . . . . . . . . . . . . . . . . . . . . Ulf Häussler A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Internal Dimension of Witness Protection . . . . . . . . . . . . . . . . . . . . . . . . 1. Status and Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

197 197 200 204 206 209 209 209 210 213 213 213 214 214 215 216 216 217 217 218 218 218 219 220 220 229 229 231 232 240 243 253 257 257 259 259

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C.

D.

E.

F.

2. Preventive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Repressive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Practical Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The External Dimension of Witness Protection . . . . . . . . . . . . . . . . . . . . . . . 1. Practical Questions of Witness Protection: A Hypothetical Scenario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Geographical Overlaps Between the Jurisdiction of Adjudication Bodies and Peace Missions’ Areas of Operations . . . . . . . . . . . . . . . . . . a. The Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Rwanda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. The DRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Sudan (Darfur) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Sierra Leone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f. Cambodia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g. Lebanon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Witness Protection and International Mandates . . . . . . . . . . . . . . . . . . . . . . . 1. Peace Missions in the Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . a. Croatia and BiH: The UN Protection Force (UNPROFOR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. BiH: IFOR/SFOR/EUFOR ALTHEA . . . . . . . . . . . . . . . . . . . . . . . c. BiH: The High Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Kosovo: KFOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Kosovo: UNMIK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Peace Missions in the DRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. MONUC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. EU Peacekeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Peacekeeping in Sudan (Darfur) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Peacekeeping in Lebanon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . What Cooperation May International or “Hybrid” Criminal Courts and Tribunals Seek with Peace Missions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ICTY and ICTR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Sierra Leone: The Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Cambodia: The Extraordinary Chambers . . . . . . . . . . . . . . . . . . . . . . . . 5. Lebanon: The Special Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xi 260 261 262 263 264 266 267 268 268 269 270 270 271 271 272 272 273 275 277 278 279 279 280 281 283 283 284 286 288 288 288 290

PART IV: LAW ENFORCEMENT WITHIN PSOs—THE PROSECUTION OF PEACEKEEPERS AND THE SPECIAL CASE OF HUMAN TRAFFICKING AND SEXUAL OFFENSES Chapter 14: Human Rights Training to Law Enforcement Agents: A Key to PSO Success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 David B. Hodgkinson, Sandra L. Hodgkinson, Diana C. Noone and Gregory P. Noone A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

xii B.

C.

D.

E.

F.

Law Enforcement Within the Framework of Peace Support Operations Human Rights as a Key Factor and Basis for PSOs . . . . . . . . . . . . . . . . . . . . 1. Importance of Human Rights in PSOs . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Role of the UN Code of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Applicable Human Rights in PSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Relationship Between Law Enforcement and Human Rights Components. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Role of Human Rights Components . . . . . . . . . . . . . . . . . . . . . . . . b. A Beneficial Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Principles for Policing Within the Human Rights Mandate . . . . . . . . . . 6. Setting the Scene for Success: The Right People With the Right Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Training Law Enforcement Agents in Human Rights. . . . . . . . . . . . . . . . . . . 1. Methods of Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Basis for Human Rights Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. UN Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Domestic Training by Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effectiveness of Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Balkans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Sierra Leone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Democratic Republic of the Congo . . . . . . . . . . . . . . . . . . . . . . . . . 3. The United Nations Responds on Sexual Exploitation and Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement and Disciplinary Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . 1. UN Police Officers and Military Observers . . . . . . . . . . . . . . . . . . . . . . a. Serious Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Minor Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Military Members of National Contingents . . . . . . . . . . . . . . . . . . . . . . a. Serious Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Minor Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Legal Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Sexual Harassment or Sexual Exploitation . . . . . . . . . . . . . . . . . . . . . . . 4. Public Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 15: The NATO Policy on Human Trafficking: Obligation to Prevent, Obligation to Repress . . . . . . . . . . . . . . . . . . . . . . . . . . . Roberta Arnold A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The NATO Policy on Combating Trafficking in Human Beings . . . . . . . . . . 1. Four Good Reasons for the Release and Enforcement of the NATO Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Damage to the Image of the Mission and the Credibility of the Troops Deployed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

312 313 315 315 317 318 318 319 320 323 323 324 325 328 328 329 329 329 330 330 331 332 333 333 335 336 336 336 337 337 338 339 351 351 355 356 357

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D.

E.

b. A Threat to the Security of the Mission . . . . . . . . . . . . . . . . . . . . . c. A Threat to the Security of Individual Peacekeepers . . . . . . . . . . . d. Possible Prosecution Under the Host State’s Jurisdiction . . . . . . . 2. The Nature of the Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Obligations Imposed by the NATO Policy . . . . . . . . . . . . . . . . . . . . . . . Implementation of NATO’s Policy at the Domestic Level . . . . . . . . . . . . . . . 1. Adoption of Legislative Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Introduction of Appropriate Training . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Support to Local Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Adoption of Contractual Provisions Prohibiting PSO Personnel from Engaging in Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The Example of Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Practical Tools for Law Enforcement Agents in the Field . . . . . . . . . . . . . . . 1. General Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Assessment of the Situation at Checkpoints . . . . . . . . . . . . . . . . . . . . . . 3. Other Indicators that Trafficking in Persons Might Be Taking Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Use of Pocket Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 16: Trafficking in Human Beings—Reduction Strategies for Law Enforcement in Peace Support Operations . . . . . . . . . . . . . Elizabeth Rennie A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Definition of Trafficking and Common Misconceptions . . . . . . . . . . . . . . . . C. The Causes and Dynamics of Trafficking in Persons . . . . . . . . . . . . . . . . . . . D. The Difficulties in Investigating Trafficking in Persons Cases and the Extra Challenges Affiliated with a PSO. . . . . . . . . . . . . . . . . . . . . . . E. The Required Special Handling of Victims and Witnesses of Trafficking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Special Problems Related to the Trafficking of Children . . . . . . . . . . . . . . . G. Allegations Against Those Working Within PSOs . . . . . . . . . . . . . . . . . . . . . H. Tools for Successful Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Quick Resource List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 17: The Role of the International Criminal Court in the Prosecution of Peacekeepers for Sexual Offenses . . . . . . . . . . . Noëlle Quénivet A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Scope and Extent of Sexual Activities of Peacekeepers . . . . . . . . . . . . . . . . . C. Different Types of Peacekeepers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Policies, Investigation and Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The United Nations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xiii 358 358 359 364 365 367 367 367 367 369 371 374 374 375 376 377 378 381 381 382 383 384 387 390 392 394 394 395 397 399 399 400 403 406 407

xiv

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F.

G.

H.

Law Enforcement Within the Framework of Peace Support Operations 2. Prosecution of National Contingents . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Zero-Tolerance Policy of the United Nations and International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Repeated Rapes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Prostitution or Forced Prostitution. . . . . . . . . . . . . . . . . . . . . . . . . . b. Prostitution or Sexual Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecution of Peacekeepers by International Criminal Tribunals . . . . . . . . 1. Issues Relating to Crimes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Crimes Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Principle of Complementarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Using the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Secondary Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. The Old Investigation Procedure and Its Criticisms . . . . . . . . . . . . b. The New Investigation Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. The Possible Role of the ICC in this New Investigation Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

409 411 413 415 415 418 420 420 421 421 423 424 425 426 426 427 427 428 430 430

Final Conclusions and Remarks by the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . .

433

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

435

LIST OF ACRONYMS AND ABBREVIATIONS AAAS ACHR AHPR AI AMIS ANA ANP AU BiH CAT CEDAW CERD CFI CID CIMIC CIS CIU CIVPOL COE COMKFOR CONADEP CPA CPEF CRC DIILS DIMU DIRC DOC DPKO DRC ECHR ECOWAS EEAF

American Association for the Advancement of Science American Convention on Human Rights African Charter on Human and Peoples’ Rights Amnesty International AU’s peace mission in Spain Afghan National Army Afghan National Police African Union Bosnia and Herzegovina Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Elimination of All Forms of Discrimination against Women Convention on the Elimination of All Forms of Racial Discrimination European Court of First Instance Criminal Investigation Department civil military coordinators Commonwealth of Independent States Central Intelligence Unit (Kosovo) international civilian police Council of Europe Commander, Kosovo Force National Commission on the Disappearance of People (Argentina) Coalition Provisional Authority (Iraq) Central Poppy Eradication Force (Afghanistan) Convention on the Rights of the Child US Defense Institute for International Legal Studies Detainee and Internee Management Unit (for INTERFET) Divisional Internment Review Committee (Iraq) Directorate for Organized Crime (Kosovo) UN Department of Peacekeeping Operations Democratic Republic of Congo European Convention on Human Rights Economic Community of West African States Argentine Forensic Anthropology Team xv

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EU EUFOR-Althea EUFOR ARTEMIS EUPM FIU FYROM GA GFAP HJPC HR HRBA HRL HSMF ICC ICCPR ICESCR ICJ ICL ICRC ICTJ ICTR ICTY IDF IDP IFOR IHL IHRL IJC ILC INTERFET IO IOM IPTF IPU ISAF ISF JSAP KFOR KLA KOCB KPS LOAC

European Union EU-led force in BiH Interim Emergency Multinational Force in Bunia European Union Police Mission (BiH) Financial Investigation Unit (Kosovo) Macedonia UN General Assembly General Framework Peace Agreement (BiH) High Judicial and Prosecutorial Councils (BiH) High Representative (BiH) Human Rights Based Approach human rights law Holy Spirit Mobile Force (Uganda) International Criminal Court International Covenant of Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice international criminal law International Committee of the Red Cross International Center for Transitional Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Israeli Defense Forces internally displaced person Implementation Force international humanitarian law international human rights law Independent Judicial Commission (BiH) International Law Commission International Force for East Timor international organization International Organization for Migration International Police Task Force integrated police unit (EURFOR) International Security Assistance Force (Afghanistan) Interim Security Facility (Kosovo), Judicial Systems Assessment Program (BiH) Kosovo Force Kosovo Liberation Army Organized Crime Bureau (Kosovo) Kosovo Police Service Law of Armed Conflict

List of Acronyms and Abbreviations

LRA MINUSTAH MONUC MOU MSU MTA NAC NATO NGO NRA NRM OEF OHCHR OHR OIOS OMF ONUC OPLAN OPORD OP TELIC ORHA OSCE OTP PCIJ PDSS PIC PIFWCs PRDSS PRT PSF PSO PW QIP ROE RoR RS SC SC Res. SCSL SFOR SFRY SIOU SMCC

Lord’s Resistance Army (Uganda) UN Stabilization Mission in Haiti UN Organization Mission in the DRC Memorandum of Understanding multinational support unit military technical agreement North Atlantic Council North Atlantic Treaty Organization non-governmental organization National Resistance Army (Uganda) National Resistance Movement (Uganda) Operation Enduring Freedom (Afghanistan) Office for the High Commission on Human Rights Office of the High Representative (BiH) UN Office of Internal Oversight Services opposing militant forces PSO in the Congo operation plan operation orders Operation Enduring Freedom (Iraq) Office for Reconstruction and Humanitarian Assistance (Iraq) Organization for Security and Cooperation in Europe Office of the Prosecutor Permanent Court of International Justice persons with designated special status Peace Implementation Council (BiH) persons indicted for war crimes Property with Designated Special Status Provincial Reconstruction Team (Afghanistan) peace support forces peace support operation prisoner of war Quick Impact Projects (Iraq) rules of engagement Rules of the Road Republika Srpska UN Security Council UN Security Council Resolution Special Court for Sierra Leone Stabilization Force in BiH Socialist Federal Republic of Yugoslavia Sensitive Information and Operations Unit (Kosovo) Swiss Military Criminal Code

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SOFA SOMA SOP SRSG STOP Swisscoy Swiss DoD SWISSINT TCN TIF TPIU UAE UÇK UDHR UK UN UNAMIR UNAMSIL UNCAT UNDP UNEF I UNFICYP UNIFIL UNIIIC UNIOSIL UNITAR POCI UNMEE UNMIBH UNMIH UNMIK UNMIL UNMIS UNOCI UNODC UNOMSIL UNOSOM II UNPOL UNPROFOR UNTAC UNTAES UNTAET

Status of Forces Agreement Status of Mission Agreement standing operating procedure Special Representative of the Secretary-General Special Trafficking Operation Program Swiss peacekeeping mission in Kosovo Swiss Department of Defense Swiss DoD’s competence center for PSOs troop contributing nation Theater Internment Facility (Iraq) Trafficking and Prostitution Investigation Unit (Kosovo) United Arab Emirates Ushtria Çlirimtare e Kosovës (Albanian name of KLA) Universal Declaration of Human Rights United Kingdom United Nations UN Assistance Mission for Rwanda UN Mission in Sierra Leone UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment UN Devleopment Program First UN Emergency Force PSO in Cyprus UN Interim Force in Lebanon UN International Independent Investigation Commission UN Integrated Office in Sierra Leone UN Institute for Training and Research Program of Correspondence Instruction UN Mission to Ethiopia and Eritrea UN Mission in Bosnia Herzegovina UN Mission to Haiti UN Interim Administration Mission in Kosovo UN Mission in Liberia UN Mission in Sudan PSO in Côte d’Ivoire UN Office on Drugs and Crime UN Observer Mission in Sierra Leone PSO in Somalia UN Police UN Protection Force UN Transitional Authority in Cambodia UN Transition Administration for Eastern Slavonia, Barajana and Western Sirmium UN Transitional Administration in East Timor

List of Acronyms and Abbreviations

UPDA UPDF US USFK VAAU WTO

Uganda People’s Democratic Army Ugandan People’s Defense Force United States US Forces Korea Victim Advocacy and Assistance Unit (Kosovo) World Trade Organization

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INTRODUCTION Since the end of the Cold War and the emergence of “asymmetric” threats like terrorism, the military has been increasingly entrusted with tasks traditionally belonging to the police. This development is visible through the new challenges posed to modern peace support operations (PSO), intended as an umbrella definition covering different types of post-conflict peace operations, be these mandated under Chapter VI or Chapter VII of the UN Charter, with either peacekeeping, peace enforcing, or even peace-building goals. Examples like Kosovo, Bosnia and Herzegovina and Iraq have shown that often the military, due to its organization and logistics is often called to operate on behalf, or in replacement of, no longer functioning or existing governmental institutions and structures. This holds particularly true with regard to law enforcement institutions. States trying to recover from an armed conflict often need the external support of international PSO forces in order to reestablish and maintain law and order, a condicio sine qua non for the building of stable peace. Law enforcement in a post-conflict scenario, however, may be very different in an armed conflict scenario, which is subject to the rules of international humanitarian law (IHL) and which permits more flexible and force-oriented rules of engagement (ROE). In ordinary post-conflict scenarios, for instance, it is very important to assess the reciprocal responsibilities of the government of the receiving state, that is, the state hosting the PSO forces (also called host state) and the intervening forces, in matters like the arrest, interrogation, detention and prosecution of criminal suspects. What legal standards do apply? Those of the intervening international PSO forces or those of the receiving state? In the first case, what standards shall apply if the ROE and the domestic legislation of the troop contributing nations (TCNs) composing a multinational PSO force differ? Which ROE should prevail or provide the standard? What if the TCNs are parties to different international treaties, for example different conventions protecting human rights? Shall all the members of the PSO be subject to the same legal standards? Do the standards of the different TCNs apply extraterritorially? To what degree should the TCNs’ human rights obligations apply in the host state? Institutions like the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have been created and identified by the UN Security Council as new peace enforcement tools. Another important issue, therefore, is to assess the degree and modalities through which PSO forces shall cooperate with them, particularly when called to perform traditional police tasks like the collection of evidence, the xxi

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interrogation of witnesses and the arrest and detention of suspects for which an arrest warrant has been issued. Arrest and prosecution, however, are just one side of the coin to be considered by PSO forces. Other law-enforcement-related problems are the degree to which they may use force to protect themselves and their property. TCNs may have different legal traditions and standards. An intensely debated issue, for instance, is whether force may be used to protect property at all and, if so, to what degree. The Anglo-Saxon and Roman-continental legal systems have different approaches. The first does not accept, under any conditions, the use of lethal force to protect property. The second may give some concessions, depending on the circumstances. Which approach shall prevail? These aspects are generally regulated in the ROE of the different TCNs. In this regard, another issue is the limits posed on law enforcement tasks by ROE, memoranda of understanding (MOUs) and Status of Forces Agreements (SOFAs). For political reasons there may be states not authorizing the engagement of their own troops for this purpose. Human trafficking is just one example. Should PSO forces intervene to stop and prosecute the illegal trade of human beings? Is this a PSO task? How should PSO forces cooperate with the local police? A related matter is the behavior of PSO troops. PSO troops must prove not only to their employer but in particular to the population of the receiving state that they deserve the uniform they are wearing. Law enforcement within PSO forces is also a crucial aspect, the modalities of which are not always obvious. These are some of the issues addressed in this book. The book aims primarily to provide guidance, in the form of a handbook, to those deployed in the field and who are confronted with legal issues. The editor, in her former capacity as legal adviser at the Swiss Department of Defense, within the Laws of Armed Conflict Section, had the opportunity to share her office, consecutively, with three prospective legal advisers of the Swiss contingent in Kosovo (Swisscoy), one of which is author and friend Fabian Kuehner. Those recruited generally undertake, as part of their training, a six-month internship at the headquarters of the Defense Department in Bern. The possibility to exchange views and to get an insight into the doctrinal problems they would—and actually did— get confronted with, made the editor aware of the strong need for a handbook/manual that may be taken to the field, illustrating practical legal matters that may arise during deployment and providing viable solutions, especially when no libraries or Internet services are available and one has to quickly decide what to advise to provide the commander. At the same time, this book hopes to provide some guidance also to those entrusted with the drafting of legal standards and regulations for PSOs. Practice often differs from theory. The different approaches of academics and practitioners, subtly referred to by James Johnston in his chapter, often lead to antagonism rather than communication and cooperation. The aim of this book, instead, is to open a line of communication between practitioners, who were asked to translate into written words the experiences made in the field,

Introduction

xxiii

and academics, who were asked to look for viable solutions to the above-mentioned problems, thanks to their deep knowledge of the legal background and framework of PSOs. Another purpose is to bridge the gap between those who have already experienced and faced these problems in the field and those yet to be deployed, thereby facilitating the know-how transfer and resolution of practical legal problems related to law enforcement in PSO. In order to achieve this goal, the handbook is structured as follows: after this introduction, Part I addresses the general question whether law enforcement shall be a PSO task. Law enforcement is perceived by some states as a matter of self-defense. Whether state self-defense shall be a PSO task is discussed in Chapter 1 by Alexander Knoops (co-editor of a previous book on the Practice and Policies of Peace Support Operations under International Law, Transnational Publishers, 2006). The degree to which law and order may be maintained or enforced by a PSO may vary considerably depending on whether the operation is mandated under Chapter VI or VII of the UN Charter. Chapter VII missions may be subject to the application of IHL and its rules on occupation. In reality, though, it may be very difficult to draw the line between a Chapter VI, “peacekeeping operation,” and a Chapter VII “peace enforcement” operation. Sigmar Stadlmeier and Franz Leidenmühler address this problem by discussing the tensions between the law of occupation and peace enforcement operations in Chapter 2. In Chapter 3, Emmanuel Kasimbazi then examines whether PSOs shall be entrusted with the prosecution of criminals as a peace-building tool, by taking the example of the cooperation with the International Criminal Court (ICC) for the prosecution of the Lord’s Resistance Army (LRA) in northern Uganda. Part II then addresses the limits and possibilities of law enforcement by PSOs. Ulf Häussler provides a general overview of the topic in Chapter 4, focusing on the limits posed by SOFAs, MOUs and ROEs. Fabian Kuehner then examines, in Chapter 5, the impact of organized crime on law enforcement in PSOs. Kwai Ip then addresses the related issue of cooperation between PSO forces and local forces in prosecuting criminal suspects in Chapter 6. The discussion continues with Part III, which provides some practical tools for those deployed to the field. In Chapter 7, Nicholas Mercer portrays his experiences in Iraq, focusing on the problems related to law enforcement in the aftermath of occupation. In Chapter 8, Benjamin Perrin then examines the practical difficulties of apprehending indicted war criminals, with reference to his lessons learned in the former Yugoslavia. Chris Harland completes this overview in Chapter 9, by discussing problems related to the prosecution of war criminals as a peace-building tool in Bosnia and Herzegovina. Apprehension and prosecution, however, need to be based on evidence. The practical obstacles met in collecting evidence are illustrated by Jennifer Burrell and Mercedes Doretti in Chapter 10, which focuses on the forensic humanitarian side of prosecuting war crimes. Once apprehended and prosecuted, criminals need to be

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detained. Under what rules? This issue is addressed in Chapter 11 by Bruce Oswald, whereas the need to respect detainees’ human rights and the conflicting interests of law enforcement forces in PSOs is discussed by James Johnston in Chapter 12, on the basis of his experiences in Iraq. Finally, in Chapter 13, Ulf Häussler examines the problem of witness protection. Part IV focuses instead on law enforcement within PSOs, illustrating problems related to the prosecution of members of PSO forces suspected of illegal activities. A very important tool to prevent the occurrence of crimes within PSOs is human rights training, which may prevent the occurrence of abuses during, for example, interrogation or detention. This aspect is examined by Greg and Diana Noone and David and Sandra Hodgkinson in Chapter 14. In Chapter 15, the editor examines the NATO Policy on Combating Human Trafficking, constituting both an obligation to prevent and repress this crime, independent from whether committed by NATO personnel or individuals operating in NATO’s theaters of operation. In its wake, Elizabeth Rennie suggests practical tools for the police in addressing trafficking cases in Chapter 16. Noëlle Quénivet then completes the discussion in Chapter 17, by addressing the prosecution of peacekeepers by the ICC for sexual offenses. The conclusions end the book. Grateful thanks go to all the authors and friends for their enthusiastic and professional support to this project, which never failed, especially from those that, notwithstanding deployment to the most remote corners of this globe, with considerable communication problems and more pressing and urgent tasks, managed to find the time to accomplish this work. The completion of this project not only gave the editor a chance to widen her network of friends, but also deepened her knowledge of PSOs and operational legal aspects, and to daydream a little bit when reading or hearing on the phone about their brave, adventurous and, most importantly, humanitarian missions. This book is dedicated to all those who believe in PSOs and who, notwithstanding the dramatic and often sad realities faced in the field, have not lost track of the humanitarian ideals underlying them and who are still ready to put risk their lives for the achievement of peace. Lugano, July 14, 2007 Dr. Roberta Arnold

PART I

LAW ENFORCEMENT— A PSO TASK?

CHAPTER 1 THE TRANSPOSITION OF INTER-STATE SELF-DEFENSE AND USE OF FORCE ONTO OPERATIONAL MANDATES FOR PEACE SUPPORT OPERATIONS Geert-Jan Alexander Knoops*

A. INTRODUCTION Inter-state self-defense within international law has given rise to controversies as to its limitations. Inter-state self-defense may be described as a preexisting right of a customary nature that legally entitles a state, subjected to an armed attack, to resort to force.1 The key question is not whether self-defense for states exists, but rather at what momentum in the course of events this right may be invoked. Although the International Court of Justice (ICJ) in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons held that every state has the fundamental right to “survival” and thus to resort to selfdefense pursuant to Article 51 of the UN Charter,2 “the exercise of self-defence [by states] is by no means confined to such catastrophic scenarios.”3 This counts especially for situations during contemporary military crisis-management missions, in which peacekeepers are called to operate.4 Similar to states, “the reality of self-defence in inter-state relations [and also for peacekeepers] is much

* Attorney at law at Knoops & Partners, Amsterdam, defense counsel acting before the ICTY, ICTR, SCSL; major (reserve) of the Royal Netherlands Marines Corps; LL.M., Ph.D. (Leiden University), Ph.D. (University of Ireland). 1 See YORAM DINSTEIN, WAR, AGRESSION AND SELF-DEFENSE 178–82 (2005); see also the ICJ judgment in the Nicaragua case, infra note 48. 2 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226, 263; the ICJ opined that such survival would be only at stake in an extreme circumstance of self-defense. 3 DINSTEIN, supra note 1, at 175 (2005). 4 The term “peacekeepers” or “peacekeeping operations” in this chapter includes both peacekeepers and peace enforcement operations; the term peace support operations (PSOs) covers both of these types of operations. 3

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Law Enforcement Within the Framework of Peace Support Operations

more prosaic; it transcends life-or-death existential crises and impinges on a host of common place situations involving the use of counterforce.”5 Self-defense for peacekeepers has traditionally been compared and linked to the concept of self-defense for military units and not to the concept of interstate self-defense.6 When one goes into the nature of peacekeeping operations, one may find arguments to apply the latter concept also to peacekeeping forces, being exponents of states. This chapter intends to assess the potential transposition of inter-state self-defense under Article 51 of the UN Charter (jus ad bellum) to peacekeeping missions. After setting forth the limitations of such form of self-defense in international law, this chapter will explore the question whether and to what extent use of force pursuant to Article 51 of the UN Charter can serve as a self-containing mandate for the peace support operations (PSOs) in general and the use of force by peacekeepers in specific. In doing so, this chapter makes a distinction between the use of force by peacekeepers within an armed conflict and outside an armed conflict. B. THE EQUATION OF PEACE SUPPORT OPERATIONS AND SELF-DEFENSE BY STATES Peacekeeping forces are not assigned for combat as such. Yet, on certain occasions, they may be mandated with a broader right to self-defense and use of force compared to the right allocated to individual states under public international law. For instance, the ISAF III mission in Afghanistan, executed by NATO on the basis of UN Resolutions 1386, 1510 and 1623, is allowed “to use all necessary means” to carry out its mandate. Despite the predominant humanitarian nature of this operation, its emphasis lies to a large extent on combat; given the dangerous environment of the provinces of Helman and Uruzgan, UN soldiers are empowered with an extensive mandate and are actually engaged in combat. Notably, the applicable NATO Rules of Engagement7 permit the exercise of “offensive security operations,” which are not to be confused with the anti-terrorism operations pur sang conducted against the opposing militant forces (OMF), among which are the Taliban. These “offensive security operations” authorize peace enforcers to use force at a higher level, equivalent to combat action, particularly when it concerns the protection of their own or allied forces. This mandate encompasses the right to target hostile forces in anticipation of an imminent attack against their own or allied forces, presupposing that the available evidence or intelligence justifies it.8 It is questionable whether 5

Id. DINSTEIN, supra note 1, at 308. 7 The standing NATO Rules of Engagement MC 362. 8 See Letter of the Dutch Ministers of Foreign Affairs and Defense, Jan. 27, 2006 (ref. DVB/CV-041/06) to the chairman of the Dutch Parliament. 6

Inter-State Self-Defense

5

the concept of “offensive security operations” may be qualified as “anticipatory self-defense” in international law, the latter right being disputed when no armed attack is under way or is not yet being mounted.9 It is tenable that the use of force by modern peacekeeping or peace enforcement forces within contemporary crisis-management operations seems akin to the inherent right of states to resort to self-defense. Consequently, the parameters applicable to states can, mutatis mutandis, be applied to peacekeeping and peace enforcement forces and constitute the basis for self-containing mandate(s) for these forces. The key question, however, is whether the principles of inter-state force may be relied upon by peacekeeping or peace enforcement forces for the conduct of law enforcement operations. The potential analogy with the principles of inter-state force seems pertinent in view of the fact that the right of selfdefense, both individually and collectively, becomes relevant whenever peace enforcement operations transcend into law enforcement, as often happens in contemporary crisis-management operations.10 These contemporary crisis-management operations teach that domestic law enforcement operations, on the one hand, and peacekeeping and peace enforcement operations, on the other hand, have common denominators11 and that even rules of engagement (ROE) governing domestic law enforcement operations may be applied to international military operations.12 Of course, these two categories of operations also have fundamental differences. As remarked by Westhusing: But one obvious difference is that FBI agents deal with criminals and suspected criminals within the U.S. whereas U.S. soldiers, sailors, airmen and marines interact with foreign citizens—often while deployed as part of exceptional, politically sensitive peace operations or counterterrorism operations. In such high stake arenas, soldiers, marines, and special operations forces may be serving collectively to set or enforce the conditions of peace, not to arrest known or suspected criminals. Or they may also be involved in law enforcement operations. Or they may, in the case of special forces missions against terrorists abroad, even be seeking to destroy terrorists on their home turf—with or without the permission of the foreign nation’s authorities.13

9

See DINSTEIN, supra note 1, at 187. See also Ted Westhusing, Taking Terrorism and ROE Seriously, 2 J. MILITARY ETHICS 7 (2003). 11 See Westhusing, supra note 10, at 11. 12 Id. 13 Id. 10

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In spite of these differences, the following principles may be followed: 1.

2.

Peacekeepers and peace enforcers who become involved in law enforcement or even counter-terrorism operations, in addition to their ordinary peacekeeping or peace enforcement tasks, should be protected by being provided with a clear definition of the parameters of the applicable use of force.14 Military law enforcement duties should be framed and assessed on the basis of the international law principles of inter-state use of force. This is desirable also from the perspective of equity.

Yet, the scope of any law enforcement activity by peacekeepers depends on whether these are engaged in an armed conflict. Therefore, even though it is not always easy to draw a clear line,15 it should always be distinguished between the use of force applied by peacekeepers acting within and beyond the framework of an (international) armed conflict. The details will be discussed in the next sections. C. USE OF FORCE BY PEACEKEEPERS ENGAGED IN (INTERNATIONAL) ARMED CONFLICTS 1. The Normative Framework for Peacekeepers The active engagement of peacekeepers in armed conflicts cannot be merely qualified as a “law enforcement” operation, since otherwise the peacekeepers would be subject to the “laws of war” regime rather than domestic law enforcement rules. In this respect, the Israeli Supreme Court’s position on the application of the laws of war to complex regions may be of guidance. In its seminal judgment of December 13, 2006, it held that: the law that applies to the armed conflict between Israel and the terrorist organizations in the area is the international law dealing with armed conflicts. So this Court has viewed the character of the conflict in the past, and so we continue to view it in the petition before us. According to that view, the fact that the terrorist organizations and their members do not act in the name of a state does not turn the struggle against them into a purely internal state conflict. . . . Indeed, in today’s reality, a terrorist organization is likely to have considerable 14

Id. See Kwai Hong Ip, PSO’s; Establishing the rule of Law Through Security and Law Enforcement Operations, in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER I NTERNATIONAL L AW 8 (Roberta Arnold & Geert-Jan Alexander Knoops eds., 2006). 15

Inter-State Self-Defense

7

military capabilities. At times they have military capabilities that exceed those of states. Confrontation with those dangers cannot be restricted within the state and its penal law. Confronting the dangers of terrorism constitutes a part of the international law dealing with armed conflicts of international character.16 This reasoning may also apply to peacekeepers confronted with resistance or rebel groups that endanger the mission by having considerable military capacities. According to the Israeli Supreme Court, such situations may amount to international armed conflicts, triggering the laws of war. Yet, the existence of a Chapter VII (UN Charter) operation does not imply that the peacekeepers are a “party to an armed conflict.” Peace support forces may be engaged in Chapter VII (enforcement) operations without taking directly part in the hostilities. 17 As a result, peacekeepers can resort to military force and even launch attacks outside the scope of self-defense under Article 51 of the UN Charter.18 As the Israeli Supreme Court put it: In general, combatants and military objectives are legitimate targets for military attack. Their lives and bodies are endangered by the combat. They can be killed and wounded. However, not every act of combat against them is permissible, and not every military means is permissible. Thus, for example, they can be shot and killed. However, “treacherous killing” and “perfidy” are forbidden. . . . Use of certain weapons is also forbidden. The discussion of all these does not arise in the petition before us. Moreover, comprehensive legal rules deal with the status of prisoners of war. Thus, for example, prisoners of war are not to be put on criminal trial for their very participation in combat, and they are to be “humanely treated” (The Third Geneva Convention, art. 13). They can of course be tried for war crimes which they committed during the hostilities. Opposite the combatants and military objectives stand the civilians and civilian objectives. Military attack directed at them is forbidden.19

16 See Judgment of the Israeli Supreme Court, Sitting as the High Court of Justice, in The Public Committee Against Torture in Israel v. the Government of Israel et al., HCJ 769/021, para. 21 (Dec. 13, 2006). 17 See also Ip, supra note 15, at 8. 18 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” 19 Public Committee Against Torture in Israel v. the Government of Israel et al., HCJ 769/021, para. 23 (Dec. 13, 2006).

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Law Enforcement Within the Framework of Peace Support Operations

This ratio is of practical importance to peace missions operating within regions endangered by threats and attacks as in certain provinces of Afghanistan. Scholarly view holds that an armed conflict taking place between an occupying power and rebel or insurgent groups in an occupied territory is to be considered an international armed conflict, irrespective of whether these groups are terrorist in nature.20 The Israeli Supreme Court thus developed the following judicial system applicable to soldiers (and a fortiori peacekeepers) engaged in international armed conflicts (i.e., conflicts that cross the borders of the state): 1.

2. 3. 4.

5.

The laws of war per se (jus in bello), including the laws of belligerent occupation, the Fourth Hague Convention regarding the laws and Customs of War on Land (1907) and the Geneva Conventions; Humanitarian law, as lex specialis of the laws of war; In case of a gap in this system, supplement by human rights law; Alongside this international legal system dealing with armed conflicts, “fundamental principles of Israeli public law, which every Israeli soldier ‘carries in his pack’ and which go along with him wherever he may turn, may apply.”21 Further, when it concerns those parts of this international law system dealing with armed conflicts that has the status of customary law, these elements are considered part of Israeli law “by force of the State of Israel’s existence as a sovereign and independent State,” subjected to Israeli Statute determining a contrary provision.22

In conclusion, one can say that peacekeeping forces engaged directly in an armed conflict of international character are bound by the laws of war. At the same time, they are authorized to use force outside the scope of Article 51 of the UN Charter, pre-conditioned to the principles of proportionality and subsidiarity. In its judgment of December 13, 2006, the Israeli Supreme Court stated that “when soldiers act pursuant to the laws of armed conflict, they are acting ‘by law’ and they have a good justification defence.” 23 It is not clear whether the judgment refers here to defense of superior orders or any other specific defense.

20

See A NTONIO C ASSESE, I NTERNATIONAL L AW 420 (2005), cited by the Israeli Supreme Court, in The Public Committee Against Torture in Israel v. the Government of Israel et al., HCJ 769/021, para. 18 (Dec. 13, 2006). 21 Public Committee Against Torture in Israel v. the Government of Israel et al., HCJ 769/021, para. 18 (Dec. 13, 2006). 22 Public Committee Against Torture in Israel v. the Government of Israel et al., HCJ 769/021, para. 19 (Dec. 13, 2006); which applies mutatis mutandis to all states. 23 Id., para. 19.

Inter-State Self-Defense

9

2. Defining Peacekeepers as “Combatants” The applicability of the laws of war on peacekeepers depends on whether and when peacekeepers engage in combat. It may run parallel to the question when civilians take directly part in hostilities, as set forth by, inter alia, common Article 3 of the four Geneva Conventions of 1949. The requirement of taking “directly” part in hostilities could perhaps be clarified by analyzing the way case law has drawn a distinction between the definitions of “combatant” versus “civilian.” Clearly, civilians lose protection under the Geneva Conventions when they take part directly in hostilities.24 In the absence of a clear definition of the criterion of “direct participation,” one has to resort to case law on this issue. Also in this regard, the Israeli Supreme Court’s judgment of December 13, 2006, can be of guidance. The justices advocated a “wide interpretation” of the “direct character of the hostilities” in order to encourage civilians “to stay away from (the battlefield).”25 As a result, they enumerated an extensive list of (military) activities to be subsumed under the concept of “direct participation.”26 The judges further observed that: Against the background of these considerations, the following cases should also be included in the definition of taking a “direct part” in hostilities: a person who collects intelligence on the army, whether on issues regarding the hostilities, . . . or beyond those issues; . . . a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. All those persons are performing the function of combatants. The function determines the directness of the part taken in the hostilities. . . . However, a person who sells food or medicine to an unlawful combatant is not taking a direct part, rather an indirect part in the hostilities. The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. The same is the case regarding a person who distributes propaganda supporting those unlawful combatants. If such persons are injured, the State is likely not to be liable for it, if it falls into the framework of collateral or incidental damage.27

24

See Common art. 3 of the Geneva Conventions. Public Committee Against Torture in Israel v. the Government of Israel et al., HCJ 769/021, para. 34 (Dec. 13, 2006). 26 Israel’s position is debated, at http://www.ihlresearch.org. 27 Public Committee Against Torture in Israel v. the Government of Israel et al., HCJ 769/021, para. 35 (Dec. 13, 2006). 25

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Interestingly, the justices of the Supreme Court subsequently addressed the controversial question whether a person driving a truck with ammunition is to be considered as a person taking direct part in the hostilities, who could thus be attacked. The solution presented by the Court is that such a civilian can be seen as taking direct part in hostilities in the event it is clear that the ammunition is brought to a location from which it will be used for combat purposes.28 The International Criminal Tribunal for the former Yugoslavia (ICTY) seems to pursue a more extensive interpretation of the term “civilian” granting protected person status even to “hostile civilians.” This was endorsed in the Simic case, in which the Trial Chamber stated that: the evidence demonstrates that only a small number of detainees belonged to an armed SDA [Party of Democratic Action] paramilitary formation, giving rise to consideration as to whether they could be classified as combatants. The fact that most of them were arrested from their homes, combined with a lack of evidence that they participated in the armed conflict, clearly shows that they were not combatants, but rather, civilians, and consequently were not taken as prisoners of war.29 By analogy, peacekeepers may be considered as taking part in an armed conflict whenever providing causally linked military support to any of the fighting forces. 3. Discretionary Boundaries for Peacekeepers to Engage in Combat Part of the normative system for peacekeepers to use force within the regime of the Laws of War is the question as to the discretionary boundaries peacekeepers are endowed with when using this force. Also here the jurisprudence of the Supreme Court of Israel can be of guidance. On various occasions, this court was called upon to delineate the nature and extent of judicial review on military operations in (international) armed conflicts. In the Rafah case,30 the question was whether the State of Israel, during the military operations in Rafah, Gaza Strip, had fulfilled its duties under international humanitarian law (IHL). The background of this case was as follows:

28

Id. See Prosecutor v. Simi´c, Case No. IT-95-9-T, para. 659 (Oct. 17, 2003); see also James G. Stewart, Rethinking Guantánamo; Unlawful Confinement as Applied in International Criminal Law, 4(1) J INT’L CRIM. JUST. 19 (2006). 30 See Judgment Israeli Supreme Court, sitting as High Court of Justice, Physicians for Human Rights et al. v. Commander of the IDF Forces in the Gaza Strip, HCJ 4764/04 (May 30, 2004). 29

Inter-State Self-Defense

11

Since May 18, 2004, combat activities have been conducted in the area of Rafah in the Gaza Strip. See HCJ 4573/04 Al-Besioni v. Commander of the IDF Forces; HCJ 4584/04 Shakfhat v. Commander of the IDF Forces in the Gaza Strip; HCJ 4694/04 Abu-Amra v. Commander of the IDF Forces in the Gaza Strip. According to respondent, these combat activities, broad in scope, are directed against the terrorist infrastructure in that area. Their central objective is to locate the underground tunnels which are used to smuggle arms from the Egyptian side of Rafah to the Palestinian side. In addition, the military operations are aimed at arresting those wanted for terrorist activity and locating arms caches in the Rafah area. The activity includes battles against armed opponents. Explosive charges and gunfire have been directed against the Israeli Defence Forces (“IDF”).31 The case was initiated by four human rights organizations asserting, in short, that the Israeli Defense Forces (IDF) did not comply with IHL in that they were causing harm to the civilian population of Rafah as a result of their military operations. The petitioners requested, inter alia, that the IDF allow medical teams and ambulances to reach and evacuate the wounded in Rafah, that they provide electricity, water and food, and finally that they investigate an incident in which several residents had been killed due to the shelling of a crowd of protesting civilians.32 In response, the State of Israel stressed, inter alia, that the Court should exercise caution in its judicial review of the IDF’s military operations now that they related to combat and anti-terrorism actions.33 Notably, during the oral submissions, a senior officer representing the IDF was allowed by the Court to contact, several times, his liaisons in Rafah in order to determine the “real time situation in Rafah” and “relay (this information) back to the Court.”34 This exemplified a unique situation whereby a Court received the most updated information on the combat zone under discussion. Justice Beinisch, concurring with the opinion of the president of the Court, observed that: “These reports as they came in changed the factual situation before us. . . . In such situations, judicial review is an inadequate tool with which to review real time developments and to grant effective and efficient remedies.”35 It is in this context that the judges articulated the system of judicial review on combat operations. The Court then tried to balance the conflicting interests 31 See Judgment Israeli Supreme Court, sitting as High Court of Justice, Physicians for Human Rights et al. v. Commander of the IDF Forces in the Gaza Strip, HCJ 4764/04, para. 1 (May 30, 2004). 32 Id., para. 7. 33 Id., paras. 9–10. 34 Id., para. 11. 35 See Opinion Justice D. Beinisch, id., para. 77.

12

Law Enforcement Within the Framework of Peace Support Operations

of those involved in a combat situation, while at the same time promulgating the boundaries for soldiers as to the legality of the use of force.36 The Court held further that: In general, the judicial review of this Court is exercised ex post facto. A petition is submitted against an action that has already been taken. Occasionally, a significant period of time can elapse between the time the action is taken and before that action is examined by this Court. This, however, is not the case here. Petitioners have not requested that we examine the legal import of military operations that have already concluded. The purpose of this petition is to direct the present actions of the military. This is ex ante judicial review, exercised while military operations are currently underway. This imposes certain constraints on the Court. Of course, petitions that look towards the future are not novel to us. For example, in HCJ 5100/94 Public Committee Against Torture in Israel v. The State of Israel, we examined the legality of guidelines that allowed for the imposition of moderate physical pressure on suspects of an investigation. The purpose of our review there was not to examine actions that had been taken in the past, but to review investigations that were underway at that time. Even so, the current petition is unique in that it asks us to review military operations while they are underway and while IDF soldiers are subject to the dangers inherent to combat. As such, it is appropriate to emphasize that: . . . Clearly this Court will take no position regarding the manner in which combat is being conducted. As long as soldiers’ lives are in danger, these decisions will be made by the commanders. In the case before us, it was not claimed that the arrangement at which we arrived endangered the lives of soldiers. Barake, at 16. The same applies here: humanitarian concerns have been resolved, without endangering the lives of soldiers or the military operations. Subject to this caveat, the situation before us is no different than other situations where this Court has reviewed the legality of military operations.37 The Israeli judges came to the conclusion that except for legal issues, the court’s discretion should not be substituted for the military standpoint. Without any doubt, the same approach should be taken when assessing the legality of the use of force exercised by peacekeepers within armed conflicts.

36 37

Id., paras. 15–17. Id.

Inter-State Self-Defense

13

D. USE OF FORCE BY PEACEKEEPERS BEYOND THE FRAMEWORK OF AN ARMED CONFLICT 1. Use of Force Against Non-State Actors This section now turns to the question on what legal basis peacekeepers may exercise law enforcement operations or use of force during their mission without being directly engaged in an armed conflict. After having established that the concept of self-defense by states may serve as a basis for the use of force to be exercised by peacekeepers and peace enforcers outside armed conflicts, it may be observed that such actions are most often directed against nonstate actors, like contemporary terrorist movements that are not supported by any government (e.g., in Afghanistan, where since November 2001 the Taliban regime was ousted from power). The application of the doctrine of inter-state self-defense to peacekeeping or peace enforcement forces triggers the question whether these can use force against non-state actors. The answer depends on whether an armed attack by non-state actors falls within the purview of Article 51 of the UN Charter. This particular issue was dealt with by the International Court of Justice (ICJ) in its Advisory Opinion of 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.38 The majority held that Article 51 only enhances the inherent right of self-defense in the case of armed attack by one state against another state. Yet, a teleological interpretation of Article 51 of the UN Charter calls for a broader approach. This view was expressed by Judges Kooymans and Higgins in their separate opinions, stating that nothing in the text of Article 51 stipulates that self-defense is available only when an armed attack is launched by a state.39 The standpoint of the ICJ seems to contradict the nature and purpose of Article 51 as interpreted by the UN Security Council in the aftermath of the September 11 attacks,40 particularly UN Security Council (SC) Resolutions 1368 and 1373, which reaffirm the “inherent right of individual or collective self-defence in accordance with the Charter.” In doing so, these resolutions connected this right to “horrifying terrorist attacks” rather than to “an armed attack.” In its Advisory Opinion on the Israeli wall, the ICJ addressed UN SC Resolutions 1368 and 1373, when concluding that Article 51 of the UN Charter was not applicable in that case:

38 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, 43 I.L.M. 1009, 1050 (2004) [hereinafter Advisory Opinion]. 39 Id., 1072, 1063; see also the declaration of Judge Buergenthal, 40 See DINSTEIN, supra note 1, at 206–08.

14

Law Enforcement Within the Framework of Peace Support Operations

The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the Wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council Resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence.41 The ICJ implicitly held that the September 11 attacks resulted from a threat coming from outside the United States, whereas in the Israeli Wall case the threat was coming from within territory under Israeli control. 42 Yet, in both situations the inherent right of self-defense may be invoked. Also the September 11 attacks, in fact, resulted predominantly from a threat coming from within the United States itself: nineteen male US residents had hijacked aircrafts and conducted the attacks within the United States.43 Furthermore, in the Israeli Wall case, the State of Israel advocated that the threats justifying the wall were also to be attributed to foreign states (i.e., Syria, Lebanon and Iran).44 Finally, there is state practice supporting an emerging “belief that states may act against non-state actors in the exercise of a right to protection against threats.”45 In this context, Murphy refers to several examples of such state practice. He refers to the 1985 US interception of an Egyptian aircraft over the Mediterranean in order to apprehend alleged terrorists on board the plane who were held responsible for the Achille Lauro hijacking.46 Other incidents include South Africa’s attack based on Article 51 of the UN Charter on the Southwest Africa People’s Organization (SWAPO) in Angola and Zambia in 1976–1985.47 All these events involved extraterritorial actions against non-state actors on the basis of Article 51 of the UN Charter. Article 51 may thus justify the use of force against any territory or entity engaged in or supporting terrorist activities that amounts to an immediate threat of an armed attack.48 There is no reason why the same norm cannot be applied to the use of force by peacekeepers, since these are acting as instruments of a state or as conglomerates of states. 41

See Advisory Opinion, supra note 37, para. 139; see Sean D. Murphy, SelfDefense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, 99 AM. J. INT’L L. 62 (2005). 42 See for this analysis, Murphy, supra note 40, at 67–70. 43 Id. 68. 44 See Written Statement of the Government of Israel on Jurisdiction and Propriety, paras. 68–69 (Jan. 29, 2004). 45 See Murphy, supra note 40, at 69. 46 Id. 47 Id. 48 See THOMAS FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS 67 (2002).

Inter-State Self-Defense

15

Therefore, on the basis of these two resolutions, the requirement of an armed attack should not be limited to those conducted by states. Such view is also in line with the purpose of collective or individual self-defense, namely to defend the state or oneself against an immediate threat. In reality, the nature of the threat is not limited to states or state actors. After all, a threat to a state can originate from a group of individuals. Dinstein provided three other arguments in support of the disconnection of the element of “armed attack” from statehood. According to him, the first argument is that in the Nicaragua case, the ICJ held that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also the engagement of armed bands or irregulars into the territory of another state. 49 Noticeably, when non-state actors attack a state from within that state without involvement of any other state or any other external entities, Article 51 is not applicable.50 Secondly, directly after the September 11 attacks, the North Atlantic Council of NATO issued a statement holding that “if it is determined that this attack was directed from abroad against the United States,” Article 5 of the North Atlantic Treaty of 1949 would apply. Importantly, Article 5 provides that an armed attack against one or more of the Allies in Europe or North America shall be seen as an attack against them all.51 Now that the term “armed attack” in Article 5 is derived from Article 51 of the UN Charter, one can conclude that terrorist attacks launched from outside the territory of the targeted state fall within the ambit of Article 51 of the UN Charter. Thirdly, a similar statement was given by Ministers of Foreign Affairs, acting as an organ of consultation pursuant to the 1947 (Rio de Janeiro) InterAmerican Treaty of Reciprocal Assistance, saying that “these terrorist attacks against the United States of America are attacks against all American States.”52 Here, Article 3 of the Inter-American Treaty was invoked, which, similar to Article 5 of the North Atlantic Treaty, draws on an armed attack and the right to self-defense as enshrined by Article 51 of the UN Charter. Attention should also be drawn to Article 21 of the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts of August 2001, saying that “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.”53

49

See Case concerning Military and Paramilitary Activities in and Against Nicaragua (Merits) 1986 ICJ 183. 50 See DINSTEIN, supra note 1, at 204–05. 51 See Statement by North Atlantic Council, 40 I.L.M. 1267 (2001). 52 See Organization of American States (OAS) on Terrorist Threat to the Americas, 40 I.L.M. 1273 (2001); discussed by DINSTEIN, supra note 1, at 208. 53 See JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY; INTRODUCTION, TEXT AND COMMENTARIES 166 (2002).

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Law Enforcement Within the Framework of Peace Support Operations

In conclusion, when it concerns the use of force by peacekeepers outside the context of (international) armed conflicts, this force can be applied to (also) non-state actors, albeit under circumstances dictated by Article 51 of the UN Charter. 2. Defining “Armed Attack” Against Peacekeepers The key question is how to define “an armed attack” under Article 51 of the UN Charter. In other words, what level of armed or (para) military operational activity is required to qualify as an “armed attack.” The findings of the ICJ in the Nicaragua case are illustrative for the case of peacekeepers too: 1.

2.

The victim state must prove that it was the target of a large-scale use of force by either regular or irregular forces, that is, a “grave form of the use of force,” such as a bombardment.54 Mere support of a state by providing weapons or other logistical support to a non-state actor, which subsequently uses force against another state, does not qualify “any armed attack” by the first state within the meaning of Article 51 of the UN Charter.55

However, these observations are disputable since: 1.

2.

Seen from the perspective of international criminal law, providing logistic support to non-state actors involved in terrorism may be considered as a form of indirect perpetration such as aiding or abetting; Based upon a teleological interpretation, it may be advocated that an “armed attack” de facto exists when the first state on whose territory those non-state actors operate fails to prevent such attacks in terms of capability or willingness or fails to undertake preventive actions in terms of effective measures.56

Another critical remark concerning this ICJ standpoint is that although single assaults by guerrilla forces or terrorists may not always meet the threshold of an armed attack, a certain action weighed in the totality of (semi) military action, if existing, may amount to an armed attack.57 The ICJ in the Nicaragua case held that: “while the concept of an armed attack includes the dispatch by one state of armed bands into the territory of another State, the supply of arms and 54 See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA), merits, 1986 ICJ 14, para. 191. 55 Id., para. 195. 56 See Murphy, supra note 40, at 66. 57 See also DINSTEIN, supra note 1, at 202.

Inter-State Self-Defense

17

other support to such bands cannot be equated with armed attack.”58 The Court apparently opined that some substantial level of assistance to rebels is required to speak about an “armed attack.”59 In the view of the Court, the level of (para) military, operational activity has to amount to a “substantial” level. However, it is fair to conclude that this criterion should be based upon the totality of assaults or incidents. 3. Self-Defense Pursuant to Article 51 as an Operational Mandate for Peacekeepers The question is whether peacekeepers/peace enforcers may use force against non-state actors—without the presence of an armed attack directed against them. As mentioned, the application of the doctrine of self-defense to the context of the jus ad bello, may vindicate the use of force by peacekeepers or peace enforces engaged against non-state actors within the operational area of a particular mandate. Following this reasoning, this form of self-defense would qualify as an “inherent” right of peacekeepers too. This implies that even without an explicit mandate, peacekeepers may rely on the doctrine of (inter-state) use of force. The practical implications thereof are considerable. The doctrine could justify resort to forcible measures to prevent or counter certain threats tantamount to armed attacks, even when the standing ROE do not denote the use of such force. It has been argued that “this specific right of self-defence applicable to peacekeeping forces should not be confused with the much broader right of self-defence vested in States,” as “a peacekeeping force’s exercise of self-defence is more akin to a military unit’s self-defence in the context of on-the-spot-reaction.”60 Indeed, one should clearly distinguish the following two categories of self-defense available to peacekeepers: 1.

2.

58

The right, as enshrined by the various standing UN and NATO ROE,61 to defend (individual) elements and personnel of a peacekeeping force that is subjected to an (imminent) attack. This form of self-defense is envisioned by national and international criminal codes, such as Article 31 of the International Criminal Court (ICC) Statute. The right to use counter-force by a peacekeeping force as a collective action against an armed attack by a (non-) state actor endangering the peacekeeping operation as such, abstracted from its individual ele-

See Nicaragua case, supra note 53, at 126–27. See, for this topic, DINSTEIN, supra note 1, at 202–03. 60 See DINSTEIN, supra note1, at 308. 61 See, inter alia, the standing UN Rules of Engagement on Peace Enforcement Operations and the Standing NATO ROE MC 362. 59

18

Law Enforcement Within the Framework of Peace Support Operations

ments and persons. This form of use of force is a manifestation of Article 51 of the UN Charter and should accordingly be adjudicated upon the criteria for this provision. Here, no fundamental difference can be established with the concept of inter-state self-defense.62 Yet, there is a thin line between these two categories. This will be explained with the following example: A peacekeeping patrol in Afghanistan is subjected to mortar fire by Taliban troops (i.e., non-state actors). The use of force by this patrol in response to such an attack may perhaps fall within both categories (1) and (2). On the other hand, does this mere incident trigger self-defense under Article 51? A close reading of the ICJ’s Nicaragua judgment would lead to a non-affirmative answer since this one incident probably does not have sufficient intensity or gravity. Yet, it is difficult to uphold the notion that only large military operations and activities can trigger the use of force pursuant to Article 51 of the UN Charter. The intensity or gravity of the attack could only be relevant to assess the proportionality of the armed response.63 In fact, the ICJ in the Oil Platforms case endorsed this view. Specifically, it held open the possibility that the mining of one single military vessel might be sufficient to trigger selfdefense under Article 51 of the UN Charter.64 Additionally, on its face, even relatively small military clashes, for instance one mere attack on a military convoy led by peacekeepers for purposes of humanitarian relief, may, under certain circumstances, equal an “armed attack” in view of the considerable impact this attack may have on the accomplishment of the peacekeeping operation in question.65 Hence, both categories of self-defense may, given the conditions, justify the use of force during peacekeeping operations when it concerns attacks on peacekeeping forces or materials under their protection. The exercise of these rights as such is not contingent upon a specific mandate or resolution. When circumstances so dictate and requirements of proportionality, subsidiarity and immediacy are met,66 the legitimacy of the use of force by peacekeepers may be directly derived from Article 51 of the UN Charter, as well as from the inherent right to individual self-defense, as enshrined by Article 2(2)(a) of the European Convention on Human Rights (ECHR). This provision lays the foundation from the human rights perspective for the right to individual self-defense, saying that: “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more 62

DINSTEIN, supra note 1, at 220. Id., 195. 64 ICJ judgment of Nov. 6, 2003, Case Concerning Oil Platforms, 42 I.L.M. 1360 (2030); see also DINSTEIN, supra note 1, at 196. 65 See, for other examples, DINSTEIN, supra note 1, at 195. 66 See, for these conditions, DINSTEIN, supra note 1, at 237–43. 63

Inter-State Self-Defense

19

than absolutely necessary: (a) in defence of any person from unlawful violence.” Thus, Article 51 of the UN Charter may constitute an (operational) mandate for peacekeepers to endorse the use of force. Another thing is whether it may serve as a law enforcement mechanism per se for them. From this analysis it is clear that law enforcement activities or operations (such as the arrest of individuals or search or seizure of property) accompanied by the exercise of the use of force by peacekeepers as such cannot be based on Article 51 of the UN Charter without the presence of an “armed attack” as defined in this section. It is legally more sound when military forces engaged in PSOs, when confronted with potential law enforcement tasks, only exercise such tasks in the event that: 1. 2.

Their own domestic law provides for such tasks, and these are not excluded by the applicable ROE.67 SC resolutions authorizing peace enforcement operations specifically set forth law enforcement duties for peace support forces.68

The maintaining of international peace and security does not automatically attribute to peacekeepers a right and duty to administer law enforcement tasks within the conflict region at hand.69 4. Mandating the Use of Force by Peacekeepers Based upon “Hostile Act” and “Hostile Intent” The previous sections dealt with the use of force pursuant to Article 51 of the UN Charter, that is, based on—to a certain extent—concrete “hostile acts” on the part of (non-) state actors. This section addresses the question whether the use of force by peacekeepers may be exercised on the basis of a mere “hostile intent” displayed by the aggressor. It has been accepted that the threat of an imminent armed attack may legitimize self-defense by virtue of Article 51 of the UN Charter; yet a mere threat without the element of imminence or a mere declaration of war do not fall within the ambit of this provision.70 This raises the question whether anticipatory self-defense has a foundation in (customary) international law. It has been accepted that preventive self-defense or use of force is legitimate under Article 51 when the adversary initiated an “apparently irreversible course of action,” that is, in case of an attack “which is in progress, even if it

67 68 69 70

See also Ip, supra note 15, at 9. Id., 34. See also Ip, supra note 15, at 6. See DINSTEIN, supra note 1, at 182–83, 186, 190–91.

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is incipient; the blow is ‘imminent’ and practically unavoidable.”71 Yet, the application of preventive or anticipatory self-defense is contingent on the existence of “demonstrable circumstances of extreme necessity” the exercise of which is pertinent to ensure the survival of a state.72 This, therefore, excludes the invocation of self-defense on the basis of a mere expectation that something aggressive will happen.73 Within the context of (international) military operations, including rules of engagement pertaining to peacekeeping missions, a distinction is made between “hostile act” and “hostile intent.” Several ROE provide that peacekeepers may exercise force in self-defense not only in reaction to a “hostile act” but also to counteract a “hostile intent.”74 The definition of hostile act, according to the UN and NATO ROE is an attack or other use of force against a national force, personnel, ships, aircraft, equipment or property assigned to a multinational operation. For certain operations, this definition may be expanded to include an attack on designated allies, non-military personnel, objects, sites, platforms and/or material. Such a wide scope is neither envisioned in domestic law nor in international criminal law (ICL) when it concerns the application of individual self-defense.75 Similarly the element of hostile intent does not appear as a concept within ICL. According to UN and NATO ROE, under certain circumstances, armed force may be used preemptively to protect national ships, aircraft, equipment or property from the threat of imminent use of force. For certain operations, this definition may be expanded to include the protection of designated allied, non-military personnel and other foreign military personnel, objects, sites, platforms and/or material. Although precise criteria can be established for identifying a hostile act, it is more difficult to recognize a demonstration of hostile intent, in which case greater amplification may be required, depending on the anticipated operational context. Crucial for the use of force based on “hostile intent” is the requirement of convincing evidence establishing a reasonable belief that the use of force by the adversary is imminent, the necessity for a unit to use force is instant and overwhelming and there is no choice or means for deliberation. Thus, a reasonable belief is required to justify the use of force. This reasonable belief forms a parallel to the principles of proportionality and subsidiarity, which are pertinent to self-defense. Thus, as a result, the permitted extent of reaction in the face of a hostile act or demonstration thereof must be clearly understood in terms of the principles of proportionality and the dura71 72 73 74

See DINSTEIN, supra note 1, at 191. See THOMAS M. FRANCK, RECOURSE TO FORCE 105 (2004). Id. See, inter alia, the NATO ROE MC 362.; see also DINSTEIN, supra note 1, at

182. 75 See GEERT-JAN G.J. KNOOPS, DEFENSES IN CONTEMPORARY INTERNATIONAL LAW, at 187 (2001).

Inter-State Self-Defense

21

tion of the force used in response. Thus, when designing ROE to support peacekeeping operations, the criteria for what constitutes a hostile act or the demonstration of hostile intent must be clearly enunciated.76 The concept of “hostile intent,” postulated in this way may be axiomatic or even contradictory to the aforementioned principles underlying Article 51 of the UN Charter. It is, therefore, questionable whether this concept fits within the parameters of inter-state self-defense under all circumstances. This may particularly cause a conflict in the case, for example, where a peacekeeper charged with war crimes for having unjustly shot at a group of civilians would claim that there was a “hostile intent” on their part. Indicted before the ICC, the peacekeeper may invoke self-defense under Article 31(1) of the ICC Statute, saying that the applicable ROE provides for use of force on the basis of hostile intent. Can the ICC accept such a defense, notwithstanding that Article 31(1) of the ICC Statute stricto sensu does not allow self-defense on mere “hostile intentions” of the adversary or the “reasonable belief ” thereto on part of the peacekeeper? Only case law can shed light on the interrelationship between self-defense under ICL and the concepts of hostile act and hostile intent. When one considers recent SC resolutions, the question is whether the contents thereof can be interpreted as “authorizing the use of force in preemptive self-defence against an anticipated attack when there is compelling evidence that an attack is imminent.”77 The above-mentioned resolutions specifically authorize the use of force to protect mission property, UN property as well as personnel and civilians.78 Yet, the reference to “compelling evidence” fits within the interpretation of Article 51 of the UN Charter as set out above. E.

CONCLUSIONS

The use of force applicable during PSOs is mainly confined to the questions whether one deals with a UN Charter Chapter VI or VII operation. Yet, one may determine that irrespective of the nature of the PSO (either Chapter VI or VII), the use of force by PSO forces can be based on the laws of war (when such forces directly participate in the armed conflict at hand) or Article 51 of the UN Charter per analogy (when such forces do not participate in an armed conflict). On the other hand, pure law enforcement duties may not be conducted by PSO forces on the basis of an analogous application of domestic laws; rather, the exercise of such duties must be based on an explicit provision in the UN mandate.

76

See id., 188; see also G.S. Holder, Rear Admiral, U.S. Navy (unpublished). See Ip, supra note 15, at 7; this author comes to an affirmative answer. 78 Id.; Kwai Hong Ip refers here to SC Resolution 1542 (2004) concerning Haiti and SC Resolution 1528 (2004) with respect to Ivory Coast. 77

CHAPTER 2 THE LAW OF OCCUPATION AND PEACE SUPPORT OPERATIONS—AT ODDS? Sigmar Stadlmeier* Franz Leidenmuehler**

A. INTRODUCTION The U.S.-led military occupation of Iraq1 between May 1, 2003, and June 28, 2004,2 has attracted renewed attention to the law of occupation. First of all,

* Dr. iur. (Linz), LL.M. (London), Jean Monnet Associate Professor of European Law and Integration, Deputy Head of the Institute of Public International Law and International Relations, Johannes Kepler University of Linz (Austria). ** Dr. iur. (Linz), Staff Scientist and Lecturer in Law, Institute of European Law and Institute of Public International Law and International Relations, Johannes Kepler University of Linz (Austria). 1 See generally Adam Roberts, The End of Occupation: Iraq 2004, 54 I NT’L COMP. L.Q. 28 (2005); Marten Zwanenburg, Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation, 86 INT’L REV. RED CROSS 745 (2004); Gregory H. Fox, The Occupation of Iraq, 36 GEO. J. INT’L L. 195 (2005). 2 The United States and its Allies became an occupying power at the latest on May 1, 2003, when President Bush declared the end of major combat operations in Iraq. And after all, SC Res. 1546 (June 8, 2004), stated that the Council “[w]elcomes that, [ . . . ] by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty” (operative para. 2). But since occupation is a matter of fact (see Section B) the law of occupation would be still applicable where troops of the former occupying power remain in the territory and continue to exercise effective control. International recognition may be an indicator to that end, and the announcement made by the president of the Security Council in a press statement on June 28, 2004, may be of importance: “The members of the Security Council welcome the handover of full responsibility and authority for governing Iraq to the fully sovereign and independent Interim Government of Iraq, thus ending the occupation of the country” (UN Doc. SC/8136). So, the occupation appears to have ended on June 28, 2004. See Zwanenburg, supra note 1, at 752–53 (2004); see also Fox, supra note 1, at 233–34; Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 AM. J. INT’L L. 580, 616 (2006). 23

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the adoption of Resolution 14833 by the Security Council has raised questions as to the precise relationship between resolutions of the Security Council acting under Chapter VII of the UN Charter and the law of occupation, a branch of international humanitarian law (IHL). Thereby the core of the controversy turned on the issue of whether the Security Council may “carve out” parts of the classic law of occupation, especially the prohibition on the occupying power to establish new local and national institutions and to institute legal, judicial and economic reform. As this question may be of interest for almost all peace support operations (PSOs) run by international organizations, which typically include some kind of transformation of institutions and legal system of the occupied territory, the present contribution thus intends to analyze the topic in a more general approach. B. THE LAW OF OCCUPATION— SCOPE OF APPLICATION AND CONTENTS The law of occupation is part of IHL. Its main sources are the Hague Regulations concerning the Laws and Customs of War on Land, attached to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land (hereinafter Hague Regulations),4 the 1949 Geneva Conventions I–IV (by virtue of their common Article 2), especially the Fourth Geneva Convention5 and its Section III on occupied territories, and Additional Protocols (AP) I and II to the 1949 Geneva Conventions. Article 42 of the Hague Regulations considers a territory occupied “when it is actually placed under the authority of the hostile army.” Article 43 of the Hague Regulations continues with “the authority of the legitimate power having in fact passed into the hands of an occupant.”6 Therefore, occupation is a matter of fact, not a matter of law: once a situation exists that factually amounts to occupation, the law of occupation applies.7 For these reasons any formal legal distinction between “occupying powers” and “non-occupying

3

SC Res. 1483 (May 22, 2003). Available at 2 AM. J. INT’L L. SUPP. 90 (1908). 5 Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. 6 Moreover, common Article 2 of the 1949 Geneva Conventions suggests a wide notion of the term “occupation” and requires neither actual resistance against the occupying power nor a complete occupation of the territory concerned. 7 See Joshua L. Dorosin, Remarks, in ASIL PROCEEDINGS 117, 118 (2004); JeanPhilippe Lavoyer, Remarks, in ASIL PROCEEDINGS 121, 121 (2004); Zwanenburg, supra note 1, at 748. 4

Law of Occupation and PSOs

25

powers” among the contributors to a multinational occupying force—such as the one in Security Council Resolution 1483 on Iraq8—has rightly been called “legal fiction.”9 Since the law of occupation is triggered by a state of facts, there is no prima facie argument to be gained from different reasons, motives, types, labels10 or legal bases of occupation.11 The former is part of the ius in bello, whereas the latter relates to ius ad bellum. Those two spheres must as a matter of principle be kept separate. This well-known principle is reinforced by Article 4 AP I to the 1949 Geneva Conventions.12 This, however, places an important constraint on the interpretation of the classic law of occupation. The territorial administration of the occupying power is meant to be minimalist in terms of its impact on the population.13 It is designed as a provisional and temporary one,14 continuing the administration (in broad terms) of the occupied territory on the basis—unless “absolutely prevented” (Article 43 of the Hague Regulations)—of the legal system of the temporarily displaced sovereign. For the purposes of this study, this will be referred to as the principle of preservation.15 The reason for preserving—as a matter of principle—the legal order and institutions of the temporarily displaced sovereign is that the lawfulness of occupation is not—and cannot be—determined by IHL. The lack of a determination as to the lawfulness of occupation under the ius ad bellum in turn explains the static, transitional and rather limited concept of the classic law of occupation in its ius in bello dimension.

8 See on this David J. Scheffer, Beyond Occupation Law, 97 AM. J. INT’L L. 842, 844 (2003); Zwanenburg, supra note 1, at 756. 9 See Roberts, supra note 1, at 33; see also Lavoyer, supra note 7, at 122. 10 Jean-Philippe Lavoyer indicates that it is insignificant whether an occupation is labeled an “invasion,” “liberation,” “administration” or “occupation.” See Lavoyer, supra note 7, at 121. 11 See id.; Steven R. Ratner, Foreign Occupation and International Territorial Administration: The Challenges of Convergence, 16 EUR. J. INT’L L. 695, 696 (2005); Marco Sassoli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, 16 EUR. J. INT’L L. 661, 661–62 (2005). 12 See Lavoyer, supra note 7, at 121. 13 See, e.g., Fourth Geneva Convention, arts. 49, 53, 54, 64, 67; Hague Regulations, arts. 42–56. See MARCO SASSOLI & ANTOINE A. BOUVIER EDS., HOW DOES LAW PROTECT IN WAR? 154–55 (1999). 14 See Lavoyer, supra note 7, at 123; Ratner, supra note 11, at 700; Roberts, supra note 2, at 582. 15 Gregory H. Fox uses the term “conservationist principle.” See Fox, supra note 1, at 234.

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C. LIMITS TO LEGISLATIVE ACTION BY THE OCCUPYING POWER— THE “PRINCIPLE OF PRESERVATION” Substantive limits to the powers of an occupying power flow from the preservation principle under Article 43 of the Hague Regulations in conjunction with Section III of the Fourth Geneva Convention, especially Articles 47 and 64. Article 43 of the Hague Regulations requires to respect and maintain in force the legal system of the occupied territory “unless absolutely prevented” to do so.16 Article 47 of the Fourth Geneva Convention guarantees the benefits of this convention for all protected persons in occupied territory irrespective of any changes introduced by the occupying power into the institutions or government of the occupied territory. Article 64 of the Fourth Geneva Convention consists of three paragraphs, the first two of which are limited to penal laws: The latter must remain in force unless they constitute a threat to the occupying power or an obstacle to the application of the Fourth Geneva Convention; relevant tribunals shall continue to function.17 Paragraph 3 of Article 64 of the Fourth Geneva Convention provides for additional legislation, which is essential to enable the occupying power to fulfill its obligations, to maintain an orderly government of the occupied territory and to ensure the security of the occupying forces. 18 Hence, legal tools required to fulfill obligations under IHL, as pointed out above, are available to the occupying power even under classic law of occupation.19 But, without doubt, the occupant’s competences to legislate do not extend to “active transformation” and to the remodeling of the distribution of power and other political structures and processes of soci16

Art. 43 reads: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” 17 Art. 64 reads: (1) The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. (2) Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. 18 Para. 3 of art. 64 reads: “The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfill its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” 19 On further exceptions to the preservation principle see Sassoli, supra note 11, at 673–82.

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ety in the occupied country. Such changes admittedly would go much further than simple legislation.20 D. THE LAW OF OCCUPATION AND PEACE SUPPORT OPERATIONS Traditionally, PSOs are run by international organizations. In the meantime it has been generally accepted that international organizations engaged in the occupation and administration of territory are bound by the ius in bello in general and the law of occupation in particular.21 So for the United Nations the “Bulletin on the Observance by United Nations Forces of International Humanitarian Law”22 states that the “principles and rules” of IHL apply to the UN forces. The European Union (EU) and its member states, on the other hand, committed to their compliance with IHL in the context of crisis-management operations taken by the EU in the “Guidelines on the Promotion of International Humanitarian Law.”23 Therefore, PSOs must, as a matter of principle, observe IHL.24 However, recent PSOs typically include some kind of transformation of institutions and legal system of the occupied territory, which goes far beyond administering an existing system (Article 43 of the Hague Regulations) and adding some indispensable legislation for these ends (Article 64 of the Fourth Geneva Convention). In most of the cases, it is even the principal goal of the mission to prepare and ease a political transition and to alter institutions of government as well as the constitution of the country permanently and not just to maintain the status quo. These operations can rather be qualified as “transformative occupations,” where the “benevolent” occupier does not even seek to return control to the prior government but is engaged in creating a new regime. In short, for peace support operations, as a rule the status quo ante is not a situation to be maintained but a problem to be overcome. Therefore, in such a context a full application of occupation law that never was designed for such transformation exercises appears inappropriate25 and even undesirable.

20

See Sassoli, supra note 11, at 671; Roberts, supra note 2, at 588–89. See Ratner, supra note 11, at 705. 22 Bulletin promulgated by Secretary-General Annan on Aug. 6, 1999, Sec. 1.1 (UN Doc. ST/SGB/1999/13); reprinted in 38 I.L.M. 1656 (1999). 23 European Union Guidelines on Promoting Compliance with International Humanitarian Law (IHL) of Dec. 5, 2005 (Council Doc. 15246/05). 24 Since all PSOs are actually carried out by national contingents the forces are bound by IHL by virtue of the engagement of their sending states anyway. See Sassoli, supra note 11, at 687. 25 See Sylvain Vité, L’applicabilité du droit international de l’occupation militaire aux activités des organisations internationales, 86 INT’L REV. RED CROSS 9 (2004). 21

28

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LEGAL BASIS FOR DEROGATION FROM THE CLASSIC LAW OF OCCUPATION

It has been argued that even a fundamental transformation may be lawful under the classic law of occupation where a political system as such constitutes a threat to the security of the occupying power (the so-called Fauchille doctrine26). This approach however is not uncontested, and any potential precedents (such as the administration of the Allied Powers of Germany and Japan after World War II) could be explained on another basis, that is, classic law of warfare before the Fourth Geneva Convention, under which debellatio or unconditional surrender terminated an occupation regime and the protection it granted to the legal system of the occupied territory.27 Transformation, nation-building and other changes to the political and/or legal system of the occupied territories beyond the limits discussed above appear to be inconsistent with the law of occupation under IHL. Since the latter consists of both treaty law and customary law, a legal basis for such transformation must override both sources of international law. Maintenance of peace and security is the primary (though not exclusive) responsibility of the UN Security Council. Indeed peace support operations frequently flow from a mandate of the Security Council to that end. Article 103 of the UN Charter provides for the supremacy of Charter obligations over other treaty obligations. In order to provide a valid legal basis for a peace support operation mandate, which includes transformation beyond the limits of IHL and the law of occupation, two conditions must be fulfilled: First, Article 103 must give supremacy not only to Charter obligations in the narrow sense but also to Charter-based obligations founded in “U.N. secondary legislation” by the Security Council. Second, its scope of application must extend beyond treaty obligations to other sources of international law. As far as the first condition is concerned, it is only the substance of a transformation mandate which flows from UN secondary legislation (i.e., a Security Council resolution). The binding effect of such resolutions is explicitly provided for in the Charter (Article 25). Moreover, the International Court of Justice (ICJ) has held in the Lockerbie case28 that Security Council resolutions under Chapter VII of the UN Charter do indeed and because of Article 25 in conjunction with Article 103 enjoy supremacy over other treaty obligations.29 26

See on this Sassoli, supra note 11, at 671. See Scheffer, supra note 8, at 848; see also Sassoli, supra note 11, at 672; Roberts, supra note 2, at 601–02. 28 See ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom), Provisional Measures, Order of Apr. 14, 1992,1992 ICJ 3, 16, para. 39. 29 See also Zwanenburg, supra note 1, at 760–61 (2004); Sassoli, supra note 11, at 680–81. 27

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As far as the second condition is concerned, it is at least difficult to argue why only treaty obligations, but not customary obligations, should be overridden by Article 103 of the Charter, there being no hierarchy of norms among the sources of law concerned. The object and purpose of the Charter, which is to establish a worldwide system of collective security among the member states of the United Nations, cannot be achieved unless the Charter enjoys supremacy over other sources of international law as well. In concreto it would not make any sense at all to accept supremacy of the charter over treaty law in IHL but not over the much older, less comprehensive (and somewhat outdated) customary Hague Regulations. However, this does not mean that the Security Council, when acting under Chapter VII of the UN Charter, can derogate from international law at will.30 First, it is quite obvious (and confirmed by Article 24) that the Security Council has to act in accordance with the purposes and principles of the United Nations. Second, there is an argument based on the nature of peremptory norms (ius cogens), which would seem to limit the discretionary power of the Security Council. Peremptory norms (ius cogens) according to the definition in Article 53 of both Vienna Conventions on the Law of Treaties are norms “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” It must be noted that ius cogens under international law is not the opposite of ius dispositivum and thus can be changed; however, such peremptory norms can only be changed or reversed by their legislator, which is the international community of states as a whole. This would exclude their change or reversal by a Committee of Fifteen.31 It has been contended that IHL as a whole or at least most of it amounts to ius cogens.32 So the International Criminal  Tribunal for the former Yugoslavia (ICTY) held in its judgment in the Kupreski´c case that “most norms of international humanitarian law, in particular those prohibiting war crimes, crimes 30 But see Dorosin, supra note 7, at 119: “As a Chapter VII resolution, Resolution 1483 [concerning the restoration of Iraq] provided authorities that supervene any inconsistent limitations that may be contained in other bodies of international law, including occupation law.” See also Ratner, supra note 11, at 710. 31 See ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of Sept. 13, 1993, Separate Opinion of Judge Lauterpacht, 1993 ICJ 325, 440–41, paras. 100–102. 32 For example, Sassoli, supra note 11, at 681, considers in general that “IHL obligations, however, fall under ius cogens.” But see David J. Scheffer, supra note 8, at 843: “Indeed, it would be mistaken to regard the totality of occupation law as reflecting ius cogens or erga omnes obligations in the context of such authorized military interventions and occupations.” See also id. at 852.

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against humanity and genocide, are also peremptory norms of international law or ius cogens, i.e. of a non-derogable and overriding character.”33 While this generalization seems difficult to reach (given the very different levels of acceptance of individual parts of IHL (e.g., AP I and II), in its advisory opinion on the Palestine Wall the ICJ has at least regarded the law of occupation to be ius cogens by applying the rules on state responsibility for serious breaches of peremptory norms in international law to Israeli violations of the IHL of military occupation.34 Here the arguments on the key issue of PSOs—transformation and nationbuilding—seem to end up in a circle: IHL on occupation does not allow transformation; hence the Security Council must authorize it, but it is limited in doing so, inter alia, by peremptory norms of IHL—and the law of occupation has just been so confirmed. One has to ask, however, whether the generalizations as to the peremptory nature of (all or most of) IHL of military occupation are well founded in this respect. There is no doubt that the ultimate purpose of restoring and ensuring la vie publique, must be considered ius cogens.35 It can, however, be questioned whether the principle of preservation is an essential part of this purpose (and only then it would necessarily share its ius cogens character!), or whether it is merely one way of achieving this goal. We have shown above that this principle of preservation is the result of IHL’s blindness to the ius ad bellum, or— more precisely in the case of occupation—to the legal quality and justification of occupation. However, it has been made clear under the four 1949 Geneva Conventions that the goal of the principle of preservation is limited to the humanitarian function, to safeguard human beings, but not to protect the political institutions and government of the state as such.36 Thus, the preservation principle cannot be regarded as ius cogens in its own right and cannot be regarded as ius cogens as an auxiliary instrument for the humanitarian purpose, as long as the humanitarian guarantees of IHL remain intact during a process of transformation. Those limits, however, remain, and— adopting Lauterpacht’s position quoted above—cannot be overridden or “carved out”37 by the Security Council.  ICTY, Trial Chamber II, Case No. IT-95-16-T, Prosecutor v. Zoran Kupreski´c et al., Judgment of Jan. 14, 2000, para. 520. 34 See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of July 9, 2004, para. 159. 35 Also, fundamental principles requiring provision of humanitarian relief and protection of the civilian population’s basic human rights would require adherence by any occupying power under any circumstance. See, e.g., Scheffer, supra note 8, at 852. 36 See JEAN PICTET ED., THE GENEVA CONVENTIONS OF 12 AUGUST 1949: COMMENTARY, (IV) GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 274 (1958). 37 Lavoyer, supra note 7, at 123. 33

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CONCLUSIONS

It is submitted that IHL of military occupation is applicable in any situation that, as a matter of fact, comes under the IHL definition of occupation. Under these circumstances a PSO force is in the position of an occupying power and under the obligation to restore and ensure public order and safety and generally la vie publique. Additional legislation to enable the occupying power to fulfill its obligations, to maintain an orderly government of the occupied territory and to ensure the security of the occupying forces is already permissible under classic IHL. Any transformation—by legislation or otherwise—beyond these standards must be authorized by the Security Council acting under its responsibility for the maintenance of peace and security and is limited by the objects and purpose of the UN Charter and by peremptory norms of international law (ius cogens). The principle of preservation as such is not a limit in the latter sense.

CHAPTER 3 THE PROSECUTION OF CRIMINALS AS A PEACE-BUILDING TOOL: COOPERATION WITH THE ICC AND THE CASE OF THE LRA IN NORTHERN UGANDA Emmanuel Kasimbazi*

A. INTRODUCTION The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression, although it cannot currently exercise its jurisdiction over the crime of aggression. The Court can only prosecute crimes committed on or after July 1, 2002, the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force. The ICC can generally only exercise jurisdiction in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party or a situation is referred to the Court by the UN Security Council (SC). The ICC is designed to complement existing national judicial systems: it can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states. To some extent therefore this court can be used as a peace-building tool in conflict areas. The aim of this chapter is to examine the role of the ICC in building peace in northern Uganda. The major issue that it intends to explore is the kind of peace that the prosecution of Lord’s Resistance Army (LRA) rebels by the ICC can achieve. The chapter seeks to answer this question by placing the ICC in the context of peace-building operations in northern Uganda. After a brief introduction, the second part will make an overview of the ICC, the third will provide the background to the LRA conflict and the fourth will analyze jurisdictional mandate and required conditions for the ICC to prosecute LRA rebels under the ICC Statute. The fifth section will review the crimes * Senior Lecturer Faculty of Law Makerere University, and Managing Partner, Kasimbazi and Company Advocates, Kampala Uganda. 33

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allegedly committed by the LRA suspects under the ICC Statute, while the sixth section will discuss the prospects of the ICC prosecution of the LRA rebels towards the peace-building process in northern Uganda. The seventh section will illustrate the challenges to the use of the ICC as a peace-building tool in northern Uganda and the eight and final section will make concluding remarks and show the way forward. B. OVERVIEW OF INTERNATIONAL CRIMINAL COURT In 1948, following to the establishment of the Nuremberg and Tokyo Tribunals after the World War II, the UN General Assembly first recognized the need for a permanent international court to deal with the kind of atrocities that had taken place during the war, which ended in 1945.1 The then Prime Minister A.N.R. Robinson of Trinidad and Tobago revived the idea during the 44th session of the General Assembly in 1989, proposing the creation of a permanent international court to deal with the international drug trade.2 While work began on a draft statute, the international community created several ad hoc tribunals to try war crimes in the former Yugoslavia (International Criminal Tribunal for the former Yugoslavia, ICTY, in 1993) and Rwanda (International Criminal Tribunal for Rwanda, ICTR, in 1994), which further highlighted the need for a permanent ICC.3 The ICTY4 and the ICTR5 were established as tools of resolving conflicts. They were expected to contribute to making, keeping or building peace in lawbroken societies by implementing international legal standards.6 Indeed, they are the historic experiment of peace operation through law-enforcement institution. They derive from the belief that international justice contributes to international peace and that domestic justice facilitates domestic peace.7 Along the same line, the ICC was established to function in the context of post-conflict disrupted societies.8 It works not exclusively for peace-building purposes; but it certainly emulates the function that the ICTY and the ICTR are fulfilling.9 1

http://www.un.org/News/facts/iccfact.htm. Gary T. Dempsey,. Reasonable Doubt: The Case Against the Proposed International Criminal Court (1998), The Cato Institute, available at http://en. wikipedia.org/wiki/International_Criminal_Court#_note-Cato (last visited Feb. 1, 2007). 3 Coalition for the International Criminal Court, History of the ICC, available at http://www.iccnow.org/?mod=icchistory (last visited Feb. 1, 2007). 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. 2

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The ICC was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression, although it cannot currently exercise its jurisdiction over the crime of aggression.10 It can only prosecute crimes committed on or after July 1, 2002, the date its Statute entered into force,11 and it can only exercise jurisdiction in cases where the accused is a national of a state party,12 the alleged crime took place on the territory of a state party13 or a situation is referred to the Court by the Security Council.14 The ICC is designed to complement existing national judicial systems, and it can only exercise jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes.15 Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states.16 The official seat of the ICC is in the Hague, Netherlands,17 but its proceedings may take place anywhere.18 The ICC is separate from, and should not be confused with, the International Court of Justice (often referred to as the “World Court” or ICJ), which is the UN organ that settles disputes between nations. C. THE LORD’S RESISTANCE ARMY CONFLICT Since independence, Uganda has suffered from continuing cycles of civil and armed conflicts that have generated millions of internally displaced persons (IDPs).19 While the conflict of the LRA was rooted in a rebellion against President Yoweri Museveni’s National Resistance Movement (NRM) government, it is important to consider the background to the conflict in northern Uganda.20 It has been argued over time that there are tribal differences between northern and southern Uganda.21 During colonial times and until recent years, while the “northerners” were recruited in great numbers into the armed forces, the 10

http://en.wikipedia.org/wiki/International_Criminal_Court#_note-0. Rome Statute of the International Criminal Court (Rome Statute), Article 24(1) provides that no person shall be criminally liable under the Statute for conduct prior to the entry into force of the Statute. The Statute entered into force on July 1, 2002. 12 Rome Statute art. 12(1). 13 Rome Statute art.12(2). 14 Rome Statute art. 13(b). 15 Rome Statute art.17(1). 16 Rome Statute art. 25. 17 Rome Statute art. 3(1). 18 Rome Statute art. 3(3). 19 REFUGEE LAW PROJECT; ONLY PEACE CAN RESTORE THE CONFIDENCE OF THE DISPLACED, at 11 (2d ed. 2006). 20 Id. 21 HUMAN RIGHTS WATCH, THE SCARS OF DEATH: CHILDREN ABDUCTED BY THE LORDS RESISTANCE ARMY IN UGANDA, at 9 (1997). 11

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“southerners” were recruited into the civil services positions. Thus, abhorrence between the two parties led to a two-level class: a southern class of more “developed” and educated people versus the northern people, particularly the Acholi of Gulu and Kitgum.22 Between 1962 and 1979, Uganda was ruled by two “northerners”: Milton Obote and Idi Amin Dada. In 1979, Amin was ousted by a coalition of forces led by Tanzania (who were pro-Obote and Yoweri Museveni). The Uganda National Liberation Front restored a somewhat southern-led government with Yusuf Lule, who was later replaced by Godfrey Binaisa. For a few months, Paulo Muwanga, the chair of a military commission, ruled Uganda. The 1980 multiparty elections had Obote as president. Because all of the postAmin rulers came from the south, Obote’s appearance from the north as a ruler and the restoration of the Langi and Acholi soldiers seem to have been the main reasons for the increase in differences between northerners and southerners.23 In addition, doubts surrounding the freedom and fairness of the elections ignited the conflict.24 In 1981, the National Resistance Army (NRA), a guerilla army of mainly southerners started an armed rebellion against Obote. An internal military coup led mainly by the Acholi brought Tito Okello to power as president replacing Obote on July 27, 1985.25 The fighting continued on a large scale between the northern military group led by Okello and the southern military group led by Museveni’s NRA and Kayiira’s NFM. The NRA did not respect the 1985 Nairobi ceasefire agreement and, after continued fighting, was able to assume power on January 26, 1986. Okello’s military group retreated to the north and some of them scattered to the districts of Gulu and Kitgum and others crossed into southern Sudan.26 Apart from the above-stated factors, it can be argued that the LRA emerged from the fear of the Acholi people of the NRA’s possible revenge for their treatment under previous regimes. This sparked a military resistance of the Uganda People’s Democratic Army (UPDA), which was later called the Holy Spirit Mobile Force (HSMF). The latter was led by Voodoo priestess/prophetess Alice Lakwena (Lakwena is “messenger” in the Acholi language) and was comprised of mainly northerners of Acholi origin.27 The HSMF started the policy of vio22

Id. Mohammad M. El Zeidy, The Ugandan Government Triggers the First Test of the Complementarily Principle. An Assessment of the First State’s Party Referral, 5 INT’L CRIM. L. REV. 85, 83–119 (2005) 24 Id. 25 J.D. FAGE, A HISTORY OF AFRICA, at 518 (3d ed. 1995). 26 Id., 22. 27 One commentator has mentioned: Lakwena appeared in Acholi because of the plan by Yoweri Museveni and his government to kill all the male youths in Acholi as a revenge for what happened many years back. So the Lakwena was sent to save the male youth from that malicious plan. The good Lord who had sent Lakwena decided to change 23

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lence and attack against both the civilian and NRA soldiers. However, in November 1987, Lakwena’s forces were defeated in Jinja 60 miles outside of Kampala, and she escaped with some of her fighters to Kenya. The HSMF had tried to attack Kampala with sticks, stones and voodoo toys. She had initially promised her followers that stones thrown at the enemy would explode like grenades and bullets. The remaining HSMF survivors rallied to form a new rebel army, the Lord’s Resistance Army with Joseph Kony as leader. Kony, a cousin of Lakwena, alleged that he inherited Lakwena’s “spiritual powers”28 and believed in a system based on the Biblical Ten Commandments.29 In targeting the civilian population, the LRA believed that they were following the Holy Spirits’ orders and thus their atrocities towards the Acholi were meant to eliminate the wrongdoers from the Acholi community and collaborators to the NRM government. It can be concluded that the LRA has committed atrocities on a systematic massive scale. These include: abduction, torture, rape, slavery, detention and forced recruitment. Given the above atrocities, in December 2003, the Ugandan president asked the prosecutor of the ICC to look into the conflict in northern Uganda.30 As a result, on July 29, 2004, the prosecutor announced that there was a reasonable basis for him to carry out an investigation.31

his work from that of a doctor to that of a military commander for one simple reason. It is useless to cure a man today only that he be killed the next day. So it became an obligation his part to stop the bloodshed before continuing his work as a doctor. Quoted from Heike Behrend, Is Alice Lakwena a Witch?, in H OLGER HAUSEN & MICHAEL TWADDLE EDS., CHANGING UGANDA: THE DILEMMAS OF STRUCTURAL ADJUSTMENT AND REVOLUTIONARY CHANGE, at 165 (1991). 28 Report of the United Nations High Commissioner for Human Rights on the Mission undertaken by her Office, pursuant to commission resolution 2000/60, to assess the situation on the ground with regard to the abduction of children from Northern Uganda, UN Doc. E/CN.4/2002/86, paras. 12–13. 29 Kasaija Phillip Apuuli, The International Criminal Court (ICC) and the Lord’s Resistance Army (LRA) Insurgency in Northern Uganda, 15 CRIM. L.F. 391, 392–94 (2004). 30 Statement by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, the Hague Oct. 14, 2005. 31 Id.

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D. CONDITIONS FOR THE ICC TO PROSECUTE LRA REBELS 1. Jurisdiction The Rome Statute provides that the ICC has jurisdiction over four main classes of offenses: genocide, crimes against humanity, war crimes and the crime of aggression.32 The Statute defines genocide to mean any acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group. These include: killing members of the group, causing serious bodily harm or mental harm to the members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part, and forcibly transferring children of the group to another.33 The second class is crimes against humanity, which are defined to mean acts that are committed as part of a widespread or systematic attack directed against any civilian population. These include: murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, sexual offenses such as rape, sexual slavery, enforced prostitution, enforced pregnancy or enforced sterilization or any other form of sexual violence of comparable gravity; persecution against any identifiable group, enforceable disappearance of persons, crime of apartheid or other inhumane acts of similar character intentionally causing great suffering or serious injury to body or mental physical health.34 The third class are war crimes, defined to cover crimes committed as part of a plan or policy or a part of a large-scale commission of such crimes, and they include grave breaches of the Geneva Conventions of 1949.35 The crimes include: willful killing; torture or inhuman treatment, including biological experiments; willfully causing great suffering and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling prisoners of war or other protected person to serve in the forces of hostile power; willfully depriving a prisoner of war or other protected persons of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; and taking hostages.36 Other violations refer to attacks against civilians or nonmilitary objects.37 The ICC has a mandate to try individuals rather than states and hold them accountable for the above-mentioned offenses.38 Therefore, the ICC has the 32 33 34 35 36 37 38

Rome Statute art. 5(1). Rome Statute art. 6. Rome Statute art. 7. See Geneva Conventions of Aug. 12, 1949. Rome Statute art. 8. Rome Statute art. 8(b). Rome Statute art. 25.

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mandate to try LRA rebels for the offenses committed in northern Uganda. However, it has no jurisdiction to try offenses committed before July 1, 2002.39 The Statute under Article 24 recognizes the principle of non-retroactivity ratione personae, which recognizes that no person shall be criminally responsible under the Statute for conduct prior to the entry into force of the Statute. Thus, LRA rebels cannot be tried for crimes committed before July 1, 2002. An interesting question is whether ordinary citizens who may have suffered for acts committed prior to this date will appreciate the prosecution of the LRA by the ICC as a tool for peace building in the region. 2. Other Conditions Under the ICC Statute The ICC has to comply with specific conditions in order to prosecute LRA rebels. In particular, there are safeguards to prevent frivolous or politically motivated prosecutions from taking place, with ample, repetitive opportunities for challenges The issue is whether these were complied with when issuing the arrest warrants against LRA rebels. First of all, the state has to ratify the Statute, thereby agreeing to accept the jurisdiction of the ICC over the crimes listed in the Statute.40 The ICC may thus exercise its jurisdiction in situations that meet the following conditions: one or more of the parties involved is a state party; the accused is a national of a state party;41 the crime is committed on the territory of a state party; 42 or a state not party to the Statute may decide to accept the Court’s jurisdiction over a specific crime that has been committed within its territory or by its national.43 It is important to note that these conditions do not apply when the Security Council, acting under Chapter VII of the UN Charter, refers a situation to the prosecutor.44 There are three methods by which a case may reach the ICC: First, a state party may refer a “situation” to the prosecutor in which one or more crimes within the jurisdiction of the ICC appear to have been committed, requesting the prosecutor to investigate the situation for the purpose of determining whether one or more specific person should be charged with the commission of such crimes.45 Second, the Security Council may refer a “situation” to the prosecutor acting under Chapter VII of the UN Charter.46 Lastly, the prosecutor may 39

This is the date when the Statute came into force. Rome Statute art. 12. 41 Id. 42 Id. 43 Id. 44 This chapter refers to actions with respect to threats to the peace, breaches of the peace and acts of aggression. 45 Rome Statute arts. 13 (a) and 14(1). 46 Rome Statute art. 13(b). 40

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initiate an investigation proprio motu on the basis of information on crimes within the jurisdiction of the court.47 Since Uganda ratified the ICC treaty on June 14, 2002, the referral of LRA cases to the ICC is in compliance with the above-mentioned first method of initiating a case. Through its referral, the Ugandan government commits itself to cooperate with the ICC to investigate crimes, provide evidence, arrest and surrender persons sought by the court, and protect witnesses and victims. However, such cooperation must extend to investigations by the prosecutor into Ugandan People’s Defense Force (UPDF) crimes. This may be a challenge in bringing about peace because the Ugandan government may not be interested in this. Crimes under the ICC Statute are not restricted to the LRA but also cover crimes committed by governmental forces. The failure of the Ugandan government to cooperate with respect to UPDF crimes may not bring a wholesome peace-building process by the ICC. E.

ALLEGED CRIMES COMMITTED BY THE LRA

On October 13, 2005, Pre-Trial Chamber II unsealed the warrants of arrest for five senior leaders of the LRA for crimes against humanity and war crimes committed in Uganda since July 2002.48 It concluded that “there are reasonable grounds to believe” that Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya, “ordered the commission of crimes within the jurisdiction of the Court.” The arrest warrants were issued under seal by Pre-Trial Chamber II on July 8, 2005, to “ensure the safety or physical or psychological well-being of and to prevent the disclosure of the identity or whereabouts of any victims, potential witnesses and their families.” The Chamber also issued requests for arrest and surrender of the five LRA commanders named in the warrants and decided that they would be transmitted by the ICC’s registrar to the government of Uganda. Pre-Trial Chamber II decided on October 13, 2005, to unseal the arrest warrants, noting that: the overall plan in respect of the situation in Uganda for the security of witnesses and victims in the field has been completed and implemented; and that by the assessment and advice of the Prosecutor and the Victims and Witness Unit, the overall plan provides the necessary and adequate protective measures for all concerned at this stage.

47

Rome Statute arts. 13(c) and 15. International Criminal Court; Press Release, Warrant of Arrest unsealed against five LRA commanders, the Hague, Oct. 14, 2005, available at http://www.icccpi.int/press/pressreleases/114.html. 48

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According to the warrants of arrest, the LRA is an armed group that: has established a pattern of brutalization of civilians by acts including murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements; that abducted civilians, including children, are said to have been forcibly recruited as fighters, porters and sex slaves and to take part in attacks against the Ugandan army (UPDF) and civilian communities. The allegations are that in mid-2002 Joseph Kony ordered LRA forces to begin a campaign of attacks against civilians in Uganda and that during the last quarter of 2003, he issued orders to kill, loot and abduct civilian populations, including those living in camps for internally displaced persons (IDPs). In response, senior LRA commanders and all of the brigade commanders, including the persons named in the warrants of arrest, began attacking several regions. The direct involvement of the persons whose arrest and surrender are sought in the objectives and strategies of the campaign is supported by evidence submitted by the prosecutor. The arrest warrant for Kony lists 33 counts including: 12 counts of crimes against humanity; murder,49 enslavement,50 sexual enslavement,51 rape,52 inhumane acts of inflicting serious bodily injury and suffering;53 and one count of war crimes including murder,54 cruel treatment of civilians,55 intentionally directing an attack against a civilian population,56 pillaging,57 inducing rape58 and forced enlisting of children.59 The arrest warrant for Otti lists 32 counts for individual criminal responsbility60 including: 11 counts of crimes against humanity (murder,61 sexual enslavement62 and inhumane acts of inflicting serious bodily injury and suffering63); and 21 counts of war crimes (inducing rape,64 intentionally directing an attack 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64

Rome Statute art. 7(1)(a). Rome Statute art. 7(1)(c). Rome Statute art. 7(1)(g). Id. Rome Statute art. 7(1)(k). Rome Statute art. 8(2)(c)(i). Id. Rome Statute art. 8(2)(e)(i). Rome Statute art. 8(2)(e)(v). Rome Statute art. 8(2)(e)(vi). Rome Statute art. 8(2)(e)(vii). Rome Statute art. 25(3)(b). Rome Statute art. 7(1)(a). Rome Statute art. 7(1)(g). Rome Statute art. 7(1)(k). Rome Statute art. 8(2)(e)(vi).

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against a civilian population,65 forced enlisting of children,66 cruel treatment of civilians,67 pillaging68 and murder69). The arrest warrant for Odhiambo lists ten counts on the basis of his individual criminal responsibility70 including: two counts of crimes against humanity (murder71 and enslavement 72) and eight counts of war crimes (murder, 73 intentionally directing an attack against a civilian population,74 pillaging75 and forced enlisting of children76). The warrant of arrest for Ongwen lists seven counts on the basis of his individual criminal responsibility77 including: three of crimes against humanity (murder,78 enslavement79 and inhumane acts of inflicting serious bodily injury and suffering80) and four counts of war crimes (murder,81 cruel treatment of civilians,82 intentionally directing an attack against a civilian population83 and pillaging84). The arrest warrant of Lukwiya lists four counts on the basis of his individual criminal responsibility85 including: one count of crimes against humanity (enslavement86) and three counts of war crimes (cruel treatment of civilians,87 intentionally directing an attack against a civilian population88 and pillaging89).

65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89

Rome Statute art. 8(2)(e)(i). Rome Statute art. 8(2)(e)(vii). Rome Statute art. 8(2)(c)(i). Rome Statute art. 8(2)(e)(v). Rome Statute art. 8(2)(c)(i). Rome Statute art. 25 (3)(b). Rome Statute art. 7(1)(a). Rome Statute art. 7(1)(c). Rome Statute art. 8(2)(c)(i). Rome Statute art. 8(2)(e)(i). Rome Statute art. 8(2)(e)(v). Rome Statute art. 8(2)(e)(vii). Rome Statute art. 25(3)(b). Rome Statute art. 7(1)(a). Rome Statute art. 7(1)(c). Rome Statute art. 7(1)(k). Rome Statute art. 8(2)(c)(i). Id. Rome Statute art. 8(2)(e)(i). Rome Statute art. 8(2)(e)(v). Rome Statute art. 25(3)(b). Rome Statute art. 7(1)(c). Rome Statute art. 8(2)(c)(i). Rome Statute art. 8(2)(e)(i). Rome Statute art. 8(2)(e)(v).

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PROSPECTS OF THE LRA PROSECUTION BY THE ICC TOWARDS THE PEACE-BUILDING PROCESS IN NORTHERN UGANDA

One of the arguments to support the use of the ICC is that it can act as a deterrent to potential war criminals. In fact, this idea is one of the main arguments behind a push to construct a permanent international war crimes tribunal. The prosecution of LRA rebels can send signals to other potential criminals who may wish to destabilize peace in the northern and other regions. The second argument is that prosecution through the ICC gives victims and their families an opportunity to regain a sense of power that may have been lost resulting from crimes. It empowers victims to stand up in a court of law and identify those who did wrong to them. The ICC can also enforce forgotten or hidden atrocities to be retold by survivors. In this way, LRA criminals living free of judgment would be forced to accept responsibility for their actions and be judged for what they have done. Thirdly, after the issuing of the arrest warrants, LRA rebels became willing to negotiate with the Ugandan government, and military attacks on civilians were significantly reduced, which makes the ICC prosecution an indirect contributor to peace building in northern Uganda. Fourthly, charges by the ICC turn a suspect into an international pariah or fugitive and induce other states to offer their assistance in capturing the suspect. It is likely that other countries, regardless of whether they are states parties to the ICC, would be willing to help apprehend those indicted. For that reason, it can be argued that Sudan’s90 willingness to cooperate in efforts to battle the LRA is a contributing factor to the charges laid against the LRA rebels by the ICC. The fifth argument is that under the ICC Statute, the Court may proceed to hold a complete and public indictment hearing to collect and assess evidence and testimony regarding the charges against the LRA in case reasonable steps have been taken with no success to secure their presence before the Court.91 This creates an extensive, public judicial record preserving evidence of the suspect’s actions and the circumstances in which they occurred. Such a record makes it easier and more compelling for Uganda to arrest the suspect. It also helps to meet the needs of victims and survivors to tell their stories and to know that the world is listening, which may be a ground for peace building. The sixth argument is based on the non-application of the doctrine of limitation. Under Article 26 of the ICC Statute, it is provided that the crimes listed 90

Sudan is not yet a party to the ICC Statute. Article 61 states that the Court may, upon request of the prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the prosecutor intends to seek trial when a person cannot be found, and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of charges and that a hearing to confirm those charges will be held. 91

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in the Statute are not subject to any statute of limitation. This means that statutes of limitation cannot be used as a ground to refuse the arrest and surrender of the person at the request of the ICC. Nor should they apply to the prosecution of the ICC crimes at the national level. The strength of this provision is that even if the LRA suspects are not arrested now, the ICC can still prosecute them even after several years, which provides future prospects for peace-building in northern Uganda. The seventh argument is that the United Nations, 92 the International Committee of the Red Cross93 and others maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law. Therefore, the existence of the Amnesty Act in Uganda may not necessarily bar the intervention of the ICC. Moreover, Article 16 of the Rome Statute only allows the Security Council to prevent the Court from investigating or prosecuting a case, and Article 53 allows the prosecutor to use his or her discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice” These provisions indicate that the Ugandan government cannot withdraw charges against the Kony rebels, thereby strengthening the role of the ICC in the peace building process in northern Uganda. Further, the provision giving discretion to the prosecutor to initiate an investigation may allow the Court some leeway to respect national reconciliation processes if it is realized that the intervention is likely to block the peace-building process. Lastly, it can also be argued that as a court of last resort, the ICC can proceed with an investigation and prosecution when a state is unable or unwilling to do so, thereby implementing the principle of complementarity. This is elaborated in Article 17 of the Statute, which provides that a case is only admissible if the state is unwilling or unable to carry out the investigation or prosecution. Uganda’s government’s referral of the situation to the ICC suggests that its national judicial system is either unwilling or unable to pursue this case. Also, because Uganda’s national criminal laws are not in accordance with the ICC Statute’s definitions of international crimes, its courts might not be able to try individuals accused of international crimes. Furthermore, Uganda is deeply divided between its southern and northern regions and by the conflict itself. Thus, it is unlikely that any investigation and subsequent prosecution of the LRA leadership or of government or military personnel by the national judicial system would be viewed throughout the whole country as impartial. Therefore, the intervention of the ICC can be seen as the only realistic option to the peace process. 92 Kofi Annan, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, para. 22. (Oct. 2000), available at http://www.afrol.com/Countries/ Sierra_Leone/documents/un_sil_court_041000.htm. 93 1 J EAN-M ARIE H ENCKAERTS & L OUISE D OSWALD-B ECK, C USTOMARY I NTERNATIONAL HUMANITARIAN LAW 613–14 (2005).

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G. CHALLENGES OF THE ICC AS A PEACE-BUILDING TOOL IN NORTHERN UGANDA As observed above, the intervention of the ICC in northern Uganda is necessary due to the inability of its national courts to prosecute LRA rebels. However, this intervention faces a number of challenges that may hinder the successful prosecution of LRA rebels and the peace-building process in the country. This section reviews these challenges. The first challenge is the arrest of LRA leaders. Until now none of the LRA suspects have been arrested. Although Sudan has an incentive to hand over Kony and his co-accused, it also has to face internal conflicts and may not be in position to effect their arrest. Secondly, Uganda has an Amnesty Act94 which grants amnesty and resettlement packages to rebels who disarm and denounce the rebellion.95 The intervention of the ICC may complicate the negotiation of an end to the conflict because while the Amnesty Act seeks to forgive, the aim of the ICC is to prosecute, meaning that there is a contradictory approach to the peace-building process. This worry is supported by the fact that following a number of attacks perpetrated against aid vehicles in the region, there was widespread speculation that these were a direct response of the LRA to the issued warrants. As said by a faith leader in Gulu, “You have gone to the beehive and disturbed the bees and the bees are wild.”96 Likewise a human rights worker noted: Things have drastically changed with the issuance of arrest warrants from the ICC. There was a ray of hope with Betty Bigombe. Now the prospects for peace are really bleak. I don’t see the LRA surrendering or turning down [their] guns. I don’t see government [beating] them. The LRA has been ripped of all its leverage to negotiate. The only way to make headlines is to inflict pain. The only way to send out a message is by killing people. It will give the government a more legitimate reason to go in for combat.97

94

Amnesty Act Cap 269 of the Laws of Uganda. Uganda’s Amnesty Act was passed in 2000 and is extended to all Ugandans, irrespective of age, who have been involved in insurgency through actually participating in combat; collaborating with insurgents; committing other crimes to support insurgency; or in any other way assisting others involved in insurgency (Section 3, Amnesty Act). The Amnesty Commission is the body established by parliament to oversee the amnesty, and is the lead agency in the implementation of the Amnesty Act. 96 Interview with faith leader, Gulu, Oct. 27, 2005, by Refugee Law Project. 97 Interview with human rights worker, Kampala, Oct. 12, 2005, by Refugee Law Project. 95

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Thirdly, the ICC’s intervention does not alleviate the underlying causes of the conflict. The war in northern Uganda is rooted in tribal differences, so that the only solution would be to devise a means to estimate how such differences can be cleared. Those accused of crimes belong to one ethnic group. To this group, the prosecutions by the ICC can appear as a trial against their ethnicity, especially if such intervention was invited by a southerner leader. Consequently, the supposed end of the armed conflict may end tribal differences, and the ICC, to that end, will be ineffective in transforming a fractured society into one of stability and peace. Further, there are arguments98 holding that the primary purpose of the ICC is not to resolve conflict but to investigate, try and punish the perpetrators of the most heinous crimes against humanity, war crimes and acts of genocide. The Court is obligated to try those guilty of committing these crimes regardless of which side of the conflict they are on. The referral of the situation in northern Uganda gives the prosecutor an opportunity to investigate, try and punish any perpetrators of crimes that fall within the Court’s jurisdiction. However, what has to be given priority in northern Uganda is peace rather than the punishment of the perpetrators. The neglect of conflict resolution as a fundamental role for the ICC in the region may enable it to realize its objective of prosecution but with no peace to the population. The ICC is going to offer only victors’ justice. The UPDF has also participated in the commission of crimes equivalent to the ones charged against LRA rebels, in particular rape. Museveni’s request only concerns the LRA, but the prosecutor’s investigative powers extend to crimes committed by any party in Uganda. The prosecutor should make it clear that while he welcomes governments’ cooperation, his office operates independently. The UPDF officers cannot be immunized from prosecution. The ICC therefore has to also prosecute UPDF officers who participated in such crimes. While it is easy and satisfying to put the enemy in prison for what he or she has done, it does not seem entirely fair if all those who participate in a war are not held to the same standards. It may also be argued that the ICC may not encourage reconciliation. For example the Padel local council district chairperson level 5 and the member of Parliament of Lira municipality have argued that: “parties at the peace talks had agreed to reconcile but when the ICC issued the warrant of arrest, the talks stalled, they further stated that justice is when society reconciles with criminals that arresting the rebels may create more death”99 One can also argue that since the ICC prosecutor will only pursue the most senior of those responsible for these atrocities, regular combatants on both sides will have no disincentive 98 James A. Goldston & Chidi Anselm Odinkalu, A Crucial Case for the International Criminal Court Justice for Uganda, Feb. 27, 2004, at http://www.soros. org/resources/articles_publications/articles/goldston _20040227. 99 Carol Natukunda, German Minister defends ICC, NEW VISION FRIDAY, Feb. 9, 2007, at 5.

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to help the Court and to work for peace. The ICC was not designed to prosecute low-level offenders who may have been abducted and indoctrinated into the LRA organizations. It also has no authority to prosecute offenders under the age of 18, who account for100 a large number of LRA rebels and some UPDF forces. The prosecution of only the top five rebel commanders will leave a big numbers of LRA rebels free, with implications for wider aspects of peace building in northern Uganda. The other challenge is that the Court’s jurisdiction does not apply retroactively. The ICC can only prosecute crimes committed on or after July 1, 2002. Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the Statute enters into force for that state. This means that the ICC will not try LRA rebels for offenses committed before 2002, thereby limiting the peace-building process in the country. One of the other crucial issues is whether the ICC should work with peacemakers in considering timing and actions. It should be recalled that the prosecutor’s role is legal, not political. Though peacemakers in northern Uganda were initially stunned by the news that the ICC would take the case referred by President Museveni, many local leaders and non-governmental organizations (NGOs) met with Prosecutor Moreno-Ocampo during the investigations. However, this raises the question whether it is appropriate for the prosecutor, who is supposed to be independent, to meet peacemakers who are part of the political process. This may compromise the role of the prosecutor, since he or she may be viewed as a peacemaker as opposed to a prosecutor. This point supports the premise that the prosecutor should not concern him/herself with political matters. The other challenge is that the traditional Acholi culture regards reconciliation as a means of restoring social relations. In other words, justice in the traditional Acholi culture should be considered as reconciliatory. They believe that the wounds of war will be healed if the Acholi practice their traditional guiding principles. This Acholi traditional culture encourages individuals to accept their mistakes and take responsibility for their actions. It is important to note that an individual does this voluntarily. Individuals are encouraged to forgive and not to seek revenge. One of the mechanisms for forgiveness and reconciliation among the Acholi is the Mato Oput (drinking the bitter herb). Mato Oput is both a process and ritual ceremony that aims at restoring relationships between clans that would have been affected by either an intentional murder or accidental killing. It helps to bring together the two conflicting parties with the aim of promoting forgiveness and restoration, rather than revenge. The Acholi observe the Mato Oput ceremony because they believe that after the ceremony, the hearts of the offender and the offended will be free from holding any grudge between

100

Rome Statute art. 26.

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them. Therefore, the use of the ICC to prosecute rebels may not be acceptable because it is contrary to the Acholi traditional view of peace building. Lastly, there is a challenge of reconciling peace talks and prosecution. There are some signs that the government of Uganda may need to withdraw ICC charges in order to facilitate peace talks. This is a challenge because Uganda as a party to the ICC cannot, as a matter of convenience, simply opt out of holding accountable individuals accused of terrible crimes. Moreover it requires a SC resolution to defer prosecution of the LRA rebels.101 H. CONCLUSIONS This chapter has examined the implications of prosecution by the ICC for peace building in northern Uganda. It has been argued that to some extent the prosecution of LRA leaders by the ICC indicates a strong link to peace building in northern Uganda. It should be observed that the intervention by the ICC has invisible but important implications for peace building. The idea of the rule of law as a value to secure peace and justice is a key to constructing a stable society in war-ravaged areas. Of course, the ICC is one of the methods of therule-of-law approach toward peace, because it symbolizes a subtle nexus between peace and justice using international criminal law standards. However, there are several opposing views on the relationship between prosecution by the ICC and peace building. ICC prosecution alone cannot bring peace in northern Uganda, because the conflict does not only raise issues of international criminal law but also requires a consideration of other social issues such as ethnicity, cultural issues and the political history of the country. Based on the above conclusions, the following recommendations can be made as a way forward: first, there is need to increase the understanding of the ICC’s role in northern Uganda. If the ICC is to operate effectively and make a meaningful contribution to justice, the people on whose behalf it claims to operate need to understand it properly. The ICC has to date failed to deliver an effective communications strategy in Uganda. As a result, many people affected by the conflict wrongly believe that the ICC has its own agenda to arrest and capture the rebels. Second, there is a need to guarantee security and prevent further outbreaks of violence. Evidence from the past and recent communications from the LRA strongly suggest that the issuing of indictments by the ICC may generate a violent response from the LRA. The ICC needs to develop a clear strategy that will guarantee adequate security to victims and witnesses in a state of ongoing conflict, where the perpetrators are still at large. The security of humanitarian aid workers may also be put at risk, further adding to the suffering of the civilian population. 101

Rome Statute art. 16.

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Third, there is a need to support current peace efforts between LRA rebels and the Ugandan government. The ICC process alone cannot bring peace. Only a negotiated peace can end the violence. The people of northern Uganda desperately want a peaceful solution to this conflict, to ensure the safe return of their children who have been abducted and forced to fight. The current peace talks are the best chance for peace in the country and hence need to be supported. Fourth, there is need to understand reconciliation as a part of justice. This is because, according to most people in northern Uganda, justice only makes sense when it involves reconciliation as part of a broader process of peace building. The ICC needs to understand and take this into account in considering the timing of its intervention and the way in which it seeks to work alongside established local justice and reconciliation processes that are part of Acholi society. Lastly, there is a need to protect the reputation of the ICC. The ICC’s prosecution of LRA rebels represents a significant and welcomed move forward in international criminal law towards holding those responsible for the most terrible crimes accountable. Since Uganda is its first referral case, there is undoubtedly pressure upon the ICC to perform. However, an intervention that destroys a peace process will damage the reputation of the ICC and may hamper its attempts to investigate and prosecute crimes in the future.

PART II

LAW ENFORCEMENT WITHIN THE FRAMEWORK OF PSOs— LIMITS AND POSSIBILITIES

CHAPTER 4 THE LIMITS ON LAW ENFORCEMENT BY PEACEKEEPING OPERATIONS IN ACCORDANCE WITH SOFAs, ROEs AND SOPs Ulf Häussler*

A. INTRODUCTION International peacekeeping operations are key policy tools for conflict resolution and peace settlement. Regardless of who is their initiator,1 most peace missions possess considerable transitional authority. That is, they are entrusted with authority, derived from an international mandate, over a state’s governmental institutions and/or its inhabitants, within part or all of their territory and for a limited period of time. Transitional authority, however, is not unlimited. Limitations may be either inherent in the goal of the peace mission2 or derived from general principles of international law—in particular humanitarian and human rights law—or introduced by the actors exercising, respectively, political direction and control, and military command and control. The aim of this chapter is to illustrate the limits governing the exercise of transitional authority by peacekeeping operations, with a particular focus on law enforcement, in accordance with Status of Forces Agreements (SOFAs), rules of engagement (ROE), and standing operating procedures (SOPs). First, it will discuss the sources and limits of transitional authority by tackling in particular the limits set by SOFAs. It will further illustrate the limits set by ROE * Legal Adviser, German Armed Forces.—The author was deployed to SFOR in 2004 and to KFOR in 2006. The views expressed herein are exclusively my own and do not necessarily reflect those of the German Ministry of Defense or NATO. 1 Peace missions have been launched by the United Nations or on their behalf, or on invitation by receiving state(s). Cf. Ulf Häussler, Ensuring and Enforcing Human Security, at ch. 4.1.2 (2007). 2 Peace missions with transitional authority are established to support the (re) introduction of a stable constitutional democracy, characterized by good governance based on human rights and the rule of law in the host state, that is, ultimately, in order to maintain or restore international peace and security. Both the scope and the limits of transitional authority must be so construed as to reflect this policy goal. 53

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and SOPs and demonstrate that—and to what extent—they derive from the implementation, on the one hand, of general principles of international humanitarian and human rights law and, on the other hand, of lead organizations’3 and/or contributing states’ policies. Secondly, it will discuss key examples of limits of transitional authority on law enforcement tasks, namely those related to the Kosovo Force’s (KFOR’s) law and order mission, the protection and defense of designated property and operational detention. On that basis, this chapter will, in its final part, reach and explain the conclusion that the exercise of transitional authority by contemporary peacekeeping operations is compatible with international legal standards. B. TRANSITIONAL AUTHORITY: SOURCES AND LIMITS Usually, the mandates of international peace missions—vis-á-vis (military) peacekeeping and (civilian) peace-building operations4—are devised to convey different, yet complementary, messages: they express the policies chosen by the international community, the international actors contributing to the mission and relevant actors (the legitimate government and, as the case may be, other power brokers) in the receiving states (also referred to as host states).5 Mandates are, accordingly, policy documents. In addition, they are also legal documents. The adoption of peace missions’ mandates requires the application of the pertinent legal bases, and the mandates themselves define the authority that may be exercised by a peace mission by using legal terms and concepts. Mandates do, moreover, define or imply short- and long-term goals, and the desired end-state. Hence, from a non-legal perspective,6 they are also strategy documents. In addition to their plurality of functions, the fact that contemporary peacekeeping operations do not fit into traditional categories of international law— both from a factual and a doctrinal perspective—contributes to the complexity of their legal framework. Peacekeeping operations have been deployed into sit-

3

The term “lead organization” refers to the international organization exercising command and control over a peacekeeping operation. Currently, NATO, the United Nations, the European Union (EU), the African Union (AU), the Economic Community of West African States (ECOWAS), and the Commonwealth of Independent States (CIS) have the capabilities to function as lead organizations. 4 See Häussler, supra note 1, at ch. 2.1.2 for this differentiation. Note that in practice the nomenclature used might not always be as stringent. 5 To date, no uniform terminology exists. The author therefore sticks to the usage developed in the study on the practice of international peace missions (supra note 1). 6 Recall that the addressees of peace mission mandates are policymakers, decisionmakers in the field (military and civilian superiors of the missions and their components) and the members of the legal community involved.

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uations of both armed conflict (usually characterized by more or less fragile ceasefires) and formal peace (frequently characterized by the readiness of the ex-belligerents to resume warfare at any time). In accordance with Chapter VII of the UN Charter, many peacekeeping mandates bridge the doctrinal gap embodied in the distinction between the states of war and peace.7 The primary concern of those drafting the mandates, however, is to tailor them to the mission, not the legal nature of the situation within the respective area of operations. Since peacekeeping mandates respond to the post-conflict situation that they aim to stabilize and to transform into sustainable and substantial peace, they are inspired by a variety of legal regimes. The aggregation of these “ingredients” is usually embodied in documents or acts expressing the consent of the receiving state(s), a resolution of the UN Security Council (SC) endorsing such consent and the acceptance thereof by the participating international organization(s) and the troop contributing state(s).8 1. The International Mandate and SOFAs as Sources of Transitional Authority In the contemporary practice of international relations, states confer certain powers to international (and supranational) organizations. They accept that such organizations, or ad hoc bodies, may take decisions regarding individual situations, issues, controversies or disputes, which will be binding on their political organs, government agencies and, as the case may be, their individual citizens or inhabitants. Speaking in abstract terms, it is consolidated practice that states confer certain powers9 to entities whose decisions they cannot unilaterally influence and accept such decisions to be binding. The act of establishing a peace mission or, more specifically, a peacekeeping operation with transitional authority is but one example for this practice. All UN member states have consented that the Security Council may impose on them an international peacekeeping operation with transitional authority. Decisions made by the Security Council have binding character pursuant to Article 25 of the UN Charter, in particular with regard to matters pertaining to 7 For an assessment of this aspect of Chapter VII of the UN Charter, see the Häussler, supra note 1, at ch. 3.1. 8 Some other authors use the phrase “troop contributing nations” rather than “troop contributing states.” In the present author’s view, the phrase used herein tackles the legal realities more precisely. From a policy perspective, it might be more appealing to speak of the nations represented by the contributing states. 9 To date, the phrase “conferred powers” has primarily been in use in European Community law. In the present author’s view, yet for reasons beyond the scope of this chapter, transitional authority has more in common with supranational authority than with the exercise of powers rooted in more traditional sub-branches of international law.

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the maintenance or restoration of international peace and security (Chapter VII of the UN Charter). Moreover, states have agreed not to tamper with this binding character by signing other international agreements or arrangements (Article 103 of the UN Charter). Regardless of the fact that the United Nations has made limited use of its conferred power to act unilaterally in matters of international peace and security, the provisions of Chapter VII and Articles 25 and 103 of the UN Charter legalize and legitimize this kind of action. Key examples of the use by the Security Council of its power to unilateral action comprise the imposition of sanctions against southern Rhodesia after the Unilateral Declaration of Independence, the authorization of Operation Desert Storm after the Iraqi invasion of Kuwait, the approval of peacekeeping in Somalia after the failure of its government and, therefore, without local government consent, the creation of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), and the measures taken against suspected perpetrators of international terrorism after September 11, 2001. In the light of this accepted practice, the Security Council may, a fortiori, authorize an international peacekeeping operation with transitional authority under Chapter VII (and make it binding erga omnes in accordance with Articles 25 and 103 of the UN Charter) after having obtained consent thereto from the receiving state(s) or power brokers within them.10 It follows that the acceptance of the provisions at issue— expressed by the act of accession to the United Nations—as possibly supplemented by the consent to their application to an individual situation, is the source of transitional authority within a UN-mandated international peacekeeping operation. The superiority of the UN Charter vis-à-vis other international agreements and arrangements (Article 103 of the UN Charter) is without prejudice to efforts made by states and international organizations to achieve the purposes of the United Nations with alternative means. Accordingly, states have retained the sovereign right to contribute to the maintenance and restoration of international peace and security outside a UN framework. International organizations may do the same, by exercising the express and/or implied powers conferred on them by virtue of their constituent act(s). A peacekeeping operation launched by a coalition of states or an international organization with a regional profile may hence be entrusted with powers amounting to transitional authority by its con10

By way of contrast, the Security Council may also entrust a peace mission with transitional authority on the basis of the receiving state’s consent without placing it in the framework of Chapter VII of the UN Charter. The recent enlargement of the UN Interim Force in Labanon’s (UNIFIL’s) mandate is a good example: the Security Council has expressly stated that it acted “in support of a request from the Government of Lebanon to deploy an international force to assist it to exercise its authority throughout the territory” (SC Res. 1701, para. 12 (Aug. 11, 2006)). While this passage demonstrates that the consent of a receiving state has equivalent legitimizing force as a Chapter VII resolution, it does not enjoy the same binding force as the one derived by the latter from Articles 25 and 103 of the UN Charter.

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tributing states or its lead organization11 (provided that the receiving state(s) has/have given its/their consent).12 SOFAs13 complement the receiving states’ consent to the exercise of transitional authority by peacekeeping operations. Usually, SOFAs specify the details of the international nature of the peacekeeping operation and confirm the neutral and impartial character of its actions vis-à-vis all compliant actors in the area of operations. To that end, SOFAs contain rules concerning the immunity of the peacekeeping operation,14 its personnel and its assets15 from legal process and jurisdiction. These rules are modeled on the law of diplomatic relations. In some cases, peacekeepers are expressly designated as “experts on mission.” SOFAs also define the principles and mechanisms necessary to ensure respect for the receiving state’s sovereignty. They obligate peacekeeping operations to adhere to the principle of respect for local law. They further establish the obligation of the Force Commander to ensure such respect,16 and they design the legal framework regulating the settlement of claims that may arise in connection with actions of the peacekeeping operation.17 These and other SOFA principles and mechanisms help identify the character of the powers rooted in transitional authority as conferred powers. Equivalent to the principle of conferred powers in EU law, the UN Model SOFA outlaws ultra vires “actions and activities” of a UN peacekeeping operation and requires its intra vires “actions and activities” to serve the purpose for which the operation was established. In obligating UN peacekeeping operations and their personnel to exercise authority in a manner not “incompatible with the impartial and international character of their duties,” the UN Model SOFA also demands, by necessary implication, the observance of the respective mandate. As a result, it limits the “actions and activities” of the mission and its personnel to the discharge of their defined duties.18

11 In practice, peacekeeping operations have never had legal personality of their own, although it is theoretically possible to create them with legal personality. Rather, they were integrated into the framework of a subject of international law, vis-á-vis either a lead nation or lead organization. See Häussler, supra note 1, at ch. 4.2. 12 Relevant examples pertain to various geographical areas and organizations; they include NATO and EU peacekeeping in Macedonia, CIS peacekeeping in the Caucasus, and ECOWAS and AU peacekeeping in a variety of African states. See Häussler, supra note 1, at ch. 2.1.1. 13 The same is true for Status of Mission Agreements, which are frequently agreed for peace-building operations. 14 See para. 7 of the UN Model SOFA (UN Doc. A45/594). 15 See, e.g., paras. 29 (taxation), 30 (customs), 32–34 (immigration), 40–45 (law enforcement), and 46–49 (jurisdiction) of the UN Model SOFA (UN Doc. A45/594). 16 See para. 6 of the UN Model SOFA (UN Doc. A45/594). 17 See paras. 51–54 of the UN Model SOFA (UN Doc. A45/594). 18 See para. 6 of the UN Model SOFA (UN Doc. A45/594).

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SOFAs may, moreover, contain amplifications and guidance for the exercise of a peacekeeping operation’s transitional authority. For instance, paragraph 41 of the UN Model SOFA contains a detailed framework for the exercise of the power to arrest criminal suspects in UN peacekeeping operations,19 that is, it defines both the criminal law enforcement powers enshrined in the mission’s transitional authority and its limits. 2. The International Mandate and SOFAs as Inherent Limits of Transitional Authority SOFAs may have two functions concerning the inherent limits of transitional authority. They can specify particular aspects of these limits or contain arrangements concerning the use of the mission’s transitional authority. The key to interpreting peacekeeping mandates is the definition of the purpose of the operation by the mandate, that is, the definition of the desired end-state and the preferred mechanisms to reach it. Inherent limits of transitional authority derive from two kinds of provisions contained in international mandates. First, usually the purpose of a peacekeeping operation is translated into individual responsibilities.20 Actions taken beyond the range of these responsibilities are incongruent with the mandate and hence ultra vires. Secondly, beyond these limits ratione materiae, further limits may be imposed, as a matter of policy, ratione personae, ratione loci or ratione temporis. A mandate may, for instance, expire after a defined period of time or following the receiving state’s request; it may define the geographical boundaries of the area of operations; it may specify that only certain persons shall be subject to the actions of the peacekeepers. Moreover, the differentiation between principal and supporting tasks21 determines what actions may be taken at the initiative of the peacekeeping operations and which ones may be taken at the request of other designated actors.

19 The legal frameworks for the deprivation of liberty (the generic phrase covering detention and arrest regardless of their purpose) by peacekeeping operations will be dealt with in Section C.3. 20 International peace missions’ mandates define the responsibilities of these missions. for the use of this term, see the KFOR and UN Interim Administration Mission in Kosovo (UNMIK) mandate contained in SC Res. 1244, paras. 9 and 11 (June 10, 1999). 21 International mandates also specify the principal and supporting tasks of a peace mission; usually these tasks derive from defined (or implied) responsibilities. This language has been used for instance in the peacekeeping mandate for Bosnia and Herzegovina contained in the General Framework Agreement for Peace in Bosnia and Herzegovina (UN Doc. S1995/985, Annex)—also known as the Dayton Agreement. See Article VI of Annex 1A to the Dayton Agreement for the differentiation between principal and supporting tasks.

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Turning now to SOFA provisions carrying inherent limits of transitional authority, those concerning immunity from jurisdiction and respect for local law are of key importance. First, they amplify the international nature of peacekeeping operations. They confirm that both relevant international law and such domestic law of the contributing states as congruent with the international mandate22 are the primary sources of the body of law binding upon the operation and its personnel. As a result, the receiving state’s domestic law can only be binding if, and to the extent that, the lead organization or the contributing states have integrated their content into the legal framework applicable to the operation and its personnel. The mechanisms used by the lead organization for that purpose include, but are not limited to, the integration of certain requirements in either the operation plan (OPLAN)—including the ROE23—or the SOPs and issuing of specific orders through the international chain of command. Contributing states usually build upon their own domestic legislation: they may declare extraterritorially applicable such domestic legal principles and rules that can also be found in the receiving state’s local law by virtue of military orders or administrative decisions, provided doing so does not impede the effective and efficient fulfillment of the peacekeeping operation’s responsibilities defined by the international mandate. In addition, there may be overlaps between the obligation to respect local law and the binding force of certain principles and rules of peremptory international law (jus cogens). This may occur if the receiving state’s domestic law reflects the essence of legal principles and rules designed and accepted to be binding erga omnes (e.g., the universal prohibitions of torture or forced disappearances). In such cases, respect of local law coincides with the abidance by relevant peremptory principles and rules. Oftentimes, moreover, peacekeeping operations will also be bound by emerging, yet not comprehensively settled, legal standards such as those concerning sexual abuse and exploitation, including the prohibition of trafficking in human beings. The principles and rules governing law enforcement by the receiving state’s domestic agencies are of limited importance for peacekeeping operations’ transitional authority.24 In particular, frequently peacekeeping responsibilities do 22 Without doubt the rule contained in Article 27 of the Vienna Convention on the Law of Treaties that a state “may not invoke the provisions of its internal law as justification for its failure to perform a treaty” applies to international mandates of peacekeeping operations. 23 Note that the rules of engagement authorized for a given peacekeeping operation are usually contained in an Annex to the OPLAN. 24 International law contains only few positive obligations specifically crafted for law enforcement. Various actors have adopted a variety of policy documents concerning law enforcement. In the light of the fact that matters of internal and external security are perceived to be of key importance for state sovereignty, these documents have not, however, been transformed into binding international law. As a result, they can only be relied upon to discuss whether certain state practice congruent with them

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not fit in the categorizations developed for stable constitutional democracies, since such operations are primarily25 charged with preventing the materialization or suppressing risks and threats of a paramilitary or military nature in their areas of operations. Accordingly, law enforcement is usually a desirable sideeffect of peacekeeping rather than its defined purpose.26 For this reason, both the contributing and the receiving states’ legal frameworks for law enforcement are ill suited for determining the legitimacy and legality of individual actions taken by peacekeeping operations. 3. Limits of Transitional Authority Deriving from General Principles of International Humanitarian and Human Rights Law The limits of transitional authority are rooted in international humanitarian and human rights law. By contrast, the domestic law of receiving states does not directly apply to the exercise of transitional authority by a peacekeeping operation. Certain recent developments—although they basically concern activities of military personnel not integrated in a peacekeeping operation and activities of intelligence personnel without military status27—have given reason to reconsider the role played by international humanitarian and human rights law as sources of limits of transitional authority. Non-governmental organizations (NGOs) have made useful contributions to this thought process.28 Since international peacekeeping mandates are embodied in international agreements such as peace settlements or ceasefire agreements and instruments might be an expression of emerging general principles of international law or emerging customary international law. By contrast, obligations to abstain from certain conduct—the prohibitions of torture and forced disappearances have already been referred to—are usually not law enforcement specific and need not be discussed further in this context. 25 The KFOR law and order mission, that is, the responsibility to ensure “public safety and order until the international civil presence can take responsibility for this task” (SC Res. 1244, para. 9(d) (June 10, 1999)) is exceptional—no other military peacekeeping operation has had such far-reaching authority. 26 For instance, the possession of arms by civilian individuals will frequently be illegal in states receiving a peacekeeping operation. If, however, the peacekeepers crack down on weapons’ owners, they do so in order to prevent the reemergence of demobilized paramilitary or military structures, or the emergence of new such structures, which would—by their mere presence—pose a serious threat to international peace and security in the area of operations. Obviously, peacekeeping operations must, and do, make an assessment whether privately owned weapons represent a paramilitary or military threat. For examples and the range of possible legal assessments, see Häussler, supra note 1, at chs. 7.2.2 and 10.2.4. 27 With respect to detentions, see Häussler, supra note 1, at ch. 9.1. 28 See Häussler, supra note 1, at ch. 9.2.

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such as SC resolutions, they cannot be qualified as mere policy instruments without binding legal character. Rather, they are an integral part of international law and, as such, they are supplemented by customary law and general principles29 governing the maintenance and/or restoration of international peace and security. The practice of the UN Security Council concerning international peacekeeping indicates that both international humanitarian and human rights law contain relevant principles.30 It is important to stress that neither international humanitarian law (IHL) nor international human rights law are directly applicable to the exercise of transitional authority by international peace missions. The supremacy of Chapter VII mandates in accordance with Articles 25 and 103 of the UN Charter covers all obligations stemming from international treaties—with the exception of treaty provisions that have codified peremptory international law—including those pertaining to IHL and international human rights law. Moreover, international organizations taking the lead of peace missions are neither parties to relevant agreements nor have they accepted to be bound by them by unilateral declaration. Furthermore, neither IHL nor international human rights law were originally devised to cover the exercise of transitional authority by international peace missions: human rights were not crafted to apply extraterritorially; IHL was not developed to apply outside an armed conflict. However, Chapter VII of the UN Charter has bridged the classical distinction between war and peace, that is, the distinction fundamental to the classical separation of the spheres of application of IHL and international human rights law. Relevant Chapter VII resolutions have merged these spheres of application in such a manner as to imply that some issues may be exclusively matters of general principles of IHL, whereas others may be exclusively matters of general principles of international human rights law, yet others may be matters of general principles of both these branches of international law.31 The most important aspect of this merger is that, in general, limitations of human rights derive from general principles of 29

See ICJ Statute art. 38(1)(b) and (c). See Häussler, supra note 1, at ch. 5—in particular 5.3. Note that the most recent renewal of the Afghanistan mandate expressly “[c]alls for full respect for human rights and international humanitarian law throughout Afghanistan.” See SC Res. 1746, para. 18 (Mar. 23, 2007). 31 This passage is modeled upon the observation of the International Court of Justice (ICJ) concerning the rights of individuals affected by the exercise of authority during a period of occupation, that: “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.” ICJ-Opinion of July 9, 2004—Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory—para. 106. Note that, for the purposes of the present analysis, the ICJ’s insight had to be adjusted to the situation of international peace missions because their transitional authority is not authority exercised by a state as in the case of belligerent occupation. 30

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IHL in accordance with respective mandates,32 and restrictive derogations clauses contained in international human rights treaties do not apply.33 As a result, international mandates determine what general principles of international humanitarian and human rights law shall govern the exercise of transitional authority by a specific mission. In particular, Chapter VII resolutions may limit, or derogate from, human rights that do not form part of the body of peremptory international human rights or from supplementary standards associated with peremptory human rights that do not share their erga omnes character.34 International organizations and states launching a peacekeeping operation on behalf of the United Nations, may implement such limitations and derogations in their binding decisions (i.e., OPLANs including ROE, SOPs, specific orders, etc.). Likewise, if a state chooses to confer transitional authority to an international organization in order to enable it to launch a peace mission on its territory—like the Lebanese Republic did with respect to the enlarged mandate of UNIFIL 35—the conferring act may authorize, either expressly or by way of implication, limitations of, or derogations from, pertinent human rights or subjective rights deriving from IHL. Note that acts conferring or generating transitional authority, or the consent expressed by a state to exercise it by way of contributing personnel and equipment to an international peacekeeping operation, may be subject to judicial scrutiny under directly

32 The authorization to use all necessary means to fulfill the defined responsibilities of an international peace mission is the paradigm for expressly declaring applicable such limitations as are inherent in the concept of military necessity (or operational necessity). See Häussler, supra note 1, at ch. 6.2. 33 Cf. Häussler, supra note 1, at ch. 5.3.3. 34 In accordance with relevant doctrine, human rights provisions establish certain substantial standards (such as, e.g., the prohibition of torture). In accordance with supplemental provisions or by way of interpretation of the substantial human right, certain procedural standards (such as documentation requirements, obligations to keep records, consultation requirements, etc.) may be associated with the substantial human right in question. These associated standards aim to enhance the protection of the substantial right. It is submitted that, regardless of this purpose, standards associated with peremptory human rights are not themselves part of international jus cogens. By way of contrast, however, the documentation requirements and obligations to keep records under IHL may have generated general principles of international law that are binding on international peace missions. Access to information kept in accordance with these principles can be limited to the International Committee of the Red Cross if the exigencies of operations security so require. Additionally, competent military and civilian superiors are obligated to review the information documented and recorded in accordance with the doctrine of command responsibility. Moreover, the Security Council may require access to information in addition to existing reporting requirements it has established in many international mandates. 35 Cf. supra note 6.

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applicable human rights treaty law, regardless of the fact that the exercise of transitional authority is not likewise reviewable.36 C. THE PRACTICE OF INTERNATIONAL PEACEKEEPING— KEY EXAMPLES International peacekeeping operations have frequently been tasked with establishing and maintaining a safe and secure environment in a manner involving actions similar to law enforcement. Moreover, the NATO-led international military presence in Kosovo— KFOR—was responsible for law enforcement pending the reestablishment of effectively functioning civilian agencies that can handle this task. In the following sections, the (initial) KFOR Law and Order Mission, Protection and Defense of Designated Persons and Property and Operational Detention will be discussed. 1. The KFOR Law and Order Mission37 Depending on the situation in the receiving state, military peacekeepers may also be assigned tasks that are traditionally “civilian” in nature. In the case of Kosovo, SC Resolution 1244 has entrusted KFOR with certain responsibilities (law and order, de-mining) until a handover to UNMIK is (was) feasible.38 In the course of their presence in Kosovo, KFOR and UNMIK have indeed redelineated step-by-step their tasks. The terminology used in SC Resolution 1244 indicates that the KFOR Law and Order Mission supplements related military responsibilities. While UNMIK is responsible for “maintaining civil law and order”39—which clearly involves civilian tasks—KFOR’s equivalent responsibility covers “ensuring public safety and order.”40 This KFOR responsibility is closely associated with establishing 36 This is demonstrated, in particular, by the jurisprudence of the European Court of Human Rights in Matthews v. the United Kingdom where the policy decision to deny the inhabitants of Gibraltar the vote in European Parliament elections came under judicial scrutiny. Cf. Häussler, supra note 1, at ch. 5.3.3. 37 “The KFOR mandate under UNSCR 1244 and the broad provisions of the MTA combined to provide the basis for the KFOR law and order mission.” Center for Law and Military Operations, Law and Military Operations in Kosovo: 1999–2001— Lessons Learned for Judge Advocates, Charlottesville, VA, at 99 (2001) [hereinafter CLAMO, Kosovo]. 38 See SC Res. 1244, paras. 9(d) and (e) (June 10, 1999): “until the international civil presence can take responsibility for this task” or “until the international civil presence can, as appropriate, take over responsibility for this task,” respectively. 39 See id., para. 11(i). 40 See id., para. 9(d).

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a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established and humanitarian aid can be delivered,41 which is a key source of KFOR’s military tasks. More precisely, as far as “establishing a secure environment” shall make possible that “the international civil presence can operate,” KFOR is charged with enabling UNMIK to fulfill its responsibility for “maintaining civil law and order.” The inherent logic of this delineation of responsibilities links an indefinite responsibility of KFOR for the secure environment in Kosovo with a joint responsibility of both KFOR and UNMIK in matters related to “law and order.” KFOR’s responsibility in this field, however, does not include “maintaining . . . law,” that is, KFOR has not been entrusted with legislative and judicial authority. Implementation of the KFOR Law and Order Mission was a crucial contribution to early successes in the stabilization of Kosovo. When the international community arrived in Kosovo, law and order were already in jeopardy because of the high crime rate.42 In addition, prior to the deployment of sufficient international police personnel43 and the (re)establishment of civilian courts under the auspices of UNMIK, no functioning law enforcement apparatus (police, judiciary and correctional facilities) existed, since nearly all Serbian officials, including most Yugoslav judges,44 had left the area together with the retreating armed forces and police units. Moreover, initially no legislation was adopted to implement the obligations stemming, on the one hand, from the Military Technical Agreement between the International Security Force (KFOR) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia of June 9, 1999, and, on the other hand, the Undertaking of Demilitarization and Transformation of the UCK concluded between the Commander of the Kosovo Force (COMKFOR) and the Commander of the UÇK(Ushtria Çlirimtare e Kosovës (Albanian name of the Kosovo Liberation Army (KLA)) of June 21, 1999. Apart from the delineation ratione materiae concerning legislative and judicial functions, the delineation of tasks between KFOR and UNMIK was basically ratione temporis. Only once KFOR had “ensured” public safety and order, could UNMIK be considered able to “maintain” civil law and order. In practice, KFOR’s contribution to law enforcement was scaled back after its first year of presence. For instance, KFOR personnel were ordered that in responding to an alleged crime scene, they should simply secure that scene and con41

See id., para. 9(c). Cf. CLAMO, Kosovo, supra note 37, at 99. 43 The international community did not meet the UN’s request for police personnel for almost a year. See CLAMO, Kosovo, supra note 37, at 100. 44 Those Serb judges who had not left Kosovo prior to KFOR’s deployment did so soon thereafter due to security concerns. Albanian lawyers did not have experience as judges because they had not been allowed to practice since 1989. See CLAMO, Kosovo, supra note 37, at 100. 42

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tact UNMIK Police.45 KFOR has, however, resumed fulfilling its responsibility for public safety and order in cases where UNMIK was objectively unable to maintain civil law and order, such as, for example, for a limited period following the 2004 upheavals. In accordance with its law and order mission, KFOR engaged in the prevention and repression of criminal activities. Basically, KFOR policed criminal misconduct, investigated alleged crimes,46 secured evidence, detained suspects and ensured the continued functioning of the correctional infrastructure.47 While KFOR preferred to assign “law and order” tasks to military police units, for reasons of lack of personnel, some tasks such as basic investigations and related detentions and arrests in respect of minor criminality were carried out by infantry soldiers. 48 The Commander, Multinational Brigade East (COM MNB(E)) responded to this situation by issuing a detailed Detention Processing Policy49 that contained rules for soldiers responding to the scene of an alleged crime prior to military police involvement and basic principles for receiving and processing detainees in the Camp Bondsteel Detention Facility.50 Additionally, COM MNB(E) delegated release authority for specified categories of crimes to certain officers under his command.51 Moreover, military lawyers responded to the situation by ensuring basic law enforcement training.52 The COM MNB(E) Detention Processing Policy is equivalent to a SOP. Its title contains the word “policy” for the sole purpose of indicating that the standards and guarantees specified therein are not supposed to generate subjective rights of the individuals whose cases were processed under the policy. This title reflects the US approach to the inapplicability of the rules of IHL and international human rights law to the situation in Kosovo under the KFOR mandate. Like the other KFOR troop contributing states, the US contingent to KFOR has used relevant standards of the Third and Fourth Geneva Conventions of 1949

45

Cf. CLAMO, Kosovo, supra note 37, at 102 et seq. Note, however, that according to the assessment of the Commander, KFORMNB(E), at the beginning of KFOR’s mission “[t]he operational constraints of conducting law enforcement activities in the present environment severely inhibit[ed] KFOR’s ability to conduct follow-up investigations.” See paragraph 5 of the Detention Processing Policy of August 3, 1999, reprinted in CLAMO, Kosovo, supra note 37, at Appendix IV-8. 47 See CLAMO, Kosovo, (supra note 37, at 100 et seq. 48 As far as the practice of KFOR-MNB(E) is concerned, see CLAMO, Kosovo, supra note 37, at 101. 49 The COM MNB(E) Detention Processing Policy is reprinted in CLAMO, Kosovo, supra note 37, at Appendix IV-8. It has subsequently been replaced. 50 In the meantime, this facility has been renamed as the Bondsteel Holding Facility. 51 See COM MNB(E) Detention Processing Policy of August 3, 1999. 52 See CLAMO, Kosovo, supra note 37, at 101 et seq. 46

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as field-level guidance for its operations.53 Unlike other states involved, however, the US contingent stressed that it believed the status of KFOR MNB(E) detainees to have been defined by the policy, that is, that this status did not derive from general principles of law as applied to the field-level situation.54 Apart from the mentioned difference concerning the approaches towards the source of the status of detainees, the COM MNB(E) Detention Processing Policy indicates that SOPs and equivalent documents—as far as KFOR is concerned, detention operations were later, and continue to be, governed by a COMKFOR Detention Directive, which is supplemented by SOPs at Multinational Task Force level in accordance with this Directive—demonstrate that peacekeeping operations ensure adherence to the standards of international humanitarian and human rights law by way of the usual military technique—written orders of an abstract and general nature. In practice, ROE contain relevant authorizations— for example, that KFOR may, as far as relevant in the present context, within the scope of its law and order mission, detain such individuals as it suspects to have been involved in criminal activity—and SOPs or equivalent determine how such authorizations shall be applied to individual cases. Turning now to matters of legislation in the field of law and order, the early practice of KFOR and UNMIK involves a somewhat confusing approach to deal with shortcomings in this field. COMKFOR and the head of the UN-led international civilian presence in Kosovo (UNMIK), the Special Representative of the Secretary-General (SRSG), agreed upon an “augmentation of crimes in Kosovo,” 55 which covered such conduct as unlawful possession of weapons (“weapons violations”56), wearing of the UCK uniform,57 setting up of unau53 Cf. THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, U.S. ARMY, INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT ED., OPERATIONAL LAW HANDBOOK, at 52, no. 25 (2006 ed.); the procedures designed to implement the KFOR Law and Order Mission in accordance with NATO OPLAN 10413 were modeled on GC III: Peter Dreist, Streitkräftefremde Aufgaben im Kosovo, in NEUE ZEITSCHRIFT FÜR WEHRRECHT 44, 45–48 (2002). 54 Recall that this “no status as of law” approach was implemented during the Clinton administration’s term of office. 55 See CLAMO, Kosovo, supra note 37), at 104. 56 This terminology has been used in paragraph 2(c)(3) of the COM MNB(E) Detention Processing Policy of August 3, 1999, supra note 46. Weapons violations comprised cases of possession of prohibited weapons as defined in paragraph 5(d) of the Undertaking of Demilitarization and Transformation of the UCK concluded between COMKFOR and the Commander of the UCK (reproduced in CLAMO, Kosovo, supra note 37, at Appendix IV-5), and of non-compliance with the demilitarisation and disarmament requirements stipulated in paragraphs 22 and 23 of the Undertaking, and with the cessation of hostilities requirements under Article II of the MTA-Kosovo, which also provides, in paragraph 5 of its Appendix B, that COMKFOR “has the right and is authorised to compel the removal, withdrawal or relocation of specific . . . weapons.”. 57 Cf. paragraph 2(c)(4) of the COM MNB(E) Detention Processing Policy of August 3, 1999, supra note 46. The prohibition of wearing the UCK uniform reflects

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thorized checkpoints58 and curfew violations.59 From a practical perspective, the “augmentation of crimes” had limited effects. Even worse, it blurred the distinction between law and order detentions and operational detentions. As reflected in a revised MNB(E) detention policy released in 2000, the “augmentation of crimes” did not criminalize the conduct it covered because the UNMIK Emergency Judicial System did not prosecute this conduct.60 As a result, the “augmentation of crimes” did not enhance the fulfillment of either KFOR’s responsibility to ensure public safety and order or UNMIK’s responsibility to maintain civil law and order. Rather, it placed the fulfillment of KFOR’s responsibility to establish and maintain a secure environment, characterized by the absence of paramilitary or military threats and the possibility of their reemergence, underneath a wrongful heading. As a matter of principle, obligations stemming from a ceasefire or similar arrangements (such as the MTA-Kosovo (Military Technical Agreement-Kosovo) and the COMKFOR/ Commander UCK Undertaking) become effective for the signing officers’ respective subordinates upon signature; that is, they demand compliance regardless of whether implementing legislation has been adopted. With regard to nonsubordinates of the signing officers, their provisions can be used as amplification and guidance of the responsibility to establish and maintain a secure environment. It follows that KFOR had the authority to detain, if militarily necessary, civilian individuals who acted in a manner not compliant with the obligations the obligation created by paragraph 23(h) of the Undertaking of Demilitarization and Transformation of the UCK concluded between COMKFOR and the Commander of the UCK, that within 90 days all UCK forces must cease wearing either military uniforms or insignia of the UCK. 58 Cf. paragraph 2(c)(7) of the COM MNB(E) Detention Processing Policy ofAugust 3, 1999, supra note 46. The prohibition of unauthorized checkpoints reflects the obligation created by paragraph 10(b) of the Undertaking of Demilitarization and Transformation of the UCK concluded between COMKFOR and the Commander of the UCK. 59 Cf. paragraph 2(d)(1) of the COM MNB(E) Detention Processing Policy of August 3, 1999, supra note 46. 60 The revised detention policy differentiated between “unlawful” and “unauthorized” misconduct, qualifying the conduct covered by the “augmentation of crimes” as “unauthorized”: Unlawful conduct was criminal behavior defined by the laws of the Federal Republic of Yugoslavia, the Republic of Serbia, the province of Kosovo, or UNMIK regulation. These acts could be prosecuted in criminal court. Unauthorized conduct was defined by the MTA (threats to a safe and secure environment), the Undertaking (prohibited weapons), and KFOR directives (counter-barricades). Commanders and soldiers were authorized to enforce these rules, but Kosovar courts would not prosecute the misconduct unless there was an underlying criminal act. See CLAMO, Kosovo, supra note 37, at 110 no. 71 and paragraph 3 of the Detention Policy of July 24, 2000, reprinted in id. at Appendix IV-16.

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defined by the MTA-Kosovo and the COMKFOR/Commander UCK Undertaking, that is, for operational reasons, regardless of the “augmentation of crimes.” 2. Protection and Defense of Designated Property 61 The violent demonstrations of February 10-11, 2007, by the Vetevendosje movement and their successful suppression by UNMIK Police indicate that effective law enforcement by police detachments integrated in an international peace-building operation will usually suffice to prevent civilian individuals and objects being exposed to danger of suffering damage or destruction. Nevertheless, examples such as the 2004 Kosovo upheavals show that the police will not always have sufficient capabilities. Although it is usually a matter of law enforcement, public unrest can be more than just a situation of internal disturbances and tensions. If personnel or organizations with paramilitary or military capability are able to seize decisive influence on those involved in the unrest, or have already done so, then the situation involves a distinctive threat to the secure environment that can trigger action by a peacekeeping force charged with maintaining such secure environment. Relevant indications comprise, but are not limited to, the availability or use of weapons, the existence of established command structures that are available, whether activated or not, to those instigating, aiding or abetting violence and other non-compliant acts, and belligerent propaganda such as inflammatory or hate speech capable of provoking eruptions of violence. Both the February 10-11, 2007, violent demonstrations and the 2004 upheavals show that it is rather easy for certain actors within Kosovo to mobilize considerable numbers of individuals and make them join demonstrations based on inter-ethnic motives involving the likelihood of inter-ethnic violence. Moreover, apparently, these actors possess a mobilization mechanism that demonstrates at least dormant paramilitary capability. Accordingly, it is within KFOR’s responsibility for the secure environment to suppress both mobilization mechanisms and any inter-ethnic violence emerging from demonstrations of this kind. KFOR action dealing with possible or actual inter-ethnic violence tackles the paramilitary or military threat represented by such violence. Although it has certain similarity with law enforcement, it is not an act of policing.62 KFOR 61 This passage is built on the present author’s essay; Ulf Häussler, KFOR: Current Legal Issues, 2007 J. INT’L L. OF PEACE & ARMED CONFLICT 24–32. 62 As COMKFOR rightly observed, “KFOR’s role is not to steer police missions: UNMIK-P and KPS are performing that masterly.” COMKFOR Press Conference of June 10, 2005, available at www.nato.int/kfor/inside/2005/06/i050613b.htm (last visited Nov. 9, 2006).

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has devised a concept for protecting and defending Property with Designated Special Status (PRDSS), that is, the concept of “blue and red boxes.” This concept reflects both the military or paramilitary nature of the threat ultimately represented by inter-ethnic violence and the fact that usually most of those acting violently do not resort to combat style violence. It is a paradigm for KFOR’s approach to the changing operational environment, namely the improvements made by UNMIK Police and the Kosovo Police Service (KPS). As demonstrated in the course of publicly accessible rehearsals and explained in numerous public information campaigns, the concept of blue and red boxes establishes a cordon of increasingly impermeable zones around any key site designated by COMKFOR as PRDSS.63 Unless activated by COMKFOR, the boxes are dormant (though permanent guard posts are established at certain sites). Red boxes comprise the objects designated for protection and their immediate surroundings; in case of activation, they will be defended against entry of unauthorized individuals. Blue boxes comprise a designated area around each red box. Activation of red boxes includes activation of blue boxes, which will thereupon be protected against unauthorized entry. The notion of protecting, as opposed to defending, implies a lower level of countermeasures in case of attempted or actual intrusions. Usually, crowd and riot control measures, such as the use of riot control agents and non-lethal weapons, will be used in order to protect a blue box. Should the need arise to defend a red box, the use of minimum force— that is, such force up to and including deadly force as is commensurate with the threat at issue—is an option. From a legal perspective, the concept of blue and red boxes contains amplification and guidance concerning, inter alia, the ROE64 governing the use of crowd and riot control means, or firearms and available weapons systems (e.g., deadly force). It represents KFOR’s approach to the implementation of the principle of proportionality in the course of limiting the human rights affected by the use of force. In particular, the question of whether the right to life may be so limited as to have less weight—either generally or on a case-by-case basis— than the competing public interest to protect key property, might be controversial. Some troop contributing states do not like the idea that soldiers might shoot with the intent to kill in order to defend property. Moreover, it is also debatable whether the use of firearms against the intruder is always a proportionate response to an intrusion of a red box. In accordance with relevant gen-

63 In accordance with KFOR’s responsibility to protect the international civil presence (SC Res. 1244, para. 9(e) (June 10, 1999)) this may also involve designation of UNMIK sites as PRDSS if so requested by the SRSG. 64 Note that self-defense, including extended self-defense, is not affected by these ROE. NATO ROE do neither constitutively authorize nor limit each soldier’s inherent right of individual self-defense; as they stand, they do not affect extended self-defense in cases of serious violence either. Cf. Häussler, supra note 1, at ch. 7.2.1.1.

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eral principles of IHL, whatever response is chosen, it must not be excessive.65 Moreover, the legality of the response chosen will be assessed on the basis of the battle damage estimate made by the competent military commander in advance of taking action.66 The necessary balancing process will involve the human rights to life and physical integrity on the part of the actual or potential intruders and those possibly affected by action against the former, and the value of the property at issue for the peace process. This value is determined by the symbolic character of, for example, cultural heritage and religious locations for the preservation of the collective identity of the group whose culture or religion they represent,67 or of international community sites for the credibility of the international presence concerned, rather than by the financial value of the property at issue. As a result, the use of minimum force to defend cultural heritage, religious sites and international community sites is not per se excessive. Much will depend on the situation on-scene. 3. Operational Detention As indicated in the discussion of the KFOR Law and Order Mission (Section C.1), it is necessary to differentiate between deprivation of liberty for law enforcement vis-à-vis operational purposes. Operational detention is not part of the repertoire of classical blue helmet peacekeeping. Rather, it is part of the robust means of coercion employed by peacekeeping operations entrusted with transitional authority in accordance with Chapter VII of the UN Charter. All peacekeeping operations authorized to use all necessary means or to take all necessary measures have conducted operational detentions. The Security Council has renewed their mandates with full knowledge of this—now consolidated— practice. Arguably, therefore, this practice has similar value as agreement regarding the interpretation of relevant SC resolutions and, ultimately, Chapter VII of the UN Charter (compare Article 31(3)(b) of the Vienna Convention on the Law of Treaties).68 In practice, NATO and EU peacekeeping operations consider 65 IHL prohibits the means of warfare from being used in an excessive manner. Adapted to the framework of peace missions, this means that the means of coercion must not be used excessively either. 66 IHL requires, inter alia, that those who plan or decide upon an attack—that is, translated into the framework of peacekeeping: an act of coercion—take certain precautions with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects (Article 57(2)(a)(ii) of Protocol I to the Geneva Conventions). Taking such precautions involves, by necessity, that a battle damage estimate is made in advance of an attack/act of coercion. 67 Decani Monastery, for instance, has been declared UNESCO World Heritage site (see http://whc.unesco.org/en/list/724 (last visited Dec. 12, 2006), and it is, accordingly, much more than simply a valuable property item. 68 See Häussler, supra note 1, at ch. 9.

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operational detention a viable option (without prejudice to the question of whether detaining authority is currently being used). By way of contrast, the United Nations has not expressly opted in favor or against operational detention, although UNMIK has used its detaining authority deriving from its responsibility to maintain civil law and order in a manner similar to KFOR’s operational detentions: that is, in particular, without necessarily giving access to judicial review of detention orders.69 As a matter of policy, it is rather unlikely that the UN Model SOFA aims to prohibit operational detention.70 On that basis it would be a matter of ROE to determine whether this means of coercion is indeed available to a particular UN peacekeeping operation to which the UN Model SOFA, or a SOFA reproducing its templates, applies. As indicated, operational detention responds to threats to the secure environment, that is, threats of a paramilitary or military nature, as opposed to threats to public order. To date, no SOP dealing with operational detention (or, as the case may be, Commander’s Detention Directive) has ever contained an 69

Amnesty International has expressed the view that: Neither COMKFOR detentions nor SRSG detentions under Executive Orders . . . provide a procedure by which a person can challenge the lawfulness of their detention before a court. Further, there remains no judicial mechanism in place by which a person who has been unlawfully or arbitrarily detained on the order of COMKFOR or the SRSG may enforce their right to reparation, as confirmed by lawyers acting for persons unlawfully detained on the order of the SRSG or COMKFOR. Amnesty International, United Nations Interim Administration Mission in Kosovo (UNMIK): Briefing to the Human Rights Committee: 87th Session, July 2006 (AI document EUR 70/007/2006), at 34 et seq. 70 The relevant provision, paragraph 41 of the UN Model SOFA (UN Doc. A45/594), forms part of the section concerning “Military police, arrest and transfer of custody, and mutual assistance.” It deals with detentions responding to criminal activity and, in that course, differentiates between detentions occurring on or beyond the premises of the UN peacekeeping operation. In particular, it provides that peacekeeping personnel designated by the Force Commander “may take into custody any other person on the premises of the United Nations peace-keeping operation,” that is, any person not belonging to its military personnel. Moreover: “Such other person shall be delivered immediately to the nearest appropriate official of the Government for the purposes of dealing with any offence or disturbance of such premises.” As a result, paragraph 41 of the UN Model SOFA indicates that, in accordance with the UN’s basic policy, UN peacekeeping operations are not charged with law enforcement. Rather, it is based on the premise that a functioning law enforcement apparatus exists in the receiving state. On that basis, it is suggested that this paragraph does not deal with cases of deprivation of liberty unrelated to enforcement of criminal law or the laws concerning the maintenance of public order. It can, accordingly, be so interpreted as not to address operational detention at all. In the light of the fact that the UN Model SOFA was drafted before robust peacekeeping emerged in the early to mid 1990s, such an interpretation would, moreover, be most convincing because it can hardly be said that the drafters wanted to prohibit operational detention without even knowing that means of coercion.

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itemized list of grounds of detention. Nevertheless, certain core responsibilities defined by international peacekeeping mandates provide sufficient guidance for the purpose of identifying what non-compliant behavior or situation may trigger operational detention of an individual. Among these responsibilities, those to suppress the resumption of hostilities and to establish and maintain a secure environment are of key importance. Moreover, the responsibility to support, protect and defend other international community actors, designated NGOs and vulnerable civilians from acts of violence of a paramilitary or military nature, justifies operational detention. It is a matter of debate whether these responsibilities must be translated into specified grounds of detention by ROE or SOPs.71 The core concern voiced by the critics of operational detention is the absence of judicial review of detention orders.72 In this respect, it must always be kept in mind that operational detention is not the key to a legal vacuum—misunderstanding it would thus betray the value-based framework common to all international peacekeeping operations. In the light of relevant general principles of both international humanitarian and human rights law as confirmed by pertinent peacekeeping practice, it is beyond doubt that the rules concerning detention adopted by peacekeeping Force Commanders or, like in the case of UNMIK, civilian heads of a peace-building operation, must establish an internal oversight mechanism if judicial oversight is not available or cannot be made available, for example, for reasons of operation security.73 Again, ROE and/or SOPs implement the substance of such standards as limit the exercise of transitional authority of international peacekeeping operations. D. ASSESSMENT AND CONCLUSIONS The practice of international peacekeeping operations involves the performance of rather limited law enforcement activities by military personnel. As the example of the KFOR Law and Order Mission indicates, such activities are basically confined to early periods of a mission’s mandate and limited in substantial scope inasmuch as they do not involve the exercise of legislative 71 In accordance with general principles of international humanitarian and human rights law, nobody may be detained arbitrarily. Moreover, general principles of international human rights law require that that grounds of detention and detention procedures be established by law. Arguably, international peacekeeping mandates and the decisions supplementing them have the quality of law for the purposes of this general principle. See Häussler, supra note 1, at ch. 9.2.2.2. For a list of possible grounds of detention, see id. at ch. 10.3.1. 72 See the quotation from Amnesty International’s Briefing to the Human Rights Committee, supra note 69. 73 See Häussler, supra note 1, at ch. 9.2.2.2; cf. id. at chs. 9.3.2 and 10.

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and judicial functions. By way of contrast, peace-building operations may have considerable transitional authority in the latter fields of action. In the light of the fact that the most prominent comprehensive peace-building operations, UNMIK and UN Transitional Administration in East Timor (UNTAET), have pledged adherence to “internationally recognized standards of human rights,”74 disputes concerning practical issues do not bring these missions in disrepute. Apart from law enforcement in the proper sense, international peacekeeping operations conduct a variety of operations that resemble, to some extent, the use of means and methods also known to policing. Moreover, they do so in situations characterized by threats to the secure environment in their areas of operations, which would often coincidentally trigger law enforcement by the police. Were it not for the paramilitary or military capability involved, peacekeeping operations would simply act ultra vires in addressing such situations. In the light of the fact that information concerning the existence of paramilitary or military capability is frequently classified, that is, not known to the general public and must not, for reasons of operation security, be made available to it, it may, from certain perspectives, seem an inconclusive approach not to categorize related coercive action as law enforcement. While this prima facie assessment of the actions taken by a peacekeeping operation cannot determine the legality of such actions on the basis of comprehensive knowledge of all relevant information, it is still capable of jeopardizing their legitimacy. Ultimately, the legitimacy of the peacekeeping operation as such might be questioned. The high importance of the values underlying international peacekeeping—restoration and maintenance of international peace and security, to include human security of populations affected by armed conflict—and of the desired end-state of virtually all international peacekeeping operations—stable constitutional democracy characterized by good governance based on human rights and the rule of law—requires all participating international organizations and contributing states to make the efforts necessary to demonstrate that they do indeed duly implement the limits on both law enforcement and other cases of coercive action conducted by peacekeeping operations. Interaction with the press and NGOs will continue to play an important role in this respect. As a matter of principle, peacekeeping and peace-building operations stick to the values they are charged to implement: the practical examples discussed evidence that the limits inherent in the terms of international mandates (SC resolutions and SOFAs in particular) and deriving from general principles of international humanitarian and human rights law are directly binding upon field-level personnel in accordance with relevant ROE and SOPs. 74 See Secretary-General’s Report on the United Nations Interim Administration Mission in Kosovo (UN Doc. S/1999/779), para. 69, UNMIK Regulation 1999/24, art. 1 concerning United Nations peace-building in Kosovo, and UNTAET Regulation1999/1, art. 2 (UN Doc. S/2000/53/Add.1) concerning United Nations peacekeeping and peacebuilding in East Timor.

CHAPTER 5 THE IMPACT OF ORGANIZED CRIME ON PEACE SUPPORT OPERATIONS Fabian Kuehner*

A. INTRODUCTION With no doubt the classical understanding of security policy has changed since the end of the Cold War and the terrorist attacks of September 11, 2001, in New York. Terrorism and transnational organized crime have become inevitable components of security policy. Today’s peace support operations (PSOs), as a security policy means, are only a part of the peace and nation-building process. They therefore face an enormous range of challenges both in the civilian and military field as they occur in a transitional environment between war and peace. Nowadays peace supporters have to deal with problems that—in a classical view—can be seen as police matters in order to provide security in instable regions. Especially organized crime turned out to be a significant threat to stability and security in post-conflict societies, where peace supporters are deployed. This chapter tries to offer an overview of the challenges and difficulties faced by PSOs and their law enforcement institutions in the fight against organized crime. It shows the legal aspects and the practical consequences of the impact of organized crime on PSOs down to the level of the national contingents as experienced in the field. The missions in Kosovo, Bosnia and Herzegovina (BiH) and Afghanistan will be highlighted as case studies. B. DEFINITIONS In order to achieve a clear and practical approach to the topic, it is necessary to provide the working definitions of the terms “organized crime” and “peace support operations,” since these are often countless and vaguely formulated.

* MLaw; former Legad SWISSCOY 12th contingent/KFOR; examining magistrate Swiss Armed Forces; currently at the Prosecutors Office Canton St. Gallen. 75

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1. Organized Crime According to the (pragmatic) joint report of the European Commission and Europol of 2001,1 transnational crime is defined by 11 characteristics. In order to qualify as organized crime, it has to meet four criteria: 1. 2. 3. 4.

collaboration of more than two people; for a prolonged or indefinite period of time; suspected by the (EU- and EUROPOL-) commission of serious criminal offenses; determined by the pursuit of profit and/or power.

Like the EU, the United Nations defines serious crimes or serious criminal offenses as acts punishable by a minimum penalty.2 The most common ones are drug trafficking, smuggling of goods, prostitution and human trafficking, blackmailing and corruption as well as product piracy and counterfeiting. Often organized crime is intertwined with economical, political and judicial institutions. Therefore, it is not only the effect but also the sole existence of organized crime that is capable of penetrating stability in its region of activity. 2. Peace Support Operations (PSOs) In order to understand how organized crime affects PSOs, it is necessary to know the context, the tasks and the legitimacy of PSOs. PSOs are “multifaceted missions that combine a robust military force with a significant civilian component.”3 Their aim is a long-term and stable political settlement of the conflict and, in some cases, the transformation of wartorn societies into liberal democratic ones. PSOs involve the deployment of UN-authorized multinational forces that have the means and the mandate to respond to any threat to a stable settlement. They contain all forms of possible peace activities such as peacekeeping and peace enforcement as well as conflict prevention, peace-building, peacemaking and humanitarian interventions. 4 The def inition itself declares the area of engagement of a PSO as 1

As referred to in ALAN WRIGHT, ORGANISED CRIME, at 8 and 9 (2006). United Nations Convention against Transnational Organized Crime, UN Doc. A/RES/55/25 (Jan. 8,2001), available at http://www.unodc.org/pdf/crime/a_res_55/ res5525e.pdf. 3 HER MAJESTY’S STATIONERY OFFICE (HMSO), JOINT WARFARE PUBLICATION 3–50: PEACE SUPPORT OPERATIONS (1999). 4 ALEX J. BELLAMY, PAUL WILLIAMS & STUART GRIFFIN, UNDERSTANDING PEACEKEEPING (2004); A NDREAS W ENGER ED ., B ULLETIN 2004 ZUR SCHWEIZERISCHEN S ICHERHEITSPOLITIK (2004), available at http://e-collection.ethbib.ethz.ch/ecol-pool/journal/ bulletin_sicherheitspolitik/2004.pdf. 2

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extremely wide. From an historical point of view, PSOs can be seen as the logical answer to the changing environment of conflicts. Although they are meant to cope with all the different tasks of providing peace and a political settlement of a conflict, they are often functionally and temporally limited by either the mandate or the means. C. THE POST-CONFLICT ENVIRONMENT To comprehend the impact of organized crime structures on PSOs it is useful to take a look at the situation after an armed conflict. In post-conflict environments and war-torn societies, we find in general the absence of nearly everything by which well-organized nations and civilizations are defined. Failing states and split up nations, a breakdown of law and order, destroyed infrastructures and economy as well as grief among the people characterize the atmosphere that peacekeepers have to face upon their entry on the scene. Basic security may be established quickly after a PSO is launched, but soon wider effects of the conflict become apparent. Poverty and the absence of economical structures are widespread. As armies or security forces are disbanded, there is rarely a functioning transition organization that prevents the former fighters from unemployment. Unemployment is high overall, as no real economy exists. With the return of refugees, the lack of infrastructures and effective institutions becomes even more evident. As will be pointed out with the case studies, this post-conflict environment is likely to provide the basis for organized criminal activity. Of course, organized crime has origins that may lay in the tensions or objectives that drove the conflict itself, such as nationalism, ethnic or religious tensions, aspirations of power, control or resources, or in conflict-related activities such as profiteering, trafficking or smuggling that were perpetrated during the armed conflict in order to help fund it or to derive profit from it.5 The power and public security vacuum in a post-conflict environment is, however, surely to offer perfect conditions for criminal networks to flourish and establish parallel power structures. When peacekeepers arrive, criminal organizations are likely to be already in place, working and benefiting from the chaotic circumstances. In general the deployed force is initially concerned with providing basic security for the civilian population by disarming fighting units and separating them: organized crime is mostly not considered as a major priority. It is not only the limitation of means that is responsible for this judgment but moreover the understanding of the role and the tasks of a military force entering the scene. The first deployed personnel of a PSO consist mainly of combat units that primarily, of course, fulfill classical military tasks. However, soon after basic security has been established, 5

(2006).

Colette Rausch ed., Combating Serious Crimes in Postconflict Societies 5

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the goal of a stable and long-term settlement can only be achieved when all threats to security have been removed or are being kept to a minimum. Although peace support units are not designed to fight criminal activities, it is most likely that these units have the personnel and the means to undertake measures against such activity in the short aftermath of the international intervention. D. THE IMPACT OF ORGANIZED CRIME ON PSOS—A CLOSER LOOK 1. How Does Organized Crime Affect PSOs? PSOs aim to establish post-conflict peace and order. The effects of organized crime on PSOs can be seen on two different levels. First and most obvious is the “normal” appearance of crime as, for example, violence, property crime or drug addicts. Secondly, and far more serious, criminal networks may establish a sub-economy and parallel power institutions that hinder economic, legal and political rebuilding efforts. Corruption and blackmailing of political actors make effective nation-building nearly impossible. Powerful criminal networks may influence and control public media and therefore even provoke major public unrest. It is also a fact that organized crime is often linked to terrorist activity not only in the affected regions but on a transnational leve.l6 As organized crime is rarely limited by borders, the peace supporters face the dilemma of geographical limitation. They may intervene in criminal activities in their area of responsibility but are powerless against organized crime networks working from across the borders. Summarized, it can be said that organized crime is easily capable of jeopardizing a safe and secure environment and poses a considerable threat to both military and civilian peace support personnel. 2. The Legal Framework of PSOs It has been established that organized crime is indeed an important factor for the stability and security of a region. It is essential to learn in which legal framework PSOs are carried out, in order to understand the practical consequences and problems faced by the peace supporters in their fight against organized crime. The core element of this legal framework is a mandate from a legitimating institution such as the United Nations or the Organization for Security and Cooperation in Europe (OSCE). The mandate defines the goals, the area of 6

A good overview of that topic can be found in GLENN E. CURTIS & TARA TARATHE NEXUS AMONG TERRORIST, NARCOTICS, TRAFFICKERS, WEAPON PROLIFERATORS AND ORGANIZED CRIME NETWORKS IN WESTERN EUROPE (2002). CANA,

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activity, the tasks and means of a PSO. A UN mandate is often the result of a long political discussion in the Security Council (SC) and it is therefore logically a compromise solution. It is the mandate that provides the political and operational parameters that control all planning and other operational guidance including, but not limited to, the geographic location of the operation, its size and length and basic rules of engagement (ROE). Although the majority of the actors usually agree “that something must be done” the (first) mandates rarely take into account the full range of obstacles in the long-term settlement of a conflict such as organized crime, corruption or historical cultural tensions. They are either locally or temporally limited, and the insufficiency becomes obvious at an early stage. Another factor is that SC resolutions, which contain the mandates, are political statements that do not always easily translate into military guidance for peace supporting operators on the ground. Changing circumstances often demand the adaptation of the mandate, but as history shows, the UN system is not able to react quickly. So if the need to widen the tasks of the force or the area of responsibility arises, it will take months before the manpower and the equipment can be shipped in to meet the new mandate. Military technical agreements (MTAs) are also part of PSO’s legal framework. Especially in the context of the demilitarization of armies and security forces, they may play a role in the prevention of organized crime. Although these agreements usually aim at the cessation of hostilities, their impact on the work of PSOs in the fight against organized crime and its effects is small. The UN peacekeeping missions in the 1990s showed that weak enforcement measures were one of the main reasons for their failing. Since the UN’s enforcement capability is low, it must, as a consequence, sometimes sub-contract certain tasks related to the maintenance of international peace and security to other actors.7 Especially NATO, OSCE and the EU presented themselves as reliable partners. Without going into the details, it is a challenging dilemma for the United Nations that, as the supreme legitimating body of intervention, it is not being bypassed by the sub-contractors, which may act not solely in the interest of the international community but also in their own.8 Regional organizations such as NATO, OSCE and the EU may pursue their own goals concerning security matters in their area of interest and then adhere to their own policy of fighting organized crime. The legal framework and strategic and political interests of the organizations carrying out the UN-mandated PSO are therefore an important basis in the comprehension of their struggle against organized crime structures in their missions.9

7

BELLAMY ET AL., supra note 4, at, 166–169. Id., at 211. 9 For example, NATO doctrine and procedures, in Peace Support Operations, NATO AJP-3.4.1, available at www.carlisle.army.mil/usacsl/new_site/divisions/pki/ Military/Doctrine&Concepts/AJP341Rat.PDF. 8

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So-called memoranda of understanding (MOUs) are of great value, cementing the cooperation between military and civilian actors in PSOs. Especially in law and order tasks, such as combating organized crime, a MOU might formalize specific areas of military assistance, such as military protection for police conducting high-risk arrests or specify areas of potential intelligence sharing.10 One must keep in mind that PSOs are generally multinational missions. Each nation brings its own legal basis when participating in a mission. It is not unusual that each nation has its own legal (and political) restrictions for certain tasks. On an operational level this may lead to difficulties in developing a corresponding strategy towards the fight against security threats. 3. The Military and Civilian Peace Supporting Operators and Their Tasks As pointed out, PSOs are multifaceted missions with both military and civilian components. The way in which they are affected by organized crime and they react to the threats posed to security and stability depends strongly on the mandate, the tasks, the size, the nature and the means of the peace supporting actors. Firstly, it is again the mandate that defines the tasks of the peace support operators. Generally, the tasks are divided amongst the military and civilian actors. Military actors responsible for security in the first place may initially have to deal with tasks of law and order in a post-conflict environment but will want to transfer this role to civilian police as soon as possible.11 Nevertheless, at the very beginning it is the military that has the resources to establish basic policing structures and consequently look after law and order. It may take several months or even years until working civilian police structures (e.g., through the deployment of international police forces like the international civilian police (CIVPOL) or the reconstruction of domestic police) are effective against organized crime. The military has the short-term available manpower and the intelligence and is therefore an inevitable tool in the fight against organized crime. For political reasons, the lack of resources and training as well as organizational limitations, it is widely accepted that the more complex the law and order functions, the less appropriate it is for the military to undertake these functions.12 Theoretically, the tasks of each actor should be clearly named and 10

RAUSCH, supra note 5, at 133. Id. 12 Bruce Oswald, Think Peace—Addressing The Institutional Law and Order Vacuum: Key Issues and Dilemmas for Peacekeeping Operations 13 (Asia Pacific Centre for Military Law, Melbourne, 2005), available at www.operationspaix.net/Addressingthe-Institutional-Law. 11

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their actions should be well cooperated. Practically, it is more likely that their activity is defined by a differing interpretation of the mandate, the means, the political and strategic guidelines and finally their willingness to act. Cooperation between civilian and military actors is one of the most crucial points for security issues in peace support missions. They may have the same goal, but methods and means could not differ more. Problems are also caused by, for example, conflicts of competence, jurisdiction and duplication of efforts.13 The fight against organized crime needs a multifaceted approach. Sophisticated criminal intelligence and careful collecting of (usable) evidence (including seizing of goods, freezing of assets etc.) and cautiously selected arrests are key factors at the operational level. However, they can only be of use when accompanied by political and legal measures at the top level. In the case studies, it will be shown that generally either the military or the civilian actors do not have the required means and expertise to fight against organized crime. Therefore, only a close cooperation and means sharing may lead to success. 4. Other Actors Non-governmental organizations (NGOs) can provide significant help in combating organized crime in post-conflict environments. Especially in the humanitarian aid sector, they may be able to withhold, for example, black markets by distributing free goods. Many NGOs take action in conflict management and thus influence the civil society, helping it to cut the ties with criminal groups and networks. Although NGOs may play a considerable role in PSOs, recent experiences have nevertheless shown that their work is mostly uncoordinated. There have been cases where organized crime took advantage of the work of NGOs or where criminal networks or even terrorist organizations were linked to aid activities (e.g., Revival of Islamic Heritage Society14). It is difficult to judge the effect of NGO activities on the problem of organized crime, but considering the huge number of different NGOs operating in the field and the enormous sums of relief assets flooding into post-conflict societies, it is not always possible to overlook their efforts. Consequently it seems at least possible that the NGO sector bears a certain risk of being targeted by organized crime.

13 Zentrum für Internationale Friedenseinsätze ed., Organized Crime as an Obstacle to Successful Peacekeeping, Lessons Learned from The Balkans, Afghanistan And West Africa, Report of the 7th International Berlin Workshop 44 (Berlin 2003), available at http://www.zif-berlin.org. 14 Steve Kiser, Financing Terror 76, (RAND Cooperation, 2005), available at www.rand.org.

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CASE STUDIES

The PSOs in Bosnia and Herzegovina (BiH), Kosovo and Afghanistan show that an enormous effort by the international community to provide security and stability is needed. They are good examples of long-term missions dealing with the whole spectrum of difficulties regarding the establishment of peace on a liberal-democratic basis. In all three missions, success in the fighting of organized crime seems to be a key factor to stability. Being executing instruments and mainly responsible for public security, only law enforcement institutions and their fight against organized crime will be highlighted in this section. 1. Bosnia and Herzegovina (BiH) a.

Organized Crime Activities

Various factors make BiH an almost ideal environment for organized crime. First of all, today’s BiH is deeply influenced by 35 years of the socialist Tito regime followed by ten years of nationalism and five years of armed conflict. 15 Confidence in the rule of law is very low, and the official unemployment rate reached nearly 50 percent in 2005.16 As a consequence, poverty may force the population to make a living through illegal activities or even participate in major and organized criminal actions. The main and dominant forms of organized criminal activities in BiH today are, according to the experts of the Council of Europe,17 smuggling of goods (oil, gasoline, alcohol and cigarettes), illegal trade in narcotics (mostly on the so called “Balkan Route”), illicit arms trade (mostly of residual arms from the war), human trafficking, illegal migration (decreasing at the moment after the strengthening of the State Boarder Service), car theft, robberies, copyright infringement (mostly on illegal markets of audio and image as well as software media) and the illegal logging and transport of wood. Although progress has been made in combating organized crime, it remains a threat to BiH in terms of security and stability.18

15

Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 52. European Commission, Bosnia and Herzegovina Progress Report 2006, available at http://ec.europa.eu/enlargement/pdf/key_documents/ 2006/Nov/bih_sec_ 1384_en.pdf. 17 Drago Kos & Vera Devine, Expert Opinion on the BiH Draft National Action Plan/Strategy against Organised Crime and Corruption (2006), available at http://www.coe.int/t/e/legal_affairs/ legal_co%2Doperation/ combating_economic_crime/ 3_technical_cooperation/paco/paco%2Dimpact/PC-TC_2006_6-BiH%20March06.pdf (Jan. 2007). 18 European Commission, supra note 16. 16

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b. Law Enforcement Institutions and Their Legal Framework The structure of the international presence in BiH is not easy to overview. Nearly 12 years after the General Framework Peace Agreement (GFAP),19 numerous law enforcement actors are trying to provide security and stability for this region and are therefore supporting the implementation of the Dayton Agreement. In this section only the main responsible law enforcement authorities in organized criminal matters will be highlighted. It is of course understood that they operate within a complicated nation-building framework. After the 1995 Dayton Agreement the military component of the operation was conducted firstly by the NATO-led Implementation Force (IFOR) followed by the Stabilization Force (SFOR), which was concluded in December 2005. Today, the EU-led EUFOR-Althea is in charge. IFOR was authorized by SC Resolution 1031 as a Chapter VII mission to implement the Dayton Agreement between the conflict parties and operated under auspices but not under command of the Office of the High Representative (OHR). Although the mandate itself was broad and the forces were robust, IFOR limited its own role and insisted that it would not get involved in civilian matters or even deal with nonmilitary breaches of the peace. IFOR did not take on tasks such as apprehending war criminals, building infrastructure and specifically not the carrying out of policing functions.20 The civilian implementation of the Dayton Agreement and policing functions were to be carried out by the International Police Task Force (IPTF). Their mandate, however, according to the agreement (Annex 11) was only to assist (“monitor, observe and inspect law enforcement activities and facilities”) the local authorities with the implementation of the Peace Agreement. This resulted in a significant lack of action in combating organized crime. After IFOR’s mandate terminated, the SC replaced it by the SFOR. As the basic military goal of a stable cessation of hostilities had already been achieved by IFOR, SFOR was given a broader civilian role, which included more direct responsibility in the maintenance of law and order, the pursuit and apprehension of indicted war criminals and assistance in the creation of indigenous armed forces.21 Unlike IFOR, which had peace enforcement tasks in connection with the implementation of the military aspects of the Dayton Agreement, the primary objective of SFOR was to contribute to a safe and secure environment. Its tasks were to deter or prevent a resumption of hostilities or new threats to peace and to promote a climate in which the peace process could continue to move forward and to provide selective support to civilian organizations within its capabilities.22 As NATO put it in its own words: 19 The so-called Dayton Agreement was signed in Paris on December 14, 1995, but negotiated in Dayton, Ohio. 20 BELLAMY ET AL., supra note 4, at 171–73 with further references. 21 Id., 175 with further references 22 Nadia Boyadjieva, NATO on the Balkans: Patterns of Peace-Keeping in the

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By successfully accomplishing [its] principal military tasks, SFOR will contribute to a secure environment within which civilian agencies can continue to carry out the process of economic development, reconstruction, political institutions, and an overall climate of reconciliation for BiH and its citizens. . . . SFOR will work closely with the High Representative, the International Police Task Force, the UN High Commissioner for Refugees, the OSCE, and the International Criminal Tribunal for the Former Yugoslavia (ICTY) . . . to assist their efforts . . . which are essential to the long-term consolidation of peace in BiH.23 It is widely accepted that SFOR was the most important component in combating organized crime. In the absence of a state-level intelligence service, SFOR could especially provide major intelligence-collecting regarding criminal networks. When needed, SFOR conducted practical assistance in fighting organized crime or nationalist structures as in the case of the Hercegovacka Bank, which was providing illegal funding to Croatian extremists.24 Although, SFOR may have helped to reduce the impact of organized crime on the population of BiH and thus provided an atmosphere of superficial security, it was unable to improve the overall situation of the population. As the legal successor and in a seamless transition the Security Council, through Resolutions 1575 and 1639, mandated the EU-led operation EUFOR-Althea with the same robust mandate as SFOR. The main objectives of EUFOR-Althea are, however, “to maintain a safe and secure environment and to ensure continued compliance with The General Framework agreement for Peace” and to “support the international Community’s High Representative in BiH and the local authorities, inter alia in the fight against organized crime.”25 EUFOR is not defined as a police force. It possesses, however, a number of valuable military capabilities that can be used in the support of wider operations by law enforcement authorities, and it is therefore fully integrated in the fight against criminal networks, mostly in supporting the local authorities. As during SFOR, the role of EUFOR as a law enforcement institution led to the integration of military police units in order to fulfill the police tasks more effectively. Within SFOR the multinational support unit (MSU) and within EUFOR the integrated police init (IPU) were installed. The MSU consisted, among others, of French gendarmerie nationale and Italian carabinieri units. The IPU replaced the former MSU, but Post-Cold War Era (2003), available at http://www.nato.int/acad/fellow/01-03/f0103.htm. 23 SUPREME HEADQUARTERS ALLIED POWERS EUROPE (SHAPE), INFORMATION BOOKLET ON NATO, SHAPE AND ALLIED COMMAND EUROPE 42 (Sept. 2000). 24 International Crisis Group ed., Balkans Report No. 110 (2001). 25 European Council Secretariat, Factsheet on EU military Operation in Bosnia and Herzegovina (Operation EUFOR Althea) (Dec. 2005), available at http://www.consilium.europa.eu/cms3_fo/ showPage.asp?id=1045&lang=EN&mode=g.

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it is based on the same guidelines. EUFOR defines it as follows: “IPU merges the distinguishing features of a military unit with the capabilities and experiences of a police force.”26 Both MSU and IPU were trained and equipped to perform a large range of law and order functions, from riot control to criminal investigations. By supporting the local police in conducting search operations, border monitoring, surveillance operations, seizing weapons, controlling persons and checking vehicles, they had and still have noteworthy success in combating organized crime in BiH.27 Another element in combating organized crime is the European Union Police Mission in BiH (EUPM). It took over the tasks of the UN IPTF in 2003, which was given the responsibility for the civilian implementation of the Dayton Agreement regarding BiH’s civilian law enforcement agencies operating in accordance with internationally recognized standards. Nonetheless, according to the Dayton Agreement,28 the IPTF’s mandate was limited to: a.

b. c. d. e. f. g.

monitoring, observing, and inspecting law enforcement activities and facilities, including associated judicial organizations, structures, and proceedings; advising law enforcement personnel and forces; training law enforcement personnel; facilitating, within the IPTF’s mission of assistance, the Parties’ law enforcement activities; assessing threats to public order and advising on the capability of law enforcement agencies to deal with such threats; advising governmental authorities in Bosnia and Herzegovina on the organization of effective civilian law enforcement agencies; and assisting by accompanying the Parties’ law enforcement personnel as they carry out their responsibilities, as the IPTF deems appropriate.

Although the mandate was limited, the IPTF had some managerial powers, mainly by taking charge of organizational reform issues of the police apparatus, such as recruitment and training, but also the dismissal of local police officers. As the successor of IPTF, the EUPM became part of an assemblage of international actors that govern reforms in aid of democracy and the rule of law.29 Through mentoring, monitoring, and inspecting it aims to establish a sustainable, professional and multiethnic police service in BiH, operating in accor26

http://www.euforbih.org/forum/002/p05a/tefp05a.htm. A good overview of overt operations of IPU is available at http://www.euforbih.org/sheets/fs050225a.htm 28 Dayton Agreement, Annex 11. 29 Michael Merlingen & Rasa Ostrauskaite, Power/Knowledge in International Peacebuilding: The Case of the EU Police Mission in Bosnia, 30 ALTERNATIVES: GLOBAL, LOCAL, POLITICAL 304 (2005). 27

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dance with the best European and international standards. The mission, however, does not include executive powers or the deployment of an armed component.30 The main activities in tackling organized crime are therefore to monitor operations conducted by local police forces as well as restructuring the Criminal Investigation Departments (CIDs). EUPM is not involved in any investigations on any level as the mandate does not permit it.31 c.

Dilemmas and Problems

As already mentioned, it is widely accepted that the military component, today the EUFOR, is the most effective institution combating criminal networks in BiH. Local authorities, monitored and trained by the IPTF and, at present, by the EUPM may conduct arrests and detain the actors, but they are not yet fully capable of carrying out operations against organized crime from the intelligence and evidence-gathering stage, throughout the coordination and planning, to the arrest of indicted persons. The operations are planned mostly by international actors such as EUFOR, and the local authorities have occasionally been literally pushed to undertake actions. This may lead to unsatisfying results. Since EUFOR still takes high responsibility in law and order functions, the main and long-term goal of building up independently functioning local law enforcement authorities may be endangered. In contrast, it must not be forgotten that, at present, only international actors have the expertise and the means necessary for widerange law enforcement operations against organized crime, from the planning stage to the performance. In the end, the exit of the international engagement in BiH will depend on the progress made by local authorities towards Western law enforcement standards. The dilemma is obvious. The EU approach to security and stability in BiH—seen in the context of the European Security and Defense Policy—through military and civilian assistance combating organized crime, has not produced only supporting voices.32 Finally, the law enforcement apparatus in BiH with its complex local and international structure and the opaque legal framework bears a certain risk of diffusing the fight against organized crime.

30

Council of the European Union, Council Joint Action of 11 March 2002 on the European Union Police Mission (2002/210/CFSP). 31 Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 54. 32 As pointed out in Merlingen & Ostrauskaite, supra note 29: The authors summarized examine the governmentality of liberal peace building and the practices of “unfreedom” it licences. They bring into focus the constellation of social control that is effected by the EU’s efforts, in the context of its security and defence policy, to promote democratic policing in Bosnia and Herzegovina.

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2. Kosovo33 a.

Organized Crime Activities

Organized crime in Kosovo has a long and historic tradition, which has developed along with the struggle for independence of the ethnic Albanian population. Ever since the Tito regime collapsed, Kosovo’s population has stood in a struggle with the Serbian authorities. Serbian officials excluded the majority of the ethnic Albanian population from working in the administration or at the management level in state-owned enterprises. The direct rule from Belgrade implemented by Milosevi´c was countered by the Albanian population by forming a parallel society with its own public infrastructure and ideology of (then) non-violent nationalist separatism.34 The weak economy and high unemployment along with a corrupt Serbian-led state leadership literally forced the ethnic Albanian population to become active in underground markets and other illegal activities. Smuggling of illicit goods and informal markets guaranteed  the survival of many individuals suffering from the oppression by the Milosevi´c regime. Albanian family clans served traditionally as the primary unit of social organization and thus quickly became the leaders of this underground activity. With many Albanians seeking employment in Western Europe the diaspora spread quickly and the criminal networks became more and more powerful. As ethnic tensions rose after 1990, organized criminal activity played an important role in the rise of the Kosovo Liberation Army (KLA/UÇK). The funding and arming of the KLA was largely provided by organized crime through a wide range of transnational criminal activities. It is widely accepted that the KLA had representations all over Europe. These were linked closely to organized crime and thereby funded the KLA from outside of Kosovo. After the international intervention in 1999, the KLA was officially demobilized. Nevertheless, criminal activity continued to flourish as in the chaotic interval between Serb and the UN Interim Administration Mission in Kosovo (UNMIK) rule, former KLA clan leaders and their networks filled the power vacuum in the communities.35 As former KLA leaders were glorified as war heroes, they enjoyed enormous support in their activities within the population and became dominant players in the political rebuilding process of Kosovo. The influence of clan 33 The author spent more than half a year as legal adviser of the Swiss Armed Forces as part of KFOR in Kosovo, and therefore the analysis of Kosovo is the most detailed in this chapter. 34 Seth G. Jones, Jeremy M. Wilson, Andrew Rathmell & Jack K. Riley, Establishing Law and Order After Conflict 29–30 (RAND Corporation 2005), available at www.rand.org. 35 Woodrow Wilson School, Princeton ed., The Missing Priority: Post-Conflict Security and the Rule of Law (2003), available at www.wws.princeton.edu/research/ PWReports/F03/wws591d.pdf.

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leaders was so significant that the international community could not hinder them in occupying important political administrative positions. Today Kosovo is still faced with displacement, devastation of property, outdated technology, a lacking privatization and the collapse of the manufacturing sector. Moreover, the huge unemployment rate, which lies at around 60 percent, diminishes the opportunities of the majority of the young population. More than in other regions of the Balkans, the political and economic vacuum offered opportunities for organized crime.36 In addition, certain political leaders are under suspicion of being linked to transnational operating organized crime structures37 or as a former KFOR commander expressed it: “The problem was, and remains, that organized crime is completely inter-twined with all political, economic, and social activities.”38 It is in this context that today’s organized crime in Kosovo must be viewed. The most common forms of organized crime in Kosovo today are:39 •

•

Drug trafficking. From 2002 until 2005, amongst other substances, approximately 110 kg of heroin, 150 kg of marihuana, 14 kg of cocaine and 180 pieces of ecstasy were seized by the authorities. In 2005, in total, 15 drug smuggling cases related to organized crime groups have been investigated involving more than 55 persons. The “Balkan-Route,” which leads among other countries in Southeastern Europe through Kosovo, is one of the most important routes for smuggling heroin from Middle Asia to Western Europe. As a result of the exodus of ethnic Kosovars during and after the hostilities, it is not surprising that Kosovar Albanians are said to control the heroin markets in many EU countries.40 Trafficking of human beings. On one hand, there exist close ties between organized crime in Kosovo and the trafficking networks in the countries where most women are trafficked from, for example the Russian Federation, Ukraine, Bulgaria, Romania, Lithuania and Moldova.41 The

36 Council of Europe, European Commission, CARPO Regional Report 2006, Situation Report on Organised and Economic Crime in South-eastern Europe 105 (2006), available at www.coe.int/.../legal_co-operation/combating_economic_crime/3_technical_cooperation/ carpo/Pctc_2006_20.pdf. 37 As a report of the German Federal Intelligence Service (BND) highlights, referenced to in Die Weltwoche, No. 51–52 (2006). 38 Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 42. 39 CARPO Regional Report 2006, supra note 36, at 106–12 with further references; Pillar I, Police and Justice, UNMIK presentation paper, at 24 – 25 (2003), available at http://www.unmikonline.org/justice/documents/ pillarI_report_jul03.pdf. 40 EUROPOL Organised Crime Threat Assessment 2006 (2006), available at http://www.europol.europa.eu/publications/OCTA/OCTA2006.pdf. 41 2005 EU Organised Crime Report, Europol 15–17 (2005), available at www.europol.eu.int/publications/EUOrganisedCrimeSitRep/2005/EU_OrganisedCrimeRep ort2005.pdf.

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•

•

42

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women are brought to Kosovo and then transited to Serbia, Montenegro, Albania, and from there to Western Europe.42 On the other hand the trafficked women are frequently forced into prostitution in Kosovo itself and constitute a significant source of income for organized criminal networks operating solely in Kosovo. The beginning of the international engagement in 1999 has dramatically increased the demand for brothels and nightclubs. Today, although the international community in Kosovo is aware of the problem and countermeasures have been established, human trafficking remains a fact. Since the effects of human trafficking in Kosovo seem to be declining as a result of the measures taken by UNMIK, it is likely that this form of organized crime has adapted to the new situation.43 It is suspected that more and more private premises are functioning in place of public or “half-public” brothels. Money laundering. Although there is a basic framework regarding the fight against money laundering, capital and financial movements into and out of Kosovo remain still largely uncontrolled. Profits made by Kosovarian organized crime groups are invested and laundered in Kosovo through legitimate businesses, which often belong to the heads of the biggest drug trafficking groups.44 The huge amount of gas stations and brand new warehouses are especially under suspicion of being financed by laundered money. Product piracy and counterfeiting. As in BiH, an endless range of counterfeited products are available in Kosovo. In large warehouses, illegal copies of DVD’s, CD’s, PC software, counterfeited trademark clothing and shoes as well as other goods are sold. The sale of forged goods of impeccable quality occurs openly, and there is limited enforcement against these products due to insufficiencies in the legal system. This market has grown enormously during the last years, and one can easily imagine that it must generate huge profits. The vast amount of highly sophisticated products turned over suggests that the sale of illegal goods is linked to (transnational) intellectual property crime networks.

SIMONA ZAVRATNIK ZIMIC ED., WOMEN AND TRAFFICKING 65, (2004). B ARBARA L IMANOWSKA, T RAFFICKING OF H UMAN B EINGS IN S OUTH E ASTERN EUROPE 120 (UNDP 2005). 44 European Union Commission Delegation, 2005 and 2006 Progress Report on Kosovo (under UNSC 1244), available at http://www.delscg.cec.eu.int/en/. 43

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b. Law Enforcement Institutions and Their Legal Framework The PSO in Kosovo is a broad peace implementation mission encompassing UN, NATO, OSCE and EU, based on SC Resolution 1244 and the MTA between NATO and the Yugoslav government. The established UNMIK as the superior authority divided the provision of public security in Kosovo into three elements: UNMIK Police (CIVPOL), an indigenous Kosovo Police Service (KPS) and the NATO-led KFOR.45 After the settling of the MTA and the withdrawal of the Yugoslavian forces, KFOR was the first to enter the scene in 1999. According to SC Resolution 1244, KFOR is mandated to:46 a.

b. c.

d. e. f. g. h.

Deterring renewed hostilities, maintaining and where necessary enforcing a ceasefire, and ensuring the withdrawal and preventing the return into Kosovo of Federal and Republic military, police and paramilitary forces, . . . ; Demilitarizing the Kosovo Liberation Army (KLA) and other armed Kosovo Albanian groups . . . ; Establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered; Ensuring public safety and order until the international civil presence can take responsibility for this task; Supervising demining until the international civil presence can, as appropriate, take over responsibility for this task; Supporting, as appropriate, and coordinating closely with the work of the international civil presence; Conducting border monitoring duties as required; Ensuring the protection and freedom of movement of itself, the international civil presence, and other international organizations[.]

NATO interpreted KFOR’s role broadly and defined three primary objectives:47 • • •

45

to establish and maintain a safe and secure environment, including the maintenance of public order; to monitor, verify and enforce the MTA; to provide assistance to the civilian presence (UNMIK), including civilian functions.

Jones et al., supra note 34, at 27. SC Res. 1244 (June 10, 1999), available at http://www.un.org/Docs/scres/ 1999/sc99.htm. 47 BELLAMY ET AL., supra note 4, at 176. 46

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This was, on the one hand, a very pragmatic approach to the power vacuum as the civilian part of the mission was deployed markedly slower than KFOR. On the other hand, NATO learned its lesson from the IFOR experience and did not fear to add civilian tasks as it understood its role in Kosovo as “to help to underpin all the civil reconstruction efforts.”48 Therefore, KFOR had to implement the peace agreement and, for a period of at least 12 months after the deployment, assumed primary responsibility for providing basic law and order. Immediately after the deployment, KFOR was fully absorbed in demilitarizing the KLA and in protecting the Serbian minority from revenge acts. As the KLA had and still has hero status, it was a delicate undertaking to act against former members of this guerilla force. Summarized, the achievements of KFOR concerning organized crime in the very beginning of the engagement were not more than (but at least) the disarmament of the KLA and the provision of superficial law and order. However, KFOR was unable to protect the Kosovo Serbs efficiently from revenge acts by ethnic Albanians.49 By the installation of (temporary) checkpoints, border monitoring and house searching, illegal activity such as smuggling of goods and the possession of arms may have been reduced, but it is not surprisingly that KFOR could not prevent Kosovo from the infiltration of criminal networks. After the establishment of UNMIK and the takeover of police tasks by the UN-led CIVPOL, KFOR was to act furthermore in their support. Today, KFOR is, on the one hand, helping out the civilian actors—mainly the KPS) but also CIVPOL—in situations where they are not able to react quickly enough or in large scale operations. But, on the other hand, it is also independently fighting organized crime. Again house searches, checkpoints and border monitoring seem to be the most effective tools in combating drug trafficking, smuggling and illegal migration. One could argue that policing actions should no longer be part of KFOR’s mandate because a secure environment has already been established, and civilian institutions have taken over these tasks. However, experience has shown that the local authorities and UNMIK are not capable of conducting the fight against organized crime without assistance. In intelligence matters, KFOR has its own infrastructure and a functioning human intelligence unit. Due to extensive control of territories and roads, KFOR is able to react quickly, and their aerial means are available at any spot at any time. This proved to be of great value in 2001, when ethnic Albanians tried to support the insurrection in northern Macedonia by illegally crossing the border carrying supplies, including weapons, and fears arose that the fighting in Macedonia would profoundly destabilize Kosovo. KFOR monitored the border, conducted arrests 48

E.B. EIDE & T.T. HOLM, EDS., PEACE BUILDING AND POLICE REFORM 210–19 (2000). KARI MARGRETHE OSLAND, THE LAW AND ORDER DIMENSION—AN ANALYSIS OF KOSOVO, IN CAEC-TASK FORCE: COMPARING EXPERIENCES WITH POST-CONFLICT STATE BUILDING IN A SIA AND E UROPE (2002), available at http://www.caec-asiaeurope.org/ IE/Publications/index.html. 49

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of individuals seeking to cross the border and turned them over to civilian authorities.50 However, the vision of taking effective measures against organized crime is often limited by restrictions of the executing national contingents. KFOR is a conglomerate of contingents from 37 nations, each of them bringing its own operational military legal framework. Almost every nation, which has deployed troops to Kosovo, has specific caveats regarding their engagement, such as limiting their use of deadly force, limiting their deployment to a certain sector of Kosovo or requiring their troops to seek approval for certain activities from national authorities rather than the KFOR command structure. In March 2004, when Albanians rioted against Serbs in Kosovo, German troops, for instance, refused orders to join other elements of KFOR in crowd control for reasons of national caveats.51 Although KFOR learned its lesson out of the March 2004 riots, it is still easy to imagine that KFOR actions lack a certain homogeneity due to national restrictions. SC Resolution 1244 states clearly that the responsibilities of UNMIK include maintaining civil law and order (including establishing local police forces) by the deployment of international police personnel. After the withdrawal of the Yugoslavian forces, UNMIK began to deploy CIVPOL units immediately. But it took several months to establish a police presence, and in the first phase of the engagement CIVPOL officers were unarmed and lacked basic supplies and equipment.52 CIVPOL initially consisted of 1,800 men but was quickly enlarged up to around 4,000 police officers, still serving in Kosovo today.53 As mentioned, CIVPOL’s fundamental goals were to help establish law and order and to develop, implement and ultimately transfer these responsibilities to a professional indigenous KPS. Besides the daily work of CIVPOL on the streets, UNMIK responded to Kosovo’s four primary security threats of organized crime, drug trafficking, weapons smuggling and human trafficking by constituting several special institutions in its justice sector (Pillar I of the peace implementation plan). The following organizational units were formed.54 • • • •

50

Central Intelligence Unit (CIU), which is responsible for intelligence gathering in organized crime and terrorism; Organized Crime Bureau (KOCB), which translates the gathered intelligence into evidence for criminal proceedings; Financial Investigation Unit (FIU); Sensitive Information and Operations Unit (SIOU), which provides guidance on prosecution evidence to KFOR and CIVPOL and processes sensitive information for the use in court;

RAUSCH, supra note 5, at 134. Human Rights Watch, Failure to Protect: Anti-Minority Violence in Kosovo 13 (Mar. 2004), available at http://www.hrw.org/reports/2004/kosovo0704/kosovo0704.pdf. 52 International Crisis Group, Kosovo Report Card (2000). 53 http://www.unmikonline.org/justice/police.htm#2. 54 Pillar I, Police and Justice, supra note 39; Woodrow Wilson School, supra note 35, at 37. 51

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Trafficking and Prostitution Investigation Unit (TPIU), which is specialized in anti-trafficking issues; Victim Advocacy and Assistance Unit (VAAU), which establishes and ensures rights and interests of victims within the justice system; Interim Security Facility (ISF), which provides assistance and interim accommodation for victims of human trafficking.

All these institutions represent the importance of the fight against organized crime in Kosovo. They show that the international community is endeavoring to install effective measures that not only provide superficial security, but also establish processes to bring the backers of organized criminal networks to justice. Yet, as UNMIK has increasingly transferred law enforcement tasks to the built up KPS, the actions of UNMIK against organized crime declined. UNMIK, however, still reserved the overall responsibility over this task.55 The KPS was founded immediately after the establishment of UNMIK’s CIVPOL and has fulfilled its law enforcement responsibility with support of CIVPOL (and also KFOR) ever since. Under the auspices of UNMIK, the multiethnic police service has developed steadily since the first recruits graduated in 1999 and consists today of around 7,000 officers. Over the years UNMIK has established a police force capable of taking on more and more tasks. According to the 2006 Progress Report by the Commission of the European Communities, all local police stations with the exception of the Mitrovica regional headquarters have been transitioned to KPS. Traditional police and investigative functions are handled almost entirely by the local police. However, KPS in general suffers from low education levels and inexperience. Specialist skills are hard to find. In early 2005, the Directorate for Organized Crime (DOC) was created within KPS and is composed of four sections: an organized crime investigation section, an organized crime support and service section, a section for the investigation of trafficking of human beings and a narcotics investigation section. The DOC was staffed with 72 international and 93 local police officers, but as the international police was downsized, the number of local police officers gradually increased to about 140. Overall it can be stated that efforts by KPS are under way to intensify the fight against organized crime but in terms of concrete results little improvement has been made.56 c.

Dilemmas and Problems

Although all the law enforcement actors in Kosovo—UNMIK Police, KPS and KFOR—share the same goal, namely public security, they operate under 55 International Crisis Group, Europe Report No. 170, Kosovo—The Challenge of Transition 6 (2006). 56 European Union Commission Delegation, supra note 44, at 37–39; International Crisis Group, supra note 55.

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different circumstances and from diverse positions. Moreover, they have different means, which allow them to conduct more or less complex operations. It would seem that with three institutions combating organized crime, it should be possible to achieve significant success. This is obviously not the case, as almost eight years after the international intervention organized crime still poses a major threat to security and stability in Kosovo. When observing the scope of coordination between the civilian and military law enforcement, one can quickly reveal the main obstacle. Since the (independently working) local civilian administration and local political players are suspected of being linked to organized criminal networks, it is logical that KFOR is unwilling to offer full cooperation on, for example, large scale intelligence of organized crime or in the sharing of details of planned operations. Then again, KPS does not possess all the necessary means for full-range operations against perpetrators and therefore remains dependent on the military backup. KFOR in itself is not capable of investigating within the tight knit network of family clans on the regional or even communal level as it has, in general, little investigating expertise and is “too far away” from the actors. As it is already very difficult for local covert personnel to obtain access to information about the internal clan structure, it is obviously impossible for international military personnel. It appears that law enforcement institutions could bridle the superficial effects but that they are unable to take profound and long-lasting measures against organized crime. This, however, is to be dealt with on a higher and political as well as administrative level and thus not the topic of this chapter. Another problem is that KFOR and UNMIK personnel (as well as the endless number of NGOs) are a major economy factor in Kosovo. Moreover, to some extent, the local economy depends on the international engagement. However this, mainly consisting of markets selling products, is often suspected of being linked to organized crime. Near many KFOR bases, enormous markets have been built up selling mainly counterfeited products such as CDs, DVDs, computer software, clothing, shoes and watches. In short, these markets make huge profits from the international presence. There were efforts to change the walking out policy and to restrict the buying of goods at well known premises, but so far no results have been achieved. As the industry became a major market player and employer of many Albanians, fears arose that shutting these premises down or prohibiting the international actors to shop at them could lead to discontent and unrest among the population and cause a significant economical setback. 3. Afghanistan (ISAF) a.

Organized Crime Activities

When organized crime in Afghanistan is at issue, the production and trafficking of narcotics, namely opium, is surely the most effective form of crim-

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inal activity. According to a report of the UN Secretary-General, Afghanistan is the largest supplier of opium, accounting for 87 percent of the global supply with an estimated export value of US$ 2.7 billion in 2005, which is equivalent to about 52 percent of Afghanistan’s legal gross domestic product. The flourishing drug economy has provided fertile ground for criminal networks, illegal armed groups and extremists. The United Nations therefore identified the illicit narcotics industry as a profound threat to the achievement of peace and stability in Afghanistan.57 As in the Balkans, the illicit narcotics economy has a long history. From 1979 to 1992, the rural subsistence economy was devastated by the war waging between insurgents and the government as well as Soviet troops. Food production is estimated to have fallen by as much as two-thirds. Massive resource flows were directed to the opposition insurgents from outside Afghanistan by international supporters of the fight against Soviet troops. After the Soviets’ withdrawal, the international financial support ceased and the remaining Mujahideen were forced to acquire new funding sources. This, combined with the devastation of the rural economy, created strong incentives for cash production by the cultivation of opium poppy. By the mid-1990s, Afghanistan was producing up to 2,400 tons of opium per year. During the first years of the Taliban regime, there was an increase in opium poppy cultivation up to 2,700 tons in 1997/98 and a peak in 1998/99 with 4,500 tons, representing three quarters of the world’s supply. After the Taliban regime banned the cultivation of opium poppy, the country’s overall output was reduced to almost negligible levels, except in the regions out of Taliban control such as north Afghanistan. Subsequent to the fall of the Taliban, opium cultivation reached its former quantity.58 In 2006, it soared by 59 percent compared to 2005.59 Since the fall of the Taliban, there is evidence that many warlords are linked to the drug economy, which fueled their activities.60 Warlordism has a long tradition in Afghanistan and has always limited the influence of any central government authorities in the rural regions of this wide country with its enormous distances. Thus, a functioning central state exerting control over all of Afghanistan has rarely ever existed. So since the establishment of the interim administration in the aftermath of the Bonn Agreement in 2001 and the election of the parliament in 2005, the struggle for influence in the rural regions has been ongoing. Today, basic state functions are in place, and the centralized 57 Report of the UN Secretary-General on the Situation in Afghanistan and its Implications for International Peace and Security 6 (2006), available at http://www. unama-afg.org/docs/UN-Docs.htm. 58 Doris Buddenberg & William A. Byrd eds., Afghanistan’s Drug Industry, Structure, Functioning, Dynamics, and Implications for Counter-Narcotics Policy 193–95, (The World Bank, 2006) with further references, available at www.unodc.org/pdf/ Afgh_drugindustry_Nov06.pdf. 59 UN Office on Drugs and Crime, UNODC Survey 2006, available at http://www. unodc.org/unodc/ press_release_2006_09_01.html. 60 Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 102.

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state of the Karzai government is in rudimentary control as it was able to extend basic authority to most areas, thus curtailing the influence of prominent warlords. Therefore, the picture of a controlled and stable Kabul with vicious warlords running the rest of the country by controlling and profiting from drug trafficking no longer reflects the complexity of the situation. The opium industry is suspected of beginning to move towards greater vertical integration with increased involvement of organized crime. Former warlords—disarmed and superficially integrated in the political process—have become politicians and are now unwilling to be associated with criminal activities. However, it cannot be doubted that many of these “new politicians” remain to take an interest in illegal activities and still receive resources in exchange for political protection. Vertical integration means that drug trafficking operations shifted into the hands of a limited number of key players, with political connections, but who do not generally operate overtly in the political arena. Summarized, drug activities have become less overt, with the emergence of an underworld with strong political connections.61 Thus, a close bond between organized criminal groups and state institutions can be suspected. In terms of security, insurgent and other anti-government activity have regained strength and increased (especially in the southern belt62) during the last two years and is today a major concern. Insurgents gain significant income by imposing repetitive transit and protection fees on both drugs and precursor chemicals, which are directly linked to the narcotics economy. As poppy cultivation often represents the livelihood of the farming community, insurgents are enlarging their influence among the local population by combating poppy eradication efforts conducted by the government (via provincial governors) and the international community.63 In order to further enhance their control of the territories, non-state actors are exerting pressure on local rural communities through intimidation.64 The fight against insurgent and other anti-government elements remain thus directly linked with the fight against organized crime. The opium industry, summarized, has an immense impact on the prevailing of the newly government-ruled nation of Afghanistan and has become an

61

Buddenberg & Byrd, supra note 58, at 197–98. The author is well aware of the fact that the strength of insurgents and organized crime activity depends strongly on the region of Afghanistan. While the north and northeast of the country is relatively calm, insurgency has so far mainly affected the south, southwest and east of the country in the rural provinces of Hilmand, Kandahar, Nangarhar and Konar but recently was observed reaching urban centers also. 63 Report of the UN Secretary-General, supra note 57; Ali Jalali, Robert B. Oakley & Zoe Hunter, Combating Opium in Afghanistan, Strategic Forum No. 224 (2006), available at http://www.ndu.edu/inss/press/nduphp.html. 64 The Senlis Council, Field Notes, Afghanistan Insurgency Assessment, The Signs of an Escalating Crisis, Insurgency in the Provinces of Hilmand, Kandahar and Nangarhar, London, at 5 (2006), available at http://www.senliscouncil.net. 62

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important, if not the most crucial, obstacle to sustainable security and a peaceful democracy. b. Law Enforcement Institutions and Their Legal Framework As there were no functioning law enforcement authorities upon the entry of the international presence, the International Security Assistance Force (ISAF) was initially established as a Chapter VII mission by SC Resolution 1386 in accordance with the Bonn Agreement, which founded the interim Afghan government led by Hamid Karzai. The primary role of ISAF is to assist the interim authority in the maintenance of a safe and secure environment, with all necessary measures.65 The mandate was initially limited to Kabul and its surrounding areas and was to last only six months. The first commanding nation, the United Kingdom, limited its mission furthermore by only carrying out patrols and trying to build local peace and security capacity. Nevertheless, the British military expanded its role once on the ground. ISAF’s mandate was temporally and geographically extended by SC Resolutions 1413, 1444, 1510, 1563, 1623, 1659 and 1707 to operate in the whole of Afghanistan up until October 2007.66 Further prolongation would appear to be a formality. Originally ISAF consisted of less than 5,000 troops, but today more than 32,000 armed forces from 37 contributing nations serve in the mission, which was expanded in four phases to cover the whole country. Besides providing a safe and secure environment the commander of ISAF defines its role clearly in his intent:67 Within this framework, ISAF will: a. In step with GOA’s (Government of Afghanistan) National Development Strategy, concentrate on those activities that will most clearly and quickly assist the GOA in its drive to establish the sustainable economic growth on which the future of the country depends. Some examples of this approach include: 1. Helping ensure the security of mineral resources, border crossing points, and the transport network, water and power supplies. 2. Supporting the GOA in the development and prosecution of its Counter Narcotics (CN) campaign.

65

SC Res. 1386 (Dec. 20, 2001). SC Res. 1413 (May 23, 2002); SC Res. 1444 (Nov. 27, 2002); SC Res. 1510 (Oct. 13, 2003); SC Res. 1563 (Sept. 17, 2004); SC Res. 1623 (Sept. 13, 2005); SC Res. 1659 (Feb. 15, 2006); and SC Res. 1707 (Sept. 12, 2006). 67 http://www2.hq.nato.int/isaf/mission/mission_operations.htm. 66

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3.

b.

Assisting in the GOA’s economic and human resource development strategy so as to enable Afghanistan to become increasingly self-sufficient. Work to resolve conflict and reduce tension within Afghanistan, focusing on the holistic defeat of the residual insurgency threat to the country. Supporting and helping to train the Afghan National Security Forces (ANSF) to a standard that will enable them in time to assume full responsibility for the internal and external security of the country will be critical to success.

Thus, ISAF is involved in every security issue in Afghanistan, including the fight against organized crime. However, so far basic security has not been established, and ISAF finds itself, especially in the south, in a daily struggle to provide a safe atmosphere. In addition, ISAF does not originally see itself responsible for combating narcotics crime. It can therefore not yet focus on combating organized drug crime, although in a wider context ISAF has indeed made some achievements in this fight worth mentioning. As the local population suffers from poverty, engaging in opium cultivation may be their only source of income. By providing basic security, ISAF motivates humanitarian aid workers to return and assist the local population in building up basic structures for alternative sources of income. Through so called Provincial Reconstruction Teams (PRTs), ISAF is trying to increase the influence of the Karzai government in the rural regions.68 The PRTs are also trying to win the “hearts and minds” of the local population by offering direct assistance in engineering, transport, medical help etc. By the demilitarization of local militias, often linked to the opium industry, ISAF may help the local population in becoming less dependent on organized criminal networks. In terms of security, this is only possible in the calmer regions of Afghanistan. As the insurgent activity has increased over the last two years, especially in the south (e.g., Kandahar and Hilmand Provinces), ISAF is more likely to shift its priorities to civilian assistance and counternarcotics activities in the north and northeast. Furthermore, ISAF is active in combating narcotics crime by training a special narcotics police force within the process of building up the Afghan Security Forces (Afghan National Army and Afghan National Police). As it is a multinational mission, the legal framework of ISAF includes of course national caveats.69 These restrictions may, for example, prohibit forces from engaging in combat operations, night patrols or other operational activities. It is not only the lack of equipment (no transport helicopters or night vision goggles) or training that forces nations to issue caveats, but also, and more 68

Available at http://www2.hq.nato.int/ISAF/Backgrounders/bg005_prt.htm. Operational caveats are not publicly released, but rather are a logical consequence of a multinational mission. Some caveats of ISAF are nevertheless commonly known. 69

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often, the political pressure. For that reason, the German contingent is not allowed to participate in combat operations if not acting in self-defense or on “extended patrols.” Although all ISAF contingents are embedded in the same command structure, caveats pose difficult problems for commanders, who seek maximum flexibility in utilizing their troops. General Jones, NATO Supreme Commander, estimated that there were about 50 national caveats within ISAF, which significantly hampered operations. Consequently, it is easy to imagine that caveats limit the effectiveness and flexibility of ISAF operations. Although NATO tried to minimize the number of caveats of ISAF forces, it has only partially succeeded.70 At the NATO Summit in Riga in November 2006, national caveats could have been reduced to some extent but are remaining to hinder operations on the ground.71 It is important to notice that ISAF is operating—at least formally—separately from the US-led Operation Enduring Freedom in Afghanistan (OEF) of the “coalition of the willing” conducting its war on terrorism. Although ISAF and OEF are working overall towards similar targets, namely the stability and security in Afghanistan, their missions seem to be very different. OEF and the engaged countries (mainly the United States and Great Britain) are conducting their war on terrorism in the context of their interpretation of the right of selfdefense (Article 51 of the UN Charter) and therefore would actually not fit into this chapter as peace supporters. In a wider view, however, OEF has to some extent inevitably become a part of the PSO of NATO and the United Nations. Although ISAF is in charge of all military operations in Afghanistan, OEF is still independently engaging against remnants of the Taliban and suspected Al Qaeda fighters and consists of approximately 10,000 troops,72 special units and secret services personnel, mostly from the United Kingdom and the United States. Law enforcement, in the context of focused action against organized crime, is not a major task of OEF. However, as Taliban and other insurgent fighters are directly linked to organized crime, combating them means fighting organized crime. OEF was actively engaged in crop eradication via local subcontractors as well as international private military companies, such as DynCorp.

70

Helle C. Dale, NATO in Afghanistan, A Test Case for Future Missions, HERF OUNDATION, B ACKGROUNDER, No. 1985, Dec. 8, 2006, available at www.heritage.org/Research/Europe/upload/ bg_1985.pdf; Umit Enginsoy, NATO Urges Nations to Lift Caveats on Forces in Afghanistan, D EFENSE N EWS, Oct. 2006, available at http://www.defensenews.com/story.php?F=2308519&C=europe. 71 NATO after the Riga Summit, Speech by Ambassador Edmund Duckwitz, 2006, available at www.kas.de/proj/home/pub/9/1/year-2007/dokument_id-9735/ index.html. 72 Formally, these troops are embedded with ISAF, however, the United States retained command over its component: International Crisis Group, Asia Report No. 123, Countering Afghanistans’s Insurgency: No Quick Fixes 14 (2006), available at www.crisisgroup.org. ITAGE

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This, however, caused until now even more problems than it helped combating organized crime (see below). The Afghan National Army (ANA) has begun to evolve in the aftermath of the fall of the Taliban regime and is still being built up by the international community. It consists of approximately 34,000 trained troops out of a projected force of 70,000. Although attrition rates have not been publicly released, it is estimated that desertion and irregular absences are increasing and, due to bad equipment, weapons and vehicles, the strength of some battalions is judged to be at around 60 percent.73 The training of the ANA is led by the United States, but since 2005, NATO/ISAF have also been providing training courses. Most of the training is, however, conducted not at training camps but on the job, as the ANA is often sent into combat accompanied by international forces. It is therefore easy to imagine that ANA forces are only minimally prepared to face the cleverly operating insurgents. It has been observed that ANA forces are also consuming drugs on duty and during combat as well as taking bribes at checkpoints, where not monitored by international forces.74 Overall, it must be stated that the ANA is not yet ready to perform against insurgents or in operations against organized crime on its own. Although the roles of the ANA and the Afghan National Police (ANP) are often muddled during combat operations, they are two different institutions. The ANP is supposed to have some 65,000 policemen and officers and consists of previous security personnel. Organized by districts, they are often little more than private militias still loyal to their local or regional commanders rather than the national government. After receiving basic training from international personnel, the local policemen return to an environment where pressure from drug traffickers and corrupt officials is enormous. Once sent to the regions, police officers lack organized leadership as well as equipment and facilities needed to perform their role. Instead they are suspected of being involved in trafficking protection and corruption. All in all, the ANP seems to be more a source of insecurity than protection. It is therefore an inefficient instrument in the struggle against organized crime in Afghanistan and has no significant influence outside of Kabul. No doubt worth mentioning as a law enforcement institution, is the Central Poppy Eradication Force (CPEF) run by the Ministry of Afghan Counter Narcotics. Crop eradication was conducted by the CPEF and the ANP with strong support from the United States and United Kingdom governments. DynCorp, as mentioned above, led many of the eradication operations in direct support of provincial governors or district leaders.75 73

Id., 16. NATO Briefing, Afghanistan (Oct. 2006), available at www.nato.int/docu/briefing/afghanistan-2006/afghanistan-2006-e.pdf; Sean Langan, Channel 4 TV Report, Dispatches, Fighting the Taleban, 2006, broadcast Jan. 8, 2007. 75 The Senlis Council ed., Impact Assessment of Crop Eradication in Afghanistan 74

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Dilemmas and Problems

What began as a PSO with the deployment of ISAF to Afghanistan after the fall of the Taliban is no longer worth this term. The rising of insurgency in the southern belt led to intense fighting between anti-government forces and ISAF or OEF as well as the Afghan Security Forces. There is no peace to keep in the southern provinces. What started as what may be called a traditional PSO melted into a war on terror and now faces open guerilla warfare. The security situation has become so bad that focused policing actions against criminal networks are out of the question at the moment. This seems to be even more frustrating when bearing in mind that insurgents often profit from drug trafficking and arms smuggling. Rather than engaging in rebuilding efforts and further civilian tasks in a bid to win the hearts and minds of the population and thus destroying the basis of support for the insurgents, ISAF troops must concentrate on providing basic security. This is far from being achieved and moreover logically causes civilian casualties—especially when engaging close air support as mostly needed in combat with the insurgents. In the words of British Colonel and legal expert Charles Garraway: “You are not winning hearts and minds by putting bullets into hearts and minds.”76 Although ISAF’s basic mandate is robust, national caveats limit the troops’ flexibility and effectiveness. Furthermore, the initial mandate limited the area of operation of ISAF to Kabul and its surroundings, and it has only lately been expanded into the critical provinces for fear of facing too much opposition. This, however, enabled the insurgency to regain strength. Overall it seems that the establishment of ISAF did not follow the necessities of the nation rebuilding process but was constructed around what the international community was willing to commit. In terms of law enforcement, the international community faces daunting challenges: the rule of law is crucial, but since this depends on the success of good governance, the success of the central government is vital. Yet its influence is small, particularly in the rural regions, and the establishment of the rule of law throughout Afghanistan is far from being achieved. Crop eradication aims to strengthen the influence of the government but has in fact robbed the farming population of their source of income by not providing alternatives. In the fight against organized drug crime, a broad understanding of the problem is needed, and single actors conducting autonomous operations may never succeed. Only concerted action of military, civilian, political, administrative (including policy) players may help to tackle organized drug crime in Afghanistan.

and Lessons Learned from Latin America and South East Asia, 20–24 (2006), available at http://www.senliscouncil.net/modules/publications/009_publication. 76 Col. Charles Garraway, “The lawyer advises, the commander decides,” lecture at the PfP Seminar CENTROC, Lucerne, Switzerland, Fall 2004.

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CONCLUSIONS

Conflicts throughout the world teach that a power vacuum in post-conflict scenarios is likely to attract organized crime. Recent experiences from PSOs also show that organized crime can be a threat to security and stability. As military components are often the only or at least the most effective law enforcement instrument in a post-conflict scenario, they face broader and more complex assignments than just traditional military tasks. Armed forces may help to provide basic law and order functions, but they are in general neither equipped nor trained for long-term police tasks. Effective civilian law enforcement institutions are inevitable. In combating organized crime, military forces, due to their means, are able to provide useful support by controlling territory and roads through checkpoints, monitoring borders and backing up civilian police with outer security perimeters. Intelligence-gathering can easily be extended to organized crime, and the military therefore can provide the civilian law enforcement institutions with helpful information. For this new role, innovative military instruments are needed, and training must be adapted. In the first step, the transition of the traditional infantry soldier to a heavily armed policeman, as demanded by many military reformers, has to be consistently pursued. Then, specialized units have to be embedded with detailed law enforcement or even investigation expertise, as it is already practiced. Then again, from the military point of view, a concentrated fight against organized crime can only be begun if basic security is established. Civilian police, may it be indigenous or international, should take over law enforcement tasks as soon as possible. As this is not always immediately evident, this step should only be taken if they are capable of doing so. The setting up of police forces has proven to be very difficult to reach Western standards. Local police forces are frequently affected by corruption and may even be linked to criminal networks. As the police forces will operate on the frontline in the fight against organized crime once the international presence withdraws, the efforts of building up these forces cannot be large enough. In the era of wider peacekeeping, coordination and cooperation in the fight against organized crime play an important role in the implementation of effective actions. This, however, has proved to be an enormous problem in recent post-conflict scenarios. Overall it has been experienced that the civilian law enforcement contribution, once a safe and secure environment has been established and respective institutions are functioning, is far more important for effective countercrime efforts than the military component. It has been shown that incomplete mandates or national caveats can impede the success of an international engagement. Therefore, the legal framework, by which all PSOs are initially defined, must already implement basic ideas of combating organized crime. Concerning the fight against criminal networks, a clear definition of tasks and responsibilities down to the single acting military

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or civilian units should be delivered by the legal framework before the deployment. This would certainly help to reduce competence conflicts or law enforcement gaps. Of course, international engagement always depends on the political will and national legislation and therefore, putting together a PSO is a fragile process. But it may still be more effective to shape a mission around the real situation than to try to readapt it to the needs of the ongoing operation, once it has already been established. Thus, a detailed assessment on the organized crime situation and its effects on the peace support engagement is indispensable. In a wider context, the overall political direction of a PSO may be another essential factor in the fight against organized crime. If the political direction of a mission is vague or not sufficiently focused, the establishment of the rule of law may take too long, giving criminal networks time to build up or extend parallel structures. The efforts of law enforcement institutions are then wasted, and actions taken always seem to be one step behind. In conclusion it may be added that organized crime—not only in peace support scenarios—is a complex problem. There are most certainly no short-cuts or simple solutions. It will continue to depend on the determination and the commitment of the international community to address organized crime with its long-term and possibly painful engagement.

CHAPTER 6 PEACE SUPPORT FORCES—ASSISTING THE CIVILIAN AUTHORITIES IN CRIMINAL PROSECUTIONS Kwai Hong Ip*

For the men of Wu and the men of Yueh are enemies; yet if they are crossing a river in the same boat and are caught by a storm, they will come to each other’s assistance just as the left hand helps the right.1 A. INTRODUCTION In the quest to maintain a secure environment through the development, maintenance or enforcement of the rule of law, peace support forces (PSF) should strive to achieve mutual aims with judicial and law enforcement authorities that are likely to include: the prosecution of offendes that occurred during a conflict and the control of those who create, perpetuate or foster instability and insecurity through violent acts. Long-term extrajudicial detention by PSF is unlikely to be a long-term solution to the problem of removing from the environment those who foster insecurity through criminal acts. Judicial detention may be the only real alternative that achieves respect for the rule of law. Therefore, the mutual aims should be to uncover crime, monitor and capture criminal suspects, assist and support the collection of evidence and ensure that the perpetrators of crime are successfully prosecuted. Operational- and tactical-level commanders are likely to consider the extent that a PSF may assist and support the work of state institutions and international organizations, within mandates and operation plans that detail author* International Prosecutor, Special Department for War Crimes, Prosecutor’s Office of Bosnia and Herzegovina; former Legal Officer, UNMIK Department of Justice; Legal Adviser (Operational Law) to the Kosovo Force (KFOR); Royal Air Force Prosecutor. The views expressed in this chapter are the author’s. 1 SUN-TSU, THE ART OF WAR, ch. 4, sec. 30 (Lionel Giles M.A. trans., 1910). Critical note: “if two enemies will help each other in a time of common peril, how much more should two parts of the same army, bound together as they are by every tie of interest and fellow-feeling. Yet it is notorious that many a campaign has been ruined through lack of cooperation, especially in the case of allied armies.” 105

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ized tasks and missions for the use of PSF. These bodies are likely to include judicial and law enforcement authorities and the international organizations that advise them. Furthermore, troop contributing nations (TCNs) will be aware of their treaty obligations in relation to the prosecution of breaches of international humanitarian law (IHL) and other serious violations of the law of armed conflict. This chapter considers when and how PSF can assist in criminal prosecutions conducted by national and international judicial and law enforcement institutions in the context of peace support operations (PSO). It will outline the duties of PSF and TCNs provided by the law of armed conflict and treaties entered into by the sending state. It will further deal with the two phases characterizing any mission: firstly, the phase when PSF enter an area to resolve a conflict or an immediately post-conflict scenario and, secondly, the phase when PSF operate in an area with functioning national institutions in order to provide security and assistance. The chapter will then address the different legal traditions and laws that legal advisers must take into account when implementing any of the observations regarding operations during the second phase. After this, it will proceed to discuss practical aspects of coordination in three areas where PSF operational tasks and activity can directly impact the work of criminal justice authorities—intelligence coordination, crime scene security and physical evidence gathering, and searches and arrests—and where PSF should consider cooperation strategies with judicial, prosecutorial and law enforcement authorities. Finally it will draw the conclusions. B. AUTHORIZED TASKS AND INTERNATIONAL OBLIGATIONS Military commanders are aware that they must conduct their operations within the parameters set by their TCN and, where applicable, the lead or coordinating international body or multinational Force Commander. Strategic and operational level operations’ plans will enumerate tasks and reflect the purposes of the mission where it is established pursuant to political decisions, including UN Security Council (SC) resolutions. Enumerated or implied tasks of the operations’ plan may include assisting and supporting the work of state institutions and international organizations. At each phase of the mission, commanders will consider the imperative tasks of the mission and then whether, when and what type of assistance the PSF can provide to national and international authorities. TCNs are also likely to consider their duties under treaty or domestic law. A TCN may be limited by its constitution, laws and conditions imposed by the legislative bodies that approved the deployment of its armed forces.2 Furthermore, 2 National caveats limiting the roles, tasks and means that may be used by forces deployed on missions.

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recent national judgments and pending judgments of the European Court of Human Rights are posing important questions addressing the extraterritorial application of the European Convention on Human Rights (ECHR)3 to the armed forces of a signatory state operating in the territory of another (including nonsignatory) state during military operations. These will have far reaching consequences as to whether and how TCNs will conduct PSOs, the tasks they will perform and the modification of existing national caveats.4 In the context of IHL, other international instruments may apply. The International Criminal Court (ICC) was established in an attempt to ensure that crimes would no longer be committed with impunity. States parties to the Statute of the ICC (Rome Statute)5 are obliged, in accordance with Article 86, to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” In relation to the ad hoc tribunals, which are subsidiary organs of the UN Security Council, Article 25 of the UN Charter requires member states to “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Under Article 103 of the UN Charter, the obligations of a member state under the Charter prevail over conflicting obligations. By virtue of Article 29(1) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY)6 and Article 28(1) of the Statute of the International Criminal Tribunal for Rwanda (ICTR),7 the tribunals can impose mandatory terms that oblige member states to cooperate with the tribunal in the investigation and prosecution of persons accused of committing serious violations of IHL and to comply, without undue delay, with any request for assistance or an order issued by a Trial Chamber. Under Additional Protocol I of 1977 (AP I),8 signatory states are obliged to assist the United Nations in response to serious violations in accordance with 3

European Convention for the Protection of Human Rights and Fundamental Freedoms, signed Nov. 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 221, E.T.S. No. 5. 4 See Josephine Lett, The Age of Interventionism: The Extra-territorial Reach of the European Convention on Human Rights, in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW 117 (Roberta Arnold & GeertJan Alexander Knoops eds., 2006), [hereinafter ARNOLD & KNOOPS]; see also Behrami v. France, Application No. 71412/01 and Saramati v. France, Germany and Norway, Application No. 78166/01, argued before the Grand Chamber of the European Court of Human Rights on November 15, 2006, decision awaited; see press release, at http://www.coe.int/t/d/kommunikation_und_politische_forschung/presse_und_online_info/ presseinfos/2006/20061115-693-GH-Behrami.asp (last visited Jan. 23, 2007); see also Regina (al-Skeini and others) v. Secretary of State for Defence, 2004 E.W.H.C. 2911, and 2005 E.W.C.A. Civ. 1609, at http://www.hmcourts-service.gov.uk/judgmentsfiles/j3670/al_skeini_v_state_1205.htm#207 (last visited Jan. 24, 2007)—case now on appeal to the House of Lords (UK). 5 UN Doc. A/CONF. 183/9 (1998). 6 SC Res. 827, UN Doc. S/RES/827 (May 25, 1993). 7 SC Res. 955, UN Doc. S/RES/955 (Nov. 8, 1994). 8 Protocol Additional to the Geneva Conventions of August 12, 1949, and

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mandates or specific requests9 and also to assist other signatory states.10 These may include tasks such as conducting surveillance and search and arrest operations of persons accused or indicted for breaches of IHL. In relation to grave breaches under Article 147 of the fourth Geneva Convention of 1949 (IV GC)11 committed against protected persons (civilians) and property, military forces have an obligation to search for persons on their territory suspected of committing such grave breaches.12 Whether any of these duties are binding or may be used as guidance will depend on the treaty obligations of the TCN and the particular circumstances of the mission itself.13 C. INITIAL PHASE OF OPERATIONS—CONTROL OF THE GROUND ENVIRONMENT AND POST-CONFLICT ACTIONS 1. Securing Evidence PSF can play an essential role because of their special access to areas and facilities upon arrival in the immediate aftermath of conflict. When a PSF is first to enter a conflict area and to assume at least tactical control over it, it may face a chaotic situation but one that is critical for the further conduct of proceedings dedicated to uncovering the truth behind the conflict, the location of deceased victims and future prosecutions for violations of IHL. The predominating feature of crimes arising from a conflict and/or from an oppressive regime where there was a widespread or systematic attack on the civilian population is that they are extreme in their scope and violence and that they tend to be systematic and planned. The majority of the evidence relied on for prosecuting these violations of international law are highly likely to be a mixture of witness testimony and documentary evidence. With access and control, therefore, PSF are in a position to undertake the duties of collecting and/or securRelating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978 [hereinafter AP I]. 9 Id., art. 89. 10 Id., art. 88(1): “The High Contracting Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of grave breaches of the Conventions or of this Protocol.” 11 Convention relative to the Protection of Civilian Persons in Time of War (1949), 75 U.N.T.S. 287. 12 To complement and implement the principle established in Article 146 of IV GC that the primary responsibility for the prosecution of war crimes rests with individual states. 13 See Kwai Hong Ip, Peace Support Operations: Establishing the Rule of Law through Security and Law Enforcement Operations, in ARNOLD & KNOOPS, supra note 4, at 8–15.

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ing evidence where offenses of war crimes, crimes against humanity or genocide have been committed. Witnesses can testify to the preparations for, the commission and the aftermath of violent events, including the location of mass graves and the identification of perpetrators. Cooperating witnesses,14 who have knowledge of and participated in the execution of orders of unlawful acts, can give evidence of the orders, intelligence and instructions given to them, the animus of their commanders or leaders and their role in the operation from which the bigger picture of a joint criminal enterprise can be formed. 2. Documents Documentary evidence plays a central role in any investigation and subsequent prosecution. Because they are likely to be created for military, intelligence, political or administrative purposes rather than avoiding criminal proceedings, they are presumptively reliable. Documents recovered and used in trials before the ICTY include payrolls, appointment decisions and duty officer logs that list personnel involved, establish the chain of command and are essential for locating potential witnesses and suspects. Signal intercepts, airborne surveillance images, intelligence and combat reports uncover and explain the plan, what actually happened, when and why, thereby helping to identify the perpetrators of a crime. Detainee lists evidence the disappearance of persons from prison and detention camps and assists in the location of and corroborates victim testimony. Even what may seem to be innocuous administrative documents have evidential value. Vehicle logs, fuel and material supply issuance vouchers have played a major role in providing evidence of the movement of commanders to locations, thereby establishing their presence and knowledge of summary executions, the use of and movement of vehicles used during forced transfer of the civilian population, corroborating the location of combat units and the logistical preparation of units tasked to carry out the attacks against the civilian population.15 Obviously during high intensity engagements or operations to establish control of an area, the securing of evidence is unlikely to be viewed as an essential and priority task. However, from recent experience, the failure to collect and secure documents hampers the resolution of complex social and political 14 Variously known otherwise as “collaborators with justice,” meaning those who are co-perpetrators with those who are accused. 15 For examples, see the judgments of the Trial Chamber of the ICTY in Prosecutor v. Radislav Krstic, Case No. IT-98-33-T (Aug. 2, 2001), and Prosecutor v. Vidoje Blagojevic et al., Case No. IT-02-60-T (Jan. 17, 2005) [hereinafter Krstic and Blagojevic], the “Srebrenica genocide” cases. See also Prosecutor v. Popovic et al., Case No. IT-05-88-T (Aug. 4, 2006).

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problems that are a common feature of post-conflict society. War victims and their families will always seek information about missing family members. Often, the civilian population will call on security bodies and judicial authorities to locate and prosecute the perpetrators of crimes. Failure to secure documents makes it more difficult for authorities to collect vital evidence and bring to justice those responsible for serious violations of international law.16 Therefore, as soon as the situation allows, PSF should strive to secure documents and archives in accordance with organized and coordinated arrangements. It is important to be able to trace the source of the documents from a particular facility or location and to assess the documents so that those tasked with evidence gathering may exploit them. Where documents are to be seized from state institutions that continue to function, there may be an added complication. These documents will be required for continued operations. Alternative methods of securing them, such as implementing document security and management systems, may be impossible or too much of a burden. In these circumstances, PSF may consider document scanning where facilities and logistical support are available. The increased expense and logistic effort may be justified by the fact that documents held by state institutions may have high intelligence value, and such activity can therefore have a dual purpose. In exploiting documents for intelligence purposes however, PSF should consider how important documents are to be classified and held so that they may be released more easily to investigating authorities.17 3. Witnesses Witness testimony at trials are fraught with numerous and complex issues including incomplete memory, honest but mistaken recollection, bias or other taint,18 and some collaborators with justice have given false statements in the hope of concluding a more advantageous plea bargain.19 From the experience 16 See Human Rights Watch Reports, Ensuring Justice for Iraq: Evidence Preservation and Fair Trials (Sept. 2003), at http://www.hrw.org/press/2003/09/ iraq091203.htm (last visited Jan. 13, 2007); Iraq: State of the Evidence (Nov. 2004), Vol. 16, No. 7 (E), at http://hrw.org/reports/2004/iraq1104/iraq1104.pdf (last visited Jan. 13, 2007). 17 See Section E. 18 In one case before the Court of Bosnia and Herzegovina, the one victim of rape admitted to giving false testimony in order to continue receiving benefits from a victim support group; Proseuctor’s Office of Bosnia and Herzegovina v. Boban Simsic (2006), available at http://www.reliefweb.int/rw/rwb.nsf/db900sid/YAOI-6X9A5D? OpenDocument. 19 For example, see the testimony of cooperating witness Momir Nikolic, in Blagojevic, T.2124-T.2130 (Sept. 29, 2003), at http://www.un.org/icty/transe60/030929IT. htm (last visited Jan. 24, 2007).

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of investigations and prosecutions of violations of IHL conducted in Kosovo and Bosnia and Herzegovina to date, the first witness interview by an investigative authority is of paramount importance. It is the closest to the perceived event when memory is more likely to be relatively fresh. It may have been made in circumstances that are less likely to be tainted by hopes of reparation or other inducements, or witness intimidation. Therefore, it may be more reliable. However, some must be treated with caution. Some statements were taken by authorities with other purposes in mind, and they may be an incomplete and selective account or may be reduced in writing by an untrained and/or a partisan observer. Considering that prosecutions and trials are likely to come years after the conflict, if at all, witness evidence must be preserved at this early stage, and it must be as complete and detailed as possible. Every effort should be made to secure all relevant information, including when and where the witness was, the view he/she had of the scene, descriptions of vehicles, uniforms, weapons, direction of travel, smells, sounds, intensity types of weapons discharges and descriptions of persons. Investigators must find objective facts to base well-grounded identifications of perpetrators, where a witness alleges one, such as lighting conditions, distances, obstructions and the length of time the witness saw a person or event. Since 2000 in Kosovo, poor identification evidence in cases where direct perpetration was alleged, has resulted in acquittals or has led to the withdrawal of indictments or investigations: whether it was a result of fleeting glances, mistaken identification or recognition, suggested identifications, identification from hearsay accounts of others and even contamination through watching film clips on mass media long after the event of persons believed to have held particular positions of authority at the time of the criminal act. Poor identification evidence has also resulted in acquittals before the ICTY.20 However, where prosecutions of senior commanders are concerned, the focus of identification evidence is likely to be on military or paramilitary units rather than individual identifications. Victims and witnesses are often unable to provide identification evidence owing to the “fog of war,” the use of troops from outside the local area and/or through abject terror and confusion that accompanies violent events. If they do, it is often poor or mistaken, and its reliability is often challenged. It is not uncommon for there to be a lack of reliable recognitions. In such circumstances, prosecutions are likely to charge indirect modes of liability, such as joint criminal enterprise, aiding and abetting or command (or superior) responsibility, in order to connect the accused with a particular act charged.

20 See the basis for acquittals of Musliu and Limaj in Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, at http://www.un.org/icty/limaj/trialc/judgement/lim-tj051130e.pdf (last visited Jan. 13, 2007).

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4. Mass Graves While television crews filmed the fall of Srebrenica enclave21 and reporters wrote harrowing tales of the conditions within the enclave22 and the escape route taken by Bosnian Muslim men across mountainous terrain, airborne assets were used to collect images of mass graves that were later exploited during the investigation and adduced as evidence during trials at ICTY.23 Using these images and witness statements, ICTY investigators began to uncover mass graves in and around Srebrenica. The Trial Chamber in Krstic found that between 7,000 and 8,000 men24 had been killed. Teams of forensic anthropologists, archeologists and pathologists exhumed and analyzed the bodies from over 20 mass graves. From the timing of the images, investigator witnesses testified as to the dates between which the graves were dug and filled and when they were opened up to relocate the remains to secondary graves in an attempt to hide the evidence of summary executions and genocide. Furthermore, by categorizing the mode of death and analyzing anthropological or pathological data, the preponderance of multiple gunshot wounds as opposed to shrapnel wounds can allow inferences to be drawn as to whether the victims died as a result of mass execution.25 Once mass graves are uncovered and the forensic exhumation process begins, it is essential that sites are secured to prevent contamination of the evidence and to preserve the integrity of a crime scene so that bodies are not recovered by family members, graves are not desecrated and personnel, supplies and equipment are secured. Therefore, where the mandate allows, PSF should assist the work of forensic exhumation teams by providing security at the site and, where necessary, logistical support. D. APPLICABLE CRIMINAL PROCEDURE AND ADMISSIBILITY OF EVIDENCE The drafters of the Rules of Procedure and Evidence for the ICTY took heed of the warnings given by governments making recommendations for rules of procedure and evidence against applying technical rules of evidence that 21

Established by SC Res. 819, UN Doc. S/RES/ 819 (Apr. 16, 1993). See Serbs Overrun UN ‘Safe Haven,’ BBC News, July 11, 1995, at http://news.bbc.co.uk/onthisday/hi/dates/stories/july/11/newsid_4080000/4080690.stm (last visited Jan. 23, 2007); Serbs force Muslims Out of Srebrenica, BBC News, July 15, 1995, at http://news.bbc.co.uk/onthisday/hi/dates/stories/july/15/newsid_3736000/ 3736438.stm (last visited Jan. 23, 2007). 23 Krstic and Blagojevic, supra note 15. 24 See Krstic, Trial Chamber Judgment, supra note 15, at paras. 84 and 426. 25 See testimony of witness Dean Manning, Blagojevic, T.7140 et seq. (Feb 4, 2003), at http://www.un.org/icty/transe60/040205IT.htm (last visited Jan. 24, 2007). 22

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would be sourced from a situation of conflict. There would be “restricted possibilities of gaining access to documentary evidence in the process of an ongoing armed conflict and, therefore the need to rely on viva voce evidence . . . [t]herefore it was considered that the inclusion of technical rules would only encumber the judicial process.”26 Both the ICTY and the ICTR have adopted few rules of evidence and are faithful to the general principle of “free evaluation of evidence” that features in many countries with a “civil law” or inquisitorial tradition. Evidence that is relevant and probative is generally admitted unless excluded because its value is substantially outweighed by the need to ensure a fair trial. The ICC has a similarly flexible approach to the admissibility of evidence.27 Often prosecutors and investigators from international tribunals seek the assistance of PSF and provide them with guidance on what this may entail. The situation may be different when PSF plan to participate by lending support to national criminal investigation authorities in the theater of operations. PSOs may well be operating in multifarious and unfamiliar legal regimes. PSF and their advisers should consult local legal authorities or international organizations involved in the reform of justice institutions in order to make adequate preparations to understand and research the applicable laws of criminal procedure. Without such preparation, PSF may fail to properly understand why, after they provided assistance and placed personnel in jeopardy, the evidence secured resulted in high value suspects being released or successful prosecution failing. As an example, the applicable national law may provide for much shorter periods of pre-trial detention than normally expected, even where serious offenses are alleged. The Interim Criminal Procedure Code (2004) of Afghanistan provides for a maximum pre-trial detention period of 30 days, and the prosecutor (Saranwal) must indict or release the suspect on its expiry. The maximum period of custody during first instance trial is two months.28 26

Permanent Mission of the Argentine Republic to the United Nations, July 27, 1993, IT/4 (Nov. 16, 1993) and Letter from the Permanent Representative of Canada to the United Nations Addressed to the Secretary-General, IT/15 (Nov. 29, 1993), quoted in Prosecutor v. Zejnil Delalic et al., Decision on the Prosecution’s Motion for the Redaction of the Public Record, IT-96-21, at para. 41 (June 5, 1997), at http:// www.un.org/icty/celebici/trialc2/decision-e/60605MS2.htm (last visited Jan. 13, 2007). 27 See Rome Statute art. 69(4): “The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.” See also, ICC Rules of Procedure and Evidence, Rule 63(2): “A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69.” The Rome Statute and Rules of Procedure and Evidence of the ICC can be found at http://www.icc-cpi.int/about/Official_Journal.html. 28 Interim Criminal Procedure Code of Afghanistan arts 6 and 36 (2004), can be

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Therefore, it is incumbent on those advising on operations to assist and support criminal investigations and prosecutions to have a working knowledge of the applicable national criminal procedure law in order to tailor operating procedures and mission directives accordingly. Advisers should incorporate essential elements of evidence handling techniques, assess the extent and how PSF personnel may assist national investigators and brief PSF personnel on national evidence procedure. If the applicable law requires evidence to be collected by authorized persons, mission planners should consider whether authorized police, prosecutors or judges need to be present either during an operation or immediately after it, so that collected evidence is admissible.29 Coordination arrangements may be inserted into operation plans and the commander’s mission directives. Advisers may wish to consider whether they should be on hand to provide guidance at operation cells while the mission is being executed. Any evidence safeguarded or collected by PSF may be useful in prosecutions before domestic, hybrid30 or international criminal tribunals with differing approaches to evidence. Therefore, this chapter will discuss themes common to all jurisdictions that may be of assistance to advisers, bearing in mind that the two most important issues in relation to criminal evidence are: whether in obtaining evidence there has been a breach of fundamental human rights, so that it would be neither fair nor just to admit the evidence against an accused, and whether the evidence is reliable enough to allow a conviction based upon it. E.

INTELLIGENCE COORDINATION

1. Threat and Criminal Intelligence While there may be intelligence sharing and coordination arrangements between TCN forces and/or with multinational force commands, these may have to be negotiated and crafted with national authorities once the situation allows. The overriding need to maintain the integrity of individual TCN intelligence found at the Web site of the Afghanistan Legal Documents Exchange Center, at http://www.afghanistantranslation.com/docs/InterimCriminalProcedureCodeET.doc (last visited Jan. 24, 2007). 29 See Section G. 30 Meaning: where international judges and/or prosecutors participate with national judges and/or prosecutors in criminal proceedings before a court established by a national government for the specific purpose of prosecuting offenses in violation of international humanitarian law (e.g., Special Court for Sierra Leone), or where international judges and/or prosecutors are included within an existing national judicial system (e.g., Kosovo). See survey and discussion of post-conflict judicial mechanisms, Noëlle Quénivet, Promoting and Abiding by the Rule of Law: UN Involvement in PostConflict Justice, in ARNOLD & KNOOPS, supra note 4, at 35.

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efforts and a general lack of confidence in others can lead to slow development of cooperation and coordination between PSF and national security forces, including police and judicial/prosecution authorities, if at all. In long-term missions where PSF have established security and are maintaining the conditions necessary for assisting and supporting international organizations and national authorities in building democratic institutions, a cooperative framework is necessary. Without it, mistakes could be made that question the credibility of PSF, the development of the rule of law and bring public disorder. 2. Sharing Intelligence and Technical Means—Cooperation Arrangements TCNs that make up PSF often bring into theater technical intelligence assets that may be shared with other TCNs or, as is more often the case, that may be used solely by that TCN. Also, TCN intelligence personnel may operate using human intelligence sources including informants. These are often jealously guarded and, over a period of time, may be valuable sources. Equally, national security forces may seek to exploit informants once these forces are operationally capable of doing so. However, turning this information into material that may be used as evidence or lead to admissible evidence is a recurring problem, when PSOs seek to assist national criminal prosecution authorities. By sharing information received from informants and providing it to prosecuting authorities with assessments as to the credibility and reliability of the informant, investigation strategies can be developed to exploit it. This information can be passed directly or in accordance with cooperation arrangements between PSF and civilian authorities. Such arrangements can take the form of Memoranda of Understanding (MOUs) that delineate what can be expected of each party, what may be divulged and how this information is to be treated. Where national law allows,31 authorized bodies and personnel may conduct special investigative measures such as telecommunications intercepts and undercover surveillance in accordance with judicial orders based on the information provided by PSF in cooperation with, and in support of national judicial bodies. Special investigative measures have led to the collection of admissible evidence and catching perpetrators in delicto flagrante. However, each TCN that provides technical equipment and operators must be cognizant of the limitations its own domestic law provides in relation to the targets of signals and telephone intercept measures, especially where citizens of the TCN are concerned. It is often necessary for PSF personnel to provide written information to coordinating national police authorities as to the pseudonym of the informant, 31 Note the requirements for authorized invasions of privacy under ECHR Article 8, supra note 3.

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his/her credibility and past results. From this, the applicant authority (in most cases a prosecutor or investigating judge) can make a determination as to the reliability of the information and then use it and assess it to reason or justify the implementation of special investigative measures or further investigative steps. In Kosovo, coordination strategies using security cleared single nation civilian police investigators, who are authorized judicial police officers with UNMIK Police, have liaised directly with military intelligence units and international prosecutors to fight organized crime and terrorism. While each mission has its own peculiarities, where the situation allows, PSF should consult and negotiate with national authorities regarding means and methods to transfer intelligence crucial for criminal prosecutions. PSF generally have special capabilities and presence on the ground that allows it wider reach and the ability to instill confidence in the local population. Cooperation and mutual trust and confidence through regular contact is essential for the transfer of human intelligence material. Without such assistance and support, PSF may find it difficult to achieve intelligence-led operations that lead to judicially imposed detention, which may be the more acceptable means of fighting criminal and terrorist organizations. 3. Classification and Declassification What is of interest to military intelligence authorities once PSF enter a post-conflict territory is often equally of interest to those investigating breaches of IHL. Military, police, judicial, political and civilian authority offices frequently house archives and contain copies of plans, orders, dispatches, reports, personnel rosters and personal files, communications intercepts and other documents that are significant in establishing why, when and what occurred, who knew about it, who participated in it and how it was achieved. Random searches rarely uncover the extent and nuances of plans and operations and, in general, documents on their own are of little significance without knowledge of the context in which the military operations were conducted and the modus operandi of the forces involved in the conflict. Thus, a broad and detailed analysis of an expansive collection of documents is often necessary in order to develop the full picture. Frequently however, uncovered documents are collected and transported to unlogged PSF or TCN locations, then stored and classified so that they may be analyzed and exploited at a later date. These documents may fall out of the reach of civilian authorities investigating breaches of IHL. In order to be released, time-consuming searches have to be conducted by authorized personnel that involve tracing and inspecting documents, assessing their relevance and then cumbersome authorization; declassification procedures may be required, too. Cooperation arrangements have to be made, and there is unlikely to be any assurance that all relevant and referenced documents have been or will be

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located. Therefore, PSOs may seek to make arrangements to allow access to such documents for wide-range scanning and database creation operations to allow criminal prosecution authorities an opportunity to expedite their investigations and be more effective. F.

CRIME SCENES AND PHYSICAL EVIDENCE

There are other situations when PSF personnel may need to secure crime scenes or provide witness evidence during security operations in support of national security institutions, when they come across criminal activity during patrols or targeted operations. Where the mandate and the mission allow, PSF may be faced with acting both as a security and law enforcer.32 Military police and gendarmerie units are commonly brought into theater for this purpose, but it may fall onto soldiers to undertake basic investigative tasks, if they are the only persons on scene. With limitations in time, logistics and criminal investigation support, and in barely permissive environments, investigations conducted by PSF may fall short of the thorough standards expected in home countries.33 This should not dissuade advisers from implementing basic criminal evidence-gathering techniques, within the limitations of national caveats and rules of engagement, and 32 It is reported that US forces are conducting investigative actions because “the decision to treat insurgents as criminals has forced soldiers to act as cops and has authorities scrambling to build cases against thousands of detainees in US run prisons. Some soldiers say running rebels through the courts places American forces at a disadvantage, burdening soldiers in a guerilla war with peacetime rules.” Soldiers are “drilled from the moment they arrive on the importance of gathering evidence, getting sworn statements from witnesses and taking good pictures that may later be used in court” and that vehicles are stocked with an evidence kit which includes blank sworn-statement forms, a digital camera, plastic gloves and a spray that detests gunpowder residue.” Gregg Zoroya & Rick Jervis, USA T ODAY, Aug. 9, 2005, available at http://www.usatoday. com/news/world/iraq/2005-08-09-troops-detective-cover_x.htm (last visited Aug. 23, 2005). Contrast however, the assessment whether this strategy is effective; see Michael Moss, Iraq’s Legal System Staggers Beneath the Weight of War, N.Y. T IMES, Dec. 17, 2006. 33 See the comment of the Judge Advocate General of the UK Armed Forces in Regina v. Corporal S C Evans, OJAG Reference 2005/59 (Nov. 3, 2005), on ruling to dismiss a court martial prosecution at the end of the prosecution’s case: “there is no doubt the criminal investigation in this case has been inadequate. It is, of course, difficult to conduct the sort of investigation expected of the civilian police in the benign conditions of this country because of the general dangers in Iraq and I do not underestimate those difficulties. Nevertheless, it has been established during the course of the case that the investigators made serious omissions.” The ruling may be downloaded from http://www.btinternet.com/~aspals/3para_ruling.pdf (last visited Jan. 12, 2007), available at http://www.aspals.com, Military Legal News.

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using the expertise available in theater: in particular multinational support units and military police investigators. Of course, precise arrangements and the extent that PSF may assist the local civilian authorities will depend on the type of PSO, the availability and competence of appropriate PSF personnel and national police forces, and whether primacy for law enforcement tasks has been transferred. Common difficulties relate to preservation of crime scenes, evidence handling, chain of custody and maintaining adequate records of the activity undertaken by PSF personnel. Where the tactical situation allows, PSF should assist in cordoning off the crime scene to prevent contamination. Any investigative support undertaken by PSF personnel should be recorded in a report giving details of personnel involved, date, time and the actions taken, and then forwarded to prosecution authorities. In the reports, personal identities of PSF personnel may be safeguarded by using military serial numbers, ranks and initials, in particular where such personnel come from nations where diaspora from the conflict area have established criminal connections with nationals of the theater of operations. However, these personnel may be requested to attend trials as witnesses and therefore should be traceable. For trial, procedural witness protection measures may be applied where the law provides for it, and advisers should explore all options with national prosecuting authorities. There may be opportunities for witnesses to testify prior to trial or departing the theater at the end of the mission, depending on the national criminal procedure— whether before an investigating judge or at an extraordinary hearing to secure evidence.34 Also, PSF personnel with particular expertise may assist in the crime scene examination in coordination with national law enforcement officers and then provide expert witness testimony. 35 Explosive ordnance disposal, weapons experts and medical doctors are often called on to testify in support of criminal prosecutions.

34 For example, see Article 238, “Extra-ordinary Investigative Opportunity,” Kosovo Criminal Procedure Code (UNMIK Regulation 2003/26, July 6, 2003), Article 223, “Preservation of Evidence by the Court,” Criminal Procedure Code of Bosnia and Herzegovina (2003), and Rome Statute Article 56, “Role of the Pre-Trial Chamber in Relation to a Unique Investigative Opportunity,” supra note 5. 35 In May 2002, in Kosovo, Roland Bartetzko, a German national who fought with the Kosovo Liberation Army during the 1999 armed conflict was convicted of murder, attempted murder and terrorism for detonating a vehicle packed with explosives using an urban command wire in the center of Pristina, Kosovo. The critical evidence was a partial fingerprint found on the detonation device. The scene of crime was secured by UNMIK Police and assisted by British military personnel of KFOR. Also, a British Army Royal Engineer Corps explosives expert provided expert testimony on explosives effects, the level of sophistication and training required to undertake the preparations and execution of the attack. KFOR personnel have also given evidence during other trials through video-link or by personal attendance.

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G. PSF PARTICIPATION IN SEARCHES AND ARRESTS— COORDINATION ARRANGEMENTS Law-enforcement-type activity may have to be conducted in support of the national authorities in order to remain within the mandate and operation plans for the PSO. In longer term PSOs, such as in Bosnia and Herzegovina and Kosovo, arrangements have been made to coordinate military operations with national police forces and prosecutors, including conducting joint operations with police officers or judicial police. This is essential especially where PSF conduct search and arrest operations. Cooperation arrangements help to ensure that any assistance or support provided by PSF results in admissible evidence, because PSF personnel may not be persons authorized under the relevant national criminal procedure law to conduct investigative actions.36 Where PSF are to participate in searches and arrests, they should not rely on warrants without checking that they have not expired or have been superseded by a subsequent order or procedure. They should be confirmed with the issuing authority before operations are planned. To complicate matters, higher level courts can sometimes take over criminal proceedings after a warrant has been issued by a competent, yet lower-level court.37 Therefore, it is incumbent on advisers and planners to liaise effectively with all levels of the judiciary, the prosecution authorities and police, and for liaison officers to assess which is the appropriate authority in charge for issuing and execution of search or arrest orders. Again, this means that a good working knowledge of the national criminal procedure is essential and that advisers regularly track developments in judicial institutions and the laws that are passed. H. CONCLUSIONS The interdependencies between civilian elements and military forces in a complex peace operation will continue. Whether or not there is one organizational structure under the UN (or another international 36 Under some criminal procedure codes, the collection of evidence by persons not authorized under the code may result in exclusion of evidence on technical legal grounds, generally as a result of absolute prohibitions against such activity. For example, suspects can only be questioned by a prosecutor under Criminal Procedure Code of Bosnia and Herzegovina Article 78 (2003). 37 See Bosnia War Crimes Arrest Ends Tragically, International Relations and Security Network (Jan. 6, 2006), available at http://www.isn.ethz.ch/news/sw/details. cfm?id=14204; Bosnian Court Orders Release of War Crimes Suspect on a Technicality, JURIST, Feb. 2, 2006, available at http://jurist.law.pitt.edu/paperchase/2006/02/bosniancourt-orders-release-of-war.php (last visited Jan. 24, 2007); see also the effect of Criminal Procedure Code of Bosnia and Herzegovina, Article 449(3) (2003).

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organization or arrangement), or whether there is just a loose set of key contributors to a mission, progress or failure in any area will have significant impact on the roles, asks, structure and resources of every other contributor. The need therefore to improve and make more effective relations between the military and civilian members of a peace operation, as well as between the many diverse civilian organizations themselves, will continue to be a major challenge of the 21st century.38 The central theme of this chapter has been how PSF may coordinate and cooperate with national and international authorities, in particular with institutions dealing with criminal justice. It is merely one task entrusted to PSOs but one that is closest to ensuring that developing governments can operate in a secure environment, without which exit strategies are complicated. Therefore, throughout each phase of a PSO, advisers should seek to develop partnerships that generate mutual confidence and ultimately produce lasting competencies and capacity.

38 The Challenges Project, Challenges of Peace Operations: Into the 21st Century—Concluding Report 1997–2002, 154 (2002), at http://www.peacechallenges.net.

PART III

LAW ENFORCEMENT AND FORCE PROTECTION BY PSO FORCES: PRACTICAL TOOLS

CHAPTER 7 THE MAINTENANCE OF LAW AND ORDER IN THE AFTERMATH OF INTERNATIONAL ARMED CONFLICT— LESSONS LEARNED FROM IRAQ Nicholas J. Mercer*

A. INTRODUCTION The authority of the legitimate power having in fact passed into the hands of the Occupant, the latter shall take all measures in his power to restore and ensure, public order and safety while respecting, unless absolutely prevented, the laws in force in the country.1 In the days following the victory of 9th April (2003) no one, it seems to me, was instructed to put the security of Iraq first to put law and order on the streets first. There was no police force. There was no constituted army except the victorious invaders. And there was no American general that I could . . . establish who was given the accountable responsibility to make sure that the first duty of any government—and we were the government—was to keep law and order on the streets. There was a vacuum.2 The two quotations above juxtapose the situation in post-war Iraq. On the one hand, there were the duties imposed on an occupying power under international law. On the other, there was the reality on the ground. The author was the Command Legal Adviser for HQ 1st (UK) Armored Division during the * Lt. Col. N. J. Mercer UKA, Commander Legal HQ 1st (UK) Armored Division for OP TELIC 1, Jan.–July 2003. The views expressed in this article are the views of the author solely for the purposes of this publication and do not necessarily represent the views of the UK Ministry of Defense or any other UK government department. 1 1907 Hague Convention IV art. 43, available at http://www.genevaconventions.org/. 2 Sir Jeremy Greenstock—former British ambassador to the United Nations and first British envoy to Iraq after the Iraq war. See Andrew Pierce & Thomas Harding, Top Aide’s Damning Attack on Blair’s Iraq War, DAILY TELEGRAPH, Feb. 22, 2007, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/02/22/niraq22.xml. 123

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Iraq War and found the situation in Iraq exactly as the British envoy described. There was a vacuum. The purpose of this chapter is to describe the lessons learned from that experience by describing and illustrating, within the context of the Iraq War 2003, the practical task of law enforcement and the maintenance of law and order in the aftermath of an international armed conflict. At first sight, readers might ask themselves why the maintenance of law and order in the aftermath of an international armed conflict is relevant in a book on peace support operations (PSOs). This is a fair point but, whereas OP TELIC3 started as an international armed conflict in March 2003, the occupation subsequently became enmeshed with a PSO.4 At the same time, there are similarities between the two situations, as an army of occupation or a force mandated to undertake peace support can both find themselves dealing with the maintenance of law and order in a post-conflict situation. Issues dealt with in this chapter are the planning of an operation, the training of the troops to be deployed, the treatment and selection of prisoners, nation-building, the financial implications of a PSO. It is hoped that this chapter will assist those who may find themselves in the situation again—whatever the road to deployment. B. PLANNING—TIME As with all military operations, there is the problem of time—usually the lack of it. The planning for the invasion of Iraq, at the tactical level, began in November 2002 for the so-called “Northern Option,” whereby UK forces would simply sit on the Turkey/Iraq border fixing Iraqi forces to the north while the Americans invaded from the south. Planning for the “Northern Option” began in earnest and continued until Christmas 2003 (including an exercise) when, just before Christmas itself, the plan changed. UK forces were now going to invade from the south with the US allies. However, there was another problem. If HQ 1st (UK) Armored Division were to remain at work over Christmas, this would be a “combat indicator” not least for the general public in the United Kingdom. UK forces were therefore instructed to go on leave over Christmas and to return on January 4, 2003. Thereafter, there was something akin to ground rush. The first Brigade Conference was held on January 6, 2003. Five days later, the Headquarters was in Kuwait. At the beginning of February (by which time all the Headquarters had been deployed into the Kuwaiti desert) the forces led by the author were advised to be ready for the invasion of Iraq by March 1, 2003. The time scales speak for themselves and were so minimal, and progressed so quickly, that there was hardly sufficient time to plan for the war itself, never mind its aftermath. However, this raises a very important practi3

Known in the United States as Operation “Enduring Freedom.” As a result of SC Resolution 1483 (May 22, 2003), “noting further that States that are not Occupying Powers are working now or in the future may work under the Authority.” 4

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cal point—planning for Phase IV of an operation always takes second place to the main effort of the war fighting phase (and exercises often follow suit with many exercises ending after the fighting has been completed). In fact the planning/exercise should just be beginning at this point. It is self-evident that whereas the war fighting lasted a few weeks, the occupation and aftermath of the war has lasted nearly four years at the time of the writing of this chapter. C. TRAINING/USE OF FORCE Training soldiers for combat operations is always a difficult task and, again, time plays a crucial role in effective training. However, although training for combat operations is never easy, if to this we add the problem of training soldiers for an occupation/PSO, which will follow, then the difficulties get even harder. In the first instance, training for such eventualities can only be properly undertaken prior to deployment. This was a luxury on OP TELIC that the participants did not enjoy. Secondly, soldiers were understandably confused, in the aftermath of the war fighting, as to their legal rights and obligations in an occupation/PSO. The most obvious manifestation of this confusion was over the use of force. Although it was relatively straightforward to instruct soldiers to seek out and destroy the enemy,5 in the aftermath of the war, the soldier was required to act both as combatant and policeman (in maintaining law and order— “public order and safety”).6 The Law of Armed Conflict (LOAC) continues to apply in occupation7 and, under LOAC, combatants can be engaged and killed at will (unless hors de combat). Under UK domestic law however (which applied to policing duties in occupation/PSO) a soldier could only use reasonable force in self-defense or the prevention of a crime under Section 3 of The Criminal Law Act 1967. On a routine patrol therefore, the soldier might come across armed resistance in the form of either combatants and/or armed robbers. In one scenario, the armed resistance could come from combatants who, legally, could be engaged under LOAC (“seek out and destroy”). On the other hand, they could be armed robbers where the soldier is only entitled to use minimum force in the prevention of a crime under his domestic law. How is the soldier to know? Similarly, the soldier could also be tasked on the same day, first to carry out action against enemy combatants (who he could lawfully destroy) while, later on in the same day, be on policing duties where he had to act under UK domestic law. How shall soldiers be trained for such a situation and be expected to be 5 1949 Geneva Convention III art. 4, available at http://www.genevaconventions.org/. This sets out the principal list of combatants that includes members of the armed forces, resistance movements, militias and other volunteer corps, levee en masse. 6 See supra note 1. 7 1949 Geneva Convention IV art 6 and 1977 Geneva Protocol I art. 3, available at http://www.genevaconventions.org/.

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so adept at recognizing the difficult legal regimes that might apply? Can it really be expected from an infantry soldier who is trained, primarily to close with and kill the enemy, to act with such finesse? It is a very tall order indeed. Furthermore, during OP TELIC, a large proportion of combatants were in civilian clothing. Added to the above is the lack of legal clarity on loss of protected status on the battlefield for civilians who take a “direct part in hostilities” (which continues to divide the international legal community). Whereas the legal debate is all very well, it does nothing to provide certainty for soldiers on the battlefield who need to make split second decisions.8 The legal lesson in all of this is to ensure first that soldiers are trained for such a situation. Second, and most importantly, as soon as practicable after the end of war fighting operations, a self-defense posture should be adopted (although there will always be a period of overlap). Although this provides less flexibility to the commander (in terms of use of force) it does, at least, provide clarity for the soldiers on the ground and keeps them on the right side of law. If more robust use of force is required for a particular mission, then it can be authorized specifically for that task and cleared at the appropriate level. At the same time, if a self-defense posture is adopted, those nations that are mandated to assist the authority could do so in conjunction with the occupiers acting under the same rules of engagement (ROE). In the case of OP TELIC, this was only achieved in July 2003 when NATO MC 3629 was adopted and when HQ 3rd Division arrived in the theatre of operations for OP TELIC 2. D. PRISONERS The handling and treatment of prisoners is common to all military operations, be they international armed conflict, PSOs, or a combination thereof. Under the LOAC, the issue of prisoners is relatively straightforward and all soldiers are trained in the handling of prisoners of war (PWs). Indeed, this is usually a major part of LOAC training. However, in the first instance, for the reasons set out above, the fact that many combatants were not in uniform meant that at least half of the PWs captured by the United Kingdom during the Iraq War were in civilian clothing and therefore their status was unclear.10 The difficulty with this issue, in the transition from combat to PSO, is the process by which the doubts about status are resolved. This issue is generally well understood (academically) by lawyers who will immediately advise that, where there is a doubt 8 1977 Geneva Protocol I art. 51(3). The phrase “direct part in hostilities” continues to be a point for international legal debate. 9 MC 362 is the compendium of ROE used by NATO nations on operations. See http://www.natoorg.com. 10 The United Kingdom captured approximately 3,000 PWs of whom 1,300 were in civilian clothing.

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as to status, it is to be determined by a “competent tribunal” (“Article 5” tribunals).11 This sounds very straightforward, until someone is confronted by a PW camp, whose population consists of approximately 3,000 prisoners, of whom nearly 50 percent are in civilian clothing and claim to be “civilians.” In the case of the United Kindgdom (and likely to be symptomatic of all nations involved in such military operations) this meant approximately 1,300 prisoners who required Article 5 tribunals while transiting from combat to occupation/peace support. Not only is this very manpower intensive, but also the practical difficulties rendered the entire process almost unworkable. The precise difficulties encountered in attempting to conduct Article 5 tribunals are outside the scope of this chapter, but, while PWs were still being taken under the LOAC (and attempts made to determine their status), UK forces (as the occupying power) were now detaining criminals (detainees)12 as well as those threatening force security (internees).13 In a very short space of time, the following categories of prisoners were being held, namely: PWs; detainees; internees and voluntary detainees.14 Whereas the PWs required Article 5 tribunals to determine status, the other categories of prisoners all required legal and administrative oversight of a different kind. Although there is no blueprint for the treatment of detainees, by virtue of the Geneva Conventions,15 they cannot be kept with PWs (who are prisoners of war and not common criminals). However, no separate facilities had been made available for the detainees, so the PW camp was divided to create a separate holding area for detainees. In addition, legal oversight of each detainee had to be exercised so that each case was reviewed within 48 hours of detention and then 28 days thereafter. Furthermore, each detainee was provided with legal advice within 48 hours, and representations were made about their detention where appropriate.16 This was conducted by a legal staff of between three and five individuals whose administrative burden also included the Article 5 tribunals that were running concurrently. However, their workload did not end there. In the case of internees, the requirements for their internment and treatment are laid down in the Geneva Conventions of 194917 but, again, no 11

1949 Geneva Convention III art. 5, available at http://www.genevaconventions.

org/. 12

See supra note 1. The legal authority to detain criminals stems from the obligation to restore “public order and safety” (law and order). 13 1949 Geneva Convention IV art. 78, available at http://www.genevaconventions. org/. 14 1949 Geneva Convention IV art. 42, available at http://www.genevaconventions.org/. These concepts will be explained next. 15 1949 Geneva Convention IV art. 84, available at http://www.genevaconventions. org/. 16 Based, in part, on model Detainee and Internee Management Unit (DIMU) for the International Force for East Timor (INTERFET). 17 1949 Geneva Convention IV Section IV—Regulations for the treatment of internees, available at http://www.genevaconventions.org/.

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separate facility had been created for their internment and so, yet another, separate holding area, this time for internees, was created in the PW facility. Again, they too required legal oversight, and each case was reviewed within 28 days of internment.18 The final category of “prisoners” (which took us by surprise) was the category known as “voluntary detainees.”19 Perhaps not unsurprisingly, in the aftermath of a conflict there were some who sought the protection of the occupying power and another category of “prisoners” was added to the equation. The volume and categories of prisoners must not be underestimated both in planning and execution of international armed conflict and the occupation that will usually follow. The manpower and materiel required is substantial and cannot be underestimated. It is a sizeable bill. Furthermore, training soldiers for the complexities involved is also vital. Whereas combat soldiers can simply be instructed to put all prisoners in the PW evacuation chain, it is a tall order to ask the clerks and provost staff who record and register arrivals at the PW camp to understand the various differences between prisoners. It is equally difficult for the staff at the PW camp charged with day-to-day administration. Inevitably, prisoners were incorrectly identified and placed in the wrong compound or transferred by staff at the PW camp who were oblivious to the legal distinctions. The prisoner then had to be identified, extracted and then placed in the correct compound. It was extremely easy to lose track of a prisoner, but the legal consequences of a “missing” prisoner are all too obvious. At the same time, the “rolling” occupation meant that the Provost (and legal officers) were very soon dealing with a highly complex situation in relation to Article 5 tribunals and the rights and obligations that accompany detainees and internees. In effect, three different types of legal review were running concurrently. Accountability was quite rightly expected but extremely difficult in practice. Even a mistake in counting can lead to allegations of the most serious kind. It goes without saying that only the highest legal standards are acceptable when it comes to dealing with prisoners, but the complex issue of prisoners should not be underestimated. As far as lessons learned are concerned, training is again at the heart of effective practice, as well as proper planning well in advance of the conflict. In addition, a proper understanding of the various categories of prisoners is required as well as an effective and reliable system of registration. A separate legal team purely for the benefit of the PW/internment facility should also be a priority. Finally, adequate manpower and resources are vital if legal obligations are to be met.

18

1949 Geneva Convention IVart. 43, available at http://www.genevaconventions.

19

Supra note 15.

org/.

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NATION-BUILDING—PRACTICAL DIFFICULTIES

Along with the other previously mentioned activities in the aftermath of an international armed conflict, there is also the now familiar task of nationbuilding to consider. Article 43 of the 1907 Hague Convention20 refers to the obligation “to restore and ensure public order and safety.”21 It goes without saying that restoring and ensuring law and order is a potentially sizeable task common to both occupation and PSOs. However, approaching the task of law and order from the standpoint of an international armed conflict brings further complications at the outset. In the first instance, it is very difficult to predict what the situation in a country will be after invasion. If the infrastructure and the public bodies are largely intact, then the legal obligations upon the occupying power are reduced considerably. There is obviously no legal obligation to restore law and order, if the authorities have the matter under control. On the other hand, if the state has largely imploded, then the obligations and resources required will be enormous. Secondly, whereas with a mandated PSO there is some notion as to the state of the country in advance, in the aftermath of an international armed conflict, it is anyone’s guess—a task made even harder, in the case of Iraq, by the fact that so little was known about the country itself in advance. Thirdly, the force composition required for restoring law and order can be entirely different from the force required for occupation/PSO. Whereas armor and dismounted infantry are invaluable in war fighting, other troops, particularly military police, engineers and civil affairs specialists are invaluable for law and order. There needs to be the ability to change the force ratios with speed and alacrity, but this is not easy in these days of light expeditionary forces. Added to the above, is the fact that occupation (and with it the duty to restore law and order) can begin on the first day of a war itself if territory is captured from the outset. Someone may be conducting both war fighting and law and order tasks concurrently. Occupation of territory can also be reversed. In the case of Iraq, the situation was far worse than anticipated. The state, which was largely run by senior Ba’athists, broke down. The government was overthrown and the various ministries ceased to function. At a local level (in Basra and Al Amarah) the police, prisons, courts and judges had ceased to function. As seen on television, there was public disorder of epidemic proportions. As the British envoy said: “there was a vacuum.” The task facing the occupying powers (and those assisting the Authority) was enormous and, for those planning the invasion, unforeseeable. Just how do you plan for such eventual-

20

Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: The Hague (Oct. 18 1907). 21 In French this translates as “l’ordre et la vie publique,” which is considerably wider than just law and order.

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ities? For those planning such operations, the worse case scenario can have enormous planning implications. In the light of this situation the options facing the occupying power were twofold: either it could set up its own system of law and order22 or it could seek to restore the existing system. As it happened, the first option was neither feasible (as a matter of resources), or politically acceptable. The only option was to try and restore the existing system of law and order. However, it should not be forgotten that establishing and maintaining law and order can be undertaken by the occupiers alone should circumstances and resources permit. Whatever route is chosen, the simple fact is that the restoration of law and order cannot be piecemeal. It is no good having police without courts or, indeed, jails without police. If justice is to run its course, it cannot simply begin and end with arrest. It must be able to run the full course. In other words, the system for restoring law and order has to be established together in all its component parts. It has to work together at the same time. If one part of the jigsaw puzzle is missing, the system will not work. Having come to this realization, HQ 1st (UK) Armored Division devised its own strategy for restoring law and order, which envisaged law and order as consisting of five strands, namely: constitutional framework; police; courts (including lawyers and judges); prisons; international oversight. The task was to restore all five elements together and to reestablish a functioning system of law and order as soon as possible. 1. Constitutional/Legal Framework This constitutional framework is fundamental to the reestablishment of law and order. Without an understanding thereof, it is impossible to know what work is to be done in providing the basis for law and order in an occupied country. Just as importantly, it is impossible to know whether work undertaken (with scarce resources) is relevant or a duplication and therefore a waste of effort. This issue in Iraq was never satisfactorily resolved not least because it is very difficult to gauge the constitutional position after a regime has been toppled. Did any of the state apparatus still function and, if so, to what degree? When tanks had just rolled into Baghdad, the country was in chaos. Furthermore, the geographical distance made the question still harder. To what extent do those in Basra know about what is happening in Baghdad? At the same time, this fundamental difficulty was compounded by the Office for Reconstruction and Humanitarian Assistance (ORHA),23 which, notionally, assumed responsibility, inter alia, for the Ministry of Justice on its arrival in Baghdad. ORHA’s 22

Supra note 1. Later the Coalition Provisional Authority (CPA); see SC Resolution 1483 (May 22, 2003), which refers to “the Authority.” 23

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contribution to the Ministry of Justice consisted, initially, of just two civil servants in Baghdad. However, the proper functioning of the Justice Ministry was vital for the future maintenance of law and order including fundamental matters such as budgets, appointments, trials, appeals, pay, etc. However, the initial administration was too embryonic to provide anything but very general guidance and was of no practical assistance whatsoever. This meant that, in the south of Iraq, HQ 1st (UK) Armored Division was, for some time, without constructive guidance of any kind. As a result, it simply took its own initiatives.24 There were other added complications. As well as the lack of a functioning infrastructure (as far as law and order was concerned) there were other fundamental difficulties in determining the constitutional framework. The LOAC requires the occupying power to respect the laws in force in the country unless prevented from doing so.25 The existing law cannot be discarded unless incompatible with the Geneva Conventions or international law. However, this begs the fundamental question as to what is the law to begin with. The occupying forces did not know anything about Iraqi law never mind have the ability to obtain an English translation.26 This should have been undertaken well in advance of the occupation and, without the assistance of an American civil Affairs battalion, this would have been an impossible task. This, however, leads to the next problem, which is the amendment of the national laws where they are incompatible with the Geneva Conventions of 1949. In the Iraqi criminal code there were numerous offenses relating to the Ba’ath Party and the inevitable death penalty for such crimes, as well as many others. For the United Kingdom, the death penalty was incompatible with obligations under international law27 and so had to be abolished.28 At the same time, political crimes, although not in direct contravention of UK obligations under the Geneva Conventions or international law, were untenable. Also of note was the defense to assault under Iraqi law when it came to beating your wife. This too had to be removed. The constitutional framework in which the reconstruction and maintenance of law and order is to take place is fundamental to the entire enterprise of maintaining law and order. However, in the immediate aftermath of an international armed conflict, it is highly unlikely that there will be any effective administration at all. What may still exist could be unknown, and the ability to understand a legal system alien and remote from one’s own just adds to the 24

For instance, there was no telephone link between ORHA in Baghdad and Basra never mind a link of any kind to Divisional Headquarters at Basra International airport. 25 Supra note 1: “while respecting, unless absolutely prevented, the laws in force in the country.” 26 For instance, an English translation of the Iraqi criminal code was not made available until after the ground war had begun. 27 ECHR Sixth Protocol, available at http://www.echr.coe.int/NR/rdonlyres/ D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf. 28 Although not incompatible with the Geneva Conventions per se.

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problem. Nevertheless, this is the starting point for maintaining law and order. Those involved in future planning should attempt to obtain such information well in advance of military operations. In the case of Iraq, such information was often available from exiles and academics29 with the relevant expertise. At the same time, a copy of the criminal code (at least) is fundamental to the entire undertaking. 2. Police Once the constitutional framework is ascertained, the essential elements have to be put in place. The first, and most obvious, is the police, which is crucial if law and order is to be swiftly restored. The epidemic of looting that the world witnessed across Iraq could have been prevented, at least in part, if there had been an effective police force in place in the immediate aftermath of the war fighting. However, once Basra had fallen to UK forces, it was soon discovered that the police force in southern Iraq had almost completely disintegrated. Out of a police force of approximately 8,000, 70 percent had gone home and disposed of their uniforms, and 70 percent of the police stations had been destroyed or looted. In addition to personnel and police stations, there was also the problem of equipment. For an occupied territory not dissimilar in size to England,30 there were just 11 police cars and two motorcycles. Basic items such as computers, telephones, batons and cuffs did not exist and had to be procured along with vehicles. Of those police that remained, the reality was that their standards of policing were in no way adequate to meet international requirements. They were poorly led, paid, motivated and rife with corruption. Only police officers had had formal training, and the rank and file had simply learned their trade on the job. As can be guessed from the above, the task of restoring the police was sizeable. All the police stations had to be restored and police recruited, equipped and trained. In any event, within ten weeks, a new police force was recruited, trained, equipped and paid (in the UK Army Order) under the auspices of the Provost Marshall.31 Five thousand police officers (old and new) were registered and returned to work, and 20,000 new uniforms were ordered and issued. Weapons were also procured (often by amnesty) but sometimes with cash alone.

29 I was particularly grateful to Dr Charles Tripp, SOAS London University for his assistance and recommendation of S.H. Amin’s book The Legal System of Iraq 1987, ISBN 0946706328. 30 The UK Occupied the Provinces of Basra, Maysan, Al Mutanah and Di Qar 31 Col. E.O. Forster—Knight O.B.E. In ten weeks, 40 police stations had been restored and reopened, and 5,000 police had been registered and had returned to work— fully equipped.

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The bill for equipment and procurement was substantial, and the sheer size of the task should not be underestimated. However, making up numbers and equipment is not enough, as police require substantial investment in their training at the same time. To address this problem, low-level training was introduced and conducted in the police stations, and a regional police training academy was scoped out with a capacity for 300 students at a time. The projected total cost was in the region of $1 million and was sufficient for only a small proportion of the police officers required for the four provinces of Basra, Maysan, Al Muthana and Di Qar. At the same time, as the restoration of the police, HQ 1st (UK) Armored Division was acutely aware of the need for proper oversight of the police. The initial dilemma had been whether to vet and train the police prior to their reinstatement. However, the fundamental problem with this option was that it would simply have taken too long to reinstate the police. On the other hand, failure to do so meant infiltration and factionalism within the police, the results of which are still being felt today. It was a chicken and egg situation. The need for oversight also meant that, ideally, international assistance was required such as an International Police Task Force (IPTF). Despite some well-intentioned visits however, again the reality is that international oversight will not be forthcoming in the timeframe required. Governments move incredibly slowly when faced with such requests, and much work will be conducted in the identified vacuum. However, without proper oversight, credibility and accountability are very quickly lost and law and order, once again, begins to disintegrate. The first lesson, as far the police are concerned, is that substantial police assets are required in the immediate aftermath of an international armed conflict. Policing can be undertaken by the occupying power, but it should not be forgotten that, at the same time as maintaining law and order, combat operations may well be continuing. Even if military police are available, they may be involved in other mission essential tasks. Alternatively, the occupying power/peace supporter may look to the police force of the occupied territories. However, even if it is intact, it will probably not meet international standards. If there has been either a partial or complete disintegration of the police then those responsible for maintaining law and order will be obliged to find police and resources on a substantial scale or rely on combat troops alone or as a supplement. Thereafter, the physical reconstruction and equipping of the police will also take up considerable time and resources. It is a potentially enormous task. 3. Courts/Judiciary As with the police stations, HQ 1st (UK) Armored Division found that all the courts had been looted and, in most cases, burned out and destroyed. The task of restoring the courts is simply not sufficient in itself because, although the physical infrastructure might be in place, courts need judges, lawyers, clerks,

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administration, equipment and so on. At the same time, from a constitutional perspective, the hierarchy and composition of the courts needed to be understood. What is the structure of the courts? What and where were the appellate courts? Was there a Supreme Court? Which judges (and how many) sat in individual courts? All these issues had to be addressed at the same time. Finally, even if all the court apparatus was identified and restored, who was going to represent individuals before the court and, just as importantly, who was going to pay them for their representation? The other difficulty was manpower. Whereas, the military police and Provost departments were the obvious choice to oversee the police and prison reconstruction, in the case of the courts and judiciary, the only choice was military lawyers. However, military lawyers are never to be found in abundance, and so a very small department can find itself taking on an enormous responsibility for which it is neither equipped nor manned32 (at the same time, military lawyers were overseeing the problem of prisoners, which was a full time task in itself). This needs serious consideration if nation-building is to be contemplated and needs to be addressed in advance of deployment. As with the police, enormous efforts were put into court and judicial reconstruction. As far as the physical infrastructure was concerned, all the courts were identified and, where possible, restored within ten weeks. This amounted to no less than 17 restoration projects all initiated and overseen by just three legal officers. Where restoration was not possible, then alternative arrangements for another suitable courthouse were made through the requisition of state buildings.33 At the same time, all the judges were identified (as were the lawyers), and regular meetings were arranged to ensure that they were fully appraised of the restoration and to make them accountable for their own courthouses. Furthermore, equipment was organized, and arrangements were made for the payment of the judges and their clerical staff as well as legal aid payments for the lawyers.34 As far as the “black letter” law was concerned, as mentioned before, the Iraqi criminal code was amended and then promulgated so that all concerned were aware of the amendments to the law.35 32 The Legal Branch for HQ 1st (UK) Armored Division consisted of just six lawyers of whom just four at most were assigned to this task. I must express my belated thanks to Lt. Col. David Frend, Maj. David Christie, Maj. Callum Cowx, Maj. Helen Bowman and Maj. Chris Heron for their assistance with the task of reconstruction. 33 1907 Hague Convention IV art. 53. For instance, the former Ba’athist mayor’s house in Basra was requisitioned and converted into an appeal court and administrative headquarters for senior judges. 34 In ten weeks, 17 courthouses had been restored and reopened, and judges, lawyers and court staff had returned to work and were being paid. At the same time, the Iraqi criminal code was amended and provisions were put in place for juveniles, court enforcement and land registration. 35 1949 Geneva Convention IV art. 65. Promulgation was effected through broadcast on the radio, newspaper and publication in each individual courthouse.

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However, the restoration of the courts was not as simple as restoring just the criminal courts. Juvenile crime was also a problem, so the juvenile judges had to be accommodated and integrated into the judicial process. Almost as soon as the occupation began, disputes arose over the title to land, and the senior land registrar and deputy land registrar had to be identified and they too had to be provided with a land registry,36 In fact the list became endless—customs and excise courts, civil courts, family courts, court enforcers, court writers were just some of the other organs of the judicial system that were also identified but were still being addressed as the occupying forces left theater. Finally, as with the police, there was an aspiration for international oversight of the judicial process, but the aspiration was just that. A large number of jurists came and inspected the work that was being undertaken by HQ 1st (UK) Armored Division. Much was promised, but little was delivered in time; those planning such operations should always bear in mind that the international community moves very slowly, and nations should always be prepared to undertake tasks single-handedly. 4. Prisons As might be expected by what has been described above, a similar story unfolded with regard to the prisons. At the end of active hostilities two prison facilities were identified in Basra city. The main jail was destroyed beyond repair,37 and a smaller facility in the Al Maqal district of Basra was also in a shocking state. As well as the state of the buildings themselves, there was no prison equipment, 70 percent of the prison staff had disposed of their uniforms and of those staff who remained only the prison officers had received any training and the others, like the police had learned on the job. Even if the prisons had not been destroyed, they had suffered from years of underfunding and neglect and fell far short of anything approaching Western standards. The situation in the prisons was also compounded by the fact that many of the most violent criminals had been released as a result of a presidential decree in 2002, and many of the prisoners who had been released had since been recaptured by the occupying power as detainees and were being held in the PW camp (now the Theater Internment Facility (TIF)). However, as already mentioned, common criminals are not supposed to be held with PWs,38 and so there was addi-

36

The Land Registry was given a section of the House of Justice in Basra. Unexpectedly, the Iraqis had a comprehensive system of land registration as a legacy from the Ottoman Empire. 37 Al Siniayah (originally built by the British in 1920s) had a capacity for 1,500 prisoners. 38 Supra note 15.

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tional pressure on the occupying power to hand them over to the Iraqi authorities (who would then put them in a jail—restored by the occupying power!). Again, prisons were however quickly restored and available for use. Within four weeks, Al Maqil prison had reopened and was approved by the International Committee of the Red Cross (ICRC).39 Immediately after it was opened, all the detainees held in the TIF were transferred and their files handed over to an Iraqi judge who then assumed responsibility for their custody. The occupying power was then able to reduce a considerable administrative burden (for which they were ill equipped and prepared in any event). As might be expected, a prison guard and administrative staff were appointed and trained, and a prison board was established to oversee treatment of prisoners. Within ten weeks, the As Sinaiyah prison project was under way with a funding bid of $1 million in place. At last all the elements for law and order had been put in place. 5. International Oversight The aspiration was to have international oversight of the entire criminal justice system. This was to ensure that the United Kingdom met the highest standards under international law. However, this required international cooperation and, whereas nations such as Denmark were very quick to make contact and send observers, international oversight did not materialize as quickly as one would have liked. Although there was an element of institutional oversight (the judiciary, for instance, claimed that they still had their own professional code of conduct), this was not sufficient and, even if it were perfectly capable of regulating itself, clearly international oversight would have been preferable. However, delay is likely to be inevitable in such a situation given the need to scope out the issue and then all the staff work that follows before such decisions are made. Immediate international oversight should not be anticipated. In simple terms, you are on your own. F.

FINANCE

Any reader is bound to ask where did the all the financing for the restoration come from? The need to restore law and order is of paramount importance. Not only is there an obligation under international law for law and order to be restored, but without law and order, nothing else is possible. It is fundamental. During OP TELIC, the UK government provided £10 million to the in-theater military commander, and money could be obtained in theater by what were 39 As with the police and courts, the jails were largely destroyed and looted. In ten weeks, a facility at Al Maqal was opened with a capacity for 300 prisoners with a trained and equipped guard force and administration.

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termed “Quick Impact Projects” (QIPs). This allowed authorized officers and senior noncommissioned officers to obtain $50,000 for any given project so long as an acceptable justification was provided. Usually such funds could be obtained in under 24 hours if required and allowed urgent projects to be completed with the due haste that they required. As a result, HQ 1st (UK) Armored Division restored a fledgling system of law and order within six weeks of coming into occupation of southern Iraq, and this was built on incrementally by both HQ 1st (UK) Armored Division, and HQ 3rd Division, which followed. It also allowed other contributing nations to assist more readily when finance was so quickly available. However, unless finances are plentiful and readily available, the speed and versatility required to effect the restoration of law and order will not be possible. If you bind the provision of finance in red tape, you will simply not achieve your objectives. G. CONCLUSIONS The problems in establishing and maintaining law and order in the aftermath of an international armed conflict (and whatever materializes thereafter) should not be underestimated. Modern armies are configured for light expeditionary warfare and do not have the right force composition for both war fighting and the restoration of law and order that follows and all that is entailed therein. Furthermore, training combat soldiers for both combat and law and order takes exceptional skill by the soldiers to operate under two different regimes either simultaneously or sequentially. The guidance required by their superior officers is considerable, and such guidance must be easily understood to avoid confusion and protect the soldiers from litigation. Although much can be done in advance, the difficulty of effective planning is compounded by the fact that the effect and the duration of the war itself is impossible to predict. In addition, although outside assistance may be anticipated or desired, the occupying army must be prepared to go it alone. Assistance may not materialize and, even though help is promised, governments and their various departments are invariably unable to provide rapid assistance. Help will probably materialize long after your mission is over. Whatever the circumstances, without finance, nothing will happen. A large war chest is required. It is inevitable with a title such as this to ask if any lessons can or should be learned in the aftermath of the Iraq war in the current climate of bloodshed that dominates the headlines from Iraq. However, the situation was not always so pessimistic, and, as one prominent journalist remarked: “When I visited Basra three years (2004) ago it was a time of hope. “British rule” was clearly working and clearly welcome. Troops patrolled the streets in soft hats and visitors could roam free. Even public services were improving.”40 Whatever the 40 See Simon Jenkins, SUNDAY TIMES, Feb. 25, 2007, available at http://www. timesonline.co.uk.

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reasons for the current predicament, as can be seen from the quotation above, the aftermath of the Iraq war was seen as a time of success and, despite the initial vacuum, the efforts of the United Kingdom in the south of Iraq made an enormous contribution to the maintenance of law and order in the immediate aftermath of the war. Why the situation deteriorated will be a matter for historians. Whatever the verdict, the obligations on the belligerent power are not voluntary as resources and mood dictate. They are obligations under international law and should never be undertaken lightly.

CHAPTER 8 THE APPREHENSION OF INDICTED WAR CRIMINALS: LESSONS FROM THE FORMER YUGOSLAVIA Benjamin Perrin*

A. INTRODUCTION The tasks entrusted to peace support operations (PSOs) have increased in complexity and risk since the end of the Cold War. One of the most important and challenging of these new duties is securing the arrest, detention and transfer of indicted war criminals during times of armed conflict and occupation. Establishing an effective legal framework to govern this activity presents distinct challenges, and important lessons may be learned from the diverse efforts made to bring indicted war criminals to justice in the wake of the armed conflict in the former Yugoslavia. This chapter begins by identifying key aspects of this international law enforcement activity that makes it unique from the domestic context. The arrest, detention, surrender and transfer regime developed at the International Criminal Tribunal for the former Yugoslavia (ICTY) is then set out, and leading judicial decisions are considered. Finally, controversial means that have been used to apprehend indicted war criminals, including deceptive tactics and transnational abduction, will be critically examined. In the background of this discussion are two fundamental questions: (1) How far should peace support operations go to apprehend a person charged with war crimes? (2) How do we reconcile the international community’s interest in bringing indicted war criminals to justice with the rights of the accused and state sovereignty? B. LAW ENFORCEMENT CHALLENGES IN THE INTERNATIONAL CONTEXT The law governing the investigation and arrest of criminal suspects in the national context is generally premised on discrete criminal activities by an indi* Benjamin Perrin is assistant professor at the University of British Columbia, Faculty of Law in Vancouver. 139

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vidual accused or group of co-accused, committed within the territory of that state. International crimes, on the other hand, are committed on a vast scale, involving tens of thousands of victims, hundreds if not thousands of perpetrators and across an extensive territory, often over international borders. The operational and security implications of a conflict or occupation environment cannot be underestimated in contemplating strategies to apprehend indicted war criminals. Where indictments are made during or closely following an armed conflict, local authorities may not have full control over their territory and have a degraded or non-existent police force. Since individuals who are indicted as war criminals are those bearing the greatest responsibility for the most serious violations of international humanitarian law (IHL), they are likely to be influential, powerful and, in many cases, supported by highly motivated and heavily armed supporters. For example, Slobodan Milosevi´c was only arrested after a 36-hour armed standoff at his Belgrade villa that involved weapons fire.1 The International Criminal Court (ICC) has similarly found after issuing its first arrest warrants that securing arrests is the “most critical and difficult issue of the system” and that local authorities “often have difficulties executing arrest warrants.”2 While there is no standing international police force, international military forces are not a simple substitute for several reasons. First, soldiers are not traditionally trained to locate fugitives. A single individual is difficult to find in a large territory, especially where he or she has local support. The long-standing hunt for Osama bin Laden is just one such high-profile example. Second, since neutrality is important in traditional peacekeeping missions, there may be reticence to actively pursue suspected war criminals. In the 1990s, Pentagon officials conceded: “that NATO [North Atlantic Treaty Organization] commanders remained reluctant to become involved, fearing that arresting war crime suspects could imperil peacekeepers in the American-led NATO mission.” 3 Eventually, a compromise of passive support for apprehending war criminals was adopted by NATO, which took the position that “[t]he apprehension of war criminals is the responsibility of the civil authorities,” but it “authorised SFOR [the NATO-led Stablization Force] to detain and transfer to the ICTY persons indicted for war crimes when SFOR personnel come into contact with them while carrying out their duties” (emphasis added).4 The efficacy of this approach 1 BBC, 2001: Ex-Yugoslav Leader Arrested After Siege (Apr. 1, 2001), at news.bbc.co.uk/onthisday/hi/dates/stories/april/1/newsid_2464000/2464667.stm (last visited Jan. 27, 2007). 2 Katy Glassborow, ICC Prosecutors’ Performance Reviewed, 471 INSTITUTE FOR WAR AND PEACE REPORTING TRIBUNAL UPDATE (Oct. 6, 2006). 3 Philip Shenon, Mixed Signals Over Bosnia on Catching War Criminals, N.Y. T IMES, June 4, 1996, available at http://www.nytimes.com/specials/bosnia/context/0604nato-warcrimes.html (last visited Jan. 27, 2007). 4 NATO, War Crimes / War Criminals, in NATO HANDBOOK ch. 5, available at

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is obviously suspect, and it must be understood as a deliberate policy decision. However, where these international fugitives constituted an impediment to progress in a given locale, NATO proactively orchestrated military operations that resulted in the death or capture of such individuals.5 A third limitation on the ability of international military forces to arrest war criminals exists owing to the need to obtain state cooperation for many steps in the investigation, arrest, and transfer process. To ensure the admissibility of evidence (i.e., confessions, searches incident to detention and arrest, etc.), as well as the legality of the arrest and transfer, a high degree of cooperation may be required, taking into account domestic law, international law and perhaps even the laws of a third state. C. LEGAL FRAMEWORK FOR THE ARREST, DETENTION, SURRENDER AND TRANSFER OF SUSPECTS AND ACCUSED Overcoming these challenges is no easy task. However, if IHL is to be of any relevance in modern armed conflict, it must be addressed. Where a national or hybrid criminal tribunal is constituted within the state of a non-international armed conflict, and the accused is within the borders of that state, no particular legal difficulties arise. However, issues begin to surface as soon as an accused is physically located outside of the jurisdiction of the prosecuting court or tribunal. 1. Determining the Enforcement Authority of the Arrest Warrant The first step in setting out an apprehension regime is to clearly identify the authority under which the arrest warrant was issued and, thus, may be pursued. In the case of the ICTY, the tribunal was created under Chapter VII of the UN Charter, providing the most powerful legal basis for the enforcement of its arrest warrants. The Report of the UN Secretary-General on the creation of the tribunal stated that: “an order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations.”6 Therefore, state consent to an ICTY arrest warrant is not legally required. In contrast, a treaty-based court, such as the ICC, must look to the relevant treaty to define the obligations of states parties http://www.nato.int/docu/handbook/2001/hb05010409.htm (last visited Jan. 27, 2007) [hereinafter NATO HANDBOOK]. 5 F.M. Lorenz, War Criminals: Testing the Limits of Military Force, 15 JOINT FORCE QUARTERLY 59, 65 (1997), available at http://www.dtic.mil/doctrine/jel/jfq_pubs/ 1216pgs.pdf (last visited Jan. 27, 2007). 6 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, para. 126 (May 3, 1993).

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and the consequences of their non-compliance with the orders of the court. It is also foreseeable that an arrest warrant of the ICC could be backed up with a Chapter VII resolution by the UN Security Council (SC) to give it the supervening legal authority that the ICTY itself had in terms of enforcing its arrest warrants. Finally, for a national court or a hybrid court, applicable treaties will be the most direct means of securing an arrest and transfer of an accused. In the absence of such an agreement, customary IHL provides a basis to issue an arrest warrant and request its enforcement by a third state. The International Committee of the Red Cross (ICRC) has recognized that: “States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of suspects.”7 However, the ICRC commentary clarifies that: “there does not seem to be, in customary international law, an absolute obligation to cooperate, but rather an expectation that States should make efforts in good faith to do so, to the extent possible.” 8 Nevertheless, where a third state refuses to arrest and transfer an accused war criminal, international law requires that it must proceed with an investigation and prosecution itself.9 As difficult as these legal principles appear to make it to secure an absconding individual, it must be recalled that the popularity and influence of deposed political and military leaders tends to wane over time, particularly once they have been charged with an international crime. While their die-hard supporters may grow more resolved, these fugitives become international pariahs. At certain points, the international community has shown a willingness to come together to secure their arrest and transfer, as recently illustrated with former Liberian President Charles Taylor.10 2. Rules Governing the Arrest of Suspects and Accused at the ICTY We may now turn to a detailed review of the multifaceted adjudication and enforcement mechanisms applicable at the ICTY to arrest suspects and accused. The ICTY system governing the apprehension of indictees is grounded in its Statute, elaborated in the Rules of Procedure and Evidence adopted by the judges and further developed in concrete cases.

1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNAHUMANITARIAN LAW, 618 (2005). 8 Id. at 619. 9 Id. at 621. 10 BBC, Charles Taylor Caught in Nigeria, Mar. 29, 2006, available at http://news.bbc.co.uk/1/hi/world/africa/4856120.stm (last visited Oct. 6, 2006). 7

TIONAL

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a.

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Arrest, Detention and Questioning of Suspects

There are two types of individuals that a war crimes tribunal may wish to apprehend. First, a “suspect” is a person against whom the prosecutor has reliable information tending to show that that person may have committed a crime within the jurisdiction of the relevant court or tribunal. 11 The prosecutor has the power to question suspects, and such individuals have the right to legal assistance.12 The prosecutor may request a state, “in case of urgency,” to arrest a suspect, and the state is required to comply.13 During an investigation, the tribunal may order a suspect to be transferred and provisionally detained at the request of the prosecutor for an initial term of up to 30 days. This detention period can be renewed for up to 90 days unless an indictment is confirmed against the individual.14 The tribunal must ensure that the suspect’s rights are respected, including their right to remain silent.15 b. Sealed and Public Indictments An important strategic question for the prosecutor in every war crimes case is whether an indictment against an accused should be public or sealed. A sealed indictment carries with it the element of surprise, ideally preventing an accused from absconding. However, it also excludes a number of tools that may be used to locate an accused.16 The decision to seal an indictment is made by the issuing judge,17 but in practice the prosecutor’s preference generally prevails. The trial chamber has recognized that the prosecution “adopted this approach of requesting orders for non-disclosure due to the non-cooperation of some States in executing arrest warrants issued by the Tribunal.”18 In practice, sealed indict11

See International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and Evidence, IT/32/Rev. 37, r. 2(A) “suspect,” available at http://www. un.org/icty/legaldoc-e/basic/rpe/procedureindex.htm (last visited Jan. 27, 2007) [hereinafter ICTY Rules]. 12 Statute of the International Criminal Tribunal for the former Yugoslavia, adopted by SC Res. 827 (May 25, 1993) as amended, art. 18(2)–(3), available at http://www.un.org/icty/legaldoc-e/basic/statut/statute-feb06-e.pdf (last visited Jan. 27, 2007) [hereinafter ICTY Statute]. 13 ICTY Rules, supra note 11, r. 40(i). 14 Id., r. 40bis(A), (D). 15 Id., rr. 40bis(F), 42(iii). 16 With a public indictment, the prosecutor can request that the indictment be advertised in newspapers, and on radio and television, notifying the public of the indictment and calling on the accused to voluntarily surrender: id., r. 60. 17 Id., r. 53(B)–(C). 18 Prosecutor v. Slavko Dokmanovi´c et al., Case No. IT-93-13a-PT, Trial Chamber,

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ments have proven to be an effective tool in appropriate cases. For example, alleged members of the Kosovo Liberation Army, Haradin Bala, Isak Musliu and Agim Murtezil, were apprehended on February 17, 2003, while charged under a sealed indictment.19 c.

Execution of Arrest Warrants

Given that the ICTY does not have its own police force, it relies on others. Arrest warrants are transmitted to: (1) the relevant state authorities, which are then under an obligation to “act promptly and with all due diligence to ensure proper and effective execution”;20 or (2) “an appropriate authority or an international body or the Prosecutor.” 21 Several states have enacted legislation to facilitate the arrest and transfer of accused to the tribunal.22 Where a state fails to arrest an accused, it is to notify the tribunal of the reasons.23 If no report is made after a reasonable time, the Security Council may be informed of the failure.24 Where an arrest warrant is unexecuted, the trial chamber may issue an international arrest warrant for the accused to all states and issue an order to freeze the assets of the accused.25 Similar to the common law definition of arrest, the trial chamber has held that an arrest occurs “when, by physical restraint or conduct, or by words, an individual is made aware that he is not free to leave.”26 It is permitted, but not required, that a member of the Office of the Prosecutor (OTP) be present when the accused is actually arrested.27 The ICTY Rules of Procedure and Evidence guarantee mandatory human rights protections during the arrest and transfer process. At the time the accused is taken into custody, he must be informed Decision on the Motion for Release by the Accused Slavko Dokmanovi´c (Oct. 22, 1997), para. 53 [hereinafter Dokmanovi´c]. 19 US Department of State, Apprehension of ICTY Indictees in Kosovo and Slovenia (Feb. 19, 2003), at http://www.state.gov/r/pa/prs/ps/2003/17800.htm (last visited Oct. 5, 2006). 20 ICTY Rules, supra note 11, r. 56; see also ICTY Statute, supra note 12, art. 29(2)(d)–(e). 21 ICTY Rules, supra note 11, r. 59bis. 22 See, e.g., Decree with Force of Law on Extradition at the Request of the International Tribunal, R EPUBLIC OF B OSNIA-H ERZEGOVINA, PR No. 1786/95 (Apr. 6, 1995); Constitutional Act on the Cooperation of the Republic of Croatia with the International Criminal Tribunal, REPUBLIC OF CROATIA, (1996), available at http://www. un.org/icty/legaldoc-e/basic/cooperation/legisindex.htm (last visited Jan. 27, 2007). 23 ICTY Rules, supra note 11, r. 59(A). 24 Id., r. 59(B); see also r. 61(E). 25 Id., r. 61(D). 26 Dokmanovi´c, supra note 18, para. 51. 27 ICTY Rules, supra note 11, r. 55(G).

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immediately in a language he understands of the charges against him and that he is being transferred to the tribunal.28 The accused is then detained, and the tribunal is notified through the Registry that the accused has been apprehended. Arrangements are then made for the transfer of the accused to the tribunal in The Hague.29 Upon transfer, the indictment and a statement of applicable rights must be read or given to the accused in a language he understands.30 D. APPREHENDING INDICTED WAR CRIMINALS IN PRACTICE Once an arrest warrant has been issued by an international court or tribunal, four outcomes are possible in practice: (1) voluntary surrender by the accused; (2) arrest by domestic state authorities; (3) arrest by international peace support forces; or (4) remaining at-large, perhaps never to be brought to justice to face the charges. The most ideal situation is undoubtedly voluntary surrender, followed by arrest by domestic state authorities and arrest by international peace support forces. The ICTY has indicted more individuals than any other international criminal tribunal to date. Its experience offers insight into the operation of each of these possible outcomes. 1. Voluntary Surrender Voluntary compliance by an accused with a surrender order is the ideal scenario. This is only possible where the accused is made aware of the indictment, meaning that voluntary surrender is not possible on a sealed indictment. Accused who voluntarily surrender are assured of their safety—a guarantee that is not possible when police or military forces are required to conduct a raid to arrest the accused. A major incentive for accused to promptly surrender is that it significantly enhances their chances of obtaining provisional release (i.e., bail).31 In Prosecutor v. Ramush Haradinaj, the trial chamber granted provisional release to the former prime minister of Kosovo, owing largely to the fact that he resigned his position and announced that he was surrendering to the authority of the tribunal within hours of the publication of the indictment.32 The majority of the Trial Chamber subsequently authorized Mr. Haradinaj to continue his political activities in Kosovo under the supervision of the UN 28

Id., r. 59bis(B). Id., r. 57. 30 Id., r. 59bis(B)–(C). 31 Id., r. 65. 32 Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Trial Chamber, Decision on Ramush Haradinaj’s Motion for Provisional Release, paras. 31–33 (June 6, 2005). 29

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Mission in Kosovo (UNMIK). 33 Unfortunately, the decision approving Mr. Haradinaj’s indeterminate political involvement to continue, despite very serious war crimes charges pending, is inconsistent with the aims and principles of international criminal justice. The better view is that taken in dissent by Judge Carmel Agius as the presiding judge of the trial chamber, stating that the majority decision: is not only intrinsically wrong in principle, but that it is also most definitely probable to give to the public in Kosovo, and others throughout the territory of ex-Yugoslavia, the impression, if not the perception, that although the Accused was indicted and taken into custody by this Tribunal, he is in actual fact gradually, de facto, being re-instated as a key political leader in Kosovo.34 Some military leaders have also turned themselves into the ICTY, such as General Pavle Strugar who voluntarily surrendered to the government of Montenegro and was transferred to the tribunal in October 2001.35 Despite these high profile occurrences, voluntary surrender remained an exception and not the norm, in cases before the ICTY. 2. Arrest by Domestic State Authorities Non-cooperation from state authorities in the former Yugoslavia in executing arrest warrants has been a particular problem for the ICTY. In many instances, this is owing to the popularity or influence of the individual accused. Nationalism has also played a major role, not surprisingly in the wake of ethnic conflict, by inciting accusations that prosecutions were not even-handed against all parties to the conflict. This argument has been employed to rationalize non-cooperation with the ICTY by some states. For these reasons, states in the former Yugoslavia have generally been reluctant, particularly in the initial years of the ICTY’s existence, to arrest their own nationals and hand them over to the ICTY. 33 Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Trial Chamber, Decision on Defense Motion on Behalf of Ramush Haradinaj to Request Re-assessment of Conditions of Provisional Release Granted June 6, 2005 (Oct. 12, 2005), aff ’d, Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Appeals Chamber, Decision on Ramush Haradinaj’s Modified Provisional Release (Mar. 10, 2006). 34 Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Trial Chamber, Decision on Defense Motion on Behalf of Ramush Haradinaj to Request Re-assessment of Conditions of Provisional Release Granted June 6, 2005: Dissenting Opinion of Judge Carmel Agius (Oct. 12, 2005). 35 US Department of State, Voluntary Surrender of Pavle Strugar (Oct. 22, 2001), at http://www.state.gov/r/pa/prs/ps/2001/5480.htm (last visited Oct. 6, 2006).

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In time, however, states in the former Yugoslavia began arresting and transferring accused to the ICTY.36 In particular, states have shown little reluctance to arrest and transfer non-nationals as in the case of Fatmir Limaj of Kosovo who was taken into custody by authorities in Slovenia on February 18, 2003.37 The enhanced cooperation that has been observed is attributable to a number of factors, namely diplomatic and economic pressures, discussed later. Where accused have fled the former Yugoslavia, it has generally only been a matter of time until they have been captured, as recently took place with General Ante Gotovina in the Spanish Canary Islands.38 3. Arrest by International Peace Support Forces The principal means by which arrest warrants have been successfully executed in the former Yugoslavia for indicted war criminals wanted by the ICTY has been law enforcement actions by international peace support forces, namely NATO. On December 16, 1995, the North Atlantic Council approved rules of engagement (ROE) for NATO forces to detain persons indicted by the ICTY.39 In January 1996, the ICTY entered into an agreement with NATO setting out the relationship between the two, including providing for the arrest and detention of indictees.40 Between 1996 and 2002, NATO forces arrested 75 percent (39 out of 52) of the accused then in proceedings before the ICTY.41 Some of the high-profile cases involved the arrest of General Radislav Krsti´c in December 1998, and Colonel Dragan Obrenovi´c on April 15, 2001, by NATO-led SFOR troops.42 In Prosecutor v. Dragan Nikoli´c, the Trial Chamber confirmed that the legal basis for SFOR to arrest, detain and transfer individuals to the tribunal is “well established.”43 36 For example, authorities in Belgrade took Nenad and Predrag Banovi´c into custody: US Department of State, Belgrade Authorities Arrest Two ICTY Indictees (Nov. 8, 2001), at http://www.state.gov/r/pa/prs/ps/2001/5996.htm (last visited Oct. 5, 2006). 37 US Department of State, Apprehension of ICTY Indictees in Kosovo and Slovenia (Feb. 19, 2003), at http://www.state.gov/r/pa/prs/ps/2003/17800.htm (last visited Oct. 5, 2006]). 38 BCC, Croatian Fugitive General Seized (Dec. 8, 2005), at news.bbc.co.uk/2/ hi/europe/4510122.stm (last visited Oct. 5, 2006). 39 Cited in Prosecutor v. Dragan Nikoli´c, Case No. IT-94-2-PT, Trial Chamber, Decision on Defense Motion Challenging the Exercise of Jurisdiction by the Tribunal, para. 44 (Oct. 9, 2002) [hereinafter Nikoli´c, Jurisdiction]. 40 Id. 41 NATO HANDBOOK, supra note 4, ch. 5. 42 US Department of State, Participation of U.S. Forces in Apprehension of an Indicted War Criminal (Apr. 15, 2001), at http://www.state.gov/s/wci/us_releases/ps /19355.htm (last visited Oct. 5, 2006). 43 Nikoli´c, Jurisdiction, supra note 39, para. 52.

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4. At Large By early 2007, just six out of the 161 persons (4 percent) indicted before the ICTY remain at large.44 The two most notable fugitives are Radovan Karadzi´c and Ratko Mladi´c. According to a 2005 Human Rights Watch report, NATO peacekeepers in Bosnia-Herzegovina have made three confirmed attempts to arrest Karadzi´c in the past decade.45 The same report claims that General Mladi´c “spent the latter half of the 1990s in Bosnia, before moving to Serbia . . . Serbia’s official explanations for the failure to arrest Mladi´c are that he is not in Serbia or his whereabouts are unknown.”46 The success of accused such as Karadzi´c and Mladi´c in evading capture, and concerns that states have granted them safe haven, has caused the international community to consider novel approaches to securing the arrest of war criminals. E.

NOVEL APPROACHES TO APPREHENDING INDICTED WAR CRIMINALS

Soon after its creation, the ICTY recognized that “several States were not fulfilling their obligations with regard to the arrest and transfer of indicted persons.”47 The prosecutor of the tribunal called for “creative ways” to arrest fugitive war criminals. 48 Over the years, a range of novel (and controversial) approaches to apprehending accused persons wanted by the ICTY have emerged, including: diplomatic and economic sanctions against non-cooperative states; freezing assets and restricting travel of absconding accused and their associates; deception and trickery to arrest accused; abduction of accused by nonstate actors; and involving the public.

44 ICTY, Key Figures of ICTY Cases, at http://www.un.org/icty/cases-e/factsheets/procindex-e.htm (last visited Jan. 26, 2007). 45 Human Rights Watch, Balkans: Srebrenica’s Most Wanted Remain Free (June 29, 2005), at http://www.humanrightswatch.org/english/docs/2005/06/29/bosher11228.htm (last visited Oct. 5, 2006). 46 Id. 47 Dokmanovi´c, supra note 18, para. 40. 48 Christopher M. Supernor, International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice, 50 AIR FORCE L. REV. 1 (2001), available at http://www.findarticles.com/p/articles/mi_m6007/is_2001_Wntr/ai_75622167 (last visited Jan. 27, 2007) [hereinafter Supernor].

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1. Diplomatic and Economic Sanctions Against Non-Cooperative States Diplomatic sanctions have been a particularly successful approach to promoting compliance with ICTY arrest warrants in the post-Cold War climate as states that comprised the former Yugoslavia seek entry to “club Europe.” Steps towards membership in regional organizations have been explicitly tied to cooperation with the ICTY. In December 2004, the European Council decided that accession talks could start with Croatia, provided that there was full cooperation with the ICTY.49 Similarly, the European Commission’s Feasibility Study for Bosnia-Herzegovina: “made very clear that full co-operation with the ICTY, particularly on the part of the [Republika Srpska], is a fundamental requirement if [it] is to move towards the European Union.”50 NATO has also pushed cooperation with the ICTY in its dealings with countries in the region. On December 9, 2004, NATO foreign ministers reiterated that: “‘failure by the Republika Srpska to fulfill its obligations to bring war criminals to justice’ is the obstacle preventing Bosnia and Herzegovina from joining NATO’s Partnership for Peace program.”51 The United States has also utilized its influence to promote cooperation with the ICTY. The US Consolidated Appropriations Act, 2005, prohibits financial assistance (other than for humanitarian aid and democratization efforts) to any state or entity that fails to take “necessary and significant steps to implement its international legal obligations to apprehend and transfer to the [ICTY] all persons in their territory who have been indicted by the Tribunal.”52 The US government has withheld a portion of assistance to Serbia equal to US$16 million in 2004 and at least US$10 million in 2005. A total of US$73.6 million in assistance was redirected to organizations outside of the central government in Belgrade during 2005.53 ICTY Chief Prosecutor Carla Del Ponte has acknowledged that: “[t]he political support of the European Union and the United States is the main factor explaining why Serbia and Croatia

49 EU, Croatia—One Step Closer to the EU, Provided There is Full Cooperation with ICTY, Doc. IP/05/110 (Jan. 31, 2005), at ec.europa.eu/commission_barroso/ rehn/news/pdf/ip_05_110_en.pdf (last visited Jan. 27, 2007). 50 EU, Chris Patten Supports Lord Ashdown on Measures to Promote Compliance with ICTY in Bosnia Herzegovina (June 29, 2004), at http://www.eu.int/comm/external_relations/news/patten/ash_290604.htm (last visited Oct. 5, 2006). 51 US Department of State, United States Supports High Representative Ashdown’s Actions Against War Crimes Fugitives and Their Supporters (Dec. 16, 2004), at http://www.state.gov/r/pa/prs/ps/2004/39891.htm (last visited Oct. 5, 2006). 52 Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, § 561(a)(1), 118 Stat. 3020. 53 US Department of State, Serbia and Montenegro Assistance (Jan., 13, 2005), at http://www.state.gov/r/pa/prs/ps/2005/40915.htm (last visited Oct. 5, 2006).

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are now co-operating better with us.”54 Since international criminal courts and tribunals depend on state authorities to execute arrest warrants for accused persons in their territory, the use of economic and diplomatic sanctions to encourage compliance is fully justified. While the ICTY’s Chapter VII powers supersede the individual interests of the involved states, the customary norms of cooperation also require best efforts actions by states to assist in securing the arrest of indicted war criminals in their territory. 2. Freezing Assets and Restricting Travel of Accused and Associates There have also been other attempts made to encourage accused to surrender, and make their lives as international fugitives more difficult by freezing their assets and restricting their ability to travel. In some cases, these restrictions have been extended to close associates of such individuals. For example, on June 30, 2004, the United States announced that it was “freezing the assets of a Republika Srpska-owned firm and three Republika Srpska officials who have provided financial, logistical and security assistance to Karadzi´c.”55 Later, on December 16, 2004, the United States announced that it was “freezing the assets of the Serb Democratic Party (SDS), as well as two Serbia and Montenegro companies that have provided financial support to Radovan Karadzi´c and several individuals indicted by the Tribunal. The United States is imposing travel restrictions that will prevent entry into the United States by the leadership of the main parties in the Republika Srpska government, the Serb Democratic Party and the Party for Democratic Progress (PDP).” 56 The EU has also imposed travel prohibitions within its member states on over two dozen individuals who are “engaged in activities which help persons at large continue to evade justice for crimes for which the ICTY has indicted them.”57 It is not clear that these measures against absconding accused and their supporters have been effective in practice, although cutting off readily available sources of funds and travel routes would make life as an international fugi54 ICTY, Briefing by Carla Del Ponte, Prosecutor (June 23, 2005), at http://www.un.org/icty/pressreal/2005/speechCdP-e.htm (last visited Oct. 5, 2006). 55 US Department of State, U.S. Support for Actions by High Representative Paddy Ashdown (June 30, 2004), at http://www.state.gov/r/pa/prs/ps/2004/34041.htm (last visited Oct. 5, 2006). 56 US Department of State, United States Supports High Representative Ashdown’s Actions Against War Crimes Fugitives and Their Supporters (Dec. 16, 2004), at http://www.state.gov/r/pa/prs/ps/2004/39891.htm (last visited Oct. 5, 2006). 57 The European Commission’s Delegation to the Republic of Serbia, Bosnia and Herzegovina: Council Extends Measures in Support of ICTY (June 29, 2004), at http://www.delscg.cec.eu.int/en/documents/2004-06-29.htm (last visited Jan. 27, 2007).

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tive more troublesome. Asset freezing and travel restrictions with respect to atlarge indictees themselves is a reasonable step towards securing their apprehension. With respect to persons that are not under indictment—those loosely labeled as “associates”—states are free to determine who may enter their territory and their property rights, consistent with national laws and international law. To ensure the efficacy and legitimacy of extending such sanctions, it is important that they have an evidentiary basis and be subject to review, so as not to be arbitrary or excessive. 3. Deception and Trickery of Accused The use of deception or trickery to lure an individual into a territory where he/she can be arrested has been successfully employed in the former Yugoslavia. This approach may be attractive where an accused is based in a particularly well-defended stronghold or resides in a territory whose authorities are non-cooperative. Its effectiveness is enhanced where the accused is wanted on a sealed indictment. However, it is likely that an accused who is arrested through deception or trickery will challenge the legality of his arrest. For that reason, it is useful to review the leading decision from the ICTY on the viability of this tactic. In Prosecutor v. Slavko Dokmanovi´c , the accused was charged under a sealed indictment and had been living in the Serbian part of the former Federal Republic of Yugoslavia. A warrant for his arrest had been transmitted to the UN Transition Administration for Eastern Slavonia, Barajana and Western Sirmium (UNTAES). Mr. Dokmanovi´c had been in contact with the OTP regarding evidence of alleged atrocities in the area of Vukovar. The OTP agreed to meet him with a view to enticing him to enter the UN controlled region where he could be arrested. Mr. Dokmanovi´c was told he would be meeting with the Transitional Administrator regarding compensation for his property in Croatia, but shortly upon entering the UN-controlled region, UN soldiers removed Mr. Dokmanovi´c from the vehicle at gunpoint, searched him, handcuffed him and took him to a local airfield. He was advised of his rights and within one hour, Mr. Dokmanovi´c was on a plane heading to The Hague.58 The defense argued that this was an illegal arrest because it was done “in a ‘tricky way,’ which can only be interpreted as a ‘kidnapping’.” 59 The trial chamber disagreed, holding that what took place did not amount to a forcible abduction or kidnapping and that while the accused was deceived, tricked and lured into going into Eastern Slavonia where he was arrested, this did not violate international law or state sovereignty.60 The Trial Chamber “found the par58 59 60

Dokmanovi´c, supra note 18, paras. 3, 7, 10–12. Id., para. 16. Id., para. 57.

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ticular method used to arrest and detain Mr. Dokmanovi´c was justified and legal.”61 Viewing video and audiotape footage of the arrest and detention, the trial chamber also concluded that Mr. Dokmanovi´c “was not mistreated in any way” during the process.62 The appeals chamber did not disturb these findings.63 The rights of the accused must be respected during the process of arrest. A carefully orchestrated deception technique, as employed in Dokmanovi´c , should be a legitimate and viable option to secure an accused war criminal, particularly in the face of security concerns and non-cooperative local authorities. Creating a record of the event through videotape is an ideal means to rebut allegations of mistreatment during arrest and detention, as well as to ensure that those executing the warrant are particularly attuned to their obligations and the rights of the accused. The use of deception or trickery to arrest an indicted war criminal is certainly preferable, where it is possible, to forcible abduction which has also arisen at the ICTY. 4. Transnational Abductions Several notorious state-sponsored international abductions have been used in lieu of extradition to arrest fugitives abroad.64 Taking the tactic a step further, abduction or kidnapping by non-state actors (so-called “bounty hunters”) has been alleged before the ICTY. In Prosecutor v. Dragan Nikoli´c , the accused was living in the Federal Republic of Yugoslavia. It was agreed by all parties that he was taken forcibly and against his will by unknown individuals with no connection to SFOR or the tribunal. Mr. Nikoli´c claimed that he was handcuffed and placed in the trunk of a car by unknown individuals who drove him to Bosnia and Herzegovina and handed over to SFOR, who then arrested and detained him. SFOR delivered the accused into the custody of the tribunal, and he was transferred to The Hague. Mr. Nikoli´c claimed that certain individuals have been tried and sentenced in the Federal Republic of Yugoslavia for acts relating to his abduction.65 The accused argued that the tribunal had no jurisdiction over him given the alleged illegality of his arrest and detention. 61

Id., para. 78. Id., para. 75. 63 See Prosecutor v. Slavko Dokmanovi´c et al., Case No. IT-93-13a-AR72, Appeals Chamber, Decision on Application for Leave to Appeal by the Accused Slavko Dokmanovi´c (Nov. 11, 1997). 64 Such as Adolf Eichmann from Argentina to Israel (1960); an attempt to abduct Mordecai Luk from Israel to Egypt, by shipping him in a trunk (1964); and General Manuel Noriega from Panama to the United States (1989): see Supernor, supra note 48, at 2. 65 Nikoli´c, Jurisdiction, supra note 39, para. 21. 62

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The trial chamber recognized that it was in “uncharted waters”66 and that state practice in this area of law varied. In the end, the trial chamber held that: “in a situation where an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, this may constitute a legal impediment to the exercise of jurisdiction over such an accused.” 67 However, the trial chamber found that: “the assumed facts, although they do raise some concerns, do not at all show that the treatment of the Accused by the unknown individuals amounts was [sic] of such an egregious nature.”68 Therefore, the trial chamber found that it had jurisdiction over Mr. Nikoli´c. The defense appealed, arguing that the tribunal “should only exercise jurisdiction over indictees who were transferred . . . through lawful means” and that “[e]xercising jurisdiction in this case amounts to condoning kidnappings that are executed with minimal violence.” 69 The appeals chamber held that the exercise of jurisdiction should not be declined merely because an accused is abducted by private individuals and then brought to justice.70 However, it held that certain human rights violations are so serious that they require the exercise of jurisdiction over an indictee to be declined.71 In the end, the appeals chamber agreed with the trial chamber that the rights of the accused were not egregiously abused in the process of his arrest, so the ICTY retained jurisdiction over him.72 The involvement of non-state actors in abducting an accused is by far the most legally risky method of apprehending an accused that has been attempted to date before the ICTY. International criminal courts and tribunals will inquire into the circumstances of such an arrest, declining to follow the 19th century common law doctrine of male captus bene detentus (that a court should not inquire into how an accused was brought before it).73 There are two main considerations that are relevant in such cases. First, focusing on the rights of the accused, Nikoli´c sets a standard of “egregious” mistreatment by third parties before an international criminal court or tribunal should decline jurisdiction, presumably staying the charges against the accused. It is notable that this standard applies where there is no established connection between the arresting authorities or the prosecution with the abductors. With this in mind, the egregious mistreatment standard is appropriate in light of the lack of independent 66

Id., para. 75. Id., para. 114. 68 Id. 69 Prosecutor v. Dragan Nikoli´c, Case No. IT-94-2-AR73, Appeals Chamber, Decision on Interlocutory Appeal Concerning Legality of Arrest, para. 15 (June 5, 2003). 70 Id., para. 26. 71 Id., para. 30. 72 Id., paras. 32–3. 73 Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s Response to the Problem of Transnational Abduction 42(2) STANFORD J. INT’L L. 343, 344 (2006). 67

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enforcement powers of international criminal courts and tribunals, the security situation in conflict and occupation situations, and non-compliance by both the accused and the state in which they reside. However, this standard rightly sets real limits on what can be done to apprehend an accused. Second, state sovereignty issues may arise depending on the authority under which the arrest warrant was issued. While there are circumstances where individuals have invoked state sovereignty, it is difficult to see how that right does not exclusively belong to the state in this context. If a state chooses to intervene in proceedings challenging the arrest, then it will be entitled to do so, subjecting itself to scrutiny as to its own inability to previously arrest the accused. 5. Public Involvement: Financial Rewards and Web Sites of Sightings Finally, efforts have been made to involve members of the public in securing the arrest of indicted war criminals. ICTY indictments have been officially publicized throughout the former Yugoslavia.74 In terms of rewards for information, the US Rewards for Justice program “offers up to $5 million for information leading to the apprehension and transfer to the ICTY of persons indicted for war crimes.”75 Various non-governmental organizations, from time to time, have involved members of the public in reporting sightings of indicted war criminals both with a view to passing on intelligence and to place pressure on noncooperative states. For example, the “Washington-based Coalition for International Justice, a human rights group, has posted the whereabouts of 37 of the 66 [accused] on the Internet, often detailing the bars where they drink.”76 It is not known how effective these methods have been, but they appear to be a reasonable attempt at extending the reach of justice as well as reminding the public in transitional societies about efforts underway to prosecute war criminals. F.

CONCLUSIONS

The experience of the ICTY in apprehending indicted war criminals has been mixed. Above all, it has demonstrated the critical importance of PSOs in arresting indicted war criminals. Training, support and clear ROE are needed 74

Pursuant to ICTY Rules, supra note 11, r. 60. US Department of Defense, Office of War Crimes Issues, At Large Persons Publicly Indicted for War Crimes in the Former Yugoslavia (July 27, 2005), at http://www.state.gov/s/wci/us_releases/fs/17598.htm (last visited Jan. 27, 2007). 76 Christopher Lockwood, British Disclose Possible ICTY Apprehension Plans: ‘Snatch Squads’ to Seize Bosnia War Criminals, 626 ELECTRONIC TELEGRAPH (Feb. 10, 1997), at http://www.its.caltech.edu/~bosnia/articles/british.html (last visited Oct. 5, 2006). 75

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for members of PSOs to successfully undertake this difficult task, which is a vital first step in bringing these individuals to justice and allowing war-torn societies to move forward from the darkest periods of their history. At the same time, sustained pressure by the international community on states that fall short of their international obligations to arrest accused war criminals has proven to be worthwhile. The next generation of hybrid courts and the ICC will face new challenges, already alluded to, that the ICTY did not have to confront given its jurisdictional primacy and mandate under Chapter VII of the UN Charter. The limitation of state cooperation to good faith efforts under customary IHL is unlikely to provide a sufficient legal basis for apprehending war criminals, unless interests are aligned. New avenues to enhance the chances of apprehending suspects and accused will need to be pursued, such as the cooperation agreement between INTERPOL and the Special Court for Sierra Leone (SCSL).77 Legal officers advising PSOs and these international courts and tribunals alike must build on the lessons from the former Yugoslavia and develop further innovations to ensure the successful apprehension of indicted war criminals. For if they escape arrest or fail to surrender, there will be no justice.

77 See, Co-Operation Agreement Between the International Criminal Police Organization-INTERPOL—and the Special Court for Sierra Leone, available at http://www.sc-sl.org/interpolagreement.pdf (last visited Jan. 27, 2007).

CHAPTER 9 LAW ENFORCEMENT IN POST-CONFLICT BOSNIA AND HERZEGOVINA: WAR CRIMES PROSECUTIONS AND JUDICIAL RESTRUCTURING Christopher Harland*

A. INTRODUCTION In recent years, law enforcement has become an integral part of peace support operations (PSOs). The UN Mission in East Timor (UNTAET), for example, was given authority “to provide security and maintain law and order throughout the territory of East Timor,”1 the UN mission in Kosovo (UNMIK) was given “civil law and order” responsibility,2 and the High Representative in Bosnia and Herzegovina (BiH or Bosnia) has used his UN Security Council (SC) and treaty mandate, inter alia, to restructure the Bosnian judiciary.3 This chapter is confined to BiH and examines three law-enforcement-related issues that have arisen in the post-Dayton PSO context, namely: (1) the “Rules of the Road” system, which balanced the desire for domestic war crimes trials with other priorities such as freedom of movement; (2) “reselection,” a vetting procedures for judges and prosecutors; and (3) the creation of the War Crimes Chamber in the court of BiH, which links domestic and international war crimes courts. The chapter discusses the challenges faced in post-war BiH in these three areas, the solutions chosen, the success or failure of these choices and the implications of their application in other PSO contexts.

* Legal Adviser with the International Committee of the Red Cross (Advisory Service on IHL), Legal Division, Geneva. The author would like to thank Rebecca Everly and Jan-Erik Oja for their constructive comments on this chapter. 1 SC Res. 1272, para. 2(a) (Oct. 25, 1999). 2 SC Res. 1244, para. 11(i) (June 10, 1999). 3 See, as examples decisions relating to judicial restructuring in 2002, http://www.ohr.int/decisions/judicialrdec/archive.asp?m=&yr=2002. 157

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B. BRIEF HISTORY During the 1992–1995 war in BiH, over 97,000 people were killed or went missing.4 Many violations of international humanitarian law (IHL) occurred during the war, and calls for the prosecution of war crimes led the Security Council of the United Nations to establish the International Criminal Tribunal of the former Yugoslavia (ICTY) in February 1993.5 The December 14, 1995, General Framework Agreement for Peace in Bosnia and Herzegovina6 (GFAP or Dayton Peace Agreement or Dayton) provided a Constitution (at Annex 4), a Human Rights Commission (at Annex 6), an international High Representative (at Annex 10), and an international force (at Annex 1-A). The High Representative (HR, whose office is known as OHR) later interpreted his mandate to include the enacting of legislation and the dismissal of elected officials, among other executive acts.7 Bosnia became a member of the United Nations on May 22, 19928 and is divided into two “entities,” known as the Republika Srpska (RS, predominantly Serb inhabited) and the Federation of Bosnia and Herzegovina, the 1994-established Croat and Bosniak Federation.9 The Federation is further divided into ten cantons, some of which are mixed Croat and Bosniak areas, including Canton 7, which includes the city of Mostar. Unable to resolve its status at Dayton in 1995, the District of Brcko (with all three communities represented) was placed under a Supervisor, and its status was clarified in 1999 through an arbitral award.10 The political structure of BiH under Dayton was largely decentralized, 4 Statistics published by the Sarajevo Research and Documentation Center, at http://www.idc.org.ba/aboutus/Overview_of_jobs_according_to_%20centers.htm, which has 97,901 names collected of those killed and missing as at January 2007. Note that other estimates run to 250,000 killed or missing. 5 SC Res. 808, para. 1 (Feb. 22, 2003), “Decides that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991[.]” 6 See http://www.ohr.int/dpa/default.asp?content_id=379. 7 See High Representative decisions at http://www.ohr.int/decisions/archive.asp; the Peace Implementation Council Meeting in Bonn documents in December 1997, at http://www.ohr.int/pic/default.asp?content_id=5182#11; and SC Res. 1174, para. 4 (June 15, 1998), “and reaffirms that the High Representative is the final authority in theatre regarding the interpretation of Annex 10 on civilian implementation of the Peace Agreement and that in case of dispute he may give his interpretation and make recommendations, and make binding decisions as he judges necessary on issues as elaborated by the Peace Implementation Council in Bonn on 9 and 10 December 1997.” 8 See http://www.un.org/Overview/unmember.html. 9 A map is available at http://www.lib.utexas.edu/maps/europe/bosnia_pol_ 2002.jpg. 10 See http://www.ohr.int/ohr-offices/brcko/arbitration/default.asp?content_id=5362.

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but later legislation and constitutional changes (most often through the efforts of the OHR) have now placed many institutions at the centralized BiH level, such as a first-instance court, a tax collecting body, a more unified army structure, and a judge appointing body for positions held in the entities.11 C. THE “RULES OF THE ROAD” SYSTEM: BALANCING WAR CRIMES TRIALS AND FREEDOM OF MOVEMENT The UN Security Council’s decisions establishing the ICTY did very little to regulate, restrict or prevent domestic war crimes trials underway in the former Yugoslavia, apart from giving the ICTY primacy over cases in which it chose to exercise jurisdiction. 12 Thus, the courts of BiH remained competent to try individuals for wartime violations of the criminal code of the Federation of BiH or the Republika Srpska, and the criminal code of the former Socialist Federal Republic of Yugoslavia (SFRY). However, Article II, paragraph 8 of the Constitution of BiH requires BiH authorities to “cooperate and provide unrestricted access to” the ICTY, including orders issued under Article 29 of the tribunal’s Statute regarding judicial cooperation, thus incorporating the primacy element of Article 9 of the Statute into the Constitution of BiH. At the immediate end of the war, however, the political imperative was not the organizing of domestic war crimes trials. Some 2 million persons were either internally displaced or refugees outside Bosnia. 13 Security remained an issue, prisoner exchanges had not been entirely effected, property repossession mechanisms were being established and political structures were being 11 Known as “state-level” institutions. Institutions at the second level are known as entity (RS and Federation) or district (Brcko) bodies. The Federation inserts another level of government, ten cantons. In all of Bosnia, the next level down is the municipal level. 12 Article 9 of the ICTY Statute reads: 1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal. See http://www.un.org/icty/legaldoc-e/index.htm. See also Article 10 of the ICTY Statute regarding non bis in idem. 13 See the information published by the Internal Displacement Monitoring Center, available at http://www.internal-displacement.org/8025708F004CE90B/(httpCountries)/ C8DEEFACFF6821AD802570A7004C6A42?OpenDocument.

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rebuilt. In addition, there was a strong desire to hold elections as soon as possible, to provide the political structures through which legislation could be created.14 As elections were seen as vital, election-related issues such as freedom of movement, refugee return and property repossession were regarded as more important and pressing than domestic war crimes trials. Carl Bildt, the first High Representative, deemed an agreement reducing war crimes trialrelated arrests as “essential if we were to have any chance of making progress”15 on other issues. 1. The Problem Tension between a desire to facilitate the return of refugees on the one hand, thus theoretically permitting the reversal of the policy of “ethnic cleansing,” and the arrest of those wanted for war crimes on the other, became an issue beginning in early 1996. If elections, refugee return and employment reinstatement were to take place, there existed a fear that mass arrests, upon return, would take place as wartime scores were settled. Couched under the rubric of “freedom of movement,” discussions began shortly after the end of the war to seek a solution which would avoid mass arrests. This position was bolstered by the perception of a low likelihood of subsequent trials being fair. Those worried about unfair trials could point to the conviction, in absentia, of 47 war crimes suspects by the military court in Orasje between 1993 and 1995,16 with some of the defendants receiving the death penalty. Forty-two of these were later reviewed by the ICTY and found to be lacking in sufficient evidence to justify arrest or indictment. The use of military courts in general came under attack after the war as the Human Rights Chamber, established under Annex 6 to the GFAP, finally found in the 1997 Damjanovic case that Sarajevo’s District Military Court lacked a sufficient appearance of independence.17 By 1996, it was clear that two of the people that Damjanovic had been convicted of killing in 1993 were in fact alive.18 So, with war crimes trials that had taken place being questioned, and with the desire to improve security and encourage movement of the population, a 14 The first country-wide elections in BiH were held on September 14, 1996; see http://www.ohr.int/ohr-dept/presso/chronology/default.asp?content_id=5787. 15 CARL BILDT, PEACE JOURNEY 190 (1998). 16 OSCE, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina, Mar. 2005 at 4, available at http://www.oscebih.org/documents/1407eng.pdf. 17 Human Rights Chamber for BiH Decision No. CH/96/30 (Sept. 5, 1997). Note that the case had a high degree of visibility at the end of the war. 18 Ulrich Garms & Katharina Peschke, War Crimes Prosecution in Bosnia and Herzegovina (1992–2002): An Analysis through the Jurisprudence of the Human Rights Chamber, 4 J. INT’L CRIM. L. 7 (2006).

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way to reduce the threat of arrest on improper or untested war crimes charges was sought in early 1996. The issue came to a head with the arrest, in February 1996, of two Bosnian Serb military leaders, as described by Richard Holbrooke, the principal US negotiator at Dayton:19 We arrived [back in Sarajevo, on Feb. 11, 1996] just in time to be confronted by an unexpected problem: the local police had arrested two senior Bosnian Serb officers, General Djordje Djukic and Colonel Aleksa Krsmanovic, as they entered Sarajevo in a civilian car. The Bosnians claimed the two men were war criminals. . . . Milosevic, on the other hand demanded their immediate release . . . [Warren] Christopher and I were greatly disturbed by this incident. The seizure of two men, neither of whom was ever indicted, had disrupted the implementation process and set a bad precedent for the future. We determined to prevent any repetition of such an incident before it became a pattern. This incident led to the inclusion of the Rules of the Road (RoR) procedure in the February 1996 Rome Agreement. 2. The Proposed Solution An agreement was reached on February 18, 1996, in Rome between Presidents Izetbegovic, Tudjman and Milosevic.20 It contained elements relating to military matters, education, transfer of territory in Sarajevo, as well as domestic war crimes procedures. Paragraph 5 (Cooperation on War Crimes and Respect for Human Rights) of the agreement reads in part: Persons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal. Procedures will be developed for expeditious decision by the Tribunal and will be effective immediately upon such action.21 19

RICHARD HOLBROOKE, TO END A WAR 332–33 (1998). See http://www.ohr.int/ohr-dept/hr-rol/thedept/war-crime-tr/default.asp?content_id=6093. Representing BiH, Croatia and Yugoslavia, respectively. 21 Note that this agreement does not appear to have been signed (certainly not ratified), and is merely the transcription of agreed minutes of a meeting. It was apparently not published in any official gazette in BiH. Although the Human Rights Chamber in the Hermas decision (CH/97/45, Hermas v. FBiH, Feb. 18, 1998) found, applying the words of the agent of the Federation of BiH, that the agreement applied directly in BiH, 20

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Thus, only files that had received prior authorization from the ICTY would be allowed to proceed before a domestic court. The ICTY established a unit within the prosecutor’s office (OTP), known as the “Rules of the Road” Unit (RoR). The RoR Unit, composed of a few lawyers and translators from the OTP, sought and received funding from voluntary contributions apart from the normal funding of the ICTY. Many files started arriving from Bosnian prosecutors seeking approval to proceed. A classification system was set in place, including “A” for cases that were granted approval to proceed to trial, “B” for cases in which more evidence was needed prior to approval being granted and “C” for cases in which clarification of the evidence was needed.22 The RoR procedure was closed in September 2004,23 when the responsibility for determining whether enough evidence to proceed to trial had been gathered was transferred to the BiH prosecutor, with cases to be governed by the “Book of Rules on the Review of War Crimes Cases.”24 3. Outcome of the RoR Procedure Three results of the RoR procedure have been noted by commentators. The first obvious conclusion is that by inserting an additional step into the criminal process, trials were delayed. This is all the more true when one considers funding and staffing problems in the RoR Unit: 290. Unfortunately, funding for the rules of the road unit has been consistently difficult to obtain. The unit was funded only to July 2004 and it was again faced with the prospect of closure. It is hoped that donor countries will urgently make funding available to enable the unit to engage in an orderly transition process. This is an immensely valuable project for the future of war crimes’ prosecutions in Bosnia and Herzegovina.25

it was not obvious that this was the case. For further information on this case and other similar cases, see CHRISTOPHER HARLAND ET AL., A COMMENTARY TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS AS APPLIED IN BOSNIA AND HERZEGOVINA AND AT STRASBOURG 107–12 (2003). In any event, it would have been much better had the international community and Bosnian officials taken steps to more clearly in law create the obligation to forward cases covered by the agreement to the RoR Unit The term “Rules of the Road” may have been coined by Warren Christopher, US Secretary of State; see RICHARD HOLBROOKE, TO END A WAR 333 (1998). 22 See, e.g., OSCE, supra note 16, at 5. 23 ICTY, 2004 Report to the Security Council (11th Annual), available at http://www.un.org/icty/rappannu-e/2004/index.htm. 24 OSCE, supra note 16, at 17. 25 ICTY, supra note 23.

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The Unit processed the following number of cases to 2004: RoR Category given by the ICTY

No. of persons against whom the marking was given (OSCE March 2005 Report figures)

A—enough evidence for trial

846

B—more evidence needed

2,346

C—evidence unclear

675

The RoR Unit is described further as having made 3,965 determinations in relation to 3,489 suspects. The number of persons in relation to whom files were sent was 5,789 (figures at November 10, 2004).26 The volume of the work done by the Unit was therefore considerable, although minimal staffing led to delays in returning cases back to Bosnia. The percentage of files receiving an “A” marking is relatively low, only 24 percent.27 This is particularly so when it is borne in mind that the RoR Unit did not interview the witnesses or independently test the evidence themselves but acted on the assumption that the evidence was credible. The test was whether there was enough evidence in the file, which, if believed, could lead to a prosecution, in essence a prima facie test.28 The chart on the following page illustrates the number of persons against whom trials were conducted in domestic BiH courts. The percentage of category “A” cases proceeding after a determination by the RoR Unit was also low, 30 percent. Note that this figure also includes those cases that were still being investigated but had not yet gone to trial. It may be that with new procedures in place, and with the new system at the court of BiH (see Section D), these figures may increase. By contrast, according to January 2007 statistics, the ICTY had 60 persons for whom proceedings are under way (note that not all of these relate to events in BiH, and include those persons at large for whom an indictment has been issued), and had concluded proceedings for 100 persons.29 Based on the category “A” markings, the approximate number of persons for whom, at 11 years after the end of the war, there is evidence of a caliber to 26 Id. Note that the numbers do not add up, in part because the work was ongoing, and in part because individuals could be charged with multiple offenses. 27 Note that in BiH there sometimes existed the misconception that category “A” files represented the most serious cases or the most obviously guilty defendants. In fact, any case file in which there was enough (untested) evidence that, if believed, could lead to prosecution, was granted this marking. As such, an “A” marking is perhaps best viewed as a passing grade by the ICTY to the BiH prosecutor. 28 From the author’s discussions with members of the Unit. 29 See http://www.un.org/icty/glance-e/index.htm.

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Stage of trial (at January 2005), by number of defendants, after RoR clearance30

Federation

At trial

94

Active investigation

73

Verdict reached at trial, appeal over

50 (20 acquitted, 30 found guilty, sentences range from 6 months to 20 years)

Appeal underway, or retrial

39

Total (of 846 “A” category markings)

256

RS

2

2

attach a trial, may be estimated at around 1,000.31 About one-third of these cases are actively being investigated. If one assumes that another half of these may be hard to organize given difficulties in obtaining witnesses, defendants’ arrests and deaths or incapacitation of accused, it is possible that, until more new case files are developed by prosecutors or old ones improved (in particular by prosecutors in Republika Srpska), the number of persons being prosecuted by BiH and international/extranational courts may be fewer than 500. In an effort to increase the quality and quantity of submissions by prosecutors, in 2000–2001 the ICTY had a series of meetings with BiH prosecutors and developed questionnaires and other tools to improve the submissions. This resulted in a large number of new files, which in turn led to some delays in RoR Unit responses to prosecutors. The second conclusion to be drawn is that the RoR procedure did not ensure fair domestic trials. Cases that had not been conducted in accordance with the RoR procedure were sent back for retrial, and many that complied with the RoR procedure were later found to have violated the European Convention on Human Rights (ECHR) or the BiH Constitution. Once cases had been tried in domes-

30 Note that it is not always clear from the statistics available whether the numbers refer to the number of incidents or the number of defendants. For example, it is likely that the RS cases, including the Matanovic case (details concerning the case available through the Human Rights Chamber decision, CH/1/96, Matanovic v. RS (Sept. 13, 1996), refer to an incident rather than the number of defendants. Therefore, these numbers, and the percentages based on them, should be taken as approximate. 31 Note the much larger number, 13,000 from the Balkan Investigative Reporters Network (BIRN), in their November 2006 Justice Report, available at w http://www.bim.ba/en/. Given witness and court delays in BiH, however, this may be somewhat high.

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tic courts in BiH, many of them reached the Human Rights Chamber, a body modeled on the European Court of Human Rights, in which eight judges were non-nationals of BiH and six were nationals of BiH. Of the cases that reached the Chamber, “a majority” of trials reviewed were found to have violated the ECHR, while in “some cases”32 no violation was found. For example, faults were found in cases involving prisoners of war, military court appointment procedures, violations of the RoR procedure, other fair trial rights, witness provisions, etc.33 Cases that had had RoR clearance were also found to have violated Article 6 of the ECHR. This is not surprising, as the clearance merely indicated that there was enough evidence upon which to proceed to trial and not that the trial itself was or would be conducted in accordance with applicable trial standards. Third, there was increased freedom of movement and repossession of property,34 although security remained an issue for many returnees. 4. Conclusions and Prospects for Use in Other Contexts The RoR procedure provided only minimal benefit in ensuring that domestic trials were well run, all the while delaying trials. At best, it provided a measure of security against frivolous war crimes charges but did not ensure that those trials that eventually took place would be conducted properly. The RoR procedure provided little control or technical assistance beyond ensuring adequate case preparation and presentation at a preliminary stage of the proceedings. The cases described in the March 2005 OSCE report indicate that many of those cases had significant problems, even after receiving clearance from the ICTY. In addition, the “victor’s justice” nature of the trials did not allow for an overall strategy as to which persons and for which acts prosecutions would be sought. This procedure did, however, at a minimum, increase post-war mobility. This procedure may be worth contemplating if the priorities in a post-conflict environment rest not with war crimes trials, but rather with ensuring other aspects of post-conflict reconstruction, such as improving access to voting centers, allowing for recovery of lost property during the conflict and promoting the return of refugees and others to pre-war employment. As these were the priorities in post-war Dayton, the RoR process fulfilled this latter goal if it did not fulfill the former, namely ensuring prompt and fair war crimes trials. As a result, in post-conflict settings where the priorities rest with ensuring freedom of movement and minimizing recourse to war crimes prosecutions on 32

Garms & Peschke, supra note 18, at 7. Id. at 7–8. 34 See the Property Law Implementation Plan (PLIP) monthly statistics, at http://www.oscebih.org/human_rights/propertyrepossession.asp?d=1. 33

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weak evidence, this system may be worth considering. If, on the other hand, fair trials are the priority, and there are concerns about the capacity of the domestic legal order, it may be worth adopting some of the measures discussed in Issues D and E below. D. VETTING OF JUDGES 1. Introduction Post-conflict BiH was a testing ground for vetting, also referred to in some settings as lustration, decertification, reselection or reappointment.35 Vetting systems provide for various types of procedures in which public servants are either subject to losing their employment, or a system of mass application is made for positions, with current staff forced to reapply if they wish to retain their job. A large “certification” procedure was carried out with respect to the police in BiH by the UN Mission (UNMIBH).36 The rationales for such systems include fairness and a reversal of ethnic cleaning polices, sought increases in judicial competence and a desire for a more representative public administration. In Bosnia, prior to the war, there was a tacit understanding for many public positions that due regard to ethnic makeup should be given. This was made all the more possible through census reports in which citizens self-reported their ethnicity as either Serb, Croat, Bosniak or one of about 20 other ethnicities, including “Yugoslav.” Built into constitutional reforms agreed to in 2002, which were intended to implement a constitutional court decision of July 1, 2000,37 were requirements that entity and other level positions reflect the ethnic breakdown of the population as of 1991, the date of the last pre-war census. The ethnic population of BiH had of course changed dramatically during the war. Many non-Serbs were required to leave the territory of what became the RS during the war, and they did not return, or were discouraged from returning, after the war. While vetting of the police was under way and while constitutional reforms were being hotly debated, the failure to include provisions related to judicial reform in the GFAP began to be noticed in 1997.38 One response was the cre35 See, e.g., the Council of Europe Report of June 3, 1996 by M. Severin, Measures to Dismantle the Heritage of Former Communist TotalitarianSystems, available at http://assembly.coe.int/Documents/WorkingDocs/doc96/EDOC7568.htm. 36 See Gregory Naarden, Nonprosecutorial Sanctions for Grave Violations of International Humanitarian Law: Wartime Conduct of Bosnian Police Officials, 97 AM. J. INT’L L. 342 (Apr. 2003). 37 Case U 5/98 of the Constitutional Court of BiH, available at http://www.venice. coe.int/docs/2000/CDL(2000)081-e.asp. 38 See, e.g., “Independence of the Judiciary,” at http://www.ohr.int/ohr-dept/hrrol/thedept/hr-reports/hrcc-hr-rep/97-weekly/default.asp?content_id=5062.

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ation in 1998, through UN SC authorization, of the Judicial Systems Assessment Program (JSAP).39 Through a series of 11 thematic reports,40 JSAP noted important shortcomings in the post-conflict judicial system of BiH. These included issues related to delay, independence and competence of the judiciary, among others. Their reports, as well as individual trial reports, led the OHR to establish the Independent Judicial Commission,41 which was to forward reports on allegedly incompetent judges to entity parliaments for their eventual dismissal in accordance with entity law. However, due in part to the political links in the appointment of the judiciary, very few of the judges proposed for removal were in fact removed.42 This then led to the desire for a more robust vetting system and led to the creation of the BiH High Judicial and Prosecutorial Councils, and the reselection system. The process was also seen as an alternative to disciplinary proceedings in cases where, for various reasons, this would not be possible.43 In some situations, such as that of post-conflict BiH, losing one’s public employment for acts carried out during the war was as serious a consequence as being found guilty of a crime.44 2. Reselection System In September 2002, three High Judicial and Prosecutorial Councils (HJPCs) were established, one for each of the Federation and the Republika Srpska, and one for the new judicial institutions at the state level of BiH (court of BiH and the BiH prosecutor’s office). There was some measure of overlap of the membership of the three Councils,45 and eight international members served on all three Councils. The Councils had responsibility, inter alia, for determining the number of judges and prosecutors needed in each court and prosecutor’s office,46 announcing vacancies for virtually all positions, having the application forms (some 50 pages) reviewed by the Independent Judicial Commission (IJC), holding interviews, and finally appointing candidates to each position. This procedure lasted 39

SC Res. 1184, para. 1 (July 16, 1998). The reports are available at the Web site of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, at http://www.hjpc.ba/docs/jasp/?cid=2444,1,1. 41 For details, see the IJC Final Report (Nov. 2004), at http://www.hjpc.ba/docs/ ijcarch/?cid=2491,1,1. 42 Id. 43 See, e.g., Naarden, supra note 36, at 343. 44 Id. at 347. 45 The three Councils existed in the same building in Sarajevo and shared the same secretariat. See, e.g., the IJC Final Report, supra note 41, at 50. 46 Note that this did not include minor offense courts, nor the constitutional court of BiH. 40

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just under two years, at which point (May 2004) the HJPC had filled 878 of 956 judicial and prosecutorial positions.47 At the same time, a new system of disciplinary proceedings was instituted, with decisions on punishments and removals taken by the HJPCs. The HJPCs were also responsible for overseeing judicial education systems and for establishing minimum continuing legal education requirements. At the end of the transitional period in 2004, the three HJPCs were merged into one body covering all of BiH. The new HJPC has some foreign assistance, but it is now run by BiH nationals.48 3. Results of the Reselection System The following conclusions can be made, even if it is too early to provide a comprehensive assessment of the system put in place. First, judges suspected of the most serious instances of misconduct were not retained or decided not to reapply. This was a change from the previous system in which removal required a vote in parliament and political favors could be called in, making the number of dismissals very small. Second, the number of positions available was reduced by close to 30 percent, and 20 percent of those appointed were not incumbents, such that some 400 judges and prosecutors lost positions, while about 200 new candidates were appointed. In addition, about 80 percent of persons in positions of leadership (chief prosecutors, presidents of courts) did not hold their new post prior to reselection.49 Third, the ethnicity of judges and prosecutors changed significantly from post-war numbers, especially in Republika Srpska, such that the percentage of Serbs in the judiciary went from 56 percent prior to the war, to 91 percent after the war, to 66 percent after the reappointment system.50 The above-mentioned requirement in entity constitutions made the reappointment system more difficult, especially in smaller communities. Fourth, for reasons that are not obvious, there was a shift in the percentage of women judges (53 percent before to 59 percent after), while the percentage of women prosecutors dropped (62 percent before to 44 percent after). Fifth, the procedure generated a large number of public complaints about the preexisting judiciary, and assisted in targeting judicial reform efforts, including the reselection procedure. The most common com47

Statistics on file with the author, HJPC Final Report: 2 September 2002 to 31 May 2004, which were used in the drafting of the Final IJC Report, supra note 41. Note that the Council was unable to fill these final remaining positions due to a lack of qualified candidates who met constitutional criteria including providing for a “general representation” of the ethnic groups of Bosnia. 48 See, e.g., the HJPC Fact Sheet, at http://www.hjpc.ba/intro/?cid=246,1,1. 49 Final IJC Report, supra note 41, at 100. 50 Id. at 64.

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plaints related to delay or inaction in cases by judges (39 percent), errors in procedure (10 percent), bias/impartiality (9 percent) and misconduct/criminal misconduct (7 percent).51 Sixth, the number of “applicants at large” (500, 40 percent of whom were selected for a position) 52 applying for positions could have been higher. A proper examination of the results of the 2002–2004 vetting system for judges and prosecutors would entail a comparison between the performance of the judiciary of 2002 with the post-reselection judiciary, perhaps by examining issues such as public complaints, delay, case file performance, working hours, etc. A comparison should also be made with neighboring countries that did not go through a similar procedure. Without having done this, it is difficult to properly assess the effect of the reselection procedure on the judiciary in BiH. It is clear, however, that, at least from anecdotal information, judicial delay continues to remain a perceived problem in Bosnia.53 The establishing of a system of anticipated time limits for cases to proceed through court stages may be usefully contemplated in countries such as BiH.54 Some of the criticisms of the reselection system have included the lack of independence of the judiciary from the international community (Helsinki Human Rights Committee), continued delay in civil cases in Sarajevo (parties in cases at Sarajevo interviewed), a lack of new judges (Marcus Cox, with the European Stability Initiative—ESI), the failure to remove all non-performing members of the judiciary (a court reporter) and the retention of some members of the judiciary with perceived dubious wartime pasts.55 Other commentators and judges have noted that the system has increased independence of the judiciary as judges in that they are now responsible to other judges and not to politicians in BiH (Bosnian judges), that the process is bringing BiH closer to the EU (international official), the judiciary is now more competent (USAID official involved in the reselection procedure) and that the system transitioned to a permanent body with full involvement by BiH nationals (International Center for Transitional Justice (ICTJ)).56

51

Id. at 62. Id. at 58. 53 See, e.g., IWPR, “Courting Controversy in Bosnia” (June 27, 2005), at http://iwpr.net/?p=bcr&s=f&o=242062&apc_state=henibcr200506. 54 See, e.g., JSAP Thematic Report X, Serving the Public, the Delivery of Justice in Bosnia, available at http://www.ecmi.de/emap/download/Bosnia_Chapter12.pdf, at 254 [hereinafter ICTJ Report]. 55 Final IJC Report, supra note 41, at 58; see Mark Freeman, International Center for Transitional Justice, BOSNIA AND HERZEGOVINA: SELECTED DEVELOPMENTS IN TRANSITIONAL J USTICE 14 (Sept. 2004), available at http://www.ictj.org/images/content/1/1/ 113.pdf. 56 Final IJC Report, supra note 41, at 58; ICTJ Report, supra note 54. 52

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4. Conclusions Regarding Future Use of such a System The vetting system can be used in other post-conflict settings, but a number of issues should be borne in mind. First, the reasons for wanting to conduct the reselection must be enumerated and discussed. In BiH, for example, these reasons included: •

•

•

•

• •

•

A forced population expulsion (including the judiciary) during the war, with no system for those judges expelled (or who feared for their safety and left of their own accord) to regain their positions after the end of the war. Limited direct practical effect seen with JSAP and other organizations’ court monitoring, and then the later ineffectiveness of the IJC oversight procedures of the entity and cantonal judicial bodies and respective parliaments in removing from office judges and prosecutors with suspected ethical and other disciplinary issues. Thus, the HJPC process was seen as a third (and final) step in progressively more aggressive strategies in cleaning up the judiciary. The existence of an apparent pool of refugee and IDP (as well as recent graduate) candidates for the positions. This is essential, as there is little point in conducting a reselection exercise where there are no qualified candidates to compete for the available positions. An anticipated 30-percent reduction in the number of positions available for entity and lower-court judges and prosecutors meant that it would be necessary to find a way to decide which of the sitting judges would remain in which positions. Constitutional changes in the RS and the Federation mandating ethnic quotas that broadly reflected the 1991 (pre-war) census. The involvement of international (non-ethnically partial) members, providing backing to the judiciary and a measure of control of the initial appointments. This was deemed important given the perceived failures of the earlier JSAP and IJC systems. The procedure was designed as a “one-time” effort not to be repeated.57

Should this system be contemplated elsewhere, it might be suggested that the following should exist prior to putting it in place. First, good reasons to do so must exist, such as serious problems, of whatever nature, with a sizable number of the members of the judiciary, coupled with a projected intended significant reduction in the judiciary, and new constitutionally mandated ethnicity rules. Second, there would need to be an estimated pool of potential candidates 57 Note that more detailed review of methodologies and principles associated with vetting of public officials has been produced by the ICTJ, and in particular by Alexander Mayer-Rieckh; see http://www.ictj.org.

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outside the current system who would apply, ideally two to three times as many candidates as current members of the judiciary. Third, if ethnic or other divisions are prevalent in the country, or if bias, for whatever reason, is feared among those making the appointments, it may be best to include a measure of control of persons not perceived to hold the bias, such as non-nationals with limited links to the country. Finally, and importantly, issues related to the independence of the judiciary should be borne in mind and balanced against the proposed system.58 E.

A NEW WAR CRIMES CHAMBER: LINKING INTERNATIONAL AND DOMESTIC WAR CRIMES TRIALS

As mentioned earlier, neither the SC resolutions establishing the ICTY, nor the GFAP in 1995, nor the domestic law of BiH regulated how the international and national domestic legal orders should fit together, apart from an understanding, through the Statute of the ICTY, that the ICTY would have primacy. 1. The Problem There was little understanding as to how the international and domestic prosecution services were to work together. Each “side” of the conflict, the Serbs, Croats and Bosniaks had “liaison offices” that worked with the ICTY prosecutors on cases, principally those involving “their” victims.59 The RoR Unit worked with prosecutors directly in each canton or district where trials were sought.60 But there was no clear public method of determining which cases would be worked on by whom. This seemed to feed the reluctance present in many prosecutors’ offices, including those in the RS, to proceed with prosecutions. Another problem existed internally in Bosnia. Prior to the harmonization of the criminal codes and criminal procedure codes of BiH in 2002, cases were normally begun in the jurisdiction where the crimes took place. However, as a result of the shifts of the population in BiH between 1992 and 1995, this meant 58 See, for example, the principles included in Opinion no. 1 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on standards concerning the independence of the judiciary and the irremovability of judges, available at http://www.coe.int/t/dg1/legalcooperation/judicialprofessions/ccje/textes/Avis_en.asp. 59 See, e.g., the ICTY Weekly Press Briefing of Feb. 10, 1999, available at http://www.un.org/icty/briefing/PB100299.htm. 60 ICTY, Annual Report for 2002 (Ninth Report), available at http://www.un.org/ icty/rappannu-e/2002/index.htm, at para. 235.

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that very few trials took place given that prosecutors were generally reluctant to try people from their own ethnic group. Prosecutors used a wider theory of jurisdiction, approaching universal jurisdiction, to argue for the appropriateness and legality of the trial in an area where the victims now resided, not where the crimes took place.61 A third part of the problem related to the need for the ICTY to more deeply engage in a “completion strategy.”62 It became clear that the ICTY would not have the support of those donor countries paying for the tribunal if it did not explain how and when it was to finish its work, in Bosnia in particular. It was also understood that the ICTY was not to try all persons responsible for crimes in the former Yugoslavia, but rather those allegedly most responsible for violations of IHL and/or crimes against humanity and genocide. Thus, the ICTY began to look for solutions within the national court systems of the countries for which it had responsibility. 63 Rule 11 bis of the Rules of Procedure and Evidence outlines how transfers of persons indicted by the ICTY, whether or not they were in custody, to states where the incidents allegedly occurred are to take place.64 Links were made between the ICTY completion strategy and this rule of the ICTY. BiH was a natural candidate due to the strong involvement of the international community in the legal and political structures of the country and the existence of a nationally mixed population, even if the communities were much more separated than before the war. At least at the state level, and in particular after reforms mentioned in Section D above, it became more acceptable to consider transfer of ICTY cases to BiH. At the same time, the international community in BiH was not pleased with the state of domestic war crimes trials to date. As mentioned in Section C above, many of the trials had faults. The question then arose what system should be put in place to enable better cooperation between the international and national war crimes trial systems in BiH. In 2001–2002, movement in the field of the judiciary increased as the court of BiH was being established, better cooperation between entities policing structures was pushed and a more aggressive approach to judicial selection was contemplated. This opened up room for discussion of issues related to war crimes trials. In addition, the ICTY prosecutor, Carla del Ponte, had floated the idea

61 See, e.g., the Novo Rajak case and the Fikret Smajlovic case, described in the OSCE, supra note 16, at 57 and 59. 62 See Daryl Mundis, Completing the Mandates of the Ad Hoc International Criminal Tribunals: Lessons from the Nuremberg Process? 28 FORDHAM INT’L L.J. 591, 601 (Feb. 2005); see also, e.g., ICTY Completion Strategy Reports, at http://www.un.org/ icty/rappannu-e/2002/index.htm. 63 See ICTY Rule 11 bis in the Rules of Procedure and Evidence, UN Doc. IT/32/Rev.39 (Sept. 22, 2006), available at http://www.un.org/icty/legaldoc-e/basic/rpe/ IT032Rev39e.pdf. 64 Id.

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of greater domestic jurisdiction involvement in the war crimes trials, reporting to the Security Council in November 2001: the International Tribunal alone cannot carry out all the work required to reconstruct a national identity, without which there can be no deeprooted or lasting peace. For this reason, it must even more keenly encourage the domestic courts and indeed other extrajudicial mechanisms of reconciliation to pick up its work on a national level.65 In early 2002, therefore, the OHR decided that a group should be established to examine the structures for war crimes trials that might take place in the future. To some extent, the likely framework of the new structure was dictated by circumstances. It was clear that the ICTY was finding it difficult to complete all cases within the timelines being asked of it, while there was a feeling that the cases having been tried in BiH were, for the most part, not up to scratch. In addition, BiH had a tradition of post-war “hybrid” jurisdictions, such as the BiH Constitutional Court (three non-nationals, six nationals),66 the Human Rights Chamber (eight non-nationals, six nationals),67 and the provisional elections appeals commission (one national with override powers and three nationals).68 Hybrid courts also were being considered for war crimes trials in Sierra Leone 69 and Cambodia. 70 Finally, the existing RoR structure mentioned in Section B above meant some measure of existing interaction between international justice and the existing courts of BiH. Four persons with experience in BiH and at the ICTY were engaged to work with the OHR in determining options for the modalities for future trials. The Consultants’ Report to the OHR on the Future of Domestic War Crimes Prosecutions in Bosnia and Herzegovina71 (Consultants’ Report or Report) identified numerous factors in favor of a change in the system, including issues related to ethnic bias and whether mono-ethnic courts could deliver justice, 65 See the 8th Annual Report (2001) of the ICTY to the Security Council, UN Doc. A/56/352-S/2001/865, available at http://www.un.org/icty/rappannu-e/2001/ index.htm, at para, 280. 66 Annex 4 of the GFAP, available at http://www.ohr.int/dpa/default.asp?content_id=379. 67 Id., Annex 6. 68 Id., Annex 3. 69 See the Jan. 16, 2002 Special Court Agreement with Sierra Leone, available at http://www.sc-sl.org/scsl-agreement.html. 70 See the Government of Cambodia’s introduction of the Extraordinary Chambers, at http://www.cambodia.gov.kh/krt/english/introduction_eng/index.htm. 71 Consultants’ Report to the OHR on the Future of Domestic War Crimes Prosecutions in Bosnia and Herzegovina, unpublished, May 2002 (on file with the author). The four consultants engaged were Peter Bach, Kjell Björnberg, John Ralston and Almiro Rodrigues.

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resolve of local courts, witness protection issues, security of personnel, lack of inter-entity cooperation and a lack of recognition in practice of judgments in each entity.72 2. The Proposed Solution The Consultants’ Report proposed the establishment of an IHL division within the court of BiH, having an appeals chamber and at least one trial division, with five judges including two international judges. An international prosecutor was proposed who would have overall responsibility for war crimes investigations in BiH. The Report proposed further that the RoR cases be transferred to this prosecutor and that he should have control over which cases proceeded at the state level or the entity level. The Report also made recommendations concerning laws of evidence, witness protection and court police.73 Much of the substance of the Report was given effect in amendments made to the law on the court of BiH and the criminal code of BiH. A war crimes chamber was set up in the criminal division of the court of BiH, with both nationals and non-nationals of BiH.74 An international prosecutor was put in charge of war crimes trials. Witness protection legislation was adopted,75 and the criminal codes of BiH and the entities were harmonized.76 However, a number of issues remained to be sorted out between the ICTY, the prosecutor at the court of BiH, and entity prosecutors. The OSCE March 2005 Report, for example, noted: Confusion about this jurisdictional arrangement was clearly reflected by the results of the Prosecutors’ Survey (carried out before the adoption of the aforementioned Orientation Criteria and BoR), in which 50 per cent of the prosecutors’ offices considered that they would have jurisdiction to investigate a new case whilst the other 50 per cent noted that such jurisdiction belongs to the BiH Prosecutor’s Office alone . . . Six prosecutors expected that once notified, the BiH Prosecutor’s Office would decide who shall proceed with the case (e.g. BiH Prosecutor or entity prosecutor), five prosecutors expected the BiH Court would take over the case, whilst two prosecutors expected the BiH Prosecutor’s 72

Id., at 8. Id., at 43–45. 74 See, e.g., the Rules and Procedure of the Court of BiH, available at http://www.sudbih.gov.ba/files/docs/Rules_of_Procedure_Court_14_10_05.doc. 75 See the Criminal Procedure Code of BiH art. 237, available at http://www. ohr.int/ohr-dept/legal/laws-of-bih/default.asp?content_id=31549. 76 See the codes on the OHR’s Web site, at http://www.ohr.int/ohr-dept/legal/lawsof-bih/default.asp?content_id=31549. 73

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Office to order the necessary measures, and on prosecutor had no expectation. Divergent practice in relation to the new system, resulting from misinterpretation and confusion about the law, is apparent. 77 Similar confusion existed, in 2005, concerning which criminal and criminal procedure codes would apply in war crimes cases, raising important issues concerning jurisdiction.78 The new system thus envisaged three tiers. At the top, the ICTY continues to carry out the trials of the highest level officials, and will be, for example, the venue for the trials of Radovan Karadzic and Ratko Mladic.79 The second level, the War Crimes Chamber at the court of BiH, is a true hybrid court, with both international and national judges and prosecutors. The War Crimes Chamber is trying many indictees at a level below Mladic and Karadzic and is specially equipped for war crimes trials.80 The third level, cantonal and district courts, hosts trials of less difficult cases. It should be mentioned that the fact that most cantonal and district level courts in BiH are now of mixed ethnicity and configured based on a merit-based reselection procedure may increase the perception of the fairness of the trials, but there have been few such trials transferred by the BiH prosecutor’s office to lower courts. 3. Results of the War Crimes Chamber to Date The court of BiH had completed one transferred war crimes trial to November 2006 and had indicted 33 people and issued verdicts in eight other non-transferred cases.81 As of February 2007, the court listed 19 cases (one of which involves multiple defendants) currently pending either at first instance or appeal.82 It appears that the speed of trials is increasing, and that trials are on a pace that would exceed the speed of the ICTY, while still considering at length issues such as the application of Article 7 of the ECHR with respect to the legality of the application of crimes against humanity, which was not known as a crime in BiH at the time of the commission of the offense, although the

77

OSCE, supra note 16, at 19. Id. at 20–21. 79 See, e.g., mention in the ICTY Completion Strategy Report of May 31, 2006, at http://www.un.org/icty/publications-e/assessments/documents/2006-531eng.pdf, at para. 46. 80 See http://www.sudbih.ba. 81 International Crisis Group, Ensuring Bosnia’s Future: A New International Engagement Strategy, Europe Report No. 180, Feb. 15 2007, available at http://www.crisisgroup.org/library/documents/europe/balkans/180_ensuring_bosnias_future_web.doc, and citing a Nov. 2006 BIRN/IWPR Report; see http://www.bim.ba/bh/52/10/. 82 See at http://www.sudbih.gov.ba. 78

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underlying elements of the offense were punishable.83 An initial view of the current system provides indications of success, but, again, it would be worth waiting a few years and comparing the transitional period to the post-transitional period before passing judgment. In early 2006, Human Rights Watch wrote: The WCC [War Crimes Chamber] offers tremendous promise to affect the way justice is realized in Bosnia. In this regard, Human Rights Watch is encouraged by the efforts made thus far to create a solid foundation to conduct fair and effective trials before the WCC, including initiatives to promote sustainable local capacity. However, the real challenges associated with conducting fair and effective trials lie ahead. Depending on how these challenges are addressed, the WCC and its institutions have the potential to make a significant impact on building respect for the rule of law in Bosnia. In that regard, it will require continuous support from the international community and the people of Bosnia in realizing its full potential.84 4. Conclusions Regarding Future Uses of such a System Experience has shown that difficulties arise in trials held at smaller monoethnic courts after a war fought along ethnic lines. Initial reports point to the success of a hybrid system in which the prosecutor and the ICTY are linked and after a reselection system where judges are chosen based on merit rather than based on political affiliation. The prosecutor in War Crimes Chamber cases has been aided by the evidence gathered by the tribunal in ICTY-transferred cases. In future situations in which there are strong links between an international court (such as the International Criminal Court (ICC) or an ad hoc tribunal), these links should be well defined in law. It may also be useful to consider various tiers of justice, depending on the complexity, potential for bias and security conditions of each case. The BiH system contemplated three tiers: all international (ICTY), hybrid (War Crimes Chamber) and domestic (cantonal/ district level courts).

83

Paunovic Dragoje, Paunovic_ENG_X-KR-05-16, July 21, 2006, at http://www. sudbih.gov.ba. 84 Human Rights Watch, Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina (Feb. 2006), available at http://hrw.org/reports/2006/ij0206/index.htm.

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CONCLUSIONS

Two caveats should be placed on any final remarks. First, each country’s context will differ. Second, the BiH experience is still under way and will need years before anything close to definitive assessments can be made. That said, trials conducted in mono-ethnic jurisdictions in BiH suffered drawbacks, while the current system of centralizing trials in one countrywide court with international involvement, and after a reselection procedure for judges, has shown initial successes. This can be contrasted with the results of the 1996 RoR procedures, one of the main effects of which was a delay in war crimes trials before domestic BiH courts, many of which contained flaws. Finally, before any of these systems are tried, the long-term rule of law consequences of the decisions undertaken should be carefully considered, in particular the reselection procedure. PSOs will certainly continue to include law enforcement mandates. The experience in recent operations has shown that strong post-conflict security and judicial systems cannot be taken for granted. It would be useful to consider experiences such as those in BiH when designing and implementing future PSO law enforcement structures.

CHAPTER 10 FORENSIC ANTHROPOLOGY IN PEACE SUPPORT OPERATIONS Mercedes Doretti* Jennifer Burrell**

A. INTRODUCTION Forensic anthropology used in the context of human rights cases has come to the forefront in the past two decades as an essential part of peace support operations (PSOs), international and national tribunals and of special commissions of inquiry and other types of investigations following large-scale human rights abuses. Framed within the fundamental right to truth and justice of victims of human rights violations, their families and societies at large to know what happened to their loved ones, the missing and the disappeared, this application continues to develop. Forensic anthropology has now been used in the investigation of human rights violations in more than 50 countries in Latin America, Africa, Asia and Europe, often following requests from local and international human rights organizations, local judiciaries, government and/or UNsponsored truth commissions, the offices of special prosecutors and international tribunals, among others. This chapter will focus on what forensic anthropology is, how it has developed and how it can contribute to peace support efforts relative to its application in the investigation of human rights abuses, using the Argentine case as an example. Forensic science deals with the recovery and analysis of physical evidence and refers to biological and non-biological evidence. Biological evidence includes skeletal remains, body parts, bloodstains, other bodily fluids, fingerprints and so forth. Non-biological evidence related to a crime includes items associated with remains or relevant to the case, such as bullets, personal belongings, weapons and other objects that can potentially provide information in a criminal investigation. Forensic anthropology can be defined as the application of knowledge and techniques from physical or biological anthropology and foren* Argentine Forensic Anthropology Team (EAAF). ** Department of Anthropology, State University of New York, Albany and EAAF Consultant. 179

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sic medicine to the study of skeletal or almost skeletonized remains within the context of a legal investigation. When remains and associated evidence are retrieved, criminalistic and archaeological techniques are also used. Anthropologists working in forensics often also work on the recovery, preservation and analysis of the crime scene as well as site-finding efforts. Unlike non-politically motivated criminal cases where investigations usually occur almost immediately, in human rights cases governments or accused parties often deny or impede access to remains of alleged victims or permission to conduct full investigations. In the interval, remains may decompose and become skeletonized. Therefore, the combination of techniques and knowledge used in such forensic investigations may include interventions from forensic anthropology along with forensic pathology, physical anthropology, archaeology, cultural anthropology, ballistics crime scene investigation, genetics and others. This inter-disciplinary effort, together with genetic analysis for identification purposes, often allows for the skeletonized remains of victims to be identified through a pooling of expertise that also maximizes the information obtained from the evidence. Specialists in these disciplines work as expert witnesses, technical consultants, and foreign experts for judiciaries, commissions of inquiries or other bodies that have the mandate and authorization to conduct such investigations. In order to address all these aspects, this chapter will be structured as follows. After this brief introduction, Section B will illustrate the Argentine case and the work of the Argentine Forensic Anthropology Team (EAAF). Section C will explain the strategies adopted to conduct the investigations and, therefore, provide some guidelines that may be adopted during investigations conducted in PSOs, whereas the fourth and final section will draw the conclusions and give some recommendations based on the experiences of EAAF and the authors. B. THE ARGENTINE CASE AND THE FORMATION OF EAAF In the summer of 1984, democracy returned to Argentina after eight long years of dictatorship. As many as 9,000 people were disappeared by the state during that time, and no official in-depth investigation had been allowed. It was generally known (although not officially acknowledged until years later) that many disappeared people had been thrown from airplanes into the Argentine Sea, and therefore in most cases, their remains would probably not be retrievable.1 But many others were buried in anonymous graves, in the “John Doe” areas2 of ceme1 An exception to this are the several dozen bodies discovered washed ashore on the Uruguayan and Argentinean coasts. For more information, see the annual reports of the Argentine Forensic Anthropology Team (2003, 2004 and 2005). 2 “John Doe” areas are sections where unidentified remains are buried.

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teries all over the country. In 1984, a few months after democracy returned to the country, judges, relatives of disappeared people, forensic doctors, police, media and the curious, gathered at cemeteries to frantically search for their remains. The press photographed bulldozers digging up several individual graves at once, skulls and other bones flying from their shovels. Untrained cemetery personnel tried their best to recover skeletal remains but left behind small bones, including teeth and other evidence such as bullets. The bones were broken, lost or mixed up. Skulls were piled in one place and post-cranial bones in another, destroying the relationship between the skull and the rest of the skeleton. Television screens showed doctors holding skulls with gunshot wounds. While in all likelihood these were the remains of disappeared people, nobody knew who among the victims they might belong to, nor to what episodes they were linked, nor who specifically was responsible for their deaths. Furthermore, no one knew what to do with these remains once they had been recovered. The evidence necessary for identification and for legal cases in progress against those responsible for these crimes was being destroyed and/or severely altered. There was no precedent in Argentina for dealing with massive exhumations of skeletal remains. The official forensic physicians in charge of recovery, whose familiarity was with cadavers, had little experience with exhumations or analysis of skeletal remains. In addition, some doctors had themselves been complicit in the crimes of the previous regime, either by omission or by commission. In Argentina as in most of Latin America and other regions as well, the forensic experts are part of the police and/or the judiciary system, or the government. Therefore, during undemocratic periods, their independence is severely limited. As a result, they lacked the trust of families of the victims. After several massive exhumations, the need for a scientific alternative to these procedures became obvious. The National Commission on the Disappearance of People (CONADEP) created in 1984 by newly elected President Alfonsín, and the Grandmothers of Plaza de Mayo—a local human rights organization dedicated to searching for disappeared children and those born in captivity—asked the Human Rights and Science Program at the American Association for the Advancement of Science (AAAS) for assistance. Eric Stover, in charge of that program at the AAAS, sent a delegation of forensic scientists, including Dr. Clyde Snow, one of the world’s foremost experts in forensic anthropology. Dr. Snow called for a halt to all unscientific exhumations and asked archaeologists and anthropologists to get involved. A few advanced students of archaeology and social anthropology answered his call. Under Snow’s direction, and using techniques from traditional archaeology and forensic anthropology, this group participated in exhumations in which the data was collected, documented and analyzed. This collected evidence served to convict several high-ranking military officials and to identify disappeared people, restoring their remains to their families. Dr. Snow returned to Argentina many times over the next five years. The volunteers he trained formed the Argentine Forensic Anthropology Team (EAAF),

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a scientific, non-governmental organization dedicated to the application of forensic sciences, mainly forensic archaeology and anthropology, to the investigation of human rights violations. After 1986, EAAF expanded its activities beyond Argentina and has since gone on to work in close to 40 countries in Latin America, Africa, Asia and Europe. Over the years, new forensic anthropology teams have formed in Guatemala, Chile, Peru and Colombia, among others. Important international forensic efforts were set up by special UN tribunals to investigate war crimes committed during the Balkan wars and the Rwandan genocide, among others. The newly created International Criminal Court (ICC) has a forensic component. Dr. Snow has been at the center of most of these efforts, providing training and advice, as well as working on cases. EAAF applies forensic sciences to the investigation of human rights violations to assist the families of victims, train local teams and/or forensic professionals, and provide evidence to courts. In the long term, EAAF aims to contribute to the historical reconstruction of the recent past, often distorted or hidden by parties or government institutions that are themselves implicated in the crimes under investigation. EAAF members frequently act as expert witnesses and consultants for local and international human rights organizations, national judiciaries, international tribunals and special commissions of inquiry, such as truth commissions. C. METHODOLOGIES AND PHASES OF FORENSIC ANTHROPOLOGY INVESTIGATION OF A HUMAN RIGHTS CASE EAAF typically carries out a forensic anthropology investigation of a human rights case in three basic phases: the preliminary investigation, the archaeological work and laboratory analysis of human remains and associated evidence. 1. Preliminary Investigation The main purpose of this phase is to provide as much background information as possible about an event under investigation, the alleged victims and the alleged killing and burial sites. In this phase, investigators gather three main types of information: (1) background on the case from a variety of sources, including oral testimonies from witnesses and survivors, non-governmental organization (NGO) reports and any documentation pertaining to the case such as newspaper accounts, official documents such as death certificates or records from hospitals, morgues and cemeteries; (2) the collection of ante-mortem or pre-mortem information about the victims, such as age at death, sex, ancestry, height, handedness, old fractures, injuries, diseases and dental information, which will later be compared with similar features when examining the remains at the laboratory for

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identification purposes; and (3) information about the location and general features of burial and killing sites, such as the number and size of graves and the number and possible identification of victims potentially buried in each grave. Standard questionnaires are used to collect data of the last two types. Typically, in the investigation of human rights cases, anthropologists will often work on several aspects of the preliminary investigation, instead of, or in addition to, having judicial or police investigators. This is particularly true when alleged perpetrators include state agencies, often the case in human right crimes, as they themselves cannot or are not willing to produce the background information on a case. In addition, most parties involved with or interested in an investigation, such as families of victims, prefer an independent team free of conflicts of interest. This partly explains why in Latin America, where massive human right abuses were perpetrated over the last four decades primarily by the state (with the exceptions of Peru and Colombia) most of the forensic teams are NGOs mostly focused on human rights cases. During this preliminary phase, anthropologists working on human rights cases interview relatives of victims to gather pre-mortem data and data related to the burial site and circumstances leading to the event. Forensic teams may also collect historical information about an event if no organization or individuals have done so or if the data collected by others is insufficient or does not include questions related to forensic issues. However, local human rights organizations, and sometimes local judiciaries, play a crucial role in finding eyewitnesses and putting together a case. Local NGOs in particular, often at great risk to their members, form a crucial bridge between forensic teams, investigative bodies and witnesses, survivors and relatives of victims of human rights abuses. Even in moments of democratic transition, witnesses and relatives of victims will frequently feel more comfortable releasing information to a local NGO or giving testimony before a court of law or a commission of inquiry with support and/or mediation from them. It is strongly recommended to keep direct contact between forensic teams and relatives of victims presumably related to the case under investigation before the forensic work begins, allowing families to understand the procedures to be performed, to ask questions, to voice and consider their expectations, doubts, objections, etc. In particular, cultural and religious practices regarding death and reburial should be treated with the utmost respect. In most cases involving political disappearance, the relatives of victims have been poorly treated by officials, who often deny the very fact that their loved ones are missing. It is important to reestablish a link of trust and respect. A good preliminary investigation allows the forensic team to plan a number of technical and practical issues. These include determining what human and material resources are essential; the most appropriate technical strategies for the archaeological work; probable duration of field and laboratory work; any logistical problems, such as site access, protection of evidence in situ, housing, funding, etc.

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At this stage, a team will also identify and evaluate the main questions that those directing the investigation (such as a truth commission, or a local or international tribunal) seek to address and the likelihood of accomplishing these goals through forensic work. Some examples of background information that a forensic team would need to know in advance to advise an investigative body include: • • •

•

•

•

Different versions of the incident under investigation. Is the field site a killing site, a burial site or both? Is the presumed identity of victims known, or only that they belong to a particular group? If the names of individuals are known, is there enough pre-mortem data to try to identify them? Are relatives available for possible DNA testing? How likely is it that the cause and manner of death will be established from the examination of the remains and/or the crime scene? For example, if the presumed cause of death (i.e., some stab wounds, some cases of strangulation) has probably not affected the bones and remains are expected to be skeletonized, in all likelihood, it is unlikely to provide conclusive information on this issue. Is an investigation likely to find evidence linking the crime with possible perpetrators, such as ammunition identifiable with one side in the conflict? Will the investigation be conducted at a primary or secondary grave?

In addition to establishing expectations of peacekeeping operations, commissions of inquiry and so forth, this phase also serves to shape the expectations of presumed relatives of victims if the possibility of finding and/or identifying their loved ones is slim. Forensic work is a tool within a larger investigation, and it is up to those directing the general investigative operation to set priorities, selecting the cases where forensic work will ideally be carried out, and to establish the main questions that need to be answered. After analyzing preliminary information, the forensic team can provide important input in the setting of priorities. 2. The Archaeological Work Archaeological work includes the survey and actual recovery of physical evidence at the surface, burial and if possible, killing site(s) of a crime. The archaeological approach, together with crime scene analysis, provides a scientific way to recover and reconstruct events under investigation and to prevent damage to evidence during excavations, incomplete recovery or lack of documentation of recovery processes.

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On site, an archaeologist tries to determine a number of things. These include, among others, whether a burial site contains the remains of one individual or more; whether it is a primary grave or secondary (where the remains were first buried versus where they may have been moved at a later date); whether bodies were deposited at the same time (synchronic) or at different times (diachronic); whether the evidence was disturbed after death; and, if there are traces left in the grave site of tools or machinery used for grave preparation that could provide information about possible perpetrators. The archaeological phase of a forensic investigation is generally concerned with the following: the proper recovery and preservation of biological and non-biological evidence associated with a legal investigation, site security, participants present at exhumations, recording evidence and keeping records, and establishing chains of custody, all of which are discussed below and are essential to guaranteeing the integrity of evidence in courts and subsequent interpretations of it. When a forensic investigation begins, security of a site must be provided and access to the site restricted around the clock until the work is finished. In order to accomplish this, a perimeter is established to mark the working area. Access to this area is limited to authorized personnel working on the site. Officials not working on the site, relatives of the victims, human rights organizations and the media should be kept outside the working area avoiding the risk of moving or damaging evidence, but family members should have a space from where they can follow the investigation. Impartial parties not related to alleged perpetrators should provide security. In cases in which a UN peacekeeping operation is already in the country, or the organization in charge of the investigation is a UN truth commission, UN security guards often provide security. This has occurred in investigations such as the excavation conducted at an El Mozote burial site in El Salvador at the request of the UN truth commission in that country, forensic investigations conducted in the former Yugoslavia by the International Criminal Tribunal (ICTY), and the forensic investigations in Haiti requested by the Presidential Truth and Justice Commission, among others. However, it is not unprecedented that governments under investigation refuse to allow the presence of UN armed guards, as was the case with the UN investigative mission in the Democratic Republic of Congo (DRC). Also, in countries like Argentina, Chile, Brazil and at the commencement of forensic work in Guatemala, where there was not a UN mission at the time burial sites were initially investigated, or not at all, sites are often secured by police or military forces, institutions accused of the alleged crimes under investigation. These arrangements, clearly, are not ideal and are often the source of conflicts, obstacles and delays during investigations. In the end, however, EAAF experience indicates that in most cases they do not interfere substantially with the investigation. This especially seems to be the case when high-level political author-

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ities, like a new democratic government, determine that an investigation should proceed and order the local police or military to cooperate. If, however, the highest authorities are not committed to allowing the investigation to proceed, the police or military may impede or seriously interfere with the work. The forensic team may take additional protective measures in some delicate situations, including extensive daily photo and video documentation and daily covering and sealing of the site. Protection of sites is also an issue when they are first discovered but will not be excavated for some time. While having security personnel at the site when no work is going on may be difficult or impossible, measures like extending a layer of cement on the surface of a grave can be of great assistance. It is inexpensive, and easy to carry out, even in outlying communities, and it also provides protection from animals and other unintentional damage. If the site is tampered with, at least there will be clear evidence of the fact. Truth commissions are sometimes entitled to order exhumations through their mandates, as were those in South Africa, Haiti, El Salvador and Guatemala, among others. However, what a truth commission’s role is at a site under investigation and the relationship with a local judiciary system are sometimes unclear. Overlapping jurisdictions and lack of precedents often obscure and confuse proceedings. As a result, even where commissions are entitled to order exhumations or forensic work in general, it is highly recommended that they consider inviting a justice of the peace or a local judge to be present at the site and to keep an official record of basic findings and procedures. This is suggested because even though truth commissions or peacekeeping operations often have some faculties that are similar to those of judiciaries, they are not the same. On occasion, cases initially investigated by a truth commission will later be taken to court. Having an official record from the local judiciary facilitates the incorporation of evidence from the truth commission to the judiciary. Among other things, this may prevent the judiciary, the defense, or the prosecutors from questioning the evidence on the grounds of it having been collected by a body outside of the judiciary system.3 Keeping careful records and recording the progress of the archaeological phase of an investigation becomes doubly important since the collection of evidence necessarily entails the destruction of the original context in which it was found. The documentation of evidence in situ, then, using survey equipment, photographs, video and other means, is crucial to later contextual reconstruc3 In Argentina, the truth commission, called CONADEP, worked for nine months in 1984 and then handed all of its records to the judiciary that used them in trials. A similar process occurred in the Raboteau cases in Haiti. While the case was initially investigated by the Truth and Justice Commission, the evidence was later transferred to the Haitian judiciary. In El Mozote, in El Salvador, the forensic work was initiated by the truth commission but the local judge in the province where the case was opened was present at the site and kept a daily record of the investigation.

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tion, often accomplished through maps and graphics. An inventory of each recovered item or exhibit, its code number assigned by the forensic team, its tridimensional location within the site and in relation to other pieces of evidence and the state in which it was found should be recorded daily in a log sheet. This information can provide vital information in terms of the following issues: 1. 2. 3.

4.

cause of death, that is, location of bullets within a skeleton; manner of death, that is, possible location of shooter(s) according to the position of cartridge cases on a site; time of death—cadaveric fauna, coins, pieces of newspaper and cartridge cases may provide indirect information about a possible burial date; post-mortem disturbances—alterations in the anatomical position of a body or skeleton, such as finding vertebrae at the level of the leg, for example, can imply unintentional disturbance of the evidence, possibly produced by natural forces such as animals, rain or even agriculturalists, or intentional disturbances to cover up a crime.

One member of a forensic team, either an archaeologist or crime scene investigator, normally keeps this record. Together with the analysis of the evidence at the laboratory, the field record will serve as the basis for the final technical report submitted to the director of an investigation. Concurrently, the official in charge of the custody and transport of evidence should maintain a separate record. Unlike traditional archaeological excavations, an additional legal record is needed in forensic cases. This record should state the main daily tasks and findings, including the recovered evidence with its assigned code number, who participated in the work, who visited the site, etc. Most importantly, the record should include who is in charge of the custody of the evidence at the end of each day, its transport and custody at the storage site (morgue, laboratory, truth commission or judicial building, for example). Every change of hands must be recorded and signed on a chain of custody form by the person responsible for the evidence at each step, maintaining the chain of custody. The record should be kept according to standard procedures acceptable in a court of law. The best evidence can be ruined by poor recording procedures or by gaps in the chain of custody of the evidence and the security of the site. 3. Laboratory Work Evidence collected in the field is analyzed at a laboratory. In terms of human remains, there are two main objectives at this stage: to try to identify remains and to establish or provide data regarding the manner and cause of

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death of the individual(s). The forensic team will also work to establish an approximate time of death and to pinpoint possible post-mortem changes from animal bite marks on bone to trauma by machinery used to load bodies into graves or remove them to secondary burial sites. When analyzing skeletal remains, forensic pathologists and anthropologists try to answer the following questions: Are the remains human? Are there one or more individuals represented in the sample? What was the sex, age at death, height, laterality, etc., of each individual when they were alive? Can the individual be identified? What was the interval since death? What was the cause and manner of death? During the analysis of skeletal remains, simple laboratory facilities are all that are needed to answer the majority of these questions. A large clean cool room with good light, water and tables are basic requirements. Access to an Xray machine and technician can normally be arranged with a nearby clinic or hospital. When analyzing remains that are not fully skeletonized, refrigeration is required. The chain of custody continues in the lab; thus, its security is as important as it is for the field site and transportation of evidence. In some countries and academic traditions, people working in the laboratory must be completely separate from field personnel, as they believe that knowledge of the field can bias results, or they simply do not communicate with field experts. In the authors’ experience, this position, sometimes sustained by judges, impoverishes the investigation and can lead to mistakes in the interpretation of evidence. It is very important to consider general background information as well as archaeological data and evidence about the case when working in the lab, as it may be vital to answering questions targeted during this phase of analysis. 4. Identifications: Problems and Dilemmas During the identification process, physical (pre-mortem or ante-mortem) data provided by presumed or potential family of the victim is compared with data obtained from the examination of human remains. When a person died recently and visual recognition is still possible, identifications are generally carried out by presumed relatives. However, once bodies are decomposing or skeletonized, in most cases this is clearly no longer possible; it is not a reliable way to identify remains and could be the source of grave potential mistakes. In cases where insufficient pre-mortem data is available, for example, in countries where the affected population involves rural peasantry with little or no access to medical or dental assistance, or consists of urban victims without medical records or particularly identifiable physical features, genetic methods are slowly being integrated to identify skeletal remains, together with traditional anthropological and odontological techniques. This genetic method consists of extracting DNA from teeth or bones of the remains to obtain a genetic

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profile and comparing it with DNA extracted from the blood, saliva and/or hair samples of the victims and/or those provided by presumed relatives. In the absence of special or individualizing physical pre-mortem features or the possibility of a DNA comparison, identifications based on clothing and general biological profiles or physical data (such as age, height, sex and handedness) are considered tentative, a step before reaching positive identifications. These may sometimes be legally accepted in conjunction with strong circumstantial evidence regarding the identity of a victim. For example, this may occur when victims have been killed on the spot, and relatives or fellow prisoners agree on how he or she was dressed immediately before death and/or burial. This is sometimes the case, as in the genocide against the Maya in Guatemala in the 1980s, where many people were killed and buried in and around their hamlets in front of their relatives or neighbors. Clothing worn by many Maya in Guatemala, particularly among women who wear huipiles (hand woven shirts), can be quite distinguishable and traced to certain villages and even weavers. In these cases, judges often decide that circumstantial evidence together with the consistency of clothing and general physical features are strong enough to support identification. In cases of disappearances, such as those in Argentina, for example, the situation is often quite different. Typically, people were abducted by security forces, taken to illegal detention centers, stripped of all clothing and personal belongings on arrival and tortured while naked. Later, they were dressed in clothing left by other prisoners. In these cases, clothing should not be taken as an element of the identification process. The same is true for personal belongings and identity cards: they can be exchanged among friends or fellow prisoners in jail or while on the run. In addition, the decomposition of a body combined with the composition and temperature of the soil and other organisms around cloth often produce serious discoloration of clothing items and obscures details, making identification based on these items quite difficult or confusing.4 In sum, the value of clothing as an element to take into account in an identification should be carefully analyzed on a case-by-case basis. The creation of a data bank correlating background information on cases and victims—date and place of abduction or killing, available pre-mortem information and data extracted from laboratory analysis of the remains—can considerably maximize chances of identification. It is also helpful to use standard pre-mortem laboratory and background information forms so that data is collected in a standardized fashion. 4 In places like Bosnia, the international criminal tribunal forensic team washed clothing quite carefully to assist with the identification process. Clothing items are surprisingly different after washing than when first recovered: stripes, designs and color changes are among elements that may have been previously obscured.

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All possible efforts should be made to identify the remains of victims of human rights violations. However, experience indicates that in many cases and for different reasons—time constraints, lack of pre-mortem information, lack of access to DNA analysis—expectations about identification of many of the victims within the timeframe of a PSO or truth commission is highly unlikely if not simply impossible. Nevertheless, it is of utmost importance that these institutions seek to establish the necessary mechanisms so that investigations and identifications can continue after mandates expire, independent of future or non-judicial prosecutions, and despite amnesty laws. The right of families of victims benefit from all possible efforts to find their loved ones, to know the truth about what happened to them and to recover their remains should be guaranteed. The same can be said about society as a whole. 5. Strategies Forensic investigative strategies are usually shaped by the judiciary, public ministry, a commission or peacekeeping force’s mandate to establish the basic facts of inquiry and by the time period during which the investigation must take place. Normally this may be a year or several years to investigate thousands of crimes, which makes it impossible to investigate all crime sites. Thus, priorities and strategies must be arrived at. In addition, in cases like Argentina, Chile, Guatemala and others, forensic work continues after truth commissions and trials are over, even after amnesty laws are passed. In arriving at a strategy, reasons to conduct forensic work and particular sites that allow goals to be reached must be considered. The forensic team studies the available information in each case and can offer advice regarding the feasibility of reaching expected results given time and resources available. At the Haitian Truth and Justice Commission, for example, the commissioners and the forensic team discussed the pros and cons of each forensic site to be investigated before making a final decision. To leave it to the forensic team to establish which sites will be investigated can be at odds with the investigative body priorities. The team may decide this based on technical aspects or other factors that are not consistent with the commission’s priorities. The opposite is also true. 6. Criteria for Case Selection The selection of sites and the order in which forensic work can be done depends on a number of facts that need to be evaluated and decided upon by those in charge of an investigation in conjunction with technical advice from the forensic team. Many intertwined factors may contribute to a decision to work on a specific site. Some of the criteria for prioritizing cases are:

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2. 3.

4. 5.

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emergency situations: surface evidence or shallow grave sites at risk of destruction by natural elements—rain, wind, storms or floods or by alleged perpetrators; humanitarian grounds: although these sites may not provide vital or new legal evidence, they are important for families of victims; emblematic cases fulfilling the mandate of the investigative body: sites that may represent a pattern of violation in a given country, such as attacks and killing of refugees in camps (DRC), governmental scorched earth policies in El Salvador’s civil war (El Mozote) or because of the seriousness of a violation, such as the attack on Croatians of Vukovar by Serb forces after they took the city in 1991; dymbolic or social value, such as the killing of a respected leader— for example, the assassination of Monseñor Romero in El Salvador. rqual number of sites from each party involved in a conflict.

Truth commissions or other investigative inquiries outside courts of law additionally need to decide what level of evidence to pursue. In order to do so, the first basic questions of an investigation must be arrived at and considered within the timeframe. For example, if a PSO is working to establish whether there is substantial evidence to support allegations of massacres and other serious crimes in a country or large territory, and it has a few months to establish that, the investigative strategy as regards forensic work may mean choosing a more extensive sample-oriented investigation than an intensive one. In other words, rather than exhuming a few sites completely, it may choose instead to examine only a representative number of bodies at each mass grave. In case such as these, the forensic team may attempt to establish an estimate of the minimal number of individuals in each burial site, estimate general biological features in the examination of the remains, such as ancestry, age and sex of the deceased, and provide information about cause and manner of death. Provisions should be made so that a larger forensic project can continue afterwards, but this evidence may be sufficient for what a commission is trying to establish. 7. Psychological Assistance to the Relatives of Victims There are many different reactions to having a family member or loved one disappeared. While this issue cannot be covered in its entirety, a few issues that emerge from EAAF experience working with families over the course of almost three decades, and in close to 40 countries, need to be raised. One of the most perverse effects of political disappearance is its essential ambiguity: disappeared people are neither dead nor alive. They are in a third ill-defined category. For example, the disappeared are often referred to in the present tense. The normal process of mourning is therefore suspended, frozen. Though the relatives of the victims assume, consciously or unconsciously, that their loved

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ones are probably dead, at the same time, there is always the hope of finding them alive. However, hope is accompanied by the anguish of not knowing exactly what happened and being unable to establish with any certainty whether he or she is dead. This uncertainty leads to significant pain and guilt. Often the relatives of the disappeared indicate that they feel caught in a paradox: they know that there are no other places to search for their loved one, or they cannot gain access to these places, but at the same time, they cannot bring themselves to declare them dead and stop searching without evidence of their death. This is not only for political reasons but because they feel they are abandoning their loved ones if they stop searching and that a part of their lives and minds stopped when their relative disappeared. Nothing can repair the damage inflicted on the victims and families of disappeared, but a consistent narrative that we have heard is how much participating in NGOs has assisted these families in breaking the circle of silence and fear. In EAAF experience, the vast majority of families feel that they want to recover the remains of their loved ones and that the truth, no matter how painful, is better than living with ongoing uncertainty. D. CONCLUSIONS AND RECOMMENDATIONS Forensic anthropology investigations can make an important contribution not only to commissions of inquiry and other shorter-term mandates, but also to longer-term peace-building processes. While the language of peacekeeping processes often speaks of humanitarian identifications, experience suggests that it is impossible to tell when an identification might become evidence in a trial. For this reason, it is suggested that all investigations leading to identifications be conducted within the kinds of forensic investigative parameters laid out above. Based on experiences working as forensic anthropologists for truth commissions, special commissions of inquiry and national and international tribunals, EAAF has developed a number of recommendations. Some of them are the result of two workshops organized in 2002 and 2003 by the Missing Project of the International Committee of the Red Cross in Geneva where forensic pathologists, anthropologists, archaeologists, lawyers and human rights activists developed guidelines regarding the missing and disappeared people during wars and internal conflicts. Several of these have been discussed at length above, and in these cases, no further details are needed. The effectiveness of institutional bodies that are established for fixed time periods would be improved by establishing the following: 1.

Improving the relationship between families of victims and forensic teams: a. Facilitating the right to truth of families of victims;

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4. 5.

6.

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Seeking approval from families for exhumations and respecting cultural and religious funeral rites. Creating mechanisms to continue the recovery and identification process beyond a commission’s or tribunal’s mandate. Whenever possible, improving contacts between the independent forensic experts and local judiciaries, prosecutors, judges, and lawyers. Giving presentations to local judiciaries and lawyers, with basic information about how the forensic sciences, mainly forensic anthropology, archaeology and genetics, can contribute to judiciary investigations. This also provides a valuable opportunity to discuss the way evidence is handled in a particular country, discuss cases done in other parts of the world, as well as specific local ones, and understand the concerns of the legal community. Whenever possible, training and promoting local teams and local forensic experts. Whenever possible, maintaining contact with local human rights organizations. At the time of the occurrence of massive human rights violations in a given country, the judiciary normally loses much of its capacity to impartially investigate crimes committed by the state or by armed parties in a civil conflict. On the other hand, truth commissions are usually created in transitional moments, at the end of civil conflicts, wars, state terrorism, etc. Thus, local NGOs often fill part of that gap. At times, at great risk to their members, they form a bridge between the investigative body and the witnesses, survivors and relatives of victims. Even in democratic transitional moments, witnesses and relatives of the victims will frequently feel more comfortable releasing information to a local NGO or giving testimonies before a court of law or national or international Commissions of inquiry with the support or mediation of an NGO. Truth commission investigators usually rely on the work of NGOs as a starting point for their investigations and, by extension, to related forensic aspects. Improving access to DNA. Informing relatives of a disappeared person that the remains being analyzed do not correspond to their loved one is very difficult. However, it is equally difficult to tell them that we are not sure whether or not a particular set of remains match, and since we have no way to resolve this doubt, the remains must remained stored. Traditional forensic anthropology techniques are limited where sufficient ante-mortem evidence cannot be obtained. This was often the situation until the early 1990s, when it became possible to recover DNA from skeletal remains. At this point, genetic testing quickly became a tool in human rights investigations. However, access to it is still very expensive. EAAF has depended on the generous pro bono work of laboratories in the United States, Canada and the United Kingdom, but they

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7.

8.

9.

can only accommodate a limited number of cases every year. As a partial remedy to this problem in Argentina, EAAF has established a genetic blood bank comprised of blood samples from relatives of disappeared people who visited our Buenos Aires office from 1998 onwards. This bank will make possible future genetic analyses necessary for identifications whether or not close relatives are present or alive. This will become especially crucial in countries like Zimbabwe, where HIV is affecting at least 25 percent of the adult population. Since 2002, EAAF has also been working with an Argentinean genetics laboratory, LIDMO, to process samples. Recent upgrades in DNA technology and processing are due mainly to two tragic events: the Balkan war and the attack on the World Trade Center. Large-scale investigations following these two events significantly diminished the cost of processing samples for DNA analysis, speeded up the processing and made it possible to process samples where DNA is severely degraded. In addition, new software was developed to compare thousand of profiles from victims and their relatives. These developments have resulted in the possibility of massive DNA processing, a crucial issue when large numbers of victims are involved, often the case in human rights investigations. These improvements are bringing new hope to thousands of families still waiting for an answer as to the fate of their disappeared loved ones. Protecting possible killing and burial sites. Whenever possible, it is important to protect possible killing and burial sites if they are not being investigated at the time of discovery. In this way, they will be available to families of victims and investigators working in future investigations. Preserving crucial evidence and forensic reports for possible on-going and future investigations and prosecutions. Uncovering evidence of human rights crimes does not necessarily mean that justice is immediately achieved. Many human rights violations are investigated but are not prosecuted, mostly because of amnesty laws, limiting the role forensic evidence can play in judicial processes. However, as new mechanisms are developed in the field of international criminal law, and old cases are brought back to trial (in Argentina and Chile, for example), it is important that vital evidence and reports be preserved in order to be used in future trials, as needed. Creating witness and informers protection programs. In each commission or tribunal, there is usually a core group of ten to 15 or fewer key witnesses to major incidents. Often these individuals need protection, including in some cases eventual safe emigration to another country. In most cases, this type of commission has no mechanism for dealing with witness safety. An ad hoc measure may eventually be enacted, depending upon the commission’s specific mandate, how it is

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interpreted and the flexibility of the international, national and regional bodies that may assist in this process. Though setting up a witness protection program is clearly a complicated issue, it is extremely important to include some sort of mechanism from the planning phase as a matter of course. 10. Providing counseling or psychological support for persons who testify, and for families and friends of victims before, during and after exhumations. 11. Counseling or psychological support for staff members who receive testimonies for such commissions and forensic personnel. Sometimes the overwhelming weight of the testimonies of witnesses, victims and their families can produce conflicting feelings of exhaustion, guilt, and depression in the researchers who are investigating atrocities for truth commissions. In some instances, international investigative missions have provided psychological support, but this is still the exception. Counseling may prove especially helpful when these commissions extend their work to a year or more, as they often do. 12. Promote the incorporation of international forensic protocols for human rights investigations into domestic criminal procedures. The promotion of the incorporation of international forensic protocols for human rights investigations into domestic criminal procedures is essential. Doing so may help to ensure that scientific tools and mechanisms developed for human rights investigations will have a more long-term effect. Along these lines, the United Nations has produced several documents relating to forensic science and human rights.

CHAPTER 11 THE TREATMENT OF DETAINEES BY PEACEKEEPERS: APPLYING PRINCIPLES AND STANDARDS AT THE POINT OF DETENTION Bruce “Ossie” Oswald*

A. INTRODUCTION Peacekeepers1 have detained individuals in a variety of situations, including where local authorities have failed or are unable to maintain law and order. Such detentions have usually occurred while peacekeepers have been mandated to protect civilians, UN personnel and property; assist in restoring and maintaining law and order; and contribute towards maintaining secure conditions for the provision of humanitarian assistance. In practice the United Nations has accepted that its peacekeepers detain individuals. For example, in his 1958 report on the First UN Emergency Force (UNEF I), the Secretary-General recounted how UNEF “exercised a limited power of detention.”2 In Cyprus, UN military police were authorized to take “any Cypriot citizen committing an offence or causing a disturbance on [UN] premises . . . without subjecting them to the ordinary routine of arrest, in order to immediately hand him to the nearest appropriate Cypriot authorities for the purposes of dealing with such offences or disturbances.”3 In Rwanda, in ful* Senior Lecturer in Law and PhD Candidate, The University of Melbourne, Australia. The author remains grateful to Ms. Liz Saltnes for her continued support and also to Dr. Wendy Larcombe and Dr. Roberta Arnold for their comments in relation to earlier drafts of this chapter. An earlier version of this chapter was presented at a Danish Ministry of Foreign Affairs roundtable discussion dealing with detention during peace operations. 1 The term peacekeeper as used in this chapter refers to military personnel serving on peace operations other than those that may be classified as armed conflict or occupation. 2 UN Secretariat, Report of the Secretary-General: UN Emergency Force: summary study of the experience derived from the establishment and operation of the force, UN Doc. A/3943, para. 54 (Oct. 9, 1958) [hereinafter UNEF Summary Study). 3 Exchange of Letters Constituting an Agreement between the United Nations 197

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filling their mandate to contribute to the security and protection of civilians, UN military peacekeepers were authorized by the Force Commander to search, disarm and, where necessary, segregate suspected criminals. They also held civilians accused of genocide in detention until they were handed over to the local district prosecutor and conducted operations to disarm militias operating in the camps of internally displaced persons.4 More recently, in January 2006, the UN Stabilization Mission in Haiti (MINUSTAH) detained a number of individuals during “anti-gang” operations.5 On peace operations that have not been commanded or controlled by the United Nations, peacekeepers have also detained individuals. During operations in Kosovo, the NATO-led Kosovo Force (KFOR) undertook detention management.6 In East Timor, the International Force for East Timor (INTERFET) restored and maintained law and order by, amongst other things, detaining individuals accused of serious crimes and reviewing their status.7 Recently, peacekeepers serving with the the International Joint Task Force in East Timor detained, in a matter of days, 298 persons during the July 2006 unrests in Dili.8 Accepting that taking and handling detainees is a component of most peace support operations (PSOs), the aim of this chapter is to provide some principles and guidelines as to how to treat detainees at the point of capture.9 This and the Government of Cyprus Concerning the Status of the United Nations Peacekeeping Force in Cyprus of Mar. 31, 1964, 492 U.N.T.S. 57. See also UN Secretariat, Report of the Secretary-General, UN Doc. S/12946, paras. 40–41 (Dec. 1, 1978). 4 Bruce Oswald, Peacekeeping in Rwanda—A Lawyer’s Experience 70 AUS. L.J. 72–73, 69–78 (1996). 5 UN Daily News, Haiti: UN Peacekeepers mount new anti-gang operation in capital 7 (Nov. 18, 2005), available at http://www.un.org/news/dh/pdf/english/2005/18112005.pdf (last visited Jan. 14, 2007). See also UN Press Release, ‘Deux opérations anti-gangs récentes accomplies par la MINUSTAH,’ PIO/PR/244/FRA/2006 (Jan. 30, 2006), available at http://www.minustah.org/articles/45/1/Deux-operationsanti-gangs-recentes-accomplies-par-la-MINUSTAH/PIOPR224FRA2006.html (last visited Jan. 14, 2007). 6 For an analysis of KFOR’s role in filling the rule of law vacuum, see CENTER FOR LAW AND MILITARY OPERATIONS (CLAMO), LAW AND MILITARY OPERATIONS IN KOSOVO: 1999–2001, LESSONS LEARNED FOR JUDGE ADVOCATES 99–119 (2001). 7 See, e.g., Bruce Oswald, The INTERFET Detainee Management Unit in East Timor 3 Y.B. INT’L HUM. L. 356–59, 347-61 (2000). 8 Judicial System Monitoring Programme, Justice Update 1 (July 2006), available at http://www.jsmp.minihub.org/Justice%20update/2006/Detensaun/Eng.pdf (last visited Jan. 9, 2007). 9 This chapter is not concerned with the treatment of those captured or detained during armed conflict or during occupation. The law relating to those situations is covered by international humanitarian law and the municipal laws of states that give effect to international humanitarian law. See, e.g., Horst Fisher, Protection of Prisoners of War, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 321–67 (Dieter Fleck ed., 1995); UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CONFLICT 139–211

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chapter restricts its analysis to a relatively short time frame—that period commencing when the person is detained to the moment when the peacekeeper(s) releases the detainee, hands him/her over to a local or international authority or transfers the detainee to other peacekeepers for further questioning or detention.10 There are three reasons for this narrow focus. First, on most peace operations, peacekeepers will usually only be involved in holding detainees for a relatively brief time. This will be the case particularly where local law and order institutions are functioning and have primary jurisdiction over the local population. Second, it is during this initial period of detention that the safety of both the detainee and the peacekeeper are particularly at risk because of the heightened tensions that usually arise during military operations. Third, it is at the point of initial detention that issues of accountability of peacekeepers are most often raised. There is a growing awareness that peacekeepers must be held accountable for their actions, and sometimes their omissions, when taking and handling detainees. This is only proper—both as a matter of law as well as military professionalism. Importantly, accountability in this context is no longer measured in terms of the duration of the operation or deployment. Allegations and evidence of mistreatment or abuse of detainees may arise and continue to be revisited many years after the allegation or initial investigations have been made.11 In order to achieve the aim of addressing the treatment of detainees at the point of capture, this chapter is divided into three parts. The first part defines the term “detainee” as used in this chapter and addresses the legal basis for taking detainees during peace operations. The second part examines both the general and specific principles and standards that are relevant to the treatment of detainees. The third part is annexed. It is a checklist of principles and standards (2004); 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW RULES 106–08 (2005); and HELEN DUFFY, THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW (2005). 10 The issue of taking and holding of detainees for longer periods of time has been dealt with by Frederik Naert, Detention in Peace Operations: The Legal Framework and Main Categories of Detainees Institute for International Law, Working Paper No. 94 (May 2006); Oswald, supra note 7, at 347–61. Needless to say, many of the legal principles and standards dealt with in this chapter will be relevant to the treatment of detainees where they are held for longer periods. 11 For example, on January 8, 2007, an article by Francis Elliott & Ruth Eklins, UN Shame over Sex Scandal, available at http://news.independent.co.uk/world/politics/article2132576.ece (last visited Jan. 9 2007), concluded with the following: In 1997, a military court sentenced two Belgian paratroopers to a month in jail and a £200 fine for roasting a Somali boy over a brazier. Another Belgian soldier is reported to have forced a young Somali boy to eat pork, drink salt water and then eat his own vomit. Pictures also appeared in the 1990s of Italian soldiers abusing and raping a Somali girl.

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for the treatment of detainees, which could be applied by peacekeepers at operational and tactical levels. B. DEFINING AND CLASSIFYING DETAINEES It is appropriate at this stage to explain how the term “detainee” will be used hereafter. There are two types of detention recognized as a matter of law: punitive and non-punitive. This chapter is primarily concerned with non-punitive detention and consequently, the term “detainee” refers to “any person deprived of personal liberty except as a result of conviction for an offence.”12 In determining whether a person has been deprived of his/her liberty, regard must be had to the “whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.”13 It is a principle recognized both at the international and domestic level that an individual may not be deprived of his/her liberty without a clear legal basis.14 For example, Article 3 of the Universal Declaration of Human Rights provides that “everyone has the right to life, liberty and the security of person.”15 This provision is reinforced by Article 9, which provides that “No one shall be subjected to arbitrary arrest, detention or exile.”16 Analogously the common law also recognizes the presumption that every imprisonment is illegal unless there is clear legal authority for the individual’s detention.17 In the context of mili12 The Body of Principles for the Protection of All Persons Under any Form of Detention or Imprisonment, GA Res. 43/173, Use of Terms (Dec. 9, 1988) [hereinafter Body of Principles]. It should be noted that this definition of detainee is similar to that in international humanitarian law as well. See, e.g., J. Pictet et al. eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Article 75(3) of Additional Protocol I of the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, (June 8, 1977) [hereinafter AP I], which defines “detained” as “deprivation of liberty . . . prior to sentence or prior to a decision on internment” (para. 3062). 13 Guzzardi v. Italy, 7367/76 Eur. Ct. H.R. 5, para. 92 (Nov. 6, 1980). It should be noted that the discussion in relation to the deprivation of liberty in this case related to Article 5 of the European Convention on Human Rights, ETS No. 5 (Sept. 3, 1953) [hereinafter ECHR]. 14 For a more detailed examination of this issue in the context of military operations, see DUFFY supra note 9, at pt. III; and HENCKAERTS & DOSWALD-BECK, supra note 9, at 344–52. 15 Universal Declaration of Human Rights, GA Res. 217 A (III) (Dec. 10, 1948) [hereinafter UDHR]. 16 Similarly provisions are found in Article 9(1) International Covenant of Civil and Political Rights, GA Res. 2200 A (XXI) (Dec. 16 1966) [hereinafter ICCPR]; and Body of Principles, supra note 12, art. 2. 17 See, e.g., Liversidge v. Anderson [1942] AC 206, at 245 where Lord Diplock

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tary operations, this principle has been recently examined by the UK High Court in the Al-Jedda case. The court stated that “[t]he importance of the right to freedom from arbitrary arrest, recognised in any general instrument of human rights . . . should not be discarded save for the most compelling and clear reasons.”18 Furthermore, as a matter of law, a person should not be detained unless absolutely necessary. This criterion was emphasized by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Delalic case;19 and there is no reason why it would not apply equally to detainees taken during PSOs. It is also useful to note that the Human Rights Committee argued that the concept of the term arbitrary “must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.”20 Where peacekeepers are not required to apply international humanitarian law (IHL) the legal basis for taking detainees is founded in a number of international and municipal law sources including: UN Security Council (SC) resolutions, international criminal law and municipal laws dealing with public order and safety. The Security Council has mandated peacekeepers to take and hold detainees on a number of PSOs. For example, in relation to the peace operations in the Congo (ONUC), the Security Council authorized: “the Secretary-General to take vigorous action, including the use of the requisite measure of force, if necessary, for the immediate apprehension, detention pending legal action and/or deportation of all foreign military and paramilitary personnel and political advisers not under the United Nations Command, and mercenaries”21 Three years later, in the context of the PSO in Cyprus (UNFICYP), the S recommended that peacekeepers “contribute to the maintenance and restoration of law and order.”22 During the operations conducted in Somalia in 1993 (UNOSOM II), the Secretary-General was authorized to take all measures necessary against all those responsible for the unprovoked armed attacks against peacekeepers: “including those responsible for publicly inciting such attacks, to establish the effective authority of the Operation throughout Somalia, including to secure the investigation of their actions and their arrest and detention for pros-

stated “in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his ac.” See also Christie and Anor. v. Leachinsky and Anor. [1947] AC 573; and more recently The Queen on the Application of Abbasi and Anor. v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598 para. 60. 18 The Queen (on the application of Hilal Addul-Razzaq Ali Al-Jedda) v. the Secretary of State for Defence, EWHC 1809 (Admin), para. 35 (2005). 19 Id. para 141. 20 See Mukong v. Cameroon, CCPR/c/D/458/1991, para. 9.8 (July 21, 1994). The discussion in that case related to the meaning of “arbitrary” in Article 9 of the ICCPR. 21 S/RES/169, para. 4 (Nov. 24, 1961). 22 S/RES/186, para. 5 (Mar. 4, 1964).

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ecution, trial and punishment.”23 More recently, in 2004, the Security Council mandated peacekeepers serving in the Côte d’Ivoire (UNOCI) to: “assist the Government of National Reconciliation in conjunction with ECOWAS and other international organisations in re-establishing . . . the rule of law throughout Cote d’Ivoire . . . and to use all necessary means to carry out its mandate . . . within its areas of deployment.”24 If the Security Council can authorize peacekeepers to take detainees, it may also limit the circumstances in which peacekeepers take detainees. For example, on at least one occasion, the Security Council has specifically requested the Secretary-General to “suspend arrest action against those individuals who might be implicated”25 in the attack of June 5, 1993, against UNOSOM II peacekeepers. Increasingly international criminal law institutions are also turning to peacekeepers to detain or arrest individuals accused of committing war crimes or crimes against humanity. For example, peacekeepers serving with the Stabilization Force (SFOR) in Bosnia and Herzegovina (BiH) took custody of Stevan Todorovic after he was handed to them and later handed him to the ICTY.26 Pursuant to SC Resolution 1565, UN peacekeepers are mandated to cooperate with Congolese authorities “to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice.”27 A mandate in such terms would, prima facie, permit peacekeepers to detain individuals pursuant to national and international warrants. Traditionally, peacekeepers have only detained individuals for committing serious criminal offenses. These include international crimes such as genocide, war crimes and crimes against humanity. In some circumstances, detainees may also include individuals accused of committing, aiding and abetting, or inciting serious crimes. There are at least two reasons why peacekeepers’ power of detention is limited to serious criminal offenders. First, on most PSOs, they do not have the resources to deal with all crimes. Second, on most PSOs the host state remains responsible for maintaining law and order and only where such authorities are 23

S/RES/837, para. 5 (June 6, 1993) 5. See also para 1. S/RES/1528, paras. 6(q) and 8 (Feb. 27, 2004). 25 S/RES/837, para. 8 (Nov. 16, 1993). 26 See James Sloan, Breaching International Law to Ensure its Enforcement: The reliance by the ICTY on Illegal Capture, 6 Y.B. INT’L HUM. L. 321–22, 319–44 (2003). See also Susan Lamb, Illegal Arrest and the Jurisdiction of the ICTY, in ESSAYS ON ICTY PROCEDURE AND EVIDENCE 27–43 (Richard May, David Tolberty, John Hocking et al. eds. 2001). Note however, that for a period of time, criminals indicted by the ICTY could only be detained by peacekeepers when those criminals came in contact with peacekeepers. In other words, there was a belief that there was no legal basis in international law that provided an express authority to detain criminals indicted by the tribunal. See CENTER FOR LAW AND MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS 1995–1998—LESSONS LEARNED FOR JUDGE ADVOCATES 122–23 (1998). 27 S/Res/1565, para. 5(g) (Oct. 21, 2004). 24

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incapable or unwilling to stop serious offenses are peacekeepers justified to intervene, in the interest of security. In some circumstances, agreements between the warring factions or the host state and the peacekeeping force may also authorize peacekeepers to take and hold detainees. For example, the Agreement on the Military Aspects of the Peace Settlement, which formed a key part of The General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton Accord), authorized the multinational military Implementation Force (IFOR) to use military force to carry out the responsibilities mandated to the force.28 More recently, in the Solomon Islands, members serving with the “visiting contingent” are authorized to “assist in the provision of security and safety of persons and property . . . prevent and suppress violence, intimidation and crime . . . and generally to assist in the maintenance of law and order.”29 The municipal law of the host state may also authorize peacekeepers to take and handle detainees. For example, in the Solomon Islands, peacekeepers are authorized pursuant to The Facilitation of International Assistance Act 2003 to “exercise any powers that may be exercised by” the police pursuant to the Solomon Island Police Act.30 In considering the limits of peacekeepers in taking detainees, it is relevant to reflect upon the principles of consent, cooperation and impartiality raised by the Secretary-General in his report concerning law and order operations undertaken by UNEF I: [A]uthority granted to the United Nations group cannot be exercised within a given territory either in competition with representatives of the host Government or in cooperation with them on the basis of any joint operation. Thus, a United Nations operation must be separate and distinct from activities by national authorities . . . A right of detention which normally would be exercised only by local authorities is extended to UNEF units. However, this is so only within a limited area where the local authorities voluntarily abstain from exercising similar rights, whether alone of in collaboration with the United Nations. Were the underlying principle of this example not to be applied, United Nations units might run the risk of getting involved in differences with the local 28 OFFICE OF THE HIGH REPRESENTATIVE, BOSNIA AND HERZEGOVINA: ESSENTIAL TEXTS 21 (2d rev. ed. 1998). 29 Agreement Between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa, and Tonga Concerning the Operations and Status of the Police and Armed Forces and Other Personnel Deployed to Solomon Islands to Assist in the Restoration of Law and Order and Security, May 24, 2003 art. 2 [hereinafter Solomon Islands Agreement]. 30 The Facilitation of International Assistance Act 2003 (No. 1 of 2003), sec. 7(1).

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authorities or public or in internal conflicts which would be highly detrimental to the effectiveness of the operation and to the relations between the United Nations and the host Government. A rule closely related to the one last-mentioned, and reflecting a basic [UN] Charter principle, precludes the employment of United Nations elements in situations of an essentially internal nature. As a matter of course, the United Nations personnel cannot be permitted in any sense to be a party to internal conflicts.31 Thus, notwithstanding that peacekeepers may have no alternative but to take and hold detainees in some circumstances, they should always be cognizant of the tensions involved therein. These include the risk of becoming a party to the conflict, thereby jeopardizing consent and impartiality, and the risk of exercising powers that are essentially those of the host state. In the context of practice as described above, there are two main categories of individuals that may be detained during PSOs other than armed conflict operations: 1.

2.

Security detainees: individuals detained for imperative reasons of security. Imperative reasons for security include reasons such as interfering with the mission, being found in a restricted military facility, carrying a weapon or membership of a prohibited group.32 Criminal detainees: individuals detained for committing a serious criminal offense. Serious criminal offenses include genocide, war crimes, crimes against humanity, murder, manslaughter, rape, serious assault, arson or rioting.

On some occasions a person may qualify both as a criminal and security detainee. C. THE TREATMENT OF DETAINEES: LEGAL PRINCIPLES AND STANDARDS While it is useful to repeat the mantra: “[s]tandards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.” 33 it is more difficult to identify these standards in the context of the treatment of detainees taken by peacekeepers. One reason is that there is no international instrument addressing this

31

UNEF Summary Study, supra note 2, paras. 165–166. The threat posed by the detainee must be a real risk to the security of the PSO. See, e.g., Zejnil Delalic, Zdravko Mucic (aka “Pavo”), Hazim Delic and Esad Landozo (aka “Zenga”) (often referred to as the Celebici case), Case No. IT-96-21-A, Appeals Chamber, para. 378, Feb. 20, 2001. 33 American Society of International Law Resolution, para. 5 (Mar. 30, 2006). 32

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aspect. This is not to say that there is no normative framework applicable to the treatment of detainees taken during PSOs, but rather that the framework must be gleaned from several sources. Consequently, the aim of this part is to identify international law principles and standards applicable either de jure, or by analogy, to the treatment of individuals detained by peacekeepers. Key sources include international human rights, particularly those relevant to the administration of justice and, to a lesser extent, IHL principles and standards.34 In mapping out a normative framework, this chapter seeks to achieve a balance between the rights of the local population and the need for peacekeepers to accomplish their mission. Consequently, it begins by identifying both general and specific applicable principles and standards. While it may be argued that some of the legal standards recommended are above the minimum ones accepted by states, it is worth remembering that peacekeepers are often wel34

Key relevant international law instruments include: UDHR supra note 15; ICCPR supra note 16; ECHR supra note 13; Convention on the Rights of the Child, GA Res. 44/25 (Nov. 20, 1989); Standard Minimum Rules for the Treatment of Prisoners, adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and SC Res. 663 C (XXIV) (July 31, 1957) and 2076 (LXII) (May 13, 1077); Basic Principles for the Treatment of Prisoners, GA Res. 45/111 (Dec. 14, 1990); Body of Principles, supra note 12; UN Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res. 45/113 (Dec. 14, 1990); Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment (Dec. 10, 1984) [hereinafter Torture Convention]; Optional Protocol to the Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 57/199 (Dec. 18, 2002); Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 55/89 (Dec. 4, 2000); Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, GA Res 37/194 (Dec. 18, 1982); Code of Conduct for Law Enforcement Officials, GA Res. 34/169 (Dec 17, 1979) [hereinafter Code of Conduct]; Basic Principles for the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eight U.N. Congress Aug. 27 to Sept. 7, 1990; Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, GA Res. 40/34, (Nov. 29 1985); Declaration on the Protection of All Persons from Enforced Disappearance, GA Res. 47/133, (Dec. 18, 1992); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Aug. 12, 1949); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Aug. 12 1949); Geneva Convention Relative to the Treatment of Prisoners of War (Aug. 12, 1949) [hereinafter GC III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Aug. 12, 1949); AP I supra note 12; Additional Protocol II of the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (June 8, 1977); The UN Secretary-General’s Bulletin on Applicability of IHL to UN Forces, UN Doc. ST/SGB/1999/13 (Aug. 6, 1999) [hereinafter SG Bulletin].

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comed by a host state in the hope that they will introduce humane treatment rather than maintain the legacy of arbitrary and brutal practices of some of the local authorities they have been sent to deal with. Consequently, there is considerable merit in starting with high standards. Of course, peacekeepers may seek to deviate from derogable minimum standard in exceptional circumstances, such as public emergency. 1. General Principles Most legal systems have general principles that are applied to situations where there are gaps or limitations in specific extant laws. These principles provide a benchmark against which law and process may be measured so as to judge whether the course adopted complies with recognized and accepted minimum legal principles and standards. Furthermore, general principles are also useful in developing more specific legal principles and assist in selecting the most appropriate legal response to a situation. In relation to the treatment of detainees, the following principles may be considered: 1.

2.

Lawfulness: peacekeepers must treat detainees in accordance with the rule of law. The rule of law is: a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.35 This principle has a number of facets relevant to the treatment of detainees by peacekeepers, including: fairness in the application of the law, legal certainty and the avoidance of arbitrariness. In practical terms it requires peacekeepers to comply with fundamental legal norms and to be provided with sufficiently detailed orders, standard operating procedures and other guidelines relating to the treatment of detainees. Dignity and Humanity: peacekeepers must recognize the inherent right to dignity and humanity of all human beings. These principles are found

35 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616, para. 6 (Aug. 3, 2004).

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3.

4.

36

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in several international instruments, including the Basic Principles for the Treatment of Prisoners,36 The Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment; Body of Principles,37 and Common Article 3(c) to the four Geneva Conventions of 194938 and Additional Protocol I thereto.39 An important facet is the prohibition of discrimination of detainees on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”40 Necessity and Reasonableness: peacekeepers must assess the measures necessary to fulfill a task or mission and make sure that these are reasonable according to the circumstances. 41 The test of necessity is measured against the view of the peacekeeper at the time of the event, and it is therefore subjective. The test for reasonableness is measured against what others will judge as being reasonable according to the given circumstances and it is, therefore, objective. Elements of assessment include whether the peacekeeper’s conduct was proportionate, whether he/she had other available options to face the situation and the kind of resources available to him/her. Thus, peacekeepers do not have to justify their actions or omissions on the mere basis that they were necessary to accomplish the mission, but they also need to establish that the conduct taken was reasonable according to the circumstances. Accountability: peacekeepers must develop and implement effective processes to ensure that peacekeepers are held accountable for their conduct; and that commanders maintain effective control over their subordinates.

Supra note 34, principle 1. Supra note 12, principle 2. 38 Supra note 34, Outrages on personal dignity common Article 3(c). 39 Supra note 12, art. 75(1). 40 Basic Principles for the Treatment of Prisoners, supra note 34, principle 2; Body of Principles, supra note 12, principle 5; and Common art. 3 to the Four Geneva Conventions, supra note 34. 41 The principle of necessity is found in both international humanitarian law and international human rights law. In international humanitarian law the principle of necessity has been described as permitting a state engaged in armed conflict: “to use only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.” (see UK MINISTRY OF DEFENCE, supra note 9, para. 2.1). In international human rights law it has been described as whether a “measure taken pursuant to an emergency situation is ‘strictly required by the exigencies of the situation” (see DUFFY, supra note 9, at 296–97). 37

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While accountability is a complex and varying concept depending on the context,42 it contains several elements that should be kept in mind when considering its application in the context of the treatment of detainees. Some of its key components include monitoring, scrutiny, effective means of investigation, appropriate remedies and command responsibility. Accountability therefore, may involve the requirement to justify decisions, reporting on the implementation of a procedure and explaining the results. It may also involve being subject to scrutiny and interrogation. Martin Zwanenberg argued that in order to operationalize accountability, three main questions need to be asked: a. what the yardstick of accountability should be; b. who can raise accountability; c. how can accountability be implemented.43 These questions are an excellent basis for reflecting upon the role of accountability in the context of the treatment of detainees. The yardstick is the normative principles and standards applicable. Accountability issues may be raised by a myriad of actors, including the individual detained, the detainee’s family, international and local authorities and organizations, the military chain of command and the media. Peacekeepers’ accountability in the sense of military discipline is founded on the chain of command.44 Accordingly, at one level, accountability requires appropriate doctrine, orders, standard operating procedures, instructions and guidelines and, at another, adequate enforcement through the use of military justice. The term accountability is therefore used here as a generic term that encompasses the rules, principles, standards and norms against which individuals, organizations and states explain their actions and omissions. These are intended to create and maintain, amongst other things, good governance, good faith, institutional balance, supervision and control, accessibility of reasons for decisions or a particular course of action, procedural regularity, objectivity and impartiality, due diligence and the promotion of justice.45 42 For a more detailed examination of accountability on peace operations, see MARTIN ZWANENBURG, ACCOUNTABILITY OF PEACE SUPPORT OPERATIONS (2005) particularly 61–64. 43 Id. at 63. 44 Depending on the type of peace operation there may also be a civilian chain for accountability, such as the office of the Head of Mission or, in the case of UN operations, the office of the Special Representative to the Secretary-General. 45 For a more detailed discussion of what these principles entail, see International Law Association, Committee on Accountability of International Organizations, Third Report Consolidated, Revised And Enlarged Version Of Recommended Rules And Practices, New Delhi Conference (2002). This report is available at www.ila-hq.org/

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2. Specific Principles and Standards If the general principles described above are to be useful in practice, they must be contextualized in order to provide peacekeepers with a better understanding of how to apply them to the treatment of detainees. The following sections consider key principles and standards: (1) relevant to the treatment of detainees by peacekeepers and (2) relevant to ensure the accountability of peacekeepers for the treatment of detainees. Many of the specific principles and standards described below are derived from human rights, IHL or municipal law provisions.46 In some circumstances, if justice is to be administered in accordance with the rule of law, failure to adhere to some of these principles may jeopardize the successful prosecution of a criminal detainee. For example, in most criminal jurisdictions a confession obtained by torture will be considered unreliable and not admitted as evidence. a.

Principles Relevant to the Treatment of Detainees i.

Use of Force

The use of force is governed by the general principles of necessity and reasonableness. Peacekeepers may therefore only use the amount of force necessary and reasonable to effect the detention or subsequently deal with the detainee. An analogy may be drawn with the principle according to which law enforcement officials may only use force “when strictly necessary and to the extent required for the performance of their duty.”47 Generally, use of force standards are translated into rules of engagement (ROE), which delineate the circumstances and the limits to which force may be used to achieve a military mission. Furthermore, restrictions on the use of force in the taking and handling of detainees may be dealt with in some detail in the ROE applicable to PSOs. For example, the UN Guidelines for the development of, and Training on ROE recognize that in some circumstances UN peacekeepers will be authorized to use force “o prevent the escape of any apprehended or detained person, pending hand-over to appropriate civilian authorities.”48 pdf/Accountability/Accountability%20Of%20International%20Organisations%202002.pd. The International Law Association adopted the Committee’s Report and “commends it to international organisations, their Member States, and all other bodies concerned in advancing and implementing the accountability of international organisations”; see International Law Association, Res. 1/2004. 46 See supra note 34 for a list of the key international instruments. 47 Code of Conduct, supra note 34, art. 3. 48 Guidelines for the Development of and Training on United Nations Rules of Engagement (ROE), UN Doc. MPS/981, rule 1.9 (May 17, 1999).

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From an operational perspective, the principle of using necessary and reasonable force will require peacekeepers to be trained in the use of lawful nonlethal weapons and restraining devices that limit the harm caused to the detainee. In many circumstances, it may also be appropriate to train them in negotiation techniques and cultural issues relating to the use of force, when dealing with the general population. If peacekeepers have injured a detainee, they should provide him/her with medical assistance.49 Any serious injury caused by peacekeepers using force should be reported to the chain of command. There are at least two reasons for this: first, there may be a need to allocate specialist medical assistance to the detainee; and second, reporting the extent of the injury and the circumstances in which this occurred will permit an assessment to be made of the peacekeepers’ accountability. ii.

Prohibition of Torture and Ill-Treatment50

The prohibition of torture51 is recognized as a jus cogens norm, that is, as a “peremptory” norm of international law.52 Certain types of ill-treatment, often referred to as cruel, inhuman or degrading treatment are also prohibited.53 The distinguishing factor between torture and ill-treatment is the “difference in the intensity of the suffering inflicted.”54

49

See discussion below in the Section C.2.a.vii. For a more detailed examination of the issues surrounding torture and ill reatment in the context military operations generally, see DUFFY, supra note 9. This section is limited to briefly describing some key issue that arise from the prohibition as they relate to the treatment of detainees by peacekeepers. 51 Torture is defined as: Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity. Torture Convention supra note 34, art. 1(1). 52 See Prosecutor v. Furundzija, Case No. IT-95-17/I-T Judgment of the ICTY, para. 153 (Dec. 10, 1998). 53 The ICTY, for example, has argued that Article 1(1) of the Torture Convention should not be read as an exhaustive statement of what counts as torture for all international legal purposes. See, e.g., Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT96-23/1-A, Judgment of the ICTY (Appeals Chamber), para. 147 (June 12, 2002). 54 S USAN M ARKS & A NDREW C LAPHAM, I NTERNATIONAL H UMAN R IGHTS L EXICON 366–67 (2005). 50

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There is a debate as to whether some forms of torture or ill-treatment should be legalized for those circumstances in which they may be necessary to protect a state’s interest. For example, Alan Dershowitz argues that: “if we are to torture, it should be authorised by the law.”55 A key criticism mounted by Marks and Clapham concerning Dershowitz’s approach is that “torture is not about getting information but about asserting power.”56 Marks and Clapham also argue that the “idea of legalised torture is a travesty of the rule of law, inasmuch as the law is supposed to protect citizens from violence and treat them as innocent until proven guilty.”57 Furthermore, from a command perspective, “no law could prevent the inevitable slide from exceptional use into routinised system of torture.”58 Needless to say, the same arguments related to countering the legalization of torture are equally valid in relation to legalizing ill-treatment of detainees. Another issue is what amounts to torture or ill-treatment. While it is impossible to develop an exhaustive list, some acts considered to constitute torture or ill-treatment are instigating or inflicting mutilation or any form of corporal punishment, outrages upon personal dignity, in particular humiliating and degrading treatment, rape or any form of sexual violence, breaking chemical lights on detainees, pouring cold water on or videotaping and photographing naked detainees, forcing male detainees to wear women’s underwear and using military working dogs to frighten and intimidate detainees. In some cases, methods such as resort to stress positions, hooding, noise, deprivation of sleep, food and drink, if “applied in combination, with premeditation and for hours at a stretch . . . caus[ing] . . . intense physical and mental suffering to the persons subjected thereto”59 will constitute inhuman treatment. It is generally accepted, however, that blindfolding, cuffing or detaining detainees is not to be considered torture or ill-treatment, if such measures are taken for security reasons and kept to a minimum. Similarly, photographing or filming detainees for authorized purposes, such as interview recording, is not considered ill-treatment. In the context of the treatment of detainees, there are at least two circumstances during which allegations of torture or ill-treatment may arise: questioning and searching the detainee. Since torture and ill-treatment are prohibited at all times, including when questioning or searching a detainee, it is important for peacekeepers to have clear guidance as to what conduct is acceptable. They should also be reminded of the fact that the questioning or searching of an injured detainee needs to be undertaken only after considering the health consequences and implications.60 55 56 57 58 59 60

As quoted in id. at 371. Id. at 382. Id. at 381. Id. Ireland v. United Kingdom, Eur. Ct. Hum. Rts., para. 167 (Dec. 13, 1977). See Section C.2.a.vii.

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Where possible, questioning at the point of detention (i.e., tactical questioning) should be undertaken by peacekeepers trained to ask appropriate questions at the tactical level. Such training should include information about culturally sensitive questions and how to issue a criminal caution when detaining a suspected criminal. The requirements to caution will in most cases be based on the host state’s municipal law and, therefore, peacekeepers will need to be briefed on the basic legal and process requirements of the host state. Furthermore, in some circumstances, the local criminal law might require written records as to what exactly was said by the detainee, the duration of the questioning and the identity of the person asking the questions.61 Should a detainee refuse to answer any question, the detainee must not be threatened, insulted or exposed to mistreatment of any kind. In some circumstances, it may be necessary to search a detainee. Such circumstances might arise where it is suspected that a detainee is in the possession of contraband, a prohibited weapon or an item suspected of having been stolen. Before conducting the search, the peacekeeper must have at the very least, a reasonable belief that the search is necessary. All searches of females should be conducted by females, and similarly all searches of males should be conducted by males. Where this is not feasible, peacekeepers will need to give serious consideration to not conducting the search, or conducting it in the presence of the appropriate gender. If a child is detained, he/she should only be searched as a last resort. If there is no alternative, the search should be done in the presence of the child’s parent, guardian or appropriate local. Generally a “pat down” or “electronic wand” search is likely to be sufficient, and there will be no requirement for the detainee to remove his or her clothes. Searches should not be invasive unless the peacekeeper reasonably suspects that this is required. Depending on the cultural sensitivities of the local population peacekeepers may need to be briefed on such issues as whether searches should be undertaken in public or in private. In some societies, for example, it may be considered humiliating to be searched in the view of the general public. An item may only be confiscated for operational reasons or because it is likely to be relevant to a criminal case, in which case it should be recorded and tagged. Wherever possible, the detainee should be given a copy of the record. This is important for three reasons: First, if the confiscated item is relevant to a criminal case, the record may be an essential component of the chain of custody. Second, peacekeepers will often work in circumstances where locals will have few possessions. By recording and tagging the item and giving the detainee a record thereof, the detainee, his/her relatives, or friends may be able to claim it at a later time. Third, as a method of accountability, such records ensure that peacekeepers are held accountable for any property they take custody of. 61

See Body of Principles, supra note 12, principle 23.

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Where peacekeepers suspect that a detainee has been tortured or ill-treated, they should immediately report the facts through the chain of command and monitor the situation by taking detailed notes, in order to be able to assist in future investigations. Where possible they should intervene by using necessary and reasonable force to stop any further torture or ill-treatment. Moreover, peacekeepers should provide medical assistance to mistreated detainees.62 iii.

Protection from the Environment and Other Threats

Once in the peacekeeper’s custody, the detainee becomes dependant on him/her for protection. Consequently, certain obligations arise. These include providing the detainee with food, water and protection from the elements. The “provision for such basic needs . . . has to be adequate, taking into account the means available and the local conditions.”63 Peacekeepers should not expose them to attacks or ill-treatment from others, including local authorities. iv.

Reasons for Detention

Detainees should be told as soon as practicable the reasons for the detention.64 Similarly, he/should be told about the right to challenge detention in a language he/she understands.65 This will permit peacekeepers to make a reasoned decision as to whether to release or continue to hold the detainee until transfer or handover is completed. Other rights that may be explained to him/her are the right to notify someone66 of the detention and the right to make a claim for compensation if, for example, the detainee was injured or his/her property was damaged as a result of the peacekeepers’ actions. For this purpose, peacekeepers should be provided with the relevant phrases in the local language or dialect. v.

Registration of Detainees

Each detainee must be registered67 as soon as practicable. Registration should at least include: (1) the identity of the detainee; (2) the identity of the person who took the detainee; (3) the reason of detention; (4) the time and place 62

See Section C.2.a.vii. HENCKAERTS & DOSWALD-BECK, supra note 9, Rules 430. 64 See, e.g., Body of Principles, supra note 12, principles 12(2) and 16(1). See also AP I, supra note 12, art. 75(3). 65 Body of Principles, supra note 12, principle 1; and AP I supra note 12, art. 75(3). 66 See Section C.2.a.vi. 67 See, e.g., Body of Principles, supra note 12, principle 10. 63

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of the detention. If the detainee is incapable of identifying him- or herself, peacekeepers may need to seek the assistance of the local population. Failure to adequately register the detainee may have at least two adverse consequences. First, registration of detainees is fundamental in assisting other organizations, like the International Committee of the Red Cross (ICRC), to trace detainees. Second, registration ensures that peacekeepers and other relevant authorities are able to account for each detainee taken into custody. vi.

Notification of Detention

Each detention should be notified to an appropriate individual and organization as soon as practicable.68 The detainee may choose the appropriate individual (e.g., a family member, friend or legal representative) to be notified. In many cases it may be appropriate for peacekeepers to notify relevant national (such as the prosecutors office) or international organizations (local ICRC69 or UN High Commissioner for Human Rights representative) of the details of the detention, and where and when the handover is likely to take place. If the detainee is likely to be handed over to local authorities, for example, it may be prudent to advise them of the pending handover so as to ensure an independent record thereof. This notification is particularly important in situations where there might be some concern as to the treatment of detainees by local authorities.70 vii.

Medical Treatment

At the point of detention, peacekeepers should conduct a “quick medical assessment” to ensure that the detainee is not suffering with any injury or disability that will impact on any further dealings with him/her.71 Such an assessment should involve at least a visual examination for any injuries. A quick medical assessment is important for at least two reasons. First, if an injury occurred during detention or if it was already preexisting, immediate medical attention may be required. Secondly, the medical condition may be relevant to decide whether to question or restrain the detainee. In circumstances where a detainee is injured while being taken into custody, peacekeepers must provide him/her with medical assistance. If the required standard of medical care cannot be provided, the detainee should be transferred to the appropriate authorities.

68 69 70 71

Id., principle 16. SG Bulletin, supra note 34. SG Bulletin, supra note 34, sec. 8(a) and (g). See Section C.2.a.xii. SG Bulletin, supra note 34, sec. 8(c).

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If the injury is a preexisting one, peacekeepers may consider what medical attention is appropriate: for example, if the injury is serious, there may be no option but to provide medical assistance before releasing, handing over or transferring the detainee. Much will depend on the level of medical expertise and resources available. Any medical assistance provided should be recorded in sufficient detail to permit specialist medical personnel or other authorized persons to follow up the assistance provided. If consent for medical treatment is not given, such treatment is prohibited unless necessitated by (1) the detainee’s health; (2) is consistent with generally accepted medical standards; and (3) is provided in similar circumstances to those that would apply to the nationals of the detaining authority.72 Peacekeepers should also be aware of how to manage particular medical issues that are founded on cultural norms. For example, in some societies, traditional healers play an important role and, consequently, a detainee may insist on seeing such a person rather than receive more conventional medical assistance. viii. Categories of Persons Entitled to Special Protection There are three major categories of persons entitled to special protection if held in detention: women, juveniles73 and elderly. As a general rule, women are not to be adversely discriminated against because of their sex. Where possible, they should only be searched and questioned by women. This will particularly be the case in societies that are culturally sensitive to men interacting with women. Furthermore, any searches of women should not be invasive unless absolutely necessary for security reasons; and any such search should not be in the presence of men. Any further handling of women should be, at the very least, under the supervision of women. 74 When dealing with female detainees, their cases should be prioritized, particularly if they are pregnant75 or have responsibilities for young juveniles. They should be separated from males, particularly in cultures where separation is essential to maintain the woman’s dignity. However, some consideration may need to be given as to whether segregating a woman might jeopardize her well-

72

See GC III, supra note 34, art. 13; AP I, supra note 12, art. 11. The term juvenile as used in this chapter is any person under the age of 18. See UN Rules for the Protection of Juveniles Deprived of their Liberty, supra note 34, rule 11(a). However, note that the SG Bulletin, supra note 34, sec. 8(f) provides: “In cases where children who have not attained the age of sixteen (emphasis added) years take a direct part in hostilities and are arrested, detained or interned by the United Nations force, they shall continue to benefit from special protection.” 74 Id., sec. 8(e). 75 AP I supra note 12, art. 76(2). 73

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being. For example, in some societies separating a woman from her husband or guardian is likely to exacerbate her anxiety. If juveniles are detained, they should be segregated from male adults. 76 However, this principle may need to be breached if segregation will result in the juvenile’s “isolation” and thus adversely affect his/her well-being. Peacekeepers may thus require the juvenile to be “accompanied” by another detainee always ensuring the juvenile’s supervision. In such circumstances, female juveniles should remain in the presence of female detainees. Peacekeepers should also be aware of cultural norms that may apply. Some juveniles may, for example, be particularly sensitive to medical examination by strangers. Cases involving juveniles should be given priority. Elderly detainees may develop serious medical conditions. Therefore, if there is no alternative to detention, peacekeepers should monitor their medical condition and give them priority. ix.

Reprisals

In compliance with the principles of lawfulness, necessity and reasonableness, peacekeepers are prohibited from taking reprisals against detainees or collective punishments.77 x.

Release or Ongoing Custody

The longer a person is held in detention, the greater are the requirements for resources and accountability of peacekeepers. Consequently, it may be appropriate to set a time limit from the moment of detention to the moment of release, transfer or handover. This should take into account both the operational exigencies, such as the availability of local authorities to take effective control of a detainee, and the resources available, such as those required to transport the detainee or investigate his/her bona fide. Generally, the time limit should be set in the range of a few hours. If there is no justification for continuing to hold a detainee, they must be released.78 In some circumstances, it may be appropriate to make release conditional.79 Conditions may include reporting of the detainee to the local police, returning with proper identification documents or providing an undertaking that he/she will no longer be involved in the activities that led to detention. A 76

See SG Bulletin, supra note 34, sec. 8(f). See, e.g., AP I supra note 12, art. 75(2)(d). 78 Id., art. 75(3). The term “absolutely” here refers to releasing a detainee without any conditions being placed on that detainee. 79 Body of Principles, supra note 12, principle 38. 77

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record should be made of the release conditions and reported through the chain of command. It should be made clear to the detainee that in the event of breach the conditions he/she may be detained again. The decision to release detainees in such circumstances should be delegated to the lowest reasonable level of command. The details of release should be recorded and reported through the chain of command. Relevant details of the release should include: (1) the time, place and reasons for release; (2) the physical and mental condition of the detainee at the time of release; (3) the details of any person the detainee was released in the presence of. If the detainee’s release was conditional, the details of the conditions should be recorded and reported as well. xi.

Transfer

There may be circumstances where it may be appropriate to transfer a detainee to another peacekeeping unit. Such circumstances may arise if a detainee is a serious security threat and needs to be questioned further. In such cases it is imperative that the peacekeepers responsible for taking the detainee into initial custody make a proper record of, at the very least: (1) the name of the person in whose custody the detainee is transferred to; (2) the time and place of the transfer; (3) any property transferred with the detainee; and (4) the health of the detainee at the time of transfer. xii.

Handover

If a decision has been made to hand over the detainee to local or international law enforcement authorities, the details must be recorded. At least the following information should be provided: (1) the name of the person in whose custody the detainee is handed to; (2) the time and place of the handover; (3) any property handed with the detainee; and (4) the health of the detainee at the time of the handover. A particularly difficult situation to deal with by peacekeepers is when there is reasonable suspicion that a detainee may be mistreated if handed over to the local authorities. In such cases, peacekeepers have at least two choices: (1) to refrain from handing over the detainee until satisfied that the detainee will not be mistreated or (2) handing over the detainee in the presence of a representative of an international organization such as the ICRC or the Office of the High Commissioner of Human Rights. This will assist in protecting the interests of the detainee and the peacekeeper in two ways: (1) it will provide independent and objective scrutiny of the handover; and (2) it will provide a trail to ensure that the detainee is traceable and that the conditions of his/her subsequent treatment meet the minimum international standards.

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xiii. Remedies if There Has Been Ill-Treatment The right to remedy is recognized in international human rights law. For example, the UHDR provides that: “Everyone has the right to an effective remedy by a competent national tribunal for acts violating fundamental rights granted him . . . by law.”80 In circumstances where peacekeepers have acted unlawfully, a right to remedy for the detainee or his or her family is a component of successful mission accomplishment. Such remedies may include restitution, compensation and rehabilitation for victims. Similarly, the Human Rights Committee have noted that: “[R]eparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant . . . practices, as well as bringing to justice the perpetrators of human rights violations.”81 It should be noted that the United Nations has a policy in relation to third-party liability resulting from PSOs conducted by the United Nations. This sets limits “to third party claims against the UN for personal injury, illness or death, and for property loss or damage . . . resulting from or attributable to the activities of members of peacekeeping operations in the performance of their official duties.”82 Consequently, UN peacekeepers who use force in compliance with legal norms and ROE are prima facie acting lawfully, meaning that the United Nations will not be financially liable for any injuries/damages resulting to the detainee or his/her property. Of course, there is nothing to stop the United Nations from, as a matter of policy, making an ex gratia payment. b. Accountability i. Recording and Reporting An essential component of accountability in the context of the treatment of detainees is that commanders ensure the existence of processes to ensure adequate, accurate and timely record taking and keeping. Records must be kept in writing and be adequate to permit an independent person to investigate any allegations concerning the treatment of detainees that may subsequently arise. 80

Supra note 15, art. 8. For a more detailed examination of the right to remedy, see RENE PROVOST, INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW 43–54 (2002). See also Body of Principles, supra note 12, principle 35. 81 Human Rights Committee, General Comment 31 [80], Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (General Comments), para. 16 (May 26, 2004). 82 Third-Party Liability: Temporal and Financial Limitations, GA Res. A/RES/ 52/247, para. 5 (July 17, 1998).

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Some peacekeeping forces may also have access to digital cameras and recorders to register aspects of the treatment of detainees. For example, the questioning of criminal detainees should be electronically recorded or video taped, if the answers given may be used as evidence before a tribunal. Such recordings may also be useful when investigating allegations of abuse or ill-treatment by peacekeepers. One of the challenges is to ensure that records will only be accessible to authorized individuals. Thus, it is essential to ensure the existence of adequate processes to prevent unauthorized access or distribution of information. Peacekeepers should have sufficiently effective and efficient means of reporting issues relating to the treatment of detainees through the chain of command. This is essential for at least two reasons. First, reporting permits commanders to ensure effective control of peacekeepers by being informed of what is occurring at the tactical level. Second, it assists in maintaining adequate records of the treatment of detainees if required for an investigation. An important practical component of recording and reporting is to have at least three official registers in which relevant details of the detainee, the property confiscated and any complaints may be recorded. The detainee register should have the details of each detainee taken into custody. These details should, as a minimum, include: (1) the name of the detainee; (2) who carried out the detention; (3) the time and place where the detainee was taken into custody; (4) the status of the detainee (i.e., whether they are criminal or security detainees); (5) the time of release, transfer or hand-over of the detainee; and (6) the ongoing handling of the detainee. The property register should contain relevant information including:g (1) receipt number and description of the property confiscated; (2) information about who confiscated the property; and (3) the reasons why it was conf iscated. The complaints register should contain, at a minimum: (1) information concerning the nature of the complaint; (2) who made it; (3) who investigated the complaint; and (4) the result of the investigation. Each register should be examined regularly by a person outside the immediate chain of command of the peacekeepers responsible for the detention. ii.

Investigations

Another important component of accountability is having effective and efficient means of investigating any suspected ill-treatment.83 Such investigations must be adequate, independent and proper. Investigations should be undertaken any time there is a reasonable suspicion that a detainee has been abused or where a detainee, or other relevant person (such as a family member of the detainee) or organization (such as the ICRC), makes a complaint. Such investigations should at least: (1) clarify the 83

Body of Principles, supra note 12, principle 7.

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facts; (2) identify measures to prevent recurrence; and (3) recommend future actions such as disciplinary, compensation and future reporting requirements.84 The recent UK High Court case of Al Skeini provides a number of very useful principles concerning investigations of loss of life or ill-treatment of detainees. Some of the requirements they identified included: (1) some form of effective official investigation capable of leading to a determination as to the reasonableness and necessity of the treatment and (2) the person responsible for and carrying out the investigation to be independent from those implicated in the events.85 iii.

Monitoring

An important facet of accountability on PSOs is the appointment of an independent, competent and impartial monitor for all matters relating to the treatment of detainees. This is essential if the peacekeepers wish to avoid or minimize perceptions of bias in relation to the appointment. D. CONCLUSIONS Peacekeepers will continue to take detainees during PSOs and be held accountable for their treatment. While currently there is no normative framework regulating the activities of peacekeepers in taking and handling detainees, there are nonetheless several applicable legal principles and standards. This chapter has identified and translated some of the key ones into operational orders or guidelines to be applied by peacekeepers at the operational and tactical levels. In practice, peacekeepers will very often have to seek to balance the detainees’ fundamental human rights and the accomplishment of their mission. Since specific legal principles are not always useful in achieving this balance, peacekeepers will need to refer to the above-mentioned general principles of lawfulness, dignity, humanity, necessity, reasonableness and accountability in order to fill the gaps or limitations set by the law. It is also worth remembering that no normative framework by itself will ensure the treatment of detainees in accordance with fundamental principles and standards. Commanders will need to ensure, at the very least, that the

84 Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, supra note 34, principle 1. 85 Al Skeini and others v. The Secretary of State for Defence [2004] EWHC 2911 (Admin), paras. 319–324.

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normative framework is supported by, and supports, the training of peacekeepers to deal with detainees, that there are effective and efficient investigative and enforcement procedures for dealing with situations where the normative framework may have been breached and that there are adequate remedies for detainees who have been abused or ill-treated. Law and policy must add value to protecting the fundamental rights and expectations of both detainees and peacekeepers.

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ANNEX—CHECKLIST This checklist operationalizes the above principles and standards by setting out a number of provisions concerning the treatment of detainees that those concerned with planning, managing and conducting PSOs should consider when developing operational orders, procedures, guidelines or standards for peacekeepers. While it is accepted that some of the principles and standards identified will vary from operation to operations, it should be kept in mind that some of these principles, such as the prohibitions against torture and ill-treatment, are applicable regardless of the type of peace operation or the resources available. It is also important to keep in mind that on some operations the specific principles and standards dealt with below may need to be further developed by reference to the general and specific principles and standards discussed in Section C. Finally, it should also be noted, that some of the procedures below may occur sequentially and others concurrently. 1.

General Rule

Fundamental Principles Relating to Handling of Detainees should be read in conjunction with any other policy (such as ROE or operation orders (OPORD)) issued by the peacekeeping force. Nothing stated below is to be read as restricting any obligation for peacekeepers arising from law. 2.

Definitions

2.1. “Detainee”: any person deprived of personal liberty except as a result of conviction for an offense. 2.2. “Criminal detainee”: any person detained for committing a serious criminal offense. 2.3. “Security detainee”: any person detained for imperative reasons of security. 3.

Legal Basis for Taking Detainees

Insert here the legal basis for handling detainees. The legal basis could be, for example, a Security Council peace agreement or host nation laws. 4.

The Use of Force in Taking and Handling a Detainee

4.1. Peacekeepers are to use only that force that is reasonable and necessary. Any force used is to be graduated where possible and always proportional.

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4.2. All detainees are to be treated in a humane manner with respect for the inherent dignity of the human person. They shall not be subject to torture or any other form of ill-treatment. 5.

Reasons for Detention

At the time of detention, or as soon as practicable, the detainee shall be notified in a language he or she understands of the reasons for detention. 6.

Medical Assistance

A detainee is to receive a quick medical assessment as soon as practicable after being taken into detention. Where necessary, a detainee is to given medical assistance. 7.

Registration of the Detainee

At the time that a person is detained, or as soon as practicable, the following information is to be recorded and reported through the chain of command: 7.1. The identity of the detainee, including where possible a photograph of the detainee. 7.2. The identity of the person who carried out the detention. 7.3. The reasons for detention. 7.4. The date, time and place of detention. 8.

Rights of the Detainee

At the time of detention or as soon as practicable, a detainee is to be advised of the following rights: 1. 2. 3. 4.

The right to challenge the detention. The right to communicate with, or notify a nominated person; (e.g., lawyer). The right to make a complaint regarding treatment. The right to make a claim for compensation in relation to treatment or damage to property arising from the measures taken when detaining them.

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Questioning the Detainee

9.1. A detainee may be questioned as required by the exigencies of the situation. 9.2. Any questions asked of the detainee and answered by the detainee shall be recorded. 9.3. Where possible, all questions and answers should be recorded electronically, particularly if the detainee is a criminal detainee. 10. Searching the Detainee 10.1. A detainee may be searched as required by the exigencies of the situation. 10.2. Physical searches of a detainee are to be conducted by a person of the same sex as the detainee. Only in cases of imperative security reasons can a male search a female. 10.3. Only in exceptional circumstances should invasive searches be conducted. 10.4. An adequate record must be made and kept of any confiscated item. 10.5. All confiscated items must be adequately tagged for identification purposes and registered in the Property Register as soon as practicable. 11. Notifying Relevant Individuals and Authorities of the Detention 11.1. The detaining unit or other appropriately nominated person shall notify, as soon as practicable, the individual nominated by the detainee of the location of the detained person. 11.2. The [insert here the name of the organization] shall as soon as practicable, be notified of the following: 1. 2.

Information concerning the identity of the detainee including, where possible, a photograph. The date, time and place of the person’s detention.

12. Time Limits for Holding Person at the Point of Detention A detainee shall not be held for more than [insert the number of hours here] before being released, transferred or handed over.

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13. Women Female detainees shall be separated from men unless to do so would jeopardize their health or well-being. 14. Juveniles A juvenile is a person under the age of 18. Juveniles shall be segregated from other detainees unless to do so would jeopardize the health or well- being of the juvenile. 15. Release 15.1. If detention is not warranted, then the detainee must be released either absolutely or conditionally. 15.2. Before releasing a detainee on conditions, guidance must be sought through the chain of command. Any conditions must be recorded and reported through the chain of command. 15.3. At the time of release the following information shall be recorded and reported through the chain of command 1. 2. 3. 4. 5. 6.

The time of release. The place of release. The reasons for release. The physical and mental condition of the detainee at the time of release. The details of any person the detainee was released in the presence of. Details of any property confiscated from the detainee.

15.4. If a detainee is released after detention was notified to [insert here the name of the organization] the detaining unit or other appropriately nominated organizations shall notify [insert here the name of the organization] of the release. 16. Transfer 16.1. Any detainee may be transferred to another peacekeeping unit. 16.2. At the time of transfer the following information shall be recorded and reported through the chain of command: 1. 2.

Identity of the detainee, including a photograph where possible. The date, time and place of the detention.

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3. 4. 5. 6. 7.

The reason for the transfer. The date, time and place of transfer. The identity of the person who transferred the detainee. The identity of the person to whom the detainee was transferred to. The physical and mental condition of the detainee at the time of transfer.

16.3. At the time of transfer, the following information shall be provided to the person to whom the detainee is transferred to: 1. 2. 3. 4. 5. 6.

Identity of the detainee, including a photograph where possible. The date, time and place of the person’s detention. The reason for the detention. The reason for the transfer. Any medical concerns regarding the detainee. The name of the person who detained the individual.

16.4. All evidence and items confiscated from the detainee must be returned to the detainee or transferred to the person taking custody of the detainee. 16.5. Any item transferred shall be signed for by the person taking custody of the detainee. 16.6. The Property Register is to be updated with the relevant details of the property transferred. 16.7. At the time of transfer, or as soon as practicable, the following information shall be communicated to an individual nominated by the detainee and [insert the name of the relevant organization]. 1. 2. 3.

Information concerning the identity of the detainee, including where possible a photograph of the detainee. The date, time and place of the person’s detention. The place of transfer.

17. Handover 17.1. Only [insert the category of detainee] may be handed over to [insert the name of local authority] or [insert the name of the international authority]. 17.2. A detainee is not to be handed over to any authority in situations where peacekeepers have a reasonable suspicion that the detainee will be ill-treated.

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17.3. At the time of handover, the following information shall be recorded and reported through the chain of command: 1. 2. 3. 4. 5. 6. 7.

Identity of the detainee, including a photograph where possible. The date, time and place of the person’s detention. The reason for the person’s handover. The place of handover. The identity of the person who handed over the detainee. The identity of the person to whom the detainee was handed to. The physical and mental condition of the detainee at the time of transfer.

17.4. At the time of handover, the following information shall be provided to the person to whom the detainee is handed to: 1. 2. 3. 4. 5. 6.

Identity of the detainee, including a photograph where possible. The date, time and place of the person’s detention. The reason for the detention. Any medical concerns regarding the detainee. The name of the person who detained the individual. Any medical concerns regarding the detainee.

17.5. All evidence and items confiscated from the detainee must be returned to the detainee or handed to the person taking custody of the detainee. 17.6. Any item handed over shall be signed for by the person taking custody of the detainee. 17.7. The Property Register is to be updated with the relevant details of the property handed over. 17.8. At the time of handover, or as soon as practicable, the following information shall be communicated to an individual nominated by the detainee and [insert the name of the relevant organization]: 1. 2. 3. 4.

Information concerning the identity of the detainee, including where possible a photograph of the detainee. The date, time and place of the person’s detention. The place of handover. The identity of the person to whom the detainee was handed to.

18. Reports and Investigations Concerning Ill-Treatment 18.1. All suspected or observed ill-treatment of detainees must be reported through the chain of command as soon as practicable.

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18.2. Any complaint or allegation of ill-treatment of detainees shall be investigated as soon as practicable by an impartial, independent and competent investigator. 18.3. Adequate records of the complaint, allegation of ill-treatment and the subsequent investigation is to be kept in the Complaints Register. 19. Registers Commanders shall ensure that the following registers are maintained and examined as required: • • •

Detainee Register Property Register Complaints Register

20. Unauthorized Disclosure of Information 20.1. Information relating to a detainee may only be released to an appropriate organization or individual. 20.2. Unauthorized access or distribution of information relating to a detainee is prohibited.

CHAPTER 12 IHL V. HUMAN RIGHTS: THE AL JEDDA CASE AND ISSUES ARISING FROM AN OPERATIONAL PERSPECTIVE James AE Johnston*

A. INTRODUCTION The relationship between human rights law (HRL) and international humanitarian law (IHL) has long been the subject of much scholarly discourse, which, depending on the protagonists involved, has often been of a somewhat combative nature. A comparison could easily be drawn between two parties arguing enthusiastically over the relative merits of Rugby Union Football and Rugby League Football: both games have similar aims but different rules apply, and depending which code you follow, will determine which you regard as the more dominant. The purpose of this chapter is not to conduct an extensive review in this area of the law but to concentrate on one case in which the author was intrinsically involved: The Queen (on the application of Hilal Abdul-Razzaq Ali AlJedda) v. Secretary of State for Defence (the Al Jedda case). After setting out the background to the case, the aim in Sections C and D is to outline, within the context of the case, the current interpretation by UK domestic courts of the relationship between IHL, in the form of a UN Security Council (SC) resolution 1 and HRL in the context of the 1949 European Convention on Human Rights (ECHR).2 The words “current interpretation” are stressed because while the Al Jedda case has already proceeded through the divisional court3 and the * Lt. Col. JAE Johnston AGC (ALS) LLM is a serving Legal Officer in the British Army. Any opinions expressed in this article are the author’s only and do not necessarily reflect those of the Ministry of Defense or any other UK government department. 1 SC Res. 1546 (June 8, 2004) set the mandate for the multinational forces that was reaffirmed by SC Res. 1637 (Nov. 11, 2005). 2 The European Convention for the Protection of Human Rights and Fundamental Freedoms was signed in 1950 and entered into force in 1953. 3 The Queen (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin). 229

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court of appeal,4 it is, at the time of writing, awaiting final judgment from the House of Lords, expected in late 2007. Another more famous case founded on similar circumstances that has just received final judgment in the House of Lords is Al Skeini.5 While there are many overlaps between the two cases, at the risk of a gross oversimplification, the focus in Al Skeini is the extraterritorial jurisdictional application of HRL, whereas Al Jedda is more concerned with the primacy issues arising from the two strands of law. However, the jurisdictional application of IHL and HRL is notoriously complex, as most recently demonstrated by the recent ruling of the Strasbourg court in the Behrami and Saramati cases.6 Accordingly, to avoid confusion, the analysis (both from an academic and practical perspective) in this chapter will assume jurisdiction applies, in order to concentrate on the relationship between IHL and HRL, albeit within the limited parameters of SC Resolution 1546 and the ECHR. The claimant, Mr. Al Jedda, was originally detained by British forces in September 2004, following the military occupation of Iraq by coalition forces and the handover of sovereignty to the Iraqi authorities in June 2004, under the terms of the SC Resolution 1546, 7 in which multinational coalition forces became engaged in a peace support operation (PSO) on behalf of the Iraqi government. Accordingly, the analysis will concentrate on the legal issues arising from the PSO rather than the preceding war fighting operation and belligerent occupation—from the time the claimant was detained by UK forces in September 2004 to the present day. While some UK procedures and policies relating to detention and internment have developed during this period, these are not assessed to have substantively affected the observations and conclusions reached. As already stated, this chapter will center upon the Al Jedda case and domestic UK interpretation of the relationship between HRL and IHL. Since the UK Human Rights Act 19988 (HRA 98) incorporates the ECHR9 into UK domes4 The Queen (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ. 327. 5 R(Al-Skeini and others) v. Secretary of State for Defence [2005] 2 WLR 1401 and [2005] EWCA Civ. 1609 and [2007] UKHL 26. 6 Agim Behrami and Bekir Behrami v. France, ECHR Application No. 71412/01(May 31, 2007). Ruzhdi Saramati v. France, Germany and Norway, ECHR Application No. 78166/01 (May 31, 2007). In these cases, the Grand Chamber ruled it had no jurisdiction under the ECHR because the acts of the respondent states’ armed forces, acting as part of KFOR (the UN peacekeeping force in Kosovo), were actions attributable to the United Nations and not the individual respondent states. 7 See supra note 1. 8 The Human Rights Act 1998 (HRA 98) enables UK citizens to apply ECHR provisions in relevant actions in the English courts thereby avoiding the need for the parties to wait until the conclusion of domestic proceedings before issuing proceedings in Strasbourg in order to apply convention rights. Accordingly, Schedule 1 HRA 98 exactly mirrors the wording of the ECHR. 9 See supra note 2.

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tic law, ECHR jurisprudence cannot be ignored. In addition, where possible, some comparisons have also been drawn with other human rights instruments and jurisprudence. Finally, Section E highlights some practical operational legal issues that, for example, a British commanding general of multinational forces in Iraq may encounter and require advice upon from his military lawyer. The intention in this section is not to take “pot shots” at the supposed “ivory towers” of academia but to illustrate by example the real-time issues that can be created at the operational level by these two important strands of law. For reasons of policy and operational security, these matters have been dealt with generically rather than by referring to specific operations, unless the factual basis is uncontested and already in the public domain such as the factual circumstances drawn from the Al Jedda case. B. BACKGROUND In March 2003 a US-led coalition force, which included the United Kingdom, invaded Iraq and overthrew the regime of Saddam Hussein. The US and UK forces within the coalition force subsequently established a belligerent occupation administered by the Coalition Provisional Authority (CPA). On June 30, 2004, full governmental responsibility and sovereignty was transferred from the CPA back to a democratically elected, independent interim Iraqi government. This process was underpinned by SC Resolution 1546,10 which, at the request of the interim Iraqi government, mandated multinational forces to remain in Iraq in a peace support role to assist in maintaining a secure environment. In order to achieve this mission, the resolution authorized multinational forces to: “take all necessary measures to contribute to the maintenance of security and stability in Iraq.”11 In addition, the resolution specifically granted multinational forces the power to intern individuals “where necessary for imperative reasons of security.”12 The claimant was born in Iraq on May 1, 1957. He moved to the United Kingdom in 1992, where he successfully claimed asylum and was granted indefinite leave to remain. He was subsequently granted British nationality resulting in all four of his children by his first wife also becoming British citizens. In 2001, he was divorced; he then remarried in Jordan and subsequently took a second wife, also a Jordanian national who grew up in Baghdad and still lives there. In September 2004, the claimant was back in London when, according to his statements, he decided to travel to Iraq in order to arrange British visas for his wives and to introduce his British children to their Iraqi 10

See supra note 1. Id., para. 10 12 Id.; see letter dated June 5, 2004, from Colin L. Powell US Secretary of State that is annexed to SC Res. 1546 (June 8, 2004). 11

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relatives. According to him, he flew first with his children to the United Arab Emirates (UAE) where he purchased a car from a friend in Dubai. He took the car for repairs to a garage, at which point he was detained by UAE intelligence officers and interrogated for 12 hours. On release he decided to sail immediately with his children to Basra, asking his friend to send the car on when it was ready. The car was apparently delivered to him in Basra some days later. He then drove with his children to Baghdad, arriving on about September 20. On October 10, the claimant was detained by British forces on suspicion of being involved in terrorist attacks against multinational forces, Iraqi security forces and civilians. It was assessed that based on the intelligence material available, there were imperative reasons of security to justify his internment as a security internee. Within 14 hours he was subsequently transferred by air to the British forces Divisional Temporary Detention Facility situated at Shaibah Logistic Base near Basra in southern Iraq. While at this British forces internment facility, the claimant’s detention has been subject to regular reviews, which have concluded that the grounds for his detention continue to be met. The claimant has been interned for imperative reasons of security based on highly sensitive intelligence. He has not been charged with any offense, and the UK government Secretary of State for Defense has accepted that currently there is insufficient material available, which could be used as evidence in court to support criminal charges against him. The claimant denied any involvement in terrorist activities and challenges the legal basis for his detention; he seeks not just his release from detention but also to secure his return to the United Kingdom notwithstanding the possibility he could be liable to prosecution under the Terrorism Act 2000 or stringent measures of control under the Prevention of Terrorism Act 2005. C. DIVISIONAL COURT PROCEEDINGS: JULY 20–21, 2005 The claimant’s case was originally founded upon a writ of habeas corpus, but for procedural reasons, it ultimately came before the court by way of judicial review. The claimant did not request the court to examine the factual basis for his internment, reserving his position on this issue,13 though he challenged the legal basis for internment generally using two lines of argument: (1) the internment of the claimant contravened the rights conferred upon him by Article 5 of Schedule 1 of the HRA 98; (2) the defendant was acting unlawfully in refusing the claimant’s request to return him from Iraq to the United Kingdom. In accordance with the position adopted during the Al Skeini14 proceedings, the defendants did not challenge the extraterritorial jurisdictional appli13 In April 2007 the claimant was granted leave by the Divisional Court to bring judicial review proceedings challenging the factual basis for his internment. 14 See supra note 6.

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cation of the HRA 9815 Instead, the defendants agreed to reserve their position on this point until the outcome of the Al Skeini House of Lords proceedings. Accordingly, for the purposes of these proceedings, it was accepted between the parties that the claimant’s internment in the British internment facility in Iraq could be examined by the court in the context of a contravention both of UK domestic law, under Article 5 of Schedule 1 of the HRA 98 and pure European Convention rights, under Article 5 of the ECHR. The defendants further accepted that, prima facie, the claimant’s detention did not fall within any of the permitted cases set out in Article 5(1) of the HRA 98 or the ECHR. The defendant’s case was straightforward; namely that no breach of HRA 98 or ECHR Article 5 rights had taken place, because internment was specifically authorized by SC Resolution 154616 and, as a matter of international law, the effect of the resolution was to displace Article 5 rights. The claimant countered this SC resolution primacy argument on three distinct levels, which the court dealt with separately. Firstly, the claimant argued that he was seeking to enforce his rights under domestic HRL (namely Article 5 of the HRA 98) rather than his corresponding rights under international HRL (namely Article 5 of the ECHR). Accordingly, based on the generally accepted normative position that rights under a domestic statute cannot be removed by international law, the claimant argued his Article 5 HRA 98 rights could never be displaced by SC Resolution 1546. The claimant’s assertion founded on the premise of state sovereignty was that it could never be right for international law in the form of a SC resolution to automatically override fundamental rights granted by a democratic government under domestic law, without any recourse by the state concerned. The court, at first sight, found this to be a powerful argument initially restating what they described as: “the indisputable and undisputed proposition that the right protected by Article 5, set out in the Act, is a domestic right, derives, in part, from the uncontroversial principal that international treaties do not form part of domestic law.”17 The court then in the same paragraph highlighted the paradox that: “it renders even more surprising the suggestion that an international resolution can remove a right enshrined in a United Kingdom statute. If a citizen cannot rely upon an international treaty . . . to assert a right, it is difficult to see why a government should be allowed to rely upon such a measure to remove a right conferred by United Kingdom statute.” Despite its initial views, the court emphasized the need for a close examination of the construction of the HRA 98 in order to make a final decision. In considering construction, it determined the purpose of the HRA 98 was to render rights, which existed at the international level, enforceable in domestic courts. This uncontroversial assumption was based on the title and content of the original draft white paper for the HRA 15 16 17

See supra note 9. See supra note 1. See supra note 3, para. 34.

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98: “Rights Brought Home: the Human Rights Bill.”18 The court also relied on Lord Nicholls’ explanation of the purpose of the HRA 98 set out in Aston Cantlow PCC v. Wallbank:19 “the purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention Rights. If they act in breach of this legal obligation victims may henceforth obtain redress from the courts of this country. In future victims should not need to travel to Strasbourg.”20 Given the underlying purpose of the HRA 98, the court went on to examine the extent that the rights conferred by the HRA 98 should mirror those of the ECHR. While Section 2 of the HRA 98 does not require domestic courts to follow Strasbourg jurisprudence, the court’s interpretation of the wording used in the section21 led it to the conclusion that a domestic court may interpret rights more narrowly than the margin of appreciation recognized in Strasbourg. But crucially the court noted that: “the purpose of the statute is not merely to permit victims to enforce in domestic courts rights enforceable in Strasbourg, but that those rights should be of the same scope and not a greater ambit.”22 In examining the construction of the HRA 98, the court, having decided on the legislative intention behind the act, then moved on to its operative sections to determine whether they were in fact consistent with this intent. Section 1(1) of the HRA 9823 clearly defines the Convention rights as those “set out” in the operative articles of the ECHR. These rights are also identical in form to those in the ECHR. The question for the court was whether, as the claimant contended, the rights set out in Schedule 1 of the HRA 98 had an autonomous meaning under the act when enforced in the United Kingdom or whether their meaning was the same as those enforced under the ECHR in Strasbourg. After hearing detailed submissions from both parties on the operative effect of various sections in the act, the court identified the critical element to be within the definition of the ECHR as set out in Section 21 of the act: “The Convention means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom.”24 Crucially, the court found the inclusion of the words: “effect for the time being” in the section to be determinative in establishing that the interpretation of the ECHR 18 See Cm 3792 (Oct. 24 1997), available at http://www.archive.officialdocuments.co.uk/documents/hoffice/rights/rights.htm. 19 Aston Cantlow PCC v. Wallbank [2004] 1 AC 546. 20 Id., para. 6. 21 See Section 2(1)a-d of the Human Rights Act 1998, available at http://www.opsi.gov/ACTS/acts1998/19980042.htm. 22 See supra note 3, para. 43. 23 See supra note 8. 24 See supra note 3, para. 53.

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in Strasbourg does influence the application of the rights conferred under the act, thereby sinking the autonomy argument put forward by the claimant. Accordingly, despite misgivings, the court found that based on a detailed examination of its construction, the HRA 98 was so intrinsically linked to the ECHR that it could also be displaced by SC Resolution 1546. Having initially identified a paradox in support of the claimant’s position,25 the court concluded by rejecting the claimants first counterargument on the basis of a more fundamental paradox: “if the claimant is correct, then the Secretary of State could be found guilty of a breach of Article 5 in United Kingdom courts whereas on the hypothesis necessary in this argument, the United Kingdom would be acquitted of any such infringement in Strasbourg. Such a result would, in our view be wholly inconsistent with the purpose and meaning of the 1998 Act.”26 The second counterargument submitted by the claimant was that even if SC Resolution 1546 could act upon domestic rights under Article 5 of the HRA 98, then, by applying its proper interpretation and effect, as a matter of international law SC Resolution 1546 did not displace the rights of the claimant under Article 5 of the HRA 98. The court first considered the specific meaning of SC Resolution 1546 in the context of the authority given to multinational forces to: “contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution.”27 Further, the court recognized the importance of interpreting the context28 of the resolution on the basis of that which had gone before, namely the transition in June 2004 from a belligerent occupation by US and UK forces to a PSO mandated by SC Resolution 1546 and undertaken by multinational (including UK) forces in support of the Iraqi interim government. During the occupation, British forces had exercised powers pursuant to Article 78 of Geneva Convention (GC) IV 29 to intern individuals for “imperative reasons of security.”30 The court emphasized the significance of the description of the power of internment as referred to in the letter from Secretary of State Powell annexed to SC Resolution 1546, which also cited “imperative reasons of security” as the grounds required for internment under the resolution by multinational forces: “the use of those words was not accidental. It provides a clear indication of the intention that the powers previously derived from Article 78 of Geneva IV were to be continued.”31 Having established the meaning and intention of the resolution, the court went on to 25

Id., para. 34. Id., para. 74. 27 See supra note 1, para. 10. 28 The court cited the article by Sir Michael Wood, “The Interpretation of Security Council Resolutions,” (1998) 2 Max Plank UN Y.B. Int’l L. 73, 87. 29 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva (Aug. 12, 1949). 30 Id., art. 78. 31 See supra note 3, para. 87. 26

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consider the principal submission by the claimant that a SC resolution could not displace one of the primary purposes of the UN Charter,32 which is to promote and encourage respect for human rights and fundamental freedoms as set out in Articles 1(3) and 55(c) of the Charter. In support the claimant cited Article 24(2) of the Charter, which requires the Security Council to act in accordance with the purposes and principles of the United Nations and also the ruling of Judge Lauterpacht in the Bosnia Genocide Convention case.33 “It is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting the rule of jus cogens or requiring a violation of human rights.”34 The claimant further contended that had the Security Council intended to displace such a fundamental human right (the right to liberty), then it would have specifically stated its intention to do so in the resolution in accordance with a practice it had adopted on previous occasions. The court rejected the claimant’s submissions on the basis that since the Security Council was invoking its powers under Chapter VII of the Charter, this was indicative of an extreme situation where measures such as internment were necessary in order to restore peace and security in Iraq, without which there could be no human rights. Further, these actions were consistent with a principal purpose of the United Nations to maintain international peace and security as set out in Article 1(1) of the Charter. The third and final limb of the claimant’s argument that SC Resolution 1546 does not displace the right to liberty under Article 5 of the ECHR concerns the application of Article 103 of the UN Charter, which states: “in the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”35 The defendant cited Article 103 as clear authority in support of the displacement argument. The claimant argued that since the wording of SC Resolution 1546 only authorized internment rather than creating an obligation to intern, then Article 103 did not bite. For practical purposes, the court took the view that it was impossible to distinguish between resolutions that obligate as opposed to those that authorize. The court cited the comments of Professor Frowein, a former president of the European Commission on Human Rights, contained in the commentary on the Charter by Bruce Simma 36 as academic authority in this respect: “Otherwise the Charter would not reach its goal of allowing the Security Council to take action it deems most appropriate to deal with the threats to peace . . . it seems therefore preferable to apply the rule of article 103 to all action . . . and not only to mandatory measures.”37 Based on Strasbourg jurispru32 33 34 35 36 37

Charter of the United Nations (Oct. 24, 1945). 1993 I.C.J. 325. Id. para. 74. See supra note 32, art 103. BRUCE SIMMA ET AL., COMMENTARY ON THE UN CHARTER (2d ed. 2002). Id., 729.

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dence, the claimant also sought to argue that due to the “special character” of the ECHR as identified in the Loizidou v. Turkey38 and Bankovic39 cases, this precluded displacement of Article 5 rights. The court roundly rejected this assertion and, in doing so, reached the following conclusion in respect of the second counterargument of the claimant: “None of these cases are authority for the proposition that Article 103 cannot override the Convention. In those circumstances we conclude that Article 103 is not merely engaged by UNSCR 1546 but that the resolution does indeed, by virtue of Articles 25 and 103 of the Charter, in principle override Article 5 of the Convention in relation to the claimant’s detention in Basra.”40 The third counterargument of the claimant was that even if SC Resolution 1546 could have the effect of displacing the claimant’s rights under Article 5 of the HRA 98 (as the court had found). In the circumstances of this particular case, the detention was unlawful because the defendant had not established a detention regime compliant with Article 78 GC IV, 41 which (as the court had also found) was the intention of SC Resolution 1546. Specifically, the claimant not only submitted his detention was not necessary for imperative reasons of security but also breached the procedural requirements of Article 78, which states that: if the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the occupying power in accordance with the provisions of the present convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said power. In considering first whether the procedural requirements of Article 78 had been complied with, the court examined in detail the facts surrounding the detention of the claimant. He was initially detained in Baghdad on October 10, 2004, at which time the initial decision to intern him was taken by the British commanding officer of the detaining unit, prior to his transfer to the internment facility operated by British forces in southern Iraq. Under the procedures operating at the time, within seven days of detention the grounds for the initial decision to intern were reviewed by the Divisional Internment Review Committee, 38

Loizidou v. Turkey, ECHR Application No. 513/95, para. 43 (Feb. 23, 1995). Bankovi´c and Others v. Belgium and 16 Other Contracting States, ECHR Application No. 52207/99, para. 57 (Dec. 19, 2001). 40 See supra note 3, paras. 121–122. 41 See supra note 29. 39

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which was comprised of various British personnel, including the officer commanding the internment facility together with other British legal, military intelligence and operational staff officers as well as a civilian British Ministry of Defense policy adviser. The role of the Divisional Internment Review Committee was to review all available intelligence evidence and other paperwork associated with the internee’s original apprehension, as well as information obtained after that time in order to assess whether the internment was necessary for imperative reasons of security. The committee would then make recommendations to the British commanding general, who would decide whether the internee should remain in internment, be transferred to the Iraqi criminal justice system or be released. If the British commanding general authorized internment, further reviews took place 28 days after the date of internment, then three months from the date of internment and thereafter at three-month intervals. If, between any fixed review date, new information affecting the criteria for internment came to light, then an ad hoc review would be undertaken as soon as possible. Any security internee could appeal in writing against his/her internment at the 28-day and three-month reviews, which would also incorporated the appeal procedure. The first Divisional Internment Review Committee review of the claimant’s internment took place on October 12, 2004, and recommended continued internment. The British commanding general examined the sensitive intelligence material and satisfied himself that internment of the claimant was necessary for imperative reasons of security. On November 9, 2004, the Divisional Internment Review Committee considered the claimant’s continued internment and again recommended to the British commanding general that he should remain in internment. The British commanding general subsequently followed this recommendation on November 19, 2004. In January 2005, the British internment review procedures were revised. The composition of the Divisional Internment Review Committee was reduced in size to three more senior British Officers: the chief of staff, the senior intelligence officer and the senior legal officer. In addition, the senior British Ministry of Defense policy adviser was also a member of the committee. The initial decision to authorize the internment of an individual remained with the British commanding officer of the detaining unit. However, the initial review by the Divisional Internment Review Committee was reduced from seven days to within 48 hours of initial detention. The committee subsequently made recommendations to the British commanding general as to whether an internee should remain in internment, be transferred to the Iraqi criminal justice system or be released. Every month, the Divisional Internment Review Committee would conduct a review of the grounds for internment of every internee held in the internment facility and make individual recommendations to the British commanding general as to whether the internment should continue. In addition, at any stage during the 28-day period between these regular reviews, there could be ongoing evidential and intelligence enquiries or other issues that may trigger an ad hoc

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review by the Divisional Internment Review Committee (DIRC). After each review a written record was produced to the British commanding general, containing a summary of the issues in each case, together with recommendations and the requisite draft review notices. The general could question members of the DIRC on their recommendations and, if necessary, also view the relevant evidential or intelligence material in order to make the final decision as to whether each security internee should remain in internment, be transferred to the Iraqi criminal justice system or be released. This decision in respect of each security internee would then be communicated to each individual in a written notice. Since January 2005, the claimant had been subject to regular 28-day reviews under the new procedures. The principal procedural challenge by the claimant to the British internment review procedures related to the role of the British commanding general as a single individual considering an appeal against internment. The claimant argued that Article 78 required a competent body, which meant more than one person making the decision as stated by Dr. Pictet in his commentary on GC IV:42 “the authors of the Convention took every possible care to prevent any form of abuse. They did however, leave it to the occupying power to entrust the consideration of appeals either to a court or a board. That means that the decision will never be left to one individual. It will be a joint decision, and this offers the protected persons a better guarantee of fair treatment.”43 The defendant argued that an inherent aspect of the military chain of command was the necessity for decisions to be made by individuals rather than by committee. However, the authority of Pictet coupled with the common sense of his proposition prevailed, leading the court to conclude that the review procedures did not comply with Article 78. However, the court accepted that the general had reviewed the intelligence relating to the claimant himself and had always acted on the recommendations of the Divisional Internment Review Committee. Accordingly, it found the breach to be technical rather than substantial and suggested it could be remedied simply by the general becoming a member of the Divisional Internment Review Committee, who would make all internment decisions jointly rather than simply making recommendations.44 The argument thereafter centered uon the consequences of the Article 78 breach. The claimant cited the Delalic case:45 “an initially lawful internment 42

Dr. Jean S Pictet: The Geneva Conventions of 12 August 1949 Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1958. 43 Id., 369. 44 Following release of the judgment, the internment review procedures have since been amended to include the British commanding general as a member of the Divisional Internment Review Committee with all decisions being taken jointly as a tribunal as recommended by the court. 45 Prosecutor v. Delalic, Mucic, Delic and Landzo, Case No. IT-96-21-I (Mar. 21, 1996).

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clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative body.”46 Accordingly, the claimant submitted the procedural breach rendered the detention unlawful since it was no longer authorized under SC Resolution 1546, which therefore allowed him to rely on the entirety of his rights under Article 5. The court, referring to the judgment in the Kolanis case,47 however disagreed: “if the substantive conditions for detention are met, as must be assumed for the present purposes to be true in the case of the claimant, it would be very surprising if non-compliance, however insubstantial, with the procedural requirements of Art 78 had the automatic effect of rendering the detention unlawful.”48 Finally, the claimant argued that the requirements of Article 78 had not been met because by virtue of the claimant’s British nationality, it was not necessary to intern him in Iraq as he could be repatriated to the United Kingdom, where a control order under the Prevention of Terrorism Act 2005 could be imposed as an alternative to custody. The claimant submitted such an order would be as an effective control as internment in Iraq. Therefore, the internment was not necessary for imperative reasons of security and so failed to comply with the Article 78 grounds for internment, set out in SC Resolution 1546,49 with the result that the resolution could not be relied upon to displace Article 5 rights of liberty under the ECHR.50 The defendant challenged this argument on the basis that SC Resolution 1546 provided no power of internment to remove the claimant from Iraq to the United Kingdom. The court agreed such actions would be inconsistent with the resolution but, more fundamentally, stated that since the claimant had not challenged the factual basis for detention “the necessity for detention can only be properly assessed in the context of a detailed consideration of the factual basis for the detention. We therefore conclude that this further attempt by the claimant to defeat the defendant’s reliance on UNSCR 1546 must be rejected.”51 D. COURT OF APPEAL PROCEEDINGS: JANUARY 16–18, 2006 The court of appeal upheld the dismissal of the claimant’s appeal of the divisional court decision. Since the majority of arguments proposed by both sides mirrored those originally advanced, these issues will not be dealt with in detail, save where the court of appeal provided a different interpretation or gloss on those original submissions. Certain new lines of argument raised in these proceedings will also be considered. 46 47 48 49 50 51

Id., para. 2774. Kolanis v. United Kingdom, ECHR Application No. 517/02 (June 21, 2005). See supra note 3, para. 144. See supra note 1. See supra note 2. See supra note 3, paras. 151–152.

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In considering the primary issue of whether SC Resolution 1546 trumps or displaces the right to liberty under Article 5, the court, with the benefit of a recent House of Lords judgment in the Quark Fishing case,52 was able to swiftly endorse the conclusion of the divisional court. Quark had clearly established that the purpose of the HRA 98 was to bring rights home and, as a result, was inextricably linked to the ECHR and hence could be affected by international law in the form of a SC resolution: “A party unable to mount a successful claim in Strasbourg can never mount a successful claim under . . . the 1998 Act. For the purpose of the 1998 act was not to enlarge the field of application of the convention but to enable those subject to the jurisdiction of the UK . . . to present their claims in the domestic courts of this country and not only in Strasbourg.”53 The court then moved on to the central question of whether SC Resolution 1546 itself displaced the appellant’s Article 5 rights under Article 103, as submitted by the respondent. The court firstly recognized the significance that SC Resolution 1546 had been issued by the Security Council under powers contained in Chapter VII of the UN Charter, by referring (as the divisional court had) to the commentary on the UN Charter by Simma and others,54 where Professor Bernhardt (also a former president of the European Court of Human Rights) had said: However, Article 103 goes further. To the extent that the Charter provides for the competence of UN organs to adopt binding decisions, measures taken in accordance with such provisions can lead to obligations of the members that prevail under Article 103, notwithstanding any other commitments of the members concerned. This holds true for decisions and enforcement measures of the Security Council under chapter VII . . . they [members of the UN] are bound, according to article 103, to give these obligations priority over any other commitments . . . In conclusion, it seems now to be generally recognized in practice that binding security Council decisions under Chapter VII supersede all other treaty commitments.”55 The court agreed with this analysis though citing jus cogens 56 as an exception: There is no room here for any argument that human rights treaties fall into some special category. If the Security Council acting under 52

R(Quark Fishing Ltd) v. Foreign Secretary [2005] UKHL 57. Id., per Lord Bingham at para. 25. 54 See supra note 36. 55 Id., paras. 1295–1300. 56 Defined under Article 30(1) of the Vienna Convention of the Law of Treaties as: “a peremptory norm of general international law . . . [being] . . . a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted.” 53

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Chapter VII, consider that the exigencies posed by a threat to peace must override, for the duration of the emergency, the requirements of a human rights convention (seemingly other than jus cogens, from which no derogation is possible), the UN Charter has given it power to so provide.”57 Given the lack of a clear consensus of exactly what peremptory norms are recognized as jus cogens by the community of states, it was unfortunate the court did not concern itself with whether the right to liberty under Art 5 of the ECHR was a jus cogens right because the appellant did not argue that was the case. The court did however address the technical argument raised by the claimant/appellant in both sets of proceedings that since Article 103 referred to the primacy of UN Charter obligations, for a Security Council resolution to qualify, it needed to refer specifically to obligations, whereas SC Resolution 1546 had only cited authorizations and so did not fall within Article 103. The court agreed with the divisional court assessment that for practical purposes, it was impossible to distinguish between resolutions that obligate as opposed to those that authorize. The court further noted that overall state practice supported this assessment and once again relied on the commentary on the UN Charter by Simma and others:58 one could conclude . . . [referring to Article 103] . . . that in case a state is not obliged but merely authorized to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with state practice at least as regards authorizations of military action . . . these authorizations have not been opposed on the ground of conflicting treaty obligations . . . Thus the interpretation of article 103 should be reconciled with that of article 42 . . . [Chapter VII military action] . . . and the prevalence over treaty obligations should be recognized for the authorization of military action as well.”59 The court endorsed the finding of the divisions court that the internment regime authorized under SC Resolution 1546 did displace the appellants Article 5 right to liberty. However, it emphasized that the resolution only qualified human rights obligations to the extent that it conflicted with them, therefore: “all the remaining requirements of those human rights conventions retained their vitality (in so far as they were not qualified by the Security council resolution), and with the greater vigour because an internee’s important right to liberty was 57 58 59

See supra note 4, para. 71. See supra note 36. Id., para. 729.

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being removed without the due process that is obligatory in less exceptional times.”60 A final argument pursued by the appellant not originally put before the divisional court was based under English common law. It was contended that even if the court found (as it had) that SC Resolution 1546 was enforceable under Iraqi law in providing the necessary authority for multinational forces to intern suspects, then, because of the appellant’s dual Iraqi/British nationality, English law should apply in his case. Counsel for the appellant argued that since SC Resolution 1546 granted powers to multinational forces to act under Iraqi law, then if English law did apply to the appellant the resolution should have no effect: “it would be strange indeed for the English court to apply Iraqi law to a claim by a British citizen against the British Government in respect of activities on a base operated according to British law by British troops governed by British law (and immune from Iraqi law).”61 The general rule as set out in the Private International Law (Miscellaneous Provisions) Act 1995 is the law of the host nation will apply unless it is “substantially more appropriate for the applicable law for determining issues arising in the case . . . to be the law of the other country.” 62 In seeking to interpret the wording “substantially more appropriate,” the court examined the travaux préparatoire surrounding the creation of the act63 and reached a conclusion based on the comments made by Lord Wilberforce, a member of the Special Public Committee, who said for the general rule not to apply: “it is a rare case. Prima facie there has to be a strong case.”64 The court, in applying this test, noted that the appellant was still able to challenge the legality of his detention before an English court and concluded that: “given that the laws of Iraq have been adapted to give the multinational forces the requisite powers, it would be very odd if the legality of Mr Al Jedda’s detention was to be governed by the law of England and not the law of Iraq.”65 Accordingly, having considered all of the submissions put forward, the court dismissed the appeal. E.

OPERATIONAL ISSUES ARISING

So far, the analysis has involved an academic examination of the Al Jedda case concerning the relationship between IHL and HRL. In this section it is 60 61 62

See supra note 4, para. 80. Id., para. 105. Section 12(1)(b) of the Private International Law (Miscellaneous Provisions)

Act 1995. 63 HL Paper 36, Session 1994–5, Private International Law (Miscellaneous Provisions) Bill [HL], Proceedings of the Special Public Committee, with evidence and the bill (as amended). 64 Id., para. 37. 65 See supra note 4, para. 106.

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intended to highlight some operational issues affecting the ground commander engaged in PSOs, which may arise either wholly or in part from the interpretation given to the relationship between HRL and IHL within the parameters of SC Resolution 154666 and the ECHR.67 For operational and policy reasons, these matters will be dealt with generically, though from the author’s own experience, it can be confirmed they are realistic issues that a British commander could potentially face in the context of recent operations in Iraq or Afghanistan. There are many areas where UK obligations under HRL and IHL will have practical consequences on the ground for a British commander conducting PSOs. However, to keep the debate brief, the focus will be on three specific areas of potential conflict, which may arise during the detention and subsequent internment of suspected insurgents in the context of the multinational force counterinsurgency PSO, in which British troops are currently engaged in Iraq. These areas are: criminal investigation, interrogation and transfer of security internees to the Iraqi criminal justice system. The intention is to illustrate by example the potential difficulties posed to commanders and their lawyers in reconciling the different priorities and standards required under the applicable IHL and HRL rather than necessarily providing concrete answers to the issues highlighted. As ever, the approach taken by a commander will be determined by many factors, including the specific circumstances of the case, operational issues, legal advice, policy and diplomatic considerations. Using a fictional example, let us consider that following a pre-planned security operation conducted by British armed forces in southeastern Iraq, a number of suspected insurgents are detained. However, one of the suspected Iraqi insurgents subsequently dies from injuries sustained while detained in British custody. In accordance with the position adopted by the respondent in Al Skeini68 it was accepted the ECHR will have jurisdictional application to any individual held in any permanent or semi-permanent detention facility operated by British armed forces. The first area of possible conflict may occur during any criminal investigation of this suspicious death. Under normative rules of territorial jurisdiction, the investigation of the death of an Iraqi national, while in the custody of UK forces within Iraq, would usually fall within the domestic criminal jurisdiction of the Iraqi authorities. However, SC Resolution 1546 confirms agreement by the Iraqi government that multinational (including British) forces, would retain jurisdiction over their personnel: “the contributing states have responsibility for exercising jurisdiction over their personnel.”69 Accordingly, concurrent UK military jurisdiction70 will apply, enabling British military police 66 67 68 69 70

See supra note 1. See supra note 2. See supra note 5. See supra note 1. Under S.70 of the Army Act 1955.

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to investigate British military personnel involved in the death in custody of the Iraqi national. Settled jurisprudence from Strasbourg established the principle that the right to life obligations under Article 2 of the ECHR include a requirement for an effective, independent investigation to be conducted to establish how and why the individual died.71 The British military police investigation mandated by SC Resolution 1546 will apply rigorous investigative procedures, which closely mirror those under UK civilian criminal law, where rules on evidential admissibility are extremely stringent. As a result, the deceased would most likely be subject to a detailed post mortem to establish cause of death. Additionally, in order for further investigations to take place, it would be unlikely for the body to be released for burial for a considerable time thereafter. These practices may well conflict with the expectations of the Iraqi next of kin of the deceased, where religious conventions may dictate the funeral of the deceased must take place within a short, prescribed period of time. In addition, the whole concept of a post mortem may be construed as a desecration of the deceased, leading to further allegations of ill treatment. This situation could lead to the next of kin alleging the freedom of religion of the deceased under Article 9 of the ECHR was infringed. The United Kingdom could contest any such claim on the basis that the allegations relate to actions conducted after the individual has died, so no ECHR rights would exist. Such an argument may not be deployed given the presentational issues involved. However, the United Kingdom could argue that since Article 9 is a qualified right, such investigative practices are permissible in any event: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”72 Whether these arguments succeed or not, the next of kin may well contend that the conflicts between religious freedoms and investigative procedures only arise due to the immunity from Iraqi domestic criminal jurisdiction afforded to multinational forces by the Iraqi government under SC Resolution 1546. We therefore return neatly to the issues of primacy central to the Al Jedda case. Similar issues also arise when we consider the practical difficulties that may be experienced by military police and prosecutors in applying evidential standards under the UK adversarial trial process to a criminal investigation conducted in Iraq. The ability to maintain the integrity of evidence from the perspective of freedom from contamination and continuity, given the physical conditions pertaining to Iraq, will generally be much more challenging than in the United Kingdom. Cultural differences such as the custom of paying blood money and the Iraqi tribal system may also impact negatively on the veracity 71 72

See Ergi v. Turkey, ECHR Application No. 66/1997/850/1057 (July 28, 1998). See supra note 2, art. 9(2).

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afforded by a British court to Iraqi witness evidence. These Iraq specific factors may well combine to make a successful prosecution extremely difficult or, in certain circumstances, may even hinder the presentation of a successful defense by the accused. All these issues could potentially feature in HRL arguments seeking to balance the right of the accused military personnel to a fair trial under Article 6 of the ECHR, with those human rights to which the victim may be entitled. Prima facie, this conflict between different human rights is no different to similar arguments played out daily in UK criminal courts up and down the country. However, the difference is that the Iraqi next of kin could legitimately argue that were multinational forces not granted responsibility for exercising jurisdiction over their personnel under SC Resolution 1546, Iraqi criminal jurisdiction would have primacy based upon normative territorial jurisdiction principles. In such circumstances, it is likely that these concerns would diminish considerably under the domestic inquisitorial criminal justice system operated in Iraq, where the rules relating to the admissibility of evidence are far more flexible. Notwithstanding the legal issues involved, at a local level, the commander must also take into account the tangible damage these legal conflicts potentially cause to relations between British forces and the local community as well as the effect on other multinational forces. The second operational area involving possible conflict between IHL and HRL would arise if the remaining suspected Iraqi insurgents in this example were subsequently interned as security internees and transferred to the British internment facility. On arrival, it is likely that the internees would be subject to interrogation. The term interrogation is often misunderstood. To some it may conjure up images of thumbscrews and the rack, even though such practices would clearly amount to torture under IHL and HRL. Such perceptions are often based on films or other works of fiction, though sadly they do also have their factual basis in both ancient and contemporary history. Others may associate interrogation with other practices involving the use of stress positions or sensory deprivation, which figured in the circumstances of the Ireland v. UK case73 and were found to amount to inhuman and degrading treatment.74 While some definitions for interrogation can be found, unfortunately the Geneva Conventions of 1949 do not provide one. However, there is no magic in the term; it can be described for the purposes of this chapter as the questioning of an uncoopera73

Ireland v. The United Kingdom, ECHR Application No. 5310/71 (Jan. 18,

1978). 74 In this case, certain practices employed by UK security forces on suspected terrorists during interrogation in Northern Ireland during the 1970s were outlawed. Such techniques included the use of hooding and stress positions (wall standing) during interrogation as well as the employment of white noise and limited food and water deprivation. The court found such practices fell short of torture but did amount to inhuman and degrading treatment. As a result of a statement made in the House of Commons by Prime Minister Edward Heath on March 2, 1972 (see Hansard 743–744) the Ministry of Defense (MOD) prohibited the armed forces from employing such practices.

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tive individual using lawful techniques, where the aim is to persuade that individual to become cooperative. The practice of interrogation has become so contentious that this chapter could easily be devoted entirely to the subject. The evidence from US courts martial relating to events in the Abu Ghraib Prison75 and certain other British courts martial76 also concerning alleged prisoner ill-treatment have firmly placed the spotlight on interrogation procedures, even though the majority, if not all of such alleged ill-treatment, would seem to have taken place in the context of prisoner handling and not during actual interrogation. British armed forces regard the concept of interrogation as a lawful activity when conducted according to authorized procedures, and policy reflects this. While some human rights commentators may challenge the legality of interrogation, it is not intended to explore the detailed arguments on either side but merely to highlight once again the difficult choices faced by a commander on the ground. In sanctioning interrogation, a commander may obtain from the suspected insurgents highly valuable intelligence, which could lead to the frustration or elimination of future terrorist attacks, which would otherwise potentially cause death or injury to Iraqi civilians, security forces or multinational forces. The commander would arguably be under a duty to conduct interrogation where necessary, taking into account the responsibilities imposed on multinational forces under SC Resolution 1546, which it could be expected would reflect IHL principles: “decides that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism.”77 However, naturally, these joint IHL/HRL obligations on the commander must be weighed against the human rights of the suspected insurgent, as he will be subjected to authorized interrogation techniques that, albeit non-physical and strictly limited, are intended to maintain the shock of capture and to disorientate the subject without his consent. Conversely, we must also remember the obligations on the interning authority to regularly review the grounds for internment of each individual security internee. On this basis, it could be argued that there is a positive duty on the commander to conduct interrogation of the individual for the purpose of informing the internment review process (as detailed in the Al Jedda case), since intelligence obtained from a security internee may also act to his (or another internees) benefit rather than to their detriment. When considering the actual interrogation procedures, a key issue for a commander may be the extent to which normal detainee handling procedures 75

United States v. Graner: Fort Hood Court Martial Center, Texas, USA, June

2006. 76 R v. Kenyon & Others: Osnabruck Court Martial Center, Germany, February 2005 and R v. Payne & Others: Bulford Court Martial Center, UK, September 2006. 77 See supra note 1, para. 10.

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can be lawfully modified, in order to maintain the detainees shock of capture, thereby making them more susceptible to interrogation. For operational reasons, it is not intended to refer to the specific procedures applied in readiness for and during interrogation. However, they are carefully constrained within authorized procedures that are closely scrutinized by the Ministry of Defense, other government departments, as well as the Houses of Parliament78 and other institutions, to ensure compliance with UK domestic and international legal obligations. Notwithstanding these safeguards, interrogation is an intrinsically subjective process, and the circumstances of a particular operation may raise specific questions relating to the application of interrogation techniques not specifically dealt with by the law or policy guidance. The relevant domestic, IHL and HRL instruments do not go into specific detail on interrogation practices, so it may be difficult to assess whether a particular interrogation technique or procedure is unlawful. Clearly, any practices involving the application of severe pain or suffering would amount to torture within the definition contained in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT), dated June 26, 1987.79 However, other acts falling short of torture may be harder to assess, given the lack of an express definition of cruel, inhuman or degrading treatment within UNCAT and the limited domestic and international jurisprudence on the subject. In this context, reconciling what is and is not lawful under the relevant IHL and HRL may in certain circumstances be extremely difficult for a commander or his lawyer to interpret. Considering IHL first, in the context of international armed conflict GC III80 states: “No physical or mental torture, nor any other form of coercion . . . May not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind.”81 With regard to GC IV,82 it states civilian pro78 See House of Lords, House of Commons Joint Committee on Human Rights 19th Report of Session 2005–06 (May 26, 2006) Chapter 4 on UK armed forces compliance with the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT) (June 26, 1987). 79 At Article 1 of UNCAT, torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 80 Convention (III) Relative to the Treatment of Prisoners of War, Geneva (Aug. 12, 1949). 81 Id., art 17. 82 See supra note 29.

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tected persons “should at all times be humanely treated and shall be protected especially against all aspects of violence or threats thereof ”83 [and] “No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.”84 If the conflict is non-international in nature, then Common Article 3 of the Geneva Conventions 1949 will still apply in prohibiting “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture . . . outrages upon personal dignity, in particular, humiliating and degrading treatment.” Turning to HRL and by applying the position adopted by the respondent in Al Skeini,85 tany person detained in a permanent, or semi-permanent, British internment facility is deemed to have the protection of the ECHR,86 which states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”87 What amounts to torture, inhuman or degrading treatment has been the subject of significant Strasbourg jurisprudence arising from cases like Ireland v. UK88 and Selmouni v. France.89 The concept of torture is fairly clear according to case law and the UNCAT definition,90 though what amounts to inhuman or degrading treatment can be harder to assess. Without considering the applicability of the above legal principles to a specific PSO, it is submitted that the above snapshot of some of the IHL and HRL pertinent to this area illustrates the difficulties in interpretation that could arise. For instance, if Article 17 GC III were interpreted literally, then being “exposed to any unpleasant or disadvantageous treatment of any kind” could be construed as ruling out any of the existing authorized interrogation procedures taught and applied by British forces before and during interrogation. A similar literal approach could also create problems with regard to the interpretation of obtaining information by “moral coercion” under Article 31 GC IV and “outrages upon personal dignity” under common Article 3.While the attraction of a literal approach to interpretation is clarity, the aforementioned examples illustrate its lack of practicality leaving the requirement for the commander to consider what is reasonable. While detailed guidance on authorized interrogation procedures is available to a commander and his lawyer, it cannot be expected to cover every eventuality. Amplification of the guidance will be available outside the operational theater further up the chain of command. However, the commander will be seeking information to stop insurgent operations aimed at killing and injuring civilians and/or multinational forces on a daily basis. Such information may be extremely 83 84 85 86 87 88 89 90

Id., art. 27 Id., art. 31. See supra note 5. See supra note 2. Id., art. 3. See supra notes 73 and 74. Selmouni v. France, ECHR Application No. 25803/94 (July 28, 1999). See supra note 79.

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time sensitive, relating to attacks expected within the next few hours, in which case a commander or his lawyer may not have the time to seek such advice from outside the operational theater. Additionally, there are other issues that may affect the interrogation procedures applied. For instance, communications with security internees will be difficult even if experienced interpreters are available, as they will be unlikely to be skilled in local dialects. The complex protocols for naming persons in Iraq, based on tribal and family links coupled with the reticence of suspects to identify themselves may cause real problems in simply identifying and distinguishing between individuals detained at the same location. This is particularly relevant, given the necessity to identify innocent persons who may have been initially detained due to their presence in the same vehicle, or house, as other suspected insurgents. In addition, cultural and religious differences in Iraq may mean that certain approaches employed successfully in interrogation operations in other conflicts, such as the Balkans, may be counterproductive when applied to the interrogation of detainees in this theater. All these, and many other operational factors, add up to create a uniquely complex scenario, within which a commander must operate lawfully. The problems for the commander are not limited to interrogation issues arising from security internees held in UK custody but also individuals held by the host nation or our coalition allies. It is expected that intelligence is shared, though it is not difficult to foresee a situation where a commander may be offered intelligence by an ally who is known or suspected to apply interrogation procedures, which the UK would regard as amounting to inhuman, degrading treatment or even torture. If the intelligence relates to an imminent attack likely to result in death or injury, should the commander accept the unlawfully obtained intelligence in order to act upon it and thus save lives? Alternatively, should the commander refuse the offer based on his/her knowledge of its provenance and, if so, to what extent does the commander breach applicable obligations under IHL and HRL to protect multinational forces and civilian lives? It is not intended to provide an answer to such a dilemma. Suffice to say that this is probably a very realistic situation a commander may encounter during a tour of duty. The correct course of action will involve careful consideration of all the circumstances of the case, together with the application of an accurate and pragmatic interpretation of law and policy in this area. These difficult issues were recently recognized by the Parliamentary Intelligence and Security Committee,91 who quoted the Foreign Secretary: “a real area of moral hazard which is if you do get a bit of information which seems to be completely credible, which may have been extracted through unacceptable practices, do you ignore it? . . . you 91 See Intelligence and Security Committee Report on the Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq (Mar. 1, 2005).

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have to make an assessment about its credibility. Because, just in terms of the moral calculus, [what] if we had been told through liaison partners that September 11th was going to happen, with all the details [of how the information was obtained]. Now, torture is completely unacceptable and [we would] query whether that was the reason why we got the information . . . but you cannot ignore it if the price of ignoring it is 3,000 people dead.”92 The third operational area with potential conflict between IHL and HRL could arise in various ways, in our example, with regard to the ability of British forces to transfer suspected insurgents to the Iraqi criminal justice system, as well as providing other support in this area. It is clear from SC Resolution 154693 that a principal aim is in the provision of support to the Iraqi authorities, in order to establish democratic systems of government and, crucial amongst these, is a fair and independent judicial system: “for the maintenance of law, order, and security, including combating terrorism, and requests member states and international organizations to assist the Government of Iraq in building the capability of these Iraqi institutions.” 94 In accordance with this aim, enormous resources have already been invested in rebuilding the Iraqi criminal justice system and continue to be provided from various sources by the international community. With regard to multinational forces, an equally significant demonstration of support is that wherever possible, suspected Iraqi insurgents should be transferred to the Iraqi criminal justice system for trial under the Iraqi criminal code.95 Where transfer to the Iraqi criminal justice system is possible, this is clearly preferable to the continued internment of suspected insurgents without trial, potentially for an indefinite period, if the grounds to intern that individual remain, and the power of internment continues to be mandated by successive resolutions to SC Resolution 1546. However, HRL may affect such aspirations; in the UK v. Soering case, 96 as well as subsequent authorities, Strasbourg has ruled that extradition of individuals to another country whose criminal code includes capital punishment as a possible sentence may amount to inhuman or degrading treatment, thereby infringing Article 3 of the ECHR: “the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3.”97 Whether the capital punishment procedures of a particular state will amount to inhuman or degrading treatment will depend on the circumstances of each 92 Id., para 32: Oral evidence from the Rt. Hon. Jack Straw to the Intelligence and Security Committee (Nov. 11, 2004). 93 See supra note 1. 94 Id., para. 16. 95 The Iraqi Law on Criminal Proceedings of 1971. 96 Soering v. UK, ECHR Application No. 14038/88 (July 7, 1989). 97 Id., para. 111.

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individual case. The Soering case, and the subsequent line of authorities, have largely concentrated on the period of time an individual may spend on death row. However, the method of execution98 and the principle of capital punishment 99 per se have also been considered. It is not intended to embark on a detailed consideration of the jurisprudence in this area. Suffice to say that under HRL, death penalty issues will often prevent the transfer or extradition of suspects to states who retain capital punishment if, given the nature of the allegations faced and any other relevant factors it is assessed that in the event of conviction there would be a “real risk” of a capital sentence being imposed. However, in the context of Iraq, it should be noted that the Soering case involved the extradition of Mr. Soering from custody in the United Kingdom to the United States and did not relate to individuals held in UK custody but within Iraq. Historically in Iraq, capital punishment was available as a sentencing option for certain criminal offenses prior to the invasion and occupation by coalition forces in 2003. During the occupation period the Coalition Provisional Authority suspended the death penalty. However, following the subsequent handover of power to the interim government of Iraq on June 30, 2004, capital punishment for certain offenses was reinstated. Since 2004, the courts have shown that they are ready and willing to undertake capital punishment on a regular basis.100 Very recently this willingness was demonstrated in the most vivid circumstances, following the execution of Saddam Hussein on December 30, 2006, after his conviction on November 5, 2006, for committing crimes against humanity in relation to the death of 148 civilians in the town of Dujail in Iraq, which he inflicted after a failed assassination attempt against him. For the commander of British forces, issues concerning the transfer of suspected insurgents to the Iraqi criminal justice system will arise in different scenarios. These will include suspects initially apprehended by British forces as well as individuals retained much longer in British custody who have subsequently been classified as security internees and held in a semi-permanent or permanent British internment facility and who, therefore, are entitled to ECHR protection under the Al Skeini101 principles. Notwithstanding these transfer issues, there are also complex issues involved in the extent UK forces can support the Iraqi security forces in Iraqi-led criminal investigations and prosecutions. Mission success in Iraq is dependent on 98 For consideration of methods of execution, see Chitat NG v. Canada: Communication No. 469/1991, UN Human Rights Committee November 1993, UN Doc. A/49/40 (1994), Vol. II, at 189. 99 See State v. Makwanyane Constitutional Court of the Republic of South Africa, 1995 Case No. CCT/3/94 [1995] 1 lRC 269 at para. 90. 100 Amnesty International reported in April 2007 that Iraq had become the fourth highest user of the death penalty with over 270 sentences ordered, with 100 having been carried out since June 2004. Source: GUARDIAN Apr. 20, 2007. 101 See supra note 5.

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the domestic security forces ultimately taking over full responsibility for security operations, which includes criminal investigation. However, currently they are still heavily reliant on multinational forces’ support to mount such operations. Assistance may be connected to the apprehension of suspects or in the preparation of the legal case against such individuals in the Iraqi criminal justice system. This multinational force support is expressly mandated in SC Resolution 1546:102 “arrangements are being put into place to establish a security partnership . . . for the Government of Iraq and the multinational force to reach agreement on the full range of fundamental security and policy issues, including policy on sensitive offensive operations, and will ensure full partnership between Iraqi security forces and the multinational force.”103 When considering the extent of assistance that can be provided by British forces within the Iraqi criminal justice system, the commander must take into account whether the suspect(s) involved have been previously transferred from a permanent or semi-permanent British detention facility, which may therefore have provided ECHR protection under Al Skeini.104 From a British commander’s perspective, the application of law and policy in this area is extremely complex and often sensitive. Commanders and their lawyers are supported by the availability of advice further up the chain of command, though on occasions this can prove challenging to obtain, where decisions are required at short notice. F.

CONCLUSIONS

This chapter has sought to consider the relationship between IHL (in the context of SC Resolution 1546105) and HRL (in the context of the ECHR106), both academically and practically, from the perspective of the Al Jedda case. However, in terms of precedent, while extremely significant in the United Kingdom, it is a domestic rather than an international case, which remains sub judice as it awaits final judgment in the House of Lords. Nevertheless, it is submitted, certain general conclusions can be drawn from the case even at this stage. Firstly, it is clear that in certain circumstances where IHL and HRL obligations conflict, IHL will prevail. However, there are caveats. This conclusion only applies to IHL obligations arising from a SC resolution and only those authorized under Chapter VII. Even then, jus cogens principles will remain exempt. Accordingly, there would appear to be an extremely narrow band of circumstances where IHL primacy could arise. Where it does, HRL obligations 102 103 104 105 106

See supra note 1. Id., para. 11. See supra note 3. See supra note 4. See supra note 6.

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will not be removed but modified only to the extent they conflict with the actions sanctioned under the SC resolution. In addition, recent jurisprudence from the European Court of First Instance (CFI) in the cases of Yusuf107 and Kadi108 suggest that for the SC resolution to prevail over HRL obligations, it must include a framework of safeguards to offset the modification of human rights protections under the terms of the resolution. In the context of the Al Jedda case, we can therefore see the significance of the courts’ scrutiny of the internment review procedures applied by UK forces. This chapter has not considered the extent that HRL can displace IHL obligations falling outside the provisions of Article 103 of the UN Charter,109 though clearly there will be areas where IHL obligations are modified or displaced by HRL. Conversely, given the limited circumstances outlined above where IHL will displace HRL, it should be emphasized that this chapter has not considered the other side of the coin, whereby HRL may assume superiority over IHL, the general circumstances of which may be more prevalent, though separate extensive investigation would clearly be required to consider this. In determining which strand of law takes precedence, we arrive at a point familiar to lawyers, but often frustrating for their clients, which of course is that the answer will depend on the facts and circumstances of each individual case. With regard to the operational decisions, the commander engaged in a PSO will have to make, it is hoped, by reference to three specific areas of criminal investigation, interrogation and the transfer of detainees to the Iraqi criminal justice system, to have effectively illustrated the difficulties a commander and his lawyer may face in balancing not only IHL and HRL responsibilities, but also within competing human rights obligations. Further, we should also remember that the Al Jedda case and the three examples given arise almost two years after the invasion of Iraq, when despite the ongoing insurgency, in military terms, the PSO is at a relatively mature stage and where UK forces are interning a relatively small number of suspected insurgents. The problems highlighted are likely to magnify significantly at an earlier stage of the military operation, where standard operating procedures are not so well embedded and larger numbers of detainees captured. In addition, the operational decisions commanders are required to take at all stages of an operation are now subject to ever more intense scrutiny through the media and other avenues. In addition, global communications enable suspected insurgents like Mr. Al Jedda to instruct UK lawyers from their prison cells in Iraq. Such lawyers can then, if necessary, issue proceedings on their behalf in the UK courts only a few hours later. Absolutely no

107 Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T-306/01, judgment of the Court of First Instance (Sept. 21, 2005). 108 Yassin Abdullah Kadi v. Council and Commission, Case T-315/01, judgment of the Court of First Instance (Sept. 21, 2005). 109 See supra note 28.

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criticism is made of these developments, though it is wondered what observations the Duke of Wellington,110 General Montgomery,111 or even UK military commanders involved in the Falklands Conflict with Argentina twenty five years ago would make of the complexity of issues now faced by a military commander in the 21st century.

110 111

Commander of English forces at the Battle of Waterloo on June 19, 1815. Commander of British forces in June 1944.

CHAPTER 13 WITNESS PROTECTION BY PEACE MISSIONS Ulf Häussler*

A. INTRODUCTION Most statutes of international criminal courts and tribunals envisage witness protection measures. Many states have established their own domestic witness protection schemes. But why should international peace support operations (PSOs)1 be mandated with witness protection? Moreover, what kind of witnesses should they protect? These questions arise in particular if a peace mission has been entrusted with transitional authority, that is, if it is de facto and de jure the strongest actor in its area of operations. PSOs can, accordingly, protect witnesses more effectively than, for example, the receiving state’s law enforcement agencies (provided that such agencies exist). Witness protection will, moreover, frequently serve the same purpose as the deployment of a peace mission: it will support the peace process in the receiving state and, ultimately, contribute to the maintenance or reestablishment of peace and security. In the present context, supporting peace translates as overcoming severe instability or the traumatic aftermath of an armed conflict, together with the (re-)introduction of a stable constitutional democracy. Most post-conflict scenarios to which the international community responds with peace missions are characterized by a legacy of degenerated warfare, namely grave violations of the protections contained in international humanitarian law (IHL) and international human rights law (IHRL). Considering, first, * Legal Advisor, German Armed Forces. The author was deployed to SFOR in 2004 and to KFOR in 2006. The views expressed herein are exclusively my own and may deviate from the official policies of the German Ministry of Defense or NATO. 1 There is no uniform terminology. The phrase “Peace Support Operation” and the acronym “PSO” are used as synonyms of the phrase “peace mission” in U LF HÄUSSLER, ENSURING AND ENFORCING HUMAN SECURITY (2007). In a similar manner, oftentimes the phrases “troop contributing nation” and “host state” are preferred to the terminology at use in this chapter, that is, “troop contributing state” and “receiving state.” 257

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that an effective prosecution of perpetrators of war crimes, crimes against humanity and genocide may contribute to restoring substantial peace, it is desirable that peace missions support justice by way of protecting witnesses. Considering, secondly, that the climate of impunity characteristic of degenerated warfare might return if PSO personnel mistreat civilians in the area of operations (i.e., the local population), it is equally desirable that witnesses thereof be protected. It is accordingly necessary to distinguish between the internal dimension of witness protection, that is, questions related to the misconduct of mission personnel and its external dimension, meaning witness protection measures related to the prosecution of persons charged with war crimes, crimes against humanity or genocide. This chapter will start with a brief discussion of the internal dimension of witness protection and then turn to its focus, that is, the external dimension of the problem. In order to analyze these aspects, the discussion will be structured as follows. The first section will illustrate the legal framework governing the prevention and/or prosecution of misconduct affecting the receiving state’s population and address its impact on the protection of witnesses of such misconduct.2 The second section will focus on states coming within the jurisdiction of an international or semi-international (“hybrid”) court or tribunal, in front of which witnesses might be asked to testify, and where a peace mission operates—be it under the (United Nations) or another international organization—with the possibility of being called to support the adjudication of war crimes, crimes against humanity and genocide by way of protecting witnesses. It will illustrate, on the basis of a hypothetical scenario, the witness protection issues that may arise in practice and analyze the constituent acts of the relevant adjudication bodies and the mandates of those PSOs that have operated, or are still doing so, in countries concerned. In doing so, it will establish whether the PSO mandates under review are supportive of witness protection measures and co-peration with adjudicating bodies. After that, it will analyze whether the statutes of international and/or “hybrid” criminal courts contain provisions governing cooperation with the PSO in question. The analysis will focus on the states and areas in which PSO mandates and the jurisdiction of international or “hybrid” criminal courts/tribunals overlap both ratione temporis et materiae. On that basis, the range of options for implementing witness protection tasks will be identified and an ultimate conclusion will be reached.

2 Questions related to misconduct within an individual peace mission or the international presences as a whole will not be dealt with in this chapter. Suffice it to say that usually international organizations require the states contributing troops or personnel to a peace mission to adhere to certain minimum standards. In addition, they have adopted standards binding on their own personnel which they can enforce by disciplinary action, removal from the peace mission, or, should need be, cancellation of employment relationships.

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B. THE INTERNAL DIMENSION OF WITNESS PROTECTION Most PSO personnel act in a disciplined and professional manner; yet some betray their important responsibilities and tasks and the values they are supposed to implement. Misbehavior may occur both by military and other PSO personnel vis-à-vis the receiving state’s nationals/inhabitants. 3 Misconduct affecting the receiving state’s population is unacceptable because it may jeopardize the credibility of the whole PSO at stake and, ultimately, the peace process it shall support. The level of disrepute that may be caused by PSO personnel’s abusive behavior is evidenced by the fact that research was undertaken to assess whether such behavior might be tried by the International Criminal Court (ICC), which deals only with the most serious crimes.4 Arguably, in particular, sexually abusive patterns of behavior come pretty close to certain war crimes or crimes against humanity from a value-based point of view. 1. Status and Legal Framework The basic coordinates of the legal framework governing the prosecution of PSO personnel are the immunity they enjoy in the receiving state and the rules and mechanisms for dealing with disciplinary and criminal proceedings opened against them. Regardless of whether it was launched by the United Nations, on its behalf, or upon the receiving state’s invitation, the peace missions and its personnel will usually enjoy more or less comprehensive immunity from jurisdiction and legal process in accordance with the relevant Status of Forces Agreements (SOFA) or Status of Mission Agreements (SOMA).5 Mission personnel enjoy functional immunity; since the parties to the SOFA or the SOMA usually accept the obligation to respect local law6 and impose related obligations on their contingents. Accordingly, the functional immunity of the mission’s personnel does not give them carte blanche for their activities. The international organization (or, in the case of a coalition, the state) leading a peace mission has to transform this obligation by way of either politically or legally binding guidance. States contributing troops or other personnel to a 3 For an assessment of these issues from the perspective of accountability of international organizations, see Françoise Hampson’s working paper on the accountability of international personnel taking part in peace support operations, UN Doc. E/CN.4/2006/2, E/CN.4/Sub.2/2005/44, chap. V, available at http://ap.ohchr.org/documents/E/SUBCOM/resolutions/E-CN_4-SUB_2-RES-2005-14.doc. 4 Max du Plessis & Stephen Peté, Who Guards the Guards?—The International Criminal Court and Serious Crimes Committed by Peacekeepers in Africa, ISS Monograph Series No, 121 (2006); available at http://www.iss.co.za. 5 For a detailed assessment, see HÄUSSLER, supra note 1, at ch. 4.1.2–4.2.3. 6 Cf. HÄUSSLER, supra note 1, at ch. 4.5.

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peace mission will usually declare extraterritorially applicable those parts of their domestic legislation that are equivalent to the laws in force in the receiving state. This declaration will be enforced by military orders or administrative decisions, which will be binding on the PSO personnel. If necessary, supplementary orders or decisions will be released. For instance, with regard to NATO peacekeeping, respect for local law is subject to the guidance contained in the operation plan of the peacekeeping operation and the orders of the commanding officers within NATO’s chain of command.7 Such guidance is enforceable in accordance with the disciplinary and criminal laws of the troops contributing states.8 Additionally, non-service-related criminal provisions of the contributing states will also govern the PSO personnel’s conduct, provided that it is extraterritorially applicable. Moreover, the United Nations frequently accepts the possibility of waiving the immunity of a peace mission’s non-military member. A waiver becomes an option particularly when the sending state of a (potential) perpetrator is either unwilling or unable to prosecute his or her case. 2. Preventive Action Preventing misconduct is an integral part of command responsibility.9 Civilians holding a similar position of authority have an analogous responsibility. The doctrine of command responsibility in international law, and equivalent statutory legislation in various states, requires both military and civilian superiors to take notice of information concerning possible misconduct of their subordinates and to obtain any relevant and accessible information if they have reason to believe, on the basis of substantiated allegations, that such misconduct has occurred. Both NATO and the United Nations are aware of the key importance of command responsibility.10 Moreover, both military and civilian superiors must give the orders and/or issue the direction and guidance neces7 For a practical example, see the section on “Functional Immunity: KFOR and Kosovar Speed Limits” in Ulf Häussler, KFOR: Current Legal Issues, J. I NT’L L. OF PEACE AND ARMED CONFLICT 24 (2007). 8 Non-compliance with NATO guidance may be an offense that is subject to disciplinary or criminal sanctions, depending on its gravity, inter alia, under the provisions concerning disobedience. 9 Cf. Ulf Häussler, Command Responsibility in Combined Environments: Putting Combined Operations Legal Lessons Learned into Perspective, 44 MILITARY L. & L. OF WAR REV. 143–67 (2005). 10 See the need of specific training modules for commanding officers concerning trafficking in human beings in accordance with the NATO guidance for the development of training and educational programs to support the policy on combating the trafficking in human beings (reproduced in Annex II), and Section 4 entitled “Duties of Heads of Departments, Offices and Missions” of the UN Secretary-General’s Bulletin,

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sary to ensure an overall level of sustainable discipline among their subordinates and to create a climate preventive of misconduct vis-à-vis the receiving state’s civilian population. Ultimately, the obligation to do so is not only rooted in pertinent SOFAs or SOMAs but also in general principles of IHL, which require those exercising transitional authority on foreign territory to take constant care to prevent unjustified adverse effects of such exercise of authority on the civilian population or individual civilians. What orders, direction and guidance must be given depends on the exigencies of the situation at field level. Not only military and civilian superiors, but also the contributing states have obligations in the field of prevention. Training is of particular importance. For example, NATO identified training needs in respect of combating trafficking in human beings11 and, as a matter of policy, it requires its member states as well as third states contributing personnel to NATO-led peacekeeping operations to adhere to the basic standards of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime and the OSCE Action Plan to Combat Trafficking in Human Beings. Personnel shall receive pre-deployment (and, if need be, in-deployment) training necessary to maintain a high level of awareness of the characteristics of trafficking in human beings, its illegality and the legal consequences of engaging in or facilitating it. NATO has established similar requirements for its own personnel.12 3. Repressive Action The legal framework for repressive action derives from criminal law, disciplinary law and relevant service law. Since international criminal law will not usually apply to the misconduct of PSO personnel,13 criminal prosecution will depend on what domestic criminal law applies. This may be the domestic law of the sending states, of the state of nationality of the deployed personnel (usually, but not always, the sending states) and the law of the receiving state. The applicability of these sources is contingent on the immunity provisions conSpecial Measures for Protection from Sexual Exploitation and Sexual Abuse (UN Doc. ST/SGB/2003/13 (Oct. 9, 2003)). 11 Note that witness protection is of key importance in the prosecution of traffickers. Cf. Elaine Pearson, The need for effective witness protection in the prosecution of traffickers: a human rights framework for witness protection, paper presented at the First Pan-African Regional Conference on Trafficking in Persons, Abuja, Nigeria, Feb. 19–23, 2001 (on file with the author). 12 For details, see the NATO Policy on Trafficking in Human Beings and its Appendices in Annex II. 13 See HÄUSSLER, supra note 1, at ch. 6.1.3.

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tained in the pertinent SOFAs or SOMAs. As mentioned, usually the receiving state’s law is not directly applicable to the conduct of PSO personnel. In addition to criminal sanctions, personnel who have misconducted themselves may face disciplinary action. While international organizations lack criminal jurisdiction over their personnel, they have disciplinary authority in accordance with their service law (staff regulations and rules).14 For instance, the Guidelines for NATO staff on preventing the promotion and facilitation of trafficking in human beings15 envisage that disciplinary action will be taken if misconduct occurs. The United Nations adopted similar rules.16 Moreover, personnel may also face administrative sanctions concerning their service relationships such as repatriation. In cases of serious misconduct, service relationships may be terminated in accordance with relevant legislation and administrative rules and procedures.17 4. Practical Issues The legal framework for the prevention and repression of misconduct by mission personnel vis-à-vis the local civilian population does not include specific witness protection provisions. Yet, is there a duty of states and interna14

The absence of criminal jurisdiction does not, however, immunize the personnel of international organizations from criminal prosecution. Section 5 of the UN Secretary-General’s Bulletin, supra note 10, specifies that: “If, after proper investigation, there is evidence to support allegations of sexual exploitation or sexual abuse, these cases may, upon consultation with the Office of Legal Affairs, be referred to national authorities for criminal prosecution.” See also the obligation of NATO member states to ensure criminal prosecution of their nationals serving with NATO in cases of serious misconduct in accordance with the Guidelines for NATO staff on preventing the promotion and facilitation of trafficking in human beings para. 8 of the (reproduced in Annex II). 15 Reproduced in Annex II. 16 Section 7.2 of the Secretary-General’s Bulletin, Observance by United Nations forces of International Humanitarian Law (UN Doc. ST/SGB/1999/13 (Aug. 6, 1999)) prohibits, inter alia, “rape; enforced prostitution; any form of sexual assault and humiliation and degrading treatment; enslavement.” The UN Secretary-General’s Bulletin, supra note 10, defines what activities are thus prohibited, and threatens administrative action or disciplinary measures, including summary dismissal (Sections 3.2 and 3.3). 17 Recall that Section 3.3 of the UN Secretary-General’s Bulletin, supra note 10, threatens summary dismissal. In Germany, soldiers can be summarily dismissed within the initial four years of service if their conduct has sustainable adverse effects on discipline and order, or on the reputation of the armed forces. Serious cases of misconduct towards the local civilian population on deployment will most likely meet these requirements. Soldiers whose service period has exceeded four years might face charges in the disciplinary court even if their misconduct does not have the character of a criminal offense.

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tional organizations to afford witness protection in such cases? It seems hard to establish such an obligation on the basis of international law as it stands. The only obvious obligation of states is rooted in the principle aut dedere aut iudicare, which is also reflected in SOFA or SOMA provisions empowering the head of a peace mission to waive the immunity of such personnel as have criminally misconducted themselves and do not face criminal prosecution by the states of their nationality for reason of unwillingness or inability. Usually, criminal prosecution will require repatriation of the offender—which in itself enhances considerably the protection of such victims, as thei will be principal witnesses in the case against him or her. If necessary, peacekeeping Force Commanders and Civilian Mission Heads may request repatriation of offenders who are not repatriated by their national commanders or representatives. From a practical perspective, moreover, admission to a witness protection program will hardly be necessary once an offender has been repatriated.18 C. THE EXTERNAL DIMENSION OF WITNESS PROTECTION Most contemporary peace missions are deployed to states or regions in which the state as an entity, or its institutions have been destabilized and/or delegitimated by an armed conflict. In such circumstances, usually the whole affected civilian population (rather than individual civilians) is victimized. The degenerated mode of warfare typical to such armed conflicts leaves uncounted victims behind; it is even capable of traumatizing entire societies. Peace missions shall help overcome the legacy of armed conflict: their responsibilities and tasks are framed so as to ensure the action deemed necessary by the international community to, inter alia, facilitate reconciliation. Witness protection can support the achievement of reconciliation through justice. It is, accordingly, beyond doubt that witness protection operations are a legitimate task to be included in the mandate or operation plan of a peace mission. Some questions nevertheless arise: What conditions should govern witness protection by peace missions? What component of a peace mission should be entrusted with it? To what degree should witness protection be granted priority?

18

Should widespread patterns of misconduct exist, the responsibilities of the state, whose personnel misconduct themselves, towards victims and witnesses might be different, but it is still hard to imagine that they would be obligated to admit the individuals in question to a witness protection program if doing so would require a waiver of, for example, statutory immigration requirements. It is, however, beyond the scope of this chapter to discuss related matters in detail.

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1. Practical Questions of Witness Protection: A Hypothetical Scenario The following hypothetical situation might illustrate the complexity of the external dimension of witness protection. A PSO consisting of a military peacekeeping and a civilian peace-building component operates in “Nowhereland.” Nowhereland’s population consists of two ethnic groups: the Alphas (75 percent) and the Bravos (25 percent). The Bravos, led by the Nowhereland United Movement of Bravos (NUMB), have been able to oppress the Alphas for most of Nowhereland’s history but lost power after the Comprehensive Alpha Liberation Movement (CALM) abandoned its initial non-violent approach, launched the Alpha Liberation Forces (ALF), and resorted to armed struggle. The internal armed conflict caused horrendous casualties but came to a halt when the United Nations brokered a ceasefire agreement (CFA). The CFA invited the deployment of a UN peace mission and provided for the establishment of a government of national unity composed of cabinet members of both CALM and NUMB. Provision has, moreover, been made for the prosecution of gross violations of the protection granted to individuals by IHL and IHRL. To ensure proper implementation, the CFA asked the UN Security Council to refer the situation during the armed conflict to the ICC, and it required the parties to cooperate closely with it. The CFA also asked the Security Council to authorize a peacekeeping operation under the lead of an international organization with a regional profile and a UN peace-building operation in order to prevent or, if need be, repress the resumption of hostilities and facilitate a political settlement. While both CALM and NUMB agree with these terms, they firmly deny any allegations that any of their members or affiliates may be responsible for crimes coming within ICC jurisdiction. Disagreement between CALM and NUMB is not limited to this issue but covers basically all subject matters of government. The Special Representative of the Secretary-General of the United Nations (SRSG) has frequently deemed it necessary to overcome policy deadlocks by way of using his transitional authority. In the light of the facts that demobilization, disarmament and reintegration of former fighters of both parties makes slow process only, and that belligerent attitudes prevail, the threat level with respect to a resumption of hostilities continues to be high and requires the peacekeeping operation to maintain a robust posture. The overall situation in Nowhereland is not stable and rather tense. At some stage the ICC Field Office in Nowhereland approaches the UN peace-building operation, requesting support for the questioning of a couple of witnesses by a legal officer tasked by the ICC prosecutor. The hearing is scheduled on the premises of the ICC Field Office. The witnesses named by the ICC Resident Representative belong to both ethnic groups. Considering the continuing denial of serious international crimes by both CALM and NUMB, the SRSG intends to ask the peacekeeping operation for such support as securing

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transport of the witnesses and protection of the ICC Field Office. The peacekeeping headquarters assess that witnesses might be in lethal danger, should their names become known, regardless of whether they will actually testify. The assessment further states that both CALM and NUMB would oppose the ICC prosecutor’s intent to question witnesses of the respective opposite ethnicity and that they might well call demonstrations against that—involving the likelihood of violent ethnically motivated incidents. Moreover, according to the assessment, the peace mission might suffer a loss of credibility with either ethnic group, if it will ensure that witnesses of the opposite ethnic group will be allowed to testify, and might even have to face violent “countermeasures.” At least some witnesses might be in permanent danger of physical harm or even death. Finally, the assessment indicates that former ALF members awaiting demilitarization might want to unleash violence on Bravo communities, to which possible witnesses belong. As demonstrated by this scenario, witness protection in a post-conflict environment can be rather different from witness protection in a stable constitutional democracy during peacetime. An assessment leads to the conclusion that the peacekeeping and peace-building operations in Nowhereland would have to jointly plan a witness protection operation. In the planning process concerning the ICC Resident Representative’s request, the need to advance reconciliation through justice would be but one factor influential on decisionmaking. The basic question would be whether the peacekeeping and peace-building operations have sufficient personnel and capabilities to suppress all threats. If the answer were in the affirmative, other issues may be whether the outcome of the witness hearings should be kept secret (at least until the indictment or the arrest of the alleged perpetrators implicated by the witnesses) and whether instant protection measures must be taken, should it become known to the public that they have been asked to testify or have actually testified. On a more general scale, the peacekeeping and peace-building operations should also consider what long-term commitment of personnel and equipment would have to be devoted to witness protection operations, if ethnically motivated incidents were not to cease easily. Similar considerations should be made with regard to the question of whether the denial of the ICC prosecutor’s request would possibly jeopardize the credibility of both operations vis-à-vis the international community, the political and (para-)military actors in Nowhereland, and its civilian population. The Force Commander and the SRSG would have to consider what impact the different options and possible developments would have on the mission’s success. Finally, in devising an operation plan, they would both have to adhere to the legal framework for cooperation with the ICC, including relevant provisions of their respective mandates. The following analysis will demonstrate that, on the basis of existing frameworks, it is possible to implement effective witness protection measures in support of the ICC—even though in some receiving states the local government’s consent may be required.

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2. Geographical Overlaps Between the Jurisdiction of Adjudication Bodies and Peace Missions’ Areas of Operations Since the early 1990s, several international or semi-international bodies have been set up to adjudicate war crimes, crimes against humanity and genocide. Following to the establishment of the International Criminal Tribunals for the former Yugoslavia (ICTY) 19 and Rwanda (ICTR) 20 by the UN Security Council, the international community created the ICC, 21 which came into force on July 1, 2002. 22 Of the countries under ICC scrutiny, only 23 the Democratic Republic of the Congo (DRC) 24 and 19 ICTY was established by Security Council Resolution 827 (May 25, 1993). Its jurisdiction covers war crimes, crimes against humanity and genocide committed since January 1, 1991 in the former Yugoslavia. 20 ICTR was established by Security Council Resolution 955 (Nov. 8, 1994). Based in Arusha (Tanzania), it primarily adjudicates the 1994 genocide in Rwanda and its aftermath; it also deals with war crimes and crimes against humanity committed on Rwandan soil during the internal armed conflict. Its jurisdiction ratione temporis covers the period between January 1, 1994, and December 31, 1994. 21 The Statute of the International Criminal Court [hereinafter ICC Statute] was adopted in 1998. It came into effect on July 1, 2002, after the 60th instrument of ratification had been deposited. atrocities committed prior to this date are excluded from the ICC’s jurisdiction because its Statute is not retroactive (see Article 11(1) of the ICC Statute). 22 The ICC is charged with adjudicating war crimes, crimes against humanity and genocide; it will also deal with cases of aggression once the elements of that crime will have been defined. 23 Following referrals by the respective governments, the ICC prosecutor is investigating the situations in, inter alia, Uganda and the Central African Republic. In December 2003 the president of Uganda referred the situation concerning the Lord’s Resistance Army (LRA) to the ICC. On July 29, 2004, the ICC’s Chief prosecutor has determined that there is a reasonable basis to open an investigation into the situation concerning northern Uganda. See ICC Docs. ICC-20040129-44-En (Jan. 29, 2004) and ICC-OTP-20040729-65-En (July 29, 2004), respectively. The ICC prosecutor also investigates the situation in the Central African Republic in accordance with a letter sent on behalf of the government of the Central African Republic. See ICC Doc. ICC-OTP20050107-86-En (Jan. 7, 2005). In the light of the fact that no peace missions operate in the Central African Republic or Uganda, questions concerning witness protection by such a mission cannot arise. The situation in these countries will hence not be reviewed in this chapter. 24 On June 23, 2004, the prosecutor of the ICC opened investigations in accordance with a request made by the president of the Democratic Republic of the Congo in a letter signed on April 19, 2004, referring to him the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the ICC Statute. See ICC Docs. ICC-OTP-20040419-50-En (Apr. 19, 2004) and ICC-OTP-20040623-59-En (June 23, 2004), respectively. The first ICC

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Sudan25 are peacekeeping theaters. The establishment of the ICC, however, did not end the existence of specialised (semi-)international courts or tribunals. In the light of the ratione temporis limits of the ICC’s jurisdiction, the need arose to establish the Special Court for Sierra Leone (SCSL)26 and the Extraordinary Chambers in Cambodia.27 The efforts to establish a similar tribunal for TimorLeste have not (yet?) been successful. Moreover, the United Nations and the Lebanese Republic are in the process of establishing a special tribunal.28 A variety of peace missions have been deployed to the states and areas now considered by the above mentioned courts and tribunals, either during or in the aftermath of the armed conflicts that provided the scenario for the commission of the crimes currently under investigation. These missions, however, had significantly different mandates and responsibilities. a.

The Former Yugoslavia

Peacekeeping in the former Yugoslavia29 started in Croatia with the establishment of UN Protection Force (UNPROFOR) by SC Resolution 743 (February indictment concerns a case of recruiting child soldiers in the DRC. At the time of writing this chapter, the first accused was committed for trial. See ICC Doc. ICC-CPI20070129-196-En (Jan. 29, 2007) concerning Case 01/04-01/06—Prosecutor v. Thomas Lubanga Dyilo. 25 The UN Security Council has referred the situation in the Darfur province of the Sudanese Islamic Republic since July 1, 2002, to the ICC (SC Res, 1593 (Mar. 31, 2005). The prosecutor has opened investigations accordingly (see ICC Doc. ICC-OTP0606-104-En (June 6, 2005)). The Sudanese government established a couple of adjudication bodies of its own; the ICC’s office of the prosecutor has nevertheless identified certain cases that would be admissible in accordance with Article 17(1) of the ICC Statute. See the Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to Security Council Resolution 1593 at 3 et seq. (Mar. 31, 2005). 26 The SCSL was established by the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (Jan. 16, 2002) [hereinafter SCSL Agreement]. See also SC Res. 1315 (Aug. 14, 2000). 27 Extraordinary Chambers have been established by an Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, which was approved by GA Resolution 57/228 B (May 13, 2003) and included in its Annex. 28 Following the assassination of Lebanese Prime Minister, Rafiq Hariri, the United Nations launched an independent investigation, followed by the conclusion of an agreement with the Lebanese Republic on the establishment of a special tribunal for Lebanon. See SC Res. 1757 (June 1, 2007) and the Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893 (Nov. 15, 2006). The tribunal’s jurisdiction ratione materiae differs from that of the ICC. 29 For a limited period, UN, NATO and EU peacekeeping prevented the outbreak

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21, 1992). Its mandate was later enlarged to cover Bosnia and Herzegovina (BiH). After the Dayton Agreement30 terminated the armed conflict in BiH, UNPROFOR was first replaced by NATO-led peacekeeping operations (IFOR, SFOR). These were followed, on the one hand, by an operation led by the European Union (EUFOR-Althea), and, on the other hand, a UN peace-building mission headed by the UN Secretary-General’s High Representative (who serves dual-hatted as EU Special Representative), whose responsibilities were subsequently handed over to the EU. In Kosovo, SC Resolution 1244 (June 10, 1999) established a similar model comprising NATO peacekeeping (KFOR) and UN peace-building (UN Interim Administration in Kosovo (UNMIK)). UNMIK will soon be replaced by an EU peace-building mission. b. Rwanda The UN Assistance Mission Rwanda (UNAMIR) was already present in Rwanda when the genocide started on April 7, 1994. It continued to operate, although with a different mandate, through March 8, 1996. At present, there is no peace mission operating in Rwanda. c.

The DRC

After the genocide in Rwanda, the defeated government and its supporters made it to Zaire (as the DRC was then called). Their continuing efforts to change the course of history and restore their power were suff iciently provocative to trigger a joint intervention by Rwanda and Uganda that resulted in a change of government in the DRC and the so-called “First African World War.” The UN Security Council launched the Organization Mission in the DRC (MONUC) to support the 1999 ceasefire agreement31 and extended its mandate after the end of the armed conflict with the 2002 Pretoria Accords. 32 of hostilities and the commission of atrocities in Macedonia. An increasing number of states recognizes the Republic of Macedonia with its constitutional name rather than referring to it as the former Yugoslav Republic of Macedonia (FYROM). Given the absence of crimes within the jurisdiction of ICTY related to Macedonia, there is no need to discuss the peacekeeping forces deployed to this state. 30 General Framework Agreement for Peace in Bosnia and Herzegovina (UN Doc. S 1995/985, Annex (Dec. 14, 1995)). 31 Initially, the Security Council authorized the deployment of UN military liaison personnel, together with the necessary staff (SC Res. 1257, para. 8 (Aug. 3, 1999)): After extending this mandate (see SC Res. 1273 (Nov. 5, 1999)), it converted the mission into the MONUC, that is, the Mission de l’Organisation des Nations Unies en République Démocratique du Congo. See SC Res. 1270, para. 4 (Oct. 22, 1999). 32 Peace Agreement Between the Governments of the Republic of Rwanda and

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Since the 2006 elections, MONUC has been supporting the consolidation of peace and stability.33 In addition, two UN-mandated EU peacekeeping operations were deployed to the DRC. EUFOR ARTEMIS, the Interim Emergency Multinational Force in Bunia, was deployed to the Ituri region from June 1 to September 1, 2003.34 EUFOR RD Congo supported, inter alia, the electoral process from June 1 to November 30, 2006.35 d. Sudan (Darfur) Two peace missions are currently operating in Sudan. Although they were originally focused on different conflict scenarios within Sudan, efforts to create synergies between them are now being made. The African Union’s peace mission (AMIS) was always responsible for supporting the peace process in Darfur,36 the western province that went into conflict mode in 2003. By way of contrast, the UN Mission in Sudan (UNMIS) was originally launched to support the peace process that terminated the internal armed conflict between northern and southern Sudan.37 As things stand now, only the situation in Darfur will be subject to international criminal adjudication. the Democratic Republic of the Congo on the Withdrawal of the Rwandan Troops from the Territory of the Democratic Republic of the Congo and the Dismantling of the ExFAR and Interahamwe Forces in the Democratic Republic of the Congo (DRC) (July 2002); Agreement Between the Governments of the Democratic Republic of the Congo and the Republic of Uganda on Withdrawal of Ugandan Troops from the Democratic Republic of the Congo, Cooperation and Normalisation of Relations Between the Two Countries (September 2002). The Agreement is reproduced at UN Doc. S/2002/914, Annex (July 30, 2002). 33 The MONUC mandate was last extended by SC Res. 1742 (Feb. 15, 2007). 34 Deployment and redeployment phases are excluded. See SC Res. 1484 (May 30, 2003) and SC Res. 1501 (Aug. 26, 2003); the latter resolution authorized that those elements of EUFOR ARTEMIS still present in the DRC after September 1, 2003, may provide assistance to MONUC until their redeployment (which was to be executed by September 15, 2003). 35 See SC Res. 1671 (Apr. 25, 2006). 36 The African Union has brokered the Darfur Peace Agreement on May 5, 2006, available at http://www.unmis.org, signed by the government of Sudan and the Sudan Liberation Movement/Army (SLM/A) (Minni Minawi). Unfortunately, however, this agreement is not comprehensive because the Justice and Equality Movement (JEM) militia and the Abdelwahid faction of the SLM/A abstained. Moreover, the Agreement failed to receive support from internally displaced persons and others who had been affected by the armed conflict. This did not bring the fighting to a close. See Monthly Report of the Secretary-General on Darfur, UN Doc. S/2006/1041, para. 2 (Dec. 28, 2006). 37 The conflict ended with the Comprehensive Peace Agreement signed by the government of Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A) (Jan. 9, 2005), available at http://www.unmis.org.

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Recently, the UN Security Council approved AMIS’s integration into UNMIS38 and expanded UNMIS’s mandate to include its deployment to Darfur to support the early and effective implementation of the Darfur Peace Agreement.39 The government of Sudan, however, does not support this transformation. The United Nations is confined to providing limited support to AMIS, to which the government of Sudan has agreed hesitantly.40 As a result, a climate of impunity prevails.41 e.

Sierra Leone

Sierra Leone succumbed to open armed conflict when its government was overthrown by mutinying military personnel in 1996. The Economic Community of Western African States (ECOWAS) intervened and brokered a peace settlement that, however, failed. The UN Observer Mission in Sierra Leone (UNOMSIL)42 was launched in July 1998 and replaced by the U.N. Mission in Sierra Leone (UNAMSIL), a full-scale peacekeeping operation, on October 22, 1999.43 The United Kingdom sent its own forces in 2000 when the armed conflict was reignited. UNAMSIL continued to operate until the end of 2005 and was then replaced by the UN Integrated Office in Sierra Leone (UNIOSIL).44 f.

Cambodia

The United Nations deployed a peace mission to Cambodia in the early 1990s (UN Transitional Authority in Cambodia (UNTAC)45) whose closure became effective on September 24, 1993 with the promulgation of the The United Nations launched UNMIS by SC Res. 1590 (Mar. 24, 2005) to support the peace process thus initiated. For the transition from the UN Advance Mission in Sudan (UNAMIS) to UNMIS, see the Report of the Secretary-General on the Sudan, UN Doc. S/2005/57, paras. 9–10 and 93–94 (Jan. 31, 2005) deal with UNAMIS in Darfur. 38 See SC Res. 1679, para. 4 (May 16, 2006). 39 See SC Res. 1706, paras. 8 and 9 (Aug. 31, 2006). 40 See Monthly Report of the Secretary-General on Darfur, supra note 36, paras. 40–41. 41 See id. at paras. 7 and 66 (noting that “ still the population remains subject to attacks, villages continue to be destroyed, killings, human rights abuses and brutality are perpetrated against innocent people and impunity is rampant” (emphasis supplied). 42 See SC Res. 1181 (June 13, 1998). 43 See SC Res. 1270 (Oct. 22, 1999). 44 See SC Res. 1620 (Aug. 31, 2005). 45 UNTAC was established pursuant to SC Res. 745 (Feb. 28, 1992) to ensure the implementation of the Agreements on a Comprehensive Political Settlement of the Cambodia Conflict of October 23, 1991.

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Constitution for the Kingdom of Cambodia and the formation of the new government.46 Since then, the United Naitons has been present in Cambodia with a couple of specialized agencies but no longer in a peacekeeping or peace-building capacity. g. Lebanon The UN Interim Force in Lebanon (UNIFIL) was created in 1978 to confirm the withdrawal of Israeli forces from southern Lebanon, restore international peace and security, and assist the Lebanese government in ensuring the return of its effective authority in the area.47 Its mandate was enlarged after the closure of the hostilities on the Israeli-Lebanese border which had broken out on July 12, 2006. D. WITNESS PROTECTION AND INTERNATIONAL MANDATES As illustrated, the international community sent different peace missions to respond to conflicts that are now being, or are going to be, adjudicated by international or “hybrid” criminal courts or tribunals. The international community, however, did not purposefully integrate peace missions and the adjudication of atrocities in a uniform approach. Nevertheless, these separate approaches have common ground because they both serve the maintenance or restoration of international peace and security.48 While no peace mission was launched with the primary purpose to support the efforts to judicially address atrocities committed during armed conflict, most of them have the authority to provide such support, either on their own initiative or upon request. The degree and modus operandi of such support are contingent on relevant international mandates—namely the question of whether the mandate defines the peace mission’s role as proactive or supporting—and the arrangements agreed between the peace mission (that is, its lead organization), the adjudicating body (or its parent organization) and, as the case may be, the state where the armed conflict occurred.

46

See the fifth preambular paragraph of SC Res. 880 (Nov. 4, 1993). See SC Res. 425 (Mar. 19, 1978) and SC Res. 426 (Mar. 19, 1978). 48 A successful peace mission and/or successful adjudication of genocide, war crimes, crimes against humanity and gross violations of human rights might have further positive effects that are desired, and serve additional purposes defined, by the international community. For the purposes of this chapter, however, such effects and purposes are of minor importance. 47

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1. Peace Missions in the Former Yugoslavia The international community made various efforts to prevent the outbreak of hostilities in the former Yugoslavia. It also tried to broker ceasefires and peace settlements. In support of these efforts it launched multiple peace missions, in particular UNPROFOR, NATO-led IFOR and SFOR, and EU-led EUFOR ALTHEA; it also supported the presence of a UN High Representative. a.

Croatia and BiH: The UN Protection Force (UNPROFOR)

The most obvious link, ratione temporis et materiae, exists between the situations that were responded to by launching UNPROFOR49 and establishing the ICTY50 However, subsequent resolutions concerning UNPROFOR and all other missions deployed to the Balkans on the one hand, and the ICTY on the other hand, have minor overlaps. In particular, none of NATO’s peacekeeping forces was tasked with proactively supporting the ICTY.51 UNPROFOR started as an interim arrangement to facilitate the negotiation of an overall settlement of the crisis in the former Yugoslavia.52 When that failed, its geographical scope and responsibility were increasingly enlarged.53 Chapter VII was invoked with regard to specified tasks.54 Witness protection or similar efforts in favor of the ICTY were, however, not on UNPROFOR’s defined task-sheet.55

49 UNPROFOR was deployed to Croatia, Bosnia and Herzegovina, the Federal Republic of Yugoslavia (Serbia and Montenegro), and Macedonia. 50 The first preambular paragraph of SC Res. 827 (May 25, 1993)—by which ICTY was established—does even contain reference to “resolution 713 . . . and all subsequent relevant resolutions,” that is, the resolutions that mandated UNPROFOR and, moreover, identified and condemned violations of international humanitarian law. 51 The relevant provisions of the IFOR/SFOR/EUFOR ALTHEA and KFOR mandates will be discussed shortly. 52 SC Res. 743 (Feb. 21, 1992). 53 SC Resolutions 762 (June 30, 1992), 769 (Aug. 7, 1992) and 779 (Oct. 6, 1992) added to the mandate within Croatia. Later on, SC Resolutions 758 (June 8, 1992), 761 (June 29, 1992), 776 (Sept. 14, 1992), 786 (Nov. 10, 1992), 824 (May 6, 1993) and 836 (June 4, 1993) brought Bosnia and Herzegovina within the scope of UNPROFOR’s mandate. The deployment of the force to Macedonia was governed by SC Resolutions 795 (Dec. 11, 1992) and 842 (June 18, 1993). 54 SC Res. 836 (June 4, 1993). 55 The Security Council has put the following items on UNPROFOR’s task-list individually, and in each case reacting to an urgent need rooted in the changes of the situation at field level: • measures related to ensuring the effective demilitarization of certain areas; • the exercise of monitoring functions in specified areas;

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In any event, considering the fact that the ICTY’s first indictment was issued on November 11, 1994,56 there was only about a year within which cooperation between UNPROFOR and ICTY may have taken place. b. BiH: IFOR/SFOR/EUFOR ALTHEA There are several peace missions that used, or continue, to operate under the Dayton Agreement. 57 In accordance with Annex 1A to the Dayton Agreement,58 NATO launched a peacekeeping operation on behalf of the United Nations. An implementation force (IFOR) and a stabilization force (SFOR) served in BiH under NATO command and control on that basis. By the end of 2004, NATO handed over to the European Union (EUFOR ALTHEA) the responsibility for peacekeeping and maintained headquarters in Sarajevo with the main (though not sole) task to deal with defense sector reform issues, with the consent of the government of BiH. The role of these peace missions with respect to the prosecution of war crimes is limited. The principal tasks, defined by Article VI(2) of Annex 1A, do not mention war crimes prosecution. Rather, both the Dayton Agreement and its Annex 1A charge the Republic of Croatia, the (then) Federal Republic of Yugoslavia, and the Entities within BiH—the ex-belligerents—with primary responsibility for cooperation with the ICTY. Article XI of the Dayton Agreement stipulates that: The Parties shall cooperate fully with all entities involved in implementation of this peace settlement, as described in the Annexes to this Agreement, or which are otherwise authorized by the United Nations Security Council, pursuant to the obligation of all Parties to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law. •

controlling the entry of civilians into defined UN Protected Areas, and performing immigration and customs functions where their borders and coincided with international borders; • ensuring the security and functioning of Sarajevo International Airport; • ensuring the delivery of humanitarian assistance first to Sarajevo and its environs, and later throughout Bosnia and Herzegovina; and • protecting convoys of released civilian detainees on request of the International Committee of the Red Cross. 56 The indictee was Dragan Nikolic, a Bosnian Serb who allegedly was the commander of a small prison camp in eastern Bosnia. 57 General Framework Agreement for Peace in Bosnia and Herzegovina, UN Doc. S/1995/985, Annex. 58 Annex 1A contains the Agreement on the Military Aspects of the Peace Settlement.

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Annex 1A translates this general obligation to cooperate into a particular obligation pertaining to the cessation to hostilities. Under Article II(4) of Annex 1A— The Parties shall cooperate fully with any international personnel including investigators, advisors, monitors, observers, or other personnel in Bosnia and Herzegovina pursuant to the General Framework Agreement, including facilitating free and unimpeded access and movement and by providing such status as is necessary for the effective conduct of their tasks. It may be suggested that the notion of “international investigators” comprises ICTY personnel responsible for the investigation and prosecution of war crimes and other violations of IHL. Moreover, Article II(4) of Annex 1A defines the notion of cooperation in a purpose-driven manner, so that cooperation is supposed to enhance the effective conduct of the tasks assigned to (inter alia) ICTY investigators. On that basis, witness protection on request of an ICTY investigator would certainly be within the ambit of the notion of cooperation. As a result, Croatia, Serbia, and the Entities within BiH, all of which are bound by the Dayton Agreement and Annex 1A,59 are under an obligation to cooperate with the ICTY in witness protection matters related to cases covered by the Dayton Agreement, that is, cases rooted in the armed conflict in BiH. By way of contrast, the peacekeeping force established under the Dayton Agreement has a supporting role with respect to the prosecution of war crimes. As a result, the principal task defined in Article VI(2)(a) of Annex 1A, that is, “to monitor and help ensure compliance” with this Annex, does not empower the peacekeeping force to take measures aimed to enhance witness protection of its own right: the notion of compliance pertains to action of the ex-belligerents by necessity.60 However, both monitoring the conduct of the ex-belligerents and helping them (on request) is mandated by Article VI(2)(a) of Annex 1A. Rather, the supporting task defined in Article VI(3)(a) of Annex 1A, namely that the peacekeeping force may “help create secure conditions for the conduct by others of other tasks associated with the peace settlement” covers measures up to 59 The (then) Republic of Bosnia and Herzegovina, the Republic of Croatia, and the (then) Federal Republic of Yugoslavia are parties to the Dayton Agreement. The (then) Republic of Bosnia and Herzegovina, and the Entities, that is, the Federation of Bosnia and Herzegovina and the Republika Srpska, are parties to Annex 1A, which was endorsed by the Republic of Croatia, and the (then) Federal Republic of Yugoslavia. Considering the capacity of the Republic of Croatia, and the (then) Federal Republic of Yugoslavia as parties to the Dayton Agreement, it is argued that they are also obligated to contribute to the implementation of Annex 1A which they have endorsed. 60 In addition, it is hard to imagine what enforcement action would be capable of compelling cooperation with ICTY as opposed to, for example, such acts of compliance like a repositioning of forces.

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and including the use of force to get involved in, for example, witness protection. Arguably, the notion of “others” comprises ICTY investigators, and the notion of “tasks associated with the peace settlement” comprises “the investigation and prosecution of war crimes and other violations of international humanitarian law,” Again, “helping” implies a request by those receiving such help. While, in the light of the foregoing, the peacekeeping force at field level does not have the authority to take the initiative with respect to cooperation with the ICTY in general and witness protection in particular, its lead organization does. In accordance with Article VI(4) of Annex 1A “further directives from the NAC [North Atlantic Council] may establish additional duties and responsibilities for the IFOR in implementing this Annex”—which could cover all aspects of cooperation with the ICTY. Note that compliance is enforceable61 and that enforcement action can also be taken in the course of fulfilling supporting tasks or tasks defined by NAC.62 Consequently, both the letter and the spirit of the Dayton Agreement and Annex 1A permit the interpretation that witness protection can indeed be a task so assigned to the peacekeeping force operating in BiH. c.

BiH: The High Representative

The mandate of the High Representative of the UN Secretary-General in BiH derives from Annex 10 to the Dayton Agreement as endorsed by relevant SC resolutions. 63 In accordance with Article I(2) of Annex 10, the High Representative shall “facilitate the Parties’ own efforts and [ . . . ] mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement.” In fulfilling this responsibility, the High Representative receives political support by the Peace Implementation Council (PIC), an informal group of states and international organizations, whose conclusions indicate the international community’s approach to the priorities set by the Dayton Agreement and its Annexes. The PIC has not

61

Article I(3) of Annex 1A specifies that “both [Entities] shall be equally subject to such enforcement action by the IFOR as may be necessary to ensure implementation of this Annex.”—Note that the purposes of the obligations of the parties to Annex 1A comprise to “facilitate the achievement of all political arrangements agreed to in the General Framework Agreement”(Article I(1)(c) of Annex 1A), that is, are inclusive of the political arrangement governing cooperation in respect of “the investigation and prosecution of war crimes and other violations of international humanitarian law.” 62 Article VI(5) of Annex 1A reserves the Force Commander’s right “to do all that [he] judges necessary and proper, including the use of military force . . . to carry out the responsibilities listed above in paragraphs 2, 3 and 4.” 63 Following the initial endorsement by paragraph 26 of SC Resolution 1031 (Dec. 15, 1995), the Security Council has regularly renewed this mandate.

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adopted a specific policy dedicated to cooperation between the High Representative and the ICTY.64 Rather, as far as relevant for the present purposes, the PIC laid focus on ensuring that the parties to the Dayton Agreement arrest war crimes’ suspects in accordance with existing warrants and transfer them to The Hague.65 Moreover, the PIC expected the High Representative to address the actions taken on his own initiative to the parties to the Dayton Agreement, including their agents.66 In doing so, the PIC has given the High Representative’s mandate a restrictive interpretation. In particular, the international community has not created an institutional apparatus for the cooperation between the High Representative and the ICTY. As a result, the High Representative was confined to using sanctions against non-compliant actors if he was not able to “mobilise” them as envisaged by the Dayton Agreement. This approach can be said to reflect the fact that, properly speaking, the ICTY is not an organization or an agency “involved in the civilian aspects of the peace settlement” because its judicial authority is not dealt with in any of the civilian Annexes to the Dayton 64 For instance, the PIC meeting held in Florence on June 13, 1996 concerning Implementation of the Human Rights Provisions of the Peace Agreement (http://www.ohr.int/pic/default.asp?content_id=5170#II-C) is tacit on the issue of cooperation between the High Representative and ICTY. The Chairman’s Conclusions of that meeting (http://www.ohr.int/pic/default.asp?content_id=5169) do only address the compliance of the parties to the Dayton Agreement with their obligations vis-à-vis ICTY (paras. 37–39). 65 The conclusions of the PIC held in London on December 5, 1996 (see Annex III.1) and the PIC held in Bonn on December 10, 1997 (see Annex III.2) provide a good example for this approach. In a similar manner, the PIC has stressed the obligations of the parties to the Dayton Agreement vis-à-vis ICTY in paragraph 77 of the Luxembourg Declaration adopted on June 9, 1988, paragraph 7 of the Madrid Declaration dated December 16, 1988, and the Brussels Declaration dated May 24, 2000. Note that Amnesty International seemed to be in agreement with this approach. In its Memorandum to the High Representative of Bosnia-Herzegovina, AI index EUR 63/009/2002, it stressed the responsibility of Entity police forces to co-operate in, inter alia, witness protection issue (at 7). 66 The reference to SC Resolution 1034 (Dec. 21, 1995) in paragraph 4(a) of the Bonn conclusions demonstrates that in the PIC’s view the parties’ obligation to cooperate with ICTY—which was reinforced by the said resolution—is paramount, while the High Representative’s related responsibility comprises support or, if need be, either initiation of such co-operation by the parties or action against such individuals as act in a non-compliant manner. Note also that in its Sintra Delaration adopted on May 30, 1997, the PIC Steering Board has canvassed the denial of visas to persons cooperating with, or condoning the role of, indicted persons (para. 35), and denial of new economic assistance to those municipalities that continue to tolerate indicted persons working in a public capacity (para. 36). These sanctions form part of an overall approach which stresses the obligations of the parties to the Dayton Agreement vis-à-vis the ICTY (paras. 32–38).

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Agreement. Considering, at the same time, that the PIC has more than once considered as a threat to the peace process the presence in the area of persons indicted for war crimes (PIFWCs) by the ICTY,67 it is not unlikely that the PIC chose to regard related actions as a responsibility falling under the mandate of IFOR/SFOR/EUFOR ALTHEA. d. Kosovo: KFOR As far as relevant for the present purposes, in accordance with its mandate, KFOR is responsible for: (c) Establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered; (d) Ensuring public safety and order until the international civil presence can take responsibility for this task; (f) Supporting, as appropriate, and coordinating closely with the work of the international civil presence.68 Protection of witnesses willing to testify in ICTY cases can serve the purposes of all the responsibilities quoted. KFOR may decide to protect witnesses because it may use all necessary means to fulfill its mandate in accordance with paragraph 8 of SC Resolution 1244 (June 10, 1999) and to implement NATO’s decisions. Witness protection might be “necessary” in that sense if it were to be considered the only, or most effective, means to address dangers to the peace process in Kosovo, including the aim to achieve reconciliation through justice, arising from such incidents as might adversely affect ICTY witnesses. As highlighted by recent events, the situation in Kosovo is still volatile. Potentially ethnically motivated incidents, part of daily life in Kosovo since the early 1990s, will most likely continue to occur at least until Kosovo’s status 67

See, for example, the Bonn Conclusions’ prognosis that “no normalisation, no reconciliation” will be achieved as long as PIFWCs continue to be at large. As indicated by the PIC’s additional assessment that “the rule of law in Bosnia and Herzegovina will remain seriously impaired” for the same reason, the absence of normalisation and reconciliation must be regarded as representing the continuing absence of substantial peace. 68 See SC Res. 1244, para. 9 (June 10, 1999). This resolution was adopted after agreement had been reached on the Military Technical Agreement (MTA) between the international security force (KFOR) and the governments of the Federal Republic of Yugoslavia and the Republic of Serbia of June 9, 1999. The MTA-Kosovo contains the consent of the (then) Federal Republic of Yugoslavia and the Republic of Serbia to the deployment of KFOR and its authority vis-à-vis the Yugoslavian and Serbian military and police.

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will be settled and duly implemented. Testimony in front of the ICTY can easily give rise to further potentially ethnically motivated incidents. If it is related to war crimes and crimes against humanity committed during the period of ethnic strife, it will usually disclose rather sensitive information. It may, moreover, address the behavior of such alleged perpetrators whose continuing popularity is a given fact. In the light of these factors, KFOR may consider contribution to the protection of the witnesses concerned, if it will assess that potentially ethnically motivated incidents affecting ICTY witnesses might endanger the secure environment, or disturb public safety and order so severely that the international civil presence cannot deal with it. In addition, KFOR may consider action if the international civil presence will request support by way of performing witness protection measures. It follows that KFOR has authority to protect witnesses both on its own initiative or in support of UNMIK, if necessary to fulfil its responsibilities. e.

Kosovo: UNMIK

UNMIK, in turn, may ask for KFOR support but is not confined to this option. Its responsibilities comprise, as far as relevant here: (b) Performing basic civilian administrative functions where and as long as required; . . . (k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo.69 Running a witness protection program, should there be need, would hardly be beyond the ambit of “[p]erforming basic civilian administrative functions”; it would also be capable of assuring the return of refugees and displaced persons, many of whom have witnessed war crimes or crimes against humanity, to their homes. In any event, UNMIK’s legislative powers70 enable it to introduce statutory witness protection programs in Kosovo. As a result, UNMIK may both protect witnesses or ask for related KFOR support, if necessary to fulfill its responsibilities.

69

See SC Res. 1244, para. 11 (June 10, 1999). Note that the UN Secretary-General has interpreted SC Resolutino 1244 (June 10, 1999) so that the Security Council, by virtue of this resolution, “has vested in the interim civil administration authority over the territory and people of Kosovo. All legislative and executive powers, including administration of the judiciary, will, therefore, be vested in UNMIK.” See para. Secretary-General’s Report on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/1999/77, para. 35 (July 12, 1999) (emphasis added). 70

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2. Peace Missions in the DRC Both the United Nations and the EU have been involved in peacekeeping in the Democratic Republic of the Congo. The following passages will analyze the mandates of MONUC and EUFOR RD Congo. a.

MONUC

MONUC’s current mandate derives from SC Resolution 1565 (2004). This comes closest to expressly providing for witness protection measures to be taken by a peace mission. MONUC has the mandate, inter alia, to—unilaterally— “ensure the protection of civilians, including humanitarian personnel, under imminent threat of physical violence.”71 Moreover, it is also mandated, in support of the Government of National Unity and Transition: (b) to contribute to the improvement of the security conditions in which humanitarian assistance is provided, and assist in the voluntary return of refugees and internally displaced persons, . . . (g) to assist in the promotion and protection of human rights, with particular attention to women, children and vulnerable persons, investigate human rights violations to put an end to impunity, and continue to cooperate with efforts to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice, while working closely with the relevant agencies of the United Nations.72 Except for the responsibility to assist in the promotion and protection of human rights and to cooperate with efforts to ensure that those responsible for serious violations of IHL and IHRL are brought to justice, MONUC has the Security Council’s authorization to use all necessary means, within its capacity and in the areas where its armed units are deployed, to carry out the defined tasks.73 71

See SC Res. 1565, para. 4(b) (Oct. 1, 2004). See id., para. 5. 73 See id., para. 6; the Security Council has authorised MONUC: “to use all necessary means, within its capacity and in the areas where its armed units are deployed, to carry out the tasks listed in paragraph 4, subparagraphs (a) to (g) above, and in paragraph 5, subparagraphs (a), (b), (c), (e) and (f) above.” Note that the Security Council has emphasized the existence of this authorization in paragraph 7 of SC Resolution 1592 (Mar. 30, 2005). In the same paragraph, it has encouraged “MONUC to continue to make full use of its mandate . . . in the eastern part of the Democratic Republic of the Congo,” and it has amplified this mandate, stressing 72

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These provisions cover witnesses of war crimes and crimes against humanity in various capacities. If, for example, for reason of their willingness to testify, they are under imminent threat of physical violence, MONUC may ensure their protection with all necessary means,74 that is, up to and including the use of deadly force against those threatening them. Moreover, possible witnesses who have fled their homes and have become refugees or internally displaced persons (IDPs) may receive similar assistance concerning their voluntary return,75 provided that the government requested MONUC’s support for that purpose. Finally, MONUC may support efforts aimed at the criminal prosecution of perpetrators of war crimes and crimes against humanity, even though it may not use all necessary means to this end.76 There can hardly be doubt that “efforts to ensure that [perpetrators] are brought to justice” comprise such measures and programs as necessary to protect evidence, including testimony, that is, ultimately the witnesses prepared to give such testimony. It follows that MONUC may either support a witness protection scheme established or designated by the government of the DRC, establish such scheme of its own if the government so requests or support a scheme established by “relevant agencies of the United Nations.” As long as the DRC government designates an ICC witness protection scheme requiring MONUC’s support, MONUC may cooperate with the ICC regardless of the fact that it is not a UN agency.77 In conclusion, while MONUC’s mandate covers support of a witness protection scheme on request of the DRC government, this request will only enable MONUC to use all necessary means to protect witnesses, regardless of whether or not they participate in such scheme, from imminent threats of physical violence. b. EU Peacekeeping Although the mandate of EUFOR RD Congo78 is silent on the issue of support to the ICC, this EU peacekeeping operation would have been empowered to provide witness protection—though not to establish a witness protection that “in accordance with its mandate, MONUC may use cordon and search tactics to prevent attacks on civilians and disrupt the military capability of illegal armed groups that continue to use violence in those areas.” 74 See SC Res. 1565, paras. 4(b) and 6 (Oct. 1, 2004). 75 See id., paras. 5(b) and 6. 76 See id., para. 5(g). 77 Note that SC Resolution 1565 was adopted on October 1, 2004, that is, after the opening of the investigation concerning the situation in the DRCby the ICC prosecutor on June 23, 2004. 78 In the light of the fact that the situation in the DRC was referred to the ICC no earlier than April 19, 2004, cooperation between the ICC and EUFOR ARTEMIS was never an issue anyway. Note, however, that EUFOR ARTEMIS would have been in a position to provide limited protection to civilian witnesses of war crimes or crimes

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scheme—had need been. In accordance with an agreement to be reached between the EU and the United Nations, the mission was tasked, inter alia: (a) to support MONUC to stabilize a situation, in case MONUC faces serious difficulties in fulfilling its mandate within its existing capabilities, . . . (b) to contribute to the protection of civilians under imminent threat of physical violence in the areas of its deployment, and without prejudice to the responsibility of the Government of the Democratic Republic of the Congo, . . . (e) to execute operations of limited character in order to extract individuals in danger.79 These tasks would have enabled EUFOR RD Congo to support any MONUC measure aimed at protecting witnesses from imminent threats of physical violence or to provide such protection—extraction of witnesses in danger—on its own behalf, should MONUC have been unable to do so. 3. Peacekeeping in Sudan (Darfur) In Darfur, both the United Nations and the African Union (AU) are involved in peacekeeping. Considering the fact that both have agreed, in principle, to merge these missions—should the Sudanese government consent thereto—the following analysis will focus on UNMIS’s mandate and demonstrate that this mission has rather limited authority with regard to witness protection.80 Following the conclusion of the Darfur Peace Agreement on May 5, 2006, and the N’djamena Agreement on Humanitarian Ceasefire on the Conflict in Darfur, the UN Security Council has included a provision concerning Darfur in the UNMIS mandate,81 namely the tasks “[t]o maintain, in particular, a presence in key areas, such as buffer zones established pursuant to the Darfur Peace Agreement, areas inside internally displaced persons camps and demilitarized zones around and inside internally displaced persons camps, in order to promote the re-establishment of confidence, to discourage violence, in particular against humanity if doing so had served the implementation of its mandate. Paragraph 1 of SC Resolution 1484 (May 30, 2003) tasked EUFOR ARTEMIS “to contribute to the stabilization of the security conditions and the improvement of the humanitarian situation in Bunia, to ensure the protection of the airport, the internally displaced persons in the camps in Bunia and, if the situation requires it, to contribute to the safety of the civilian population, United Nations personnel and the humanitarian presence in the town in close co-ordination with MONUC.” 79 See SC Res. 1671, para. 8 (Apr. 25, 2006). 80 AMIS is basically confined to fulfilling military observing and monitoring tasks. 81 See SC Res. 1706, paras. 8 and 9 (Aug. 31, 2006).

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by deterring use of force” 82 and “[t]o assist the parties to the Darfur Peace Agreement in promoting the rule of law, including an independent judiciary, and the protection of human rights of all people of the Sudan through a comprehensive and coordinated strategy with the aim of combating impunity and contributing to long-term peace and stability and to assist the parties to the Darfur Peace Agreement to develop and consolidate the national legal framework.”83 Moreover, it includes: “[t]o contribute towards international efforts to protect, promote and monitor human rights in Darfur, as well as to coordinate international efforts towards the protection of civilians with particular attention to vulnerable groups including internally displaced persons, returning refugees, and women and children.”84 Additionally, UNMIS may exercise transitional authority, that is, it “is authorized to use all necessary means, in the areas of deployment of its forces and as it deems within its capabilities:” — to protect United Nations personnel, facilities, installations and equipment, to ensure the security and freedom of movement of United Nations personnel, . . .85 to protect civilians under threat of physical violence, — in order to support early and effective implementation of the Darfur Peace Agreement, to prevent attacks and threats against civilians. 86 It is obvious that, unlike MONUC’s mandate, UNMIS’s mandate does not cover institutionalized support of witness protection schemes. Like the MONUC mandate, however, it enables UNMIS to use all necessary means to protect witnesses in their capacity as individual civilians from imminent threats of physical violence, regardless of whether they participate in such scheme. Moreover, UNMIS may, in accordance with its mandate, take a variety of measures aimed at protecting the civilian population, with a particular focus on vulnerable groups thereof, whose side effects will be supportive of the physical security of witnesses of war crimes, crimes against humanity and genocidal acts in Darfur.

82

See id., para. 8(d). See id., para. 8(k). 84 See id., para. 9(b). 85 In the light of the usage of the phrase “without prejudice to the responsibility of the Government of the Democratic Republic of the Congo” as an apposition in paragraph 8 of SC Resolution 1671 (Apr. 25, 2006) (supra text accompanying note 79), it is suggested that the phrase “without prejudice to the responsibility of the Government of the Sudan” is likewise an apposition, namely of the justification for the use of force “to prevent disruption of the implementation of the Darfur Peace Agreement by armed groups.” 86 See SC Res. 1706, para. 12(a) (Aug. 31, 2006). 83

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4. Peacekeeping in Lebanon The UNIFIL mandate focuses on the support of the Lebanese government.87 Moreover, UNIFIL’s responsibilities do not cover witness protection and the clause of the mandate authorizing the mission “to take all necessary action in areas of deployment of its forces and as it deems within its capabilities, . . . without prejudice to the responsibility of the Government of Lebanon, to protect civilians under imminent threat of physical violence”88 is subject to a clear and non-ambiguous proviso in favor of the sovereignty of the Lebanese Republic. It follows that UNIFIL does not have sufficient authority to launch witness protection operations on its own initiative. E.

WHAT COOPERATION MAY INTERNATIONAL OR “HYBRID” CRIMINAL COURTS AND TRIBUNALS SEEK WITH PEACE MISSIONS?

The constituent acts of the international or “hybrid” criminal courts and tribunals do not contain express provisions for cooperation with the peace missions deployed to the areas where investigations and/or prosecutions are taking place. 87 UNIFIL’s current mandate comprises, in accordance with paragraph 11 of SC Resolution 1701 (Aug. 31, 2006), the following responsibilities in addition to those defined by SC Resolutions 425 and 426 (Mar. 19, 1978): • to monitor the cessation of hostilities, • to accompany and support the Lebanese armed forces as they deploy throughout the South, including along the Blue Line, as Israel withdraws its armed forces from Lebanon, and to co-ordinate related activities with the Lebanese and Israeli governments, • to extend its assistance to help ensure humanitarian access to civilian populations and the voluntary and safe return of displaced persons, • to assist the Lebanese armed forces in taking steps towards the establishment between the Blue Line and the Litani river of an area free of any armed personnel, assets and weapons other than those of the Lebanese government and of UNIFIL, • to assist the Lebanese Government, on request, in securing its borders and other entry points to prevent the entry in Lebanon without its consent of arms or related materiel. 88 See SC Res. 1701, para. 12 (Aug. 31, 2006). The additional authorizations for taking all necessary action—that is, not the use of all necessary means—contained in this provision, namely “to ensure that its area of operations is not utilized for hostile activities of any kind, to resist attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council, and to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of

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1. ICTY and ICTR89 ICTY is a subsidiary organ of the United Nations. Its capacity to act derives from paragraph 4 of SC Resolution 827 (May 25, 1993), according to which: all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance and orders issued by a Trial Chamber under Article 29 of the Statute. Under Article 29(1) of the Statute: “States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.” Considering that the ICTY prosecutor has the primary responsibility to carry out investigations90 and that witness protection is in the interest of justice, it is submitted that the ICTY prosecutor may request all UN member states to take witness protection measures deemed necessary. Arguably, such requests could even call upon member states of an international organization in lead of a peacekeeping operation to task this operation with witness protection in accordance with the relevant mandate. In addition, the United Nations, or with its approval, the ICTY, may enter into agreements with the lead organizations of peacekeeping operations for the same purpose. As will be discussed shortly, this authority of the ICTY prosecutor was duly implemented in the ICTY Rules of Procedure and Evidence. The ICTY Statute does not define the purposes of witness protection; it envisages, inter alia, the conduct of in camera proceedings and the protection of the victims’ identities.91 Accordingly, the ICTY judges—who are charged with addressing protection of victims and witnesses in the rules of procedure and evidence 92—enjoy a wide margin of appreciation. The ICTY Rules of Procedure and Evidence 93 charge the Victims and Witnesses Section of the

movement of United Nations personnel, humanitarian workers do not cover witness protection measures.” 89 The constituent acts of ICTY and ICTR are basically identical. Considering that no peacekeeping operation is currently present in Rwanda, the following passage will focus on ICTY. 90 ICTY Statute art. 16(1). 91 Article 22 of the ICTY Statute. 92 Article 15 of the ICTY Statute. 93 At the time of writing, the Rules as amended through 13 September 2006 were in force.

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Registry, whom the judges may consult for that purpose,94 with recommending protective measures for victims and witnesses.95 In particular, judges may order the non-disclosure of the identity of a witness who may be in danger or at risk, until such person is brought under the protection of the tribunal.96 In ordering witness protection measures, the tribunal must balance the rights of witnesses (in particular, privacy and—derived from the term “protection”—life and physical integrity) with the rights of the accused.97 Turning now to in camera proceedings, the court may hold these in order to determine what witness protection measures shall be ordered.98 Orders of non-disclosure shall be reversed if the reasons for making them have ceased to exist.99 Moreover the ICTY Rules of Procedure and Evidence authorize the ICTY prosecutor to request any state, in case of urgency, to take all necessary measures to prevent intimidation of a victim or witness.100 For the same purpose, the duty judge shall order, on request of the ICTY prosecutor, the transfer and provisional detention of suspects. 101 Once detained, an accused may not be released except if he or she will not pose a danger to any victim, witness or other person,102 Of the witness protection measures envisaged by the ICTY Rules of Procedure and Evidence, especially bringing witnesses under the protection of the tribunal (including their protection prior to handover) and detaining suspects can be supported by a peace mission. Suffice it to say that on the one hand, peacekeepers can extract persons who are in danger, and they have personnel qualified to detain specifically designated individuals. On the other hand, mandates authorizing the use of all necessary means to support the peace process—like those of IFOR/SFOR/EUFOR ALTHEA103 and KFOR—cover both extraction and detention. Paragraph 2 of SC Resolution 827 clearly demonstrates that bringing PIFWCs to justice is in the interest of restoring peace by announcing that the end date of ICTY’s jurisdiction ratione temporis will be “determined by the Security Council upon the restoration of peace.”104 94

Rule 69(B). Rule 34(A)(i)). 96 Rule 69(A). 97 Cf. Rule 75(A). 98 Rule 75(B). These measures may include disclosure to the public or the media of the identity or whereabouts of witnesses or persons related to them or associated with them, closed sessions, or appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television. 99 Cf. Rule 81 (B). 100 Rule 40 (iii). 101 Rule 40bis(B)(iii). 102 Rule 65(B) & (I)(ii)). 103 Note that Amnesty International has expressly stated that the mandate of SFOR (as it then was) “includes the apprehension of those reasonably suspected of having carried out crimes under international humanitarian law.” Memorandum to the High Representative of Bosnia-Herzegovina, AI index EUR 63/009/2002, at 7. 104 It should also be noted that the establishment of ICTY was the first Chapter 95

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2. The ICC The ICC has international legal personality and “such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.”105 This rather broad capacity to act enables the ICC to conclude agreements or arrangements, as appropriate, with states and international organisations. Arguably, such agreements and arrangements require the approval of the Assembly of States Parties.106 The ICC Statute establishes a detailed framework for witness protection. It defines the purpose of witness protection so as to ensure the “safety, physical and psychological well-being, dignity and privacy” of witnesses (and victims). 107 It has defined certain measures to fulf ill this purpose, namely withholding of evidence or information prior to the commencement of the trial provided that a summary thereof is submitted instead108 and in camera proceedings or the presentation of evidence by electronic or other special means.109 In addition, the prosecutor and the Court, respectively, shall take appropriate measures for the purposes of witness protection.110 In particular, the judges of the ICC trial chamber “shall ensure that a trial . . . is conducted with . . . due regard for the protection of victims and witnesses”111 and “may, as necessary, [p]rovide for the protection of the accused, witnesses and victims.”112 Moreover, VII action taken by the UN Security Council with respect to the former Yugoslavia. That adds an important policy insight. In establishing a mechanism charged with effectuating accountability for genocide, war crimes and crimes against humanity the Security Council made a last try with—at that stage unconventional—“measures not involving the use of armed force” (UN Charter art. 41) prior to authorizing the use of force. Considering, however, the limited period between the adoption of SC Resolution 827 (May 25, 1993) (ICTY) and SC Resolution 836 (June 4, 1993) (air strikes), there can hardly be doubt that the authorization of armed force does not represent an assessment that the Security Council considered the establishment of ICTY inadequate or believed that its inadequacy had been proved by the fact that the armed conflict in the former Yugoslavia had not stopped immediately thereafter. 105 ICC Statute art. 4(1). 106 Article 2 of the ICC Statute makes express provision for an agreement concerning the relationship between the ICC and the United Nations. It requires that the Assembly of States Parties approves such agreement and designates the president of the Court as the official who may conclude it. In my view, this provision is the blueprint concerning the external relations of the ICC; Article 112 of the ICC Statute, the provision dealing with the powers of the Assembly of States Parties, does not contain any rules concerning this issue. 107 ICC Statute art. 68(1). 108 ICC Statute art. 68(5). 109 ICC Statute art. 68(2). 110 ICC Statute art 68(1). 111 ICC Statute art. 64(2). 112 Article 64(6)(e) of the ICC Statute. Note also that the court may, in relation

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witness protection is institutionalized; the ICC’s witness protection scheme is administered by a specialized unit within the registry, which may advise the prosecutor and the Court on appropriate protective measures, security arrangements, counseling and assistance.113 The Victims and Witnesses Unit is also charged with devising short- and long-term plans for witness protection in accordance with the Rules of Procedure and Evidence, and it is in charge of the negotiation of agreements with states concerning the resettlement on state territory of witnesses or victims that are traumatized or threatened.114 Finally, states shall comply with requests made by the Court to provide assistance to investigations and prosecutions by way of protecting witnesses.115 Notwithstanding the arrangements for the discharge of duties concerning witness protection by the Victims and Witnesses Unit in the Registry, the ICC prosecutor, and the judges—which are basically similar to, yet slightly more ambitious than those contained in the ICTY Rules of Procedure and Evidence116—the provisions discussed highlight that the ICC has the authority to devise a fully fledged witness protection scheme and has sufficient capacity to act to make appropriate arrangements with international peace missions whose support for this scheme, or individual measures taken in its framework, it may seek. In the absence of publicly available information on such arrangements, it would however be mere speculation to discuss what arrangements could or should exist with, for example, the DRC and MONUC concerning MONUC’s support to witness protection, and/or how they should be implemented at field level. As a matter of fact, relevant information might be simply too sensitive to be released to the general public, because it might reveal operational patterns to those interested in harassing witnesses.

to a request for assistance presented to a state party to the ICC Statute: “request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.” States are under a “[g]eneral obligation to cooperate” (cf. Article 86 of the ICC Statute). They shall comply with requests by the Court to provide assistance in relation to investigations or prosecutions by way of “[t]he protection of victims and witnesses and the preservation of evidence” (Article 93 of the ICC Statute). 113 Article 68(4) of the ICC Statute 114 See the information provided by the International Criminal Court at http://www.icc-cpi.int/victimsissues/witnessprotection.html (last visited Feb. 16, 2007). 115 Article 93(1)(j) of the ICC Statute 116 See http://www.icc-cpi.int/victimsissues/witnessprotection.html for an overview, and the Human Rights Watch Memorandum for the 4th ICC Assembly of States Parties (2005) at 10sq for a discussion of the ICC’s witness protection policy.

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3. Sierra Leone: The Special Court Considering that there is no longer a peace mission in Sierra Leone and that—as far as possible to establish—no publicly accessible sources dealing in detail with witness protection operations of UNAMSIL exist, the SCSL will not be dealt with in detail. The SCSL Statute differentiates between witness protection measures taken by the Victims and Witness Protection Unit established within the Registry—protective measures and security arrangements, counseling and other appropriate assistance117—and measures adopted by the SCSL judges in the course of proceedings tjat might limit the right of the accused to a fair trial118—that is, inter alia, the conduct of in camera proceedings and the protection of the victims’ identities. 4. Cambodia: The Extraordinary Chambers The Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea bestows discretionary authority on the co-investigating judges, the co-prosecutors and the Extraordinary Chambers concerning witness protection that may entail, but is not limited to, in camera proceedings and protection of identities.119 Considering that no peace mission operates in Cambodia, matters of cooperation do not arise. 5. Lebanon: The Special Tribunal120 The Special Tribunal’s capacity to act under international law is rather limited. Neither the Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon nor the Statute of the Special Tribunal for Lebanon contains express provision for cooperation between the Special Tribunal and UNIFIL. On the contrary, Article 7 of the Agreement limits the Special Tribunal’s capacity to act to matters of private law121 and related issues of procedural law,122 and to “enter[ing] into agreements with States as may be necessary for the exercise of its functions and for 117 118 119 120

SCSL Statute art. 16(4). SCSL Statute art. 17(2). Art. 23 of the Agreement. For the constituent act of the Special Tribunal, see SC Resolution 1757 (May

30, 2007). 121 Art. 7(a) and (b) of the draft Agreement: contracting, acquiring and disposing of movable and immovable property. 122 Art. 7(c) of the Agreement: instituting legal proceedings.

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the operation of the Tribunal.”123 The only possible partner for cooperation in matters of witness protection is the Lebanese government. Witness protection is not an exclusive responsibility of the Lebanese Republic. Whereas Article 14 of the Agreement charges the Lebanese government with ensuring “appropriate security, safety and protection of the personnel of the Office of the Special Tribunal and other persons referred to in this Agreement, while in Lebanon,” it is hard to imagine that witnesses will come within the ambit of “other persons referred to in this Agreement.” 124 Rather, appropriate witness protection must be dealt with in agreements125 containing arrangements concerning the conduct of investigations by the Office of the Special Tribunal with the Lebanese government as envisaged by Article 8(3) of the Agreement.126 While nothing in this provision precludes an arrangement in accordance with which the Lebanese government asks for, for example, UNIFIL support, this option might not be very realistic in the light of the fact that the Lebanese Republic has sought to keep the limitations of its sovereignty by the deployment of this peacekeeping operation at the lowest possible level.127

123

Art. 7(d) of the Agreement (emphasis added). The context of Article 14 suggests that, for the purpose of this article, it is immaterial that the Statute is defined to be an integral part of the Agreement. The Agreement defines the status of judges, the prosecutor, the deputy prosecutor, the registrar, the head of the defense office (art. 11), the international and Lebanese personnel (art. 12), and counsel of suspects or accused who have been admitted as such by the Special Tribunal (art. 13). All groups of individuals referred to are afforded them certain privileges and immunities modeled upon diplomatic law. It is argued that the obligation created by Article 14 of the Agreement to ensure appropriate security, safety and protection refers to the differences concerning the details of these privileges and immunities: what security, safety and protection is appropriate must be determined on the basis of the provisions of Articles 11, 12 and 13 of the Agreement. This interpretation implies necessarily that the purpose of the obligation created by Article 14 is confined to individuals referred to in the Articles at issue. 125 Art. 7(d) of the Agreement. 126 Article 8(3) of the Agreement provides that: “An Office of the Special Tribunal for the conduct of investigations shall be established in Lebanon subject to the conclusion of appropriate arrangements with the Government.” Note that, in the light of the fact that both Article 2(1) of the Agreement and Article 7 of the Statute specify that the organs of the Special Tribunal shall comprise “the Chambers, the Prosecutor, the Registry and the Defence Office,” the Office of the Special Tribunal is not a proper organ of the Special Tribunal. 127 This view is supported by the fact that UNIFIL’s authority is expressly based on the consent of the Lebanese Republic rather than Chapter VII of the UN Charter. The Security Council has expressly stated that in defining UNIFIL’s authority it acted “in support of a request from the Government of Lebanon to deploy an international force to assist it to exercise its authority throughout the territory” (SC Res. 1701, para. 12 (Aug. 11, 2006)). 124

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ASSESSMENT AND CONCLUSIONS

Considering how sensitive witness protection operations are, both from the perspective of the individuals concerned and the states whose sovereignty is limited, it is hardly surprising that only little information concerning the practicalities of cooperation between peace missions and international or “hybrid” criminal courts or tribunals can be made available to the public.128 Occasionally, information is released that operations have been conducted—like the “visits” paid by NATO peacekeepers in Bosnia and Herzegovina to some family members of Radovan Karadzic on February 20, 2006.129 But still, such information tends to focus on PIFWCs and their support networks, rather than witnesses: obviously, disclosing information concerning vulnerable witnesses would be counterproductive. The preceding analysis demonstrated, with a legal focus, how peace missions can use transitional authority by way of protecting witnesses of war crimes, crimes against humanity, and genocide, in order to support the international community’s policy goal to achieve reconciliation through justice. The variety of legal frameworks governing possible cooperation between international peace missions and international or “hybrid” criminal courts and tribunals in matters of witness protection indicates that such cooperation is still a considerably delicate issue. While nothing would prevent the UN Security Council from expressly authorizing international peace missions to conduct witness protection operations, only the MONUC mandate comes close to including such a provision. Nevertheless, however, most mandates can be so construed as to authorize such cooperation as necessary to protect witnesses (and victims) who are in danger of losing their lives of physical integrity.130 In turn, the basic insight that the prosecution of PIFWCs is in the interest of peace has not always guided the adoption of constituent acts of adjudicating bodies in the same clarity as displayed by SC Resolution 827 (May 25, 1993) concerning the former

128 Cf. Human Rights Watch Memorandum for the 4th ICC Assembly of States Parties, at 11 (2005). 129 See NHQ Sarajevo Press Release of Feb. 20, 2007, available at http://www. afsouth.nato.int/NHQSA/PressReleases/2007/PR_01_07.htm (last visited Feb. 24, 2007). Note that the press release stresses twice that the operation was conducted in support of ICTY. 130 Note that the proper mechanism to implement such protection in the framework of a peacekeeping operation’s Rules of Engagement is the authorization of the rule permitting specified measures and/or the use of minimum force (i.e., up to and including deadly force) in support of individuals facing serious crimes or otherwise lethally endangered and designating witnesses or victims for specific protection (persons with designated special status—PDSS). Note that if use of designated force is authorized, other measures of protection are, based on an a maiore ad minus conclusion, also authorized.

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Yugoslavia. The different conditions concerning the states receiving one or more peace missions at the same time as being the focus of an international criminal investigation and adjudication might indicate why: sovereignty concerns seem to be of such high importance as to fuel the desire to have at least some influence on the conduct of investigations, including witness protection operations in support thereof, by the states concerned on their respective territories. The relevant frameworks for the DRC, Lebanon, and Sudan indicate that regardless of appalling humanitarian situations and weak governance structures, the preparedness to accept any transitional authority of the peace missions operating in these states—which would include the authority to conduct full scale witness protection operations—is rather limited. By way of contrast, the mandates of the peacekeeping forces deployed to the former Yugoslavia, although lacking express provision for cooperation with the ICTY, enables them to afford witness designated special status in accordance with pertinent Rules of Engagement—and tailor-made measures to protect them. The peacekeeping operations in question can even, as a matter of principle, protect witnesses on a case-by-case basis regardless of whether other witness protection programs exist, provided the competent Force Commander determines that doing so is militarily necessary.131 Moreover, transitional administrations established by the UN have sufficient transitional authority to include witness protection schemes equivalent to similar programs launched by states as a means to enhance enforcement of criminal law in the legislation adopted for the areas under their control. The international and “hybrid” criminal courts and tribunals have been making significant efforts to enhance the protection of their witnesses. The level of ambition is best displayed by the variety of relevant provisions contained in the ICC Statute—yet initially this Statute basically aggregated the 1998 ICTY/ICTR status quo. Since then, the institutionalization of witness protection by the adjudication bodies has made further progress and has received institutional support by the United Nations. A recent advertisement for the position of a Witness Protection Officer in Beirut, Lebanon, working with the United Nations International Independent Investigation Commission (UNIIIC)—which will most likely be succeeded by the Special Tribunal for Lebanon—has defined the officer’s responsibilities in a rather comprehensive manner. The range of responsibilities will comprise, inter alia, to develop and implement UNIIIC policies for the management and movement of relevant witnesses who are engaged with the commission, taking into account the potentially hazardous and politically sensitive aspects surrounding such engagement, and to liaise and negotiate with relevant official high level institutions to ensure location, protection, transportation, safety and other support programs for witnesses who 131 The notion of military necessity in peace missions is related to the authorization of the use of all necessary means to fulfill the defined responsibilities by international mandates.

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are engaged with the commission, and contribute to coordination of the logistics and administrative processes pertaining to the protection, transportation, accommodation and reimbursement of witnesses. 132 Moreover, the UNIIIC Witness Protection Officer will also take into account legal implications for a future International Tribunal in the course of his/her work. Obviously, the United Nations aims to achieve as much witness protection as possible in close cooperation with the Lebanese government. To sum up, witness protection by international peace missions is a viable option: if policy makers determine that it is in the interest of restoring international peace and security, if they define relevant responsibilities and tasks, and if they approve cooperation between the peace missions in question and the adjudication bodies concerned.

132 The full job description, available at http://jobs.un.org (last visited Jan. 31, 2007), is on file with the author.

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ANNEX I PROVISIONS ON WITNESS PROTECTION AND RELATED ISSUES IN THE STATUTES OF INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS ICTY Statute Article 15: Rules of Procedure and Evidence The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters. Article 20: Commencement and Conduct of Trial Proceedings 1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 2.–4. . . . Article 22: Protection of Victims and Witnesses The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity. ICTR Statute Article 14: Rules of Procedure and Evidence The Judges of the International Tribunal for Rwanda shall adopt, for the purpose of proceedings before the International Tribunal for Rwanda, the Rules of Procedure and Evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters of the International Tribunal for the former Yugoslavia with such changes as they deem necessary. Article 19: Commencement and Conduct of Trial Proceedings 1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and

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Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 2.–4. . . . Article 21: Protection of Victims and Witnesses The International Tribunal for Rwanda shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity. ICC Statute Article 43: The Registry 1.–5. . . . 6. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence. Article 64: Functions and Powers of the Trial Chamber 1. . . . 2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 3.–5. . . . 6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary: (a)–(d) . . . (e) Provide for the protection of the accused, witnesses and victims; and

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(f) . . . 7.–10. . . . Article 68: Protection of the Victims and Witnesses and Their Participation in the Proceedings 1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. 3. . . . 4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6. 5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 6. . . .

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SC-SL Statute Article 16: The Registry 1.–3. . . . 4. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit personnel shall include experts in trauma, including trauma related to crimes of sexual violence and violence against children. Article 17: Rights of the Accused 1. . . . 2. The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Court for the protection of victims and witnesses. 3.–4. . . . Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea Article 23: Protection of Victims and Witnesses The co-investigating judges, the co-prosecutors and the Extraordinary Chambers shall provide for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the identity of a victim or witness. Statute of the Special Tribunal for Lebanon Article 12: The Registry The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, and such other appropriate assistance for witnesses who appear before the Special Tribunal and others who are at risk on account of testimony given by such witnesses.

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ANNEX II THE NATO POLICY ON TRAFFICKING IN HUMAN BEINGS AND ITS APPENDICES NATO Policy on Combating Trafficking in Human Beings (June 29, 2004) 1.

2.

3.

4.

This NATO policy takes into account the universal condemnation of the crime of trafficking in human beings and reiterates that it constitutes a serious abuse of human rights, especially affecting women and children. It is a transnational problem, requiring concerted multilateral action if it is to be defeated. Trafficking in human beings affects countries of origin, countries of transit and countries of destination. This modern day slave trade fuels corruption and organised crime. It has the potential to weaken and destabilise fragile governments and runs counter to the goals of NATO-led efforts especially in South Eastern Europe. A zero-tolerance policy regarding trafficking in human beings by NATO forces and staff, combined with education and training, is required. Allies reaffirm their commitment to promoting peace and security in the Euro-Atlantic Area and to combating the trafficking in human beings and agree the following policy. NATO will support and sustain further development of practical cooperation between nations and between NATO and other international institutions such as the UN, OSCE and International Organisation for Migration. NATO will also consult with NGOs active in this field with a view to improving its existing mechanisms and measures for the implementation of the present policy. Close exchange of information and experience between NATO and the EU should also be developed in accordance with agreed procedures. This policy on combating the trafficking in human beings aims to reinforce efforts by NATO and individual nations to prevent and combat trafficking and the commitments undertaken in the context of other international organisations including the “UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime,” and the OSCE Action Plan to Combat Trafficking in Human Beings. NATO and non-NATO troop contributing nations will develop and implement various measures that discourage the demand by their military and civilian personnel that fosters all forms of exploitation of persons. In the context of this policy trafficking means, the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat of use of force or other forms of coercion, of abduction, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of

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5.

6.

7.

a person having control over another person, for the purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. This policy is developed by NATO in consultation with its Partners and nations contributing forces to NATO-led operations. Allies reaffirm their commitment to ratification, acceptance or approval of the UN Convention and relevant Protocol and agree: a. to review national legislation and report on national efforts to meet obligations associated with the UN Convention and its Protocol in accordance with the relevant decisions taken by the Parties to those treaties; b. to encourage all nations contributing forces to NATO-led operations to ratify, accept or approve the UN Convention Against Organised Crime and relevant Protocol and adhere to the OSCE Code of Conduct; c. that this policy is aimed at securing standards of individual behaviour; d. that all personnel taking part in NATO led-operations should receive appropriate training to make them aware of the problem of trafficking and how this modern day slave trade impacts on human rights, stability and security, as well as being informed of their own responsibilities and duties and the respective responsibilities of International Organisations in this field; e. in the conduct of operations, to continue efforts, within their competence and respective mandates, to provide support to responsible authorities in the host country in their efforts to combat trafficking in human beings; f. to incorporate contractual provisions that prohibit contractors from engaging in trafficking in human beings or facilitating it and impose penalties on contractors who fail to fulfil their obligations in this regard; and g. to evaluate implementation of their efforts as part of the ongoing reviews carried out by the competent authorities. In order to ensure maximum effectiveness of the present policy, NATO nations commit themselves to ensure full national implementation of this policy. Non-NATO Troop contributing nations are expected to take similar steps upon joining a NATO-led operation. NATO personnel serving at NATO Headquarters and its Agencies as well as those taking part in NATO led operations should continue to conduct themselves with regard to the highest professional standards and with respect to national as well as international law.

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Appendix 1 NATO Guidelines on Combating Trafficking in Human Beings for Military Forces and Civilian Personnel Deployed in NATO-Led Operations (July 9, 2004) Introduction and Scope 1.

2.

The present guidance is intended for the use of military and civil elements that, while not being NATO staff, participate in operations under NATO command and control. Its aim is twofold: a. to define the basic standards of behaviour to which NATO-led forces must adhere in the course of their work; and b. to define the parameters within which NATO deployed forces can, within their competence and respective mandate, provide support to responsible authorities in the host country in their efforts to combat trafficking in human beings. This guidance is aimed at highlighting the general principles and activities that participating nations are expected to request from their nationals. It is not exhaustive and will require, as appropriate, specific implementing actions by individual nations and forces to be fully effective. This includes, where necessary, ratifying/acceding to/approving the “UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime” and implementing its requirements, as well as ensuring implementation of the present guidelines.

General Principles 3.

4.

Forces conducting operations under NATO command and control are prohibited from engaging in trafficking in human beings or facilitating it. This prohibition also applies to any civilian element accompanying such forces, including contractors. Forces conducting PSO under NATO command and control, will support, within their competence and mandate, the efforts of responsible authorities in the host country in combating trafficking in human beings.

Definitions 5.

With reference to the definition of trafficking in human beings, Allies reaffirm their adherence to and compliance with the provisions of Article 3 of the “UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplement-

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6.

ing the United Nations Convention against Transnational Organized Crime.” In particular, trafficking in human beings means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat of use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Implementing Guidelines 7.

8.

9.

The implementation of the principles at Paragraphs 3 and 4, above, can only be successful if appropriate implementing measures are taken by NATO Authorities and Troop Contributing Nations. For NATO Authorities this includes as a standing requirement: a. the development of specific policy provisions, within existing PSO doctrine, for the role of NATO-led forces in supporting, within their competence and mandate, the efforts of responsible authorities in the host country to combat trafficking in human beings; b. the establishment, at NATO educational institutions (NS, NDC), of specific training modules devoted to raising the awareness of the issues connected to the trafficking in human beings and of the means to combat it. These modules will be designed and implemented with the advice of anti-trafficking experts, including intergovernmental and non-governmental organisations with expertise in this area; and c. the development of an evaluation mechanism to analyse progress on combating trafficking, as well as of a confidential and transparent NATO internal reporting mechanism on violations of the present policy. In the planning and conduct of PSO, NATO Authorities will: a. include in the relevant portions of the Operational Plan (OPLAN), specific measures, within their competence and mandate, to support the effort of responsible authorities in the host country in combating the trafficking in human beings; b. include, in the pre-deployment phase, specific training on issues related to trafficking in human beings; c. assess the conformity of contributing forces to the principles defined in this document; and

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identify within the Area of Operations, local and international organisations with capacity for protecting and housing adult and child victims of trafficking and the establishment of appropriate liaison arrangements with such organisations. 10. As a standing requirement, troop contributing nations will organise specific training modules preparing their forces and accompanying civilian elements and contractors for PSO. Such modules may include training on the issue of trafficking in human beings and legal consequences stemming from the violation of anti-trafficking laws, as well as training on the means to support, within their competence and mandate, the efforts of responsible authorities in the host nation to combat trafficking in human beings. Similar modules may also be developed by PfP Training Centres and included, as appropriate, in their training curricula. 11. As a standing requirement, it is recommended that troop contributing nations: a. review, if necessary their existing criminal legislation, including the enforcement of such legislation, to ensure that members of the forces—as well as civilian elements—who engage in trafficking in human beings, or facilitate it, are liable to appropriate prosecution and punishment; b. provide details of their national legislation and national efforts to combat trafficking; 12. In the planning and conduct of a NATO-led PSO, it is recommended that troop contributing nations: a. conduct specific pre-deployment training on criminal issues including those related to trafficking in human beings and the means to combat it; b. conduct timely investigation and prosecution of cases of misconduct by members of their forces or civilian elements, including contractors; c. develop specific mechanisms for reporting crimes, including those related to trafficking in human beings; d. in accordance with national legislation, create and disseminate policies explicitly protecting whistleblowers who come forward with evidence of crimes, including trafficking in human beings, and e. in accordance with national legislation, retain records of misconduct by individuals, including, those related to trafficking in human beings, for use in recruitment, vetting and deployment.

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Appendix 2 NATO Guidance for the Development of Training and Educational Programmes to Support the Policy on Combating the Trafficking in Human Beings (July 9, 2004) 1.

2.

3.

4.

Training and creating awareness are key elements to ensure the successful implementation of this policy. In particular, training will provide information required to identify trafficking and will put military and civilian personnel on notice of consequences for engaging in trafficking. Two different kinds of training to be offered by NATO and national training institutions are envisaged for the implementation of the present policy: a. a general module, aimed at the personnel (military or civilian) to be employed in a NATO operation, with a twofold focus: • outline the characteristics of trafficking in human beings; and • summarise the national and international legal provisions which punish those who engage in trafficking in human beings, or facilitate it; b. specific modules, aimed at all those categories of personnel who have specific responsibilities, either under national legislation or under the present policy, to police the behaviour of personnel or take specific actions to combat trafficking. The general module will need to include, as a minimum, the following elements: a. background information on the trafficking phenomenon, its origins, its victims, its perpetrators (organised crime) and an overview of the purposes for which human beings are trafficked including those links which exist between trafficking and the illegal sex industry; b. if the training is imparted in a pre-deployment context, an outline of the specific instances of trafficking to which personnel might be confronted in the deployment area from a security perspective. In this respect, training would address how trafficking in human beings supports other elements of organised crime that present a threat to the mission; c. guidelines to detect instances of trafficking or identify trafficked people, and how to deal with such events (reporting, actions to be taken, etc.); and d. a summary of the legal provisions affecting those who engage in trafficking or facilitate it. The specific modules will contain, as a minimum, the following elements:

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a.

5.

For commanders and supervisors: how to deal with reports concerning involvement of their subordinates in trafficking and what measures to take; and b. For military police units which are part of national contingents: how to investigate allegations of involvement in trafficking by members of their national contingent, with specific focus on the sensitive aspects of such an investigation, such as victim identification and protection. To ensure the greatest effectiveness training modules should: a. be provided to all levels of military and civilian personnel; b. include information tailored to the specific situation/requirement of the target audience; c. be developed with input from anti-trafficking experts of international and non-governmental organisations with experience in combating trafficking; d. where feasible focus on “train the trainers” events to ensure the dissemination of appropriate information at all levels; e. should include case studies, interactive methods of training; and f. make use of distance and computer based training.

Appendix 3 Guidelines for NATO Staff on Preventing the Promotion and Facilitation of Trafficking in Human Beings (July 9, 2004) Introduction and Scope 1.

The present rules set out the standards expected of all NATO staff in furtherance of the mandate of the North Atlantic Council, as laid out in PO(2003)185(INV). 2. These rules apply to all NATO staff, whether on post or deployed on mission on behalf of the Organisation. General Principles 3. The basic principles for the behaviour of NATO Staff are laid down at Article 12.14, 13.1 and 13.2 of the NATO Civilian Personnel Regulations. 4. In conformity with established procedures and regulations with specific reference to trafficking in human beings, this means that: a. NATO staff shall not engage in trafficking in human beings, including for the purpose of sexual exploitation, nor they will facilitate it; and b. NATO staff shall have the duty to report to his/her supervisors any instance of human trafficking of which he/she may have become aware, as well as any concerns that he or she may have regarding

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the involvement of another NATO staff in trafficking in human beings including for the purpose of sexual exploitation. Definitions 5.

6.

7.

With reference to the definition of trafficking in human beings, NATO reaffirms its adherence to and compliance with the provisions of Article 3 of the “UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.” In particular, trafficking in human beings means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat of use of force or other forms of coercion, of abduction, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. “NATO staff ” means international civilian personnel (seconded or freelance), i.e. personnel of a NATO body recruited from among the nationals of members of the Alliance and filling international posts appearing on the approved establishment of that NATO body. The present policy applies also to consultants and temporary personnel.

Implementing Guidelines 8.

In order to implement the principles spelled out at Paragraph 4, above, the following measures are required: NATO Secretary General will, drawing upon the expertise acquired by other regional, international, intergovernmental, and non-governmental organisations and in coordination with the Director of the International Military Staff and NATO Strategic Commanders, develop specific guidelines which will define, i.e.: a. the specific standards of behaviour to which NATO staff will abide; and b. the investigative and disciplinary procedures to be implemented. Member Nations will ensure that NATO staff who are under their jurisdiction and who have engaged in criminal activities related to trafficking in human beings, are prosecuted in accordance with their national legislation and procedures.

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ANNEX III.1 PIC LONDON CONCLUSIONS (DECEMBER 5, 1996) War Crimes 8.

The Council reaffirms its strong support for the International Criminal Tribunal for the Former Yugoslavia in carrying out its responsibilities for dispensing justice impartially under the terms of the Peace Agreement. The Council agrees that it will: • increase pressure on the authorities in Bosnia and Herzegovina and other states, particularly those which have failed to comply with arrest warrants issued by the Tribunal, to cooperate fully with the Tribunal, including by surrendering indictees and providing information to assist in Tribunal investigations. The authorities in Bosnia and Herzegovina will continue to submit all cases involving suspected war crimes to the Tribunal for review prior to arrest or prosecution before national courts; • provide additional resources to the Tribunal. These resources will be used to enhance information-sharing between the Tribunal, governments and law enforcement agencies, to increase the information-gathering capacity of the Tribunal in relation to all indictees and to provide the necessary material and personnel resources to the Tribunal to carry out its obligations under the Statute and under the “Rules of the Road.” 9. The Council charges the Steering Board to consider what further measures can be taken to facilitate the delivery of indictees to the Tribunal for trial. 10. As stated in the Paris Conclusions, the provision of economic reconstruction assistance is closely linked to cooperation in this area. The authorities in Bosnia and Herzegovina are reminded that their obligations under international law take precedence over any provisions in their local or national legislation. 11. The Council emphasises that no indicted person who has failed to comply with an order of the Tribunal may stand as a candidate or hold any appointive, elective or other public office at any level, including military office, in the territory of Bosnia and Herzegovina. 12. The Council notes the agreement of the authorities in Bosnia and Herzegovina that no member of the House of Peoples, the House of Representatives, the Presidency or the Council of Ministers will be prosecuted, arrested or detained, without the consent of the Parliamentary Assembly, unless that person is under indictment by the Tribunal or caught in the act of committing a serious offence.

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ANNEX III.2 BOSNIA AND HERZEGOVINA 1998: SELF-SUSTAINING STRUCTURES BONN PIC CONCLUSIONS (DECEMBER 10, 1997) 4.

Reconciliation, War Crimes and Co-operation with the International Criminal Tribunal for the Former Yugoslavia (ICTY) a. The Council is convinced that until all persons indicted for war crimes are brought before the ICTY, there will be no normalisation, no reconciliation, and the rule of law in Bosnia and Herzegovina will remain seriously impaired. In this regard, the Council recalls the Sintra Declaration, where the continued influence of Radovan Karadzic over the political life of Republika Srpska was deemed unacceptable. The Council therefore reminds all competent authorities that war crimes suspects must be brought before the ICTY and that cooperation with ICTY is a key part of the process of peace implementation. The Council remains committed to applying economic levers and other measures to ensure full co-operation with ICTY, including making recommendations to Council members with regard to the Federal Republic of Yugoslavia. The Council welcomes the transfers of war crimes indictees to the ICTY in the course of 1997. The Council recalls Security Council resolution 1034. The Council demands that the competent authorities take immediate steps to execute arrest warrants for all indicted persons under their jurisdiction and to surrender them to the ICTY. This demand is made with particular reference to Republika Srpska and the Federal Republic of Yugoslavia. The Council recalls that domestic law prohibiting the surrender of indictees to the ICTY is incompatible with mandatory United Nations Security Council resolutions adopted under Chapter VII of the Charter of the United Nations and Article IX of the General Framework Agreement for Peace in Bosnia and Herzegovina. b. The Council notes the importance of compliance with the Rules of the Road agreed at Rome in February 1996. It criticises local authorities in both Entities who continue to refer to “lists of war crimes suspects” in an attempt to discourage return of refugees and displaced persons, harass citizens and deter elected municipal councillors from taking office. The authorities must ensure that this ceases immediately. The Council notes that municipalities that persist in this risk being named as obstructionist by the High Representative and consequently risk losing international assistance. Furthermore, the Council calls for adequate resources to be made available to the Prosecutor of the ICTY for the Rules of the Road.

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307

The Council requests that the High Representative, the ICTY and other relevant organisations identify those persons who are aiding and abetting individuals named in the arrest warrants and calls on member States to take immediate measures against such persons, as may be recommended by the High Representative.

PART IV

LAW ENFORCEMENT WITHIN PSOS—THE PROSECUTION OF PEACEKEEPERS AND THE SPECIAL CASE OF HUMAN TRAFFICKING AND SEXUAL OFFENSES

CHAPTER 14 HUMAN RIGHTS TRAINING TO LAW ENFORCEMENT AGENTS: A KEY TO PSO SUCCESS David B. Hodgkinson Sandra L. Hodgkinson Diana C. Noone Gregory P. Noone*

Today’s Human Rights Violations are the Causes for Tomorrow’s Conflicts —Kofi Annan1

A. INTRODUCTION The United Nations strives to maintain international peace and security through establishing mechanisms for collective measures, fostering international cooperation and friendly relations, and promoting respect for human * The positions and opinions stated in this article are those of the authors and do not represent the views of the US State Department, the US government or any of its entities or any other nongovernmental entity. All information obtained for this article was gathered through open sources or unclassified interviews and briefings. Dave Hodgkinson (B.A. Dickinson College 1991, J.D. University of Gonzaga School of Law 1994) is a Senior Advisor for the Bureau of European and Eurasian Affairs at the US Department of State; Sandra L. Hodgkinson (B.A. Tulane University 1992, M.A. Graduate School of International Studies, University of Denver 1995; J.D. University of Denver School of Law 1995) is the Deputy for War Crimes Issues at the US Department of State; Diana C. Noone (B.A. Virginia Polytechnical Institute 1987, J.D. Widener University School of Law 1990, M.S.W. The Catholic University of America 1994, Ph.D. University of Maryland at Baltimore 1999) is an Assistant Professor of Criminal Justice at Fairmont State University; and Gregory P. Noone (B.A. Villanova University 1987, J.D. Suffolk University Law School 1990, M.A. The Catholic University of America 2002) is a member of the Public International Law and Policy Group. The authors would like to express their gratitude and appreciation for editing, research, and assistance to: Roberta Arnold, Laurie R. Blank, Sherry Smith, Oliver Thomas Napier Jr. and Dominick Pellegrin. 1 Stephanie Nebahey, Annan Opens UN Human Rights Forum Amid Ko, REUTERS, Mar. 16, 1998. 311

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rights.2 Second only in terms of numbers to military forces in UN peace support operations (PSOs),3 law enforcement agents play a critical role in supporting UN missions.4 Ensuring human rights is an inherent part of the law enforcement mission, whether it is to monitor, advise or train the local police force,5 or when called upon to fill an executive authority mandate. This chapter focuses on a core component of UN missions—the role of human rights training with regard to law enforcement agents in PSOs. The chapter begins with a discussion of the link between human rights standards and law enforcement training and explores the important role law enforcement activities play within a PSO. In addition, it addresses human rights issues related to types of training conducted for and by UN personnel, its effectiveness and disciplinary mechanisms. Challenges facing the United Naitons in this regard are explored including examples and recommendations for the future are suggested. B. HUMAN RIGHTS AS A KEY FACTOR AND BASIS FOR PSOS Violations of human rights are often at the center of conflict.6 The international community has witnessed their impact on society and the pressure they can exert in bringing an international response, including PSOs such as the UN Mission in Kosovo (UNMIK), UN Mission in Liberia (UNMIL), UN Mission in Sierra Leone (UNAMSIL), UN Mission in the Democratic Republic of the Congo (MONUC), UN Missions to Haiti (UNMIH and MINUSTAH) and the UN Mission in the Sudan (UNMIS). There are complicating factors resulting from summary executions, torture, arbitrary arrest and detention, violence against women, genocide, crimes against humanity and war crimes awaiting PSO forces upon their arrival. These violations have a direct and harmful effect on the rule of law, including the capability of an indigenous police force to stand up and act competently within international and domestic legal standards.7 2

UN Charter art. 1. Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305S/200/809 (Aug. 21, 2000) [hereinafter The Brahimi Report]. 4 International police forces are deployed worldwide and have established their own identity and status within PSOs. Background Note: Nov. 30, 2006, available at http://www.un.org/Depts/dpko/dpko/bnote.html. As of January 31, 2007, there were 9,208 UNPOL worldwide in thirteen missions: Afghanistan, Burundi, Cote d’Ivoire, Cyprus, Democratic Republic of Congo, Georgia, Kosovo, Haiti, Liberia, Sierra Leone, Sudan, Timor-Leste and Western Sahara. They made up 13.1 percent of peacekeeping forces deployed. See http://www.un.org/Depts/dpko/dpko/contributors/. 5 The Brahimi Report, supra note 3, at 20. 6 Standardized Generic Training Module 08, Human Rights for Peacekeepers, (Feb 22, 2007), at 1, available at http://www.un.org/depts/dpko/training/sgtm/main.htm [hereinafter SGTM 08]. 7 This has been witnessed in Angola, Cambodia, the Democratic Republic of 3

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Unfortunately, civilians are becoming a more prominent target. In World War II, 5 percent of the civilian population were causalities, while in the 1990s 90 percent of the casualties were civilians.8 UN Police (UNPOL)9 can play an important role in establishing and maintaining order to prevent possible escalations in conflict ridden environments. This can be achieved by building the capability of indigenous law enforcement in environments where a capable law enforcement component does not exist. They can also take on executive authority10 to act as the police, as seen in Kosovo and East Timor. 1. Importance of Human Rights in PSOs Human rights are universal and derived from long-standing practice. They are fundamental and should be afforded to all human beings. Examples include: the right to life, the right to a fair trial, the right not to be held in slavery, the right of freedom of movement, the right not to be tortured and the right of freedom of religion.11 Application of human rights standards in PSOs is part of the UN commitment and is embodied in the UN Charter, as demonstrated by the following language:

the Congo (DRC), the Balkans, Rwanda, Liberia, Sierra Leone, Kosovo, East Timor, Darfur, and Haiti. A United Nations Priority, at http://www.un.org/rights/HRToday/ hrconfl.htm. 8 SGTM 08, supra note 6, at 6. 9 The term for civilian police, “CIVPOL,” is changing to UNPOL. The term CIVPOL was adopted during the 1964 UN peacekeeping mission to Cyprus, where there was a debate whether to bring civilian police in addition to, or instead of, military police. CIVPOL was adopted in reference to this civilian police force in relation to the military force. Today, there is a debate about the redundancy of this term. The UN Department of Peacekeeping Operations (DPKO) is now advocating the use of UNPOL. As this term takes root, both CIVPOL and UNPOL are being used in a somewhat interchangeable fashion. (Conversation with Lisa Kurbiel, Integrated Training Service, United Nations, December 2006.) This chapter will use the term UNPOL, unless the term CIVPOL was previously used, such as in a quote or conference title. In addition, the term “civilian police” will be avoided, and the term “police” will be used. 10 Executive authority refers to the status given officers to enforce the law of the mission country. The Kosovo and East Timor PSO missions expanded the scope of UNPOL to take on the full spectrum of executive law enforcement authority, along with the crucial peace-building tasks of creating indigenous police capabilities based on democratic and human rights standards. Kosovo and East Timor are the only current UN missions with executive authority afforded to law enforcement (Interview of Ashley Kushner, US State Department, Dec. 2006, on file with authors). 11 SGTM 08, supra note 6, at 10.

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determined to reaffirm faith in fundamental human rights . . . achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all. . . . promote universal respect for, and observance of, human rights . . . for all.”12 Building on the UN commitment to human rights, the Secretary-General’s directive set out in 1997 makes human rights a central activity for the United Nations13 and imposes this responsibility on all its personnel.14 In addition, the 1997 reform program identified human rights cutting across all substantive fields, including humanitarian, development and peace and security missions. The role of human rights in PSOs involves protection, monitoring, reporting, advocacy, intervention and human rights capacity-building.15 Successful PSOs depend on adherence to human rights standards. Nations that are the subject of a PSO will not successfully begin the rebuilding process unless human rights are restored, observed and enforced. As a result, it is an operational necessity that UN-sponsored law enforcement personnel operate in accordance with human rights standards due to the fact that they are in positions of authority and are therefore expected to set the example. Derogation from human rights standards by UN law enforcement personnel can cause a ripple effect through society and directly harm mission effectiveness.16 This is particularly important in post-conflict states, where there may be a great deal of volatility and mistrust based on past violations by state or non-state actors. Acknowledging this, the United Nations integrated human rights into its operations in places such as Cambodia, El Salvador, Guatemala and Haiti. In Haiti (MINUSTAH), the missions have been dedicated to the promotion of human rights, civic education, electoral assistance, supporting the National Truth and Justice Commission and strengthening the Haitian judicial system.17 In Rwanda, the former Yugoslavia and the DRC, the United Nations followed up allegations of human rights violations and established a framework of respect for human rights. This work was viewed as a core part of creating an atmosphere of trust in a post-conflict environment.18 12

UN Charter preamble, art. 1(3), and art. 55(c) (emphasis added). Annual Report of the Secretary-General on the work of the Organization art. 28, UN Doc. A/52/1 (Sept. 3, 1997), available at http://www.un.org/Docs/SG/Report97/ 97con.htm. 14 Handbook on the United Nations Multidimensional Peacekeeping Operations, Chapter VIII: Human Rights, Peacekeeping Best Practices Unit, DPKO (Dec. 2003) available at http://pbpu.unlb.org/pbpu/handbook/Handbook/8.%20Human%20Rights.html [hereinafter Handbook on the United Nations Multidimensional Peacekeeping Operations]. 15 UN Reform—Reform Restructuring for Global Governance (Aug. 1997), at http://www.iahf.com/world/un-refm.html. 16 A United Nations Priority, supra note 7. 17 UN SECRES/1542, 4961st mtg., Apr. 30, 2004. 18 Handbook on the United Nations Multidimensional Peacekeeping Operations, supra note 14, at 2. 13

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2. The Role of the UN Code of Conduct In addition to singling out human rights issues for personnel deployed on a PSO, the United Nations also embodied many of these principles in the UN Code of Conduct. The UN policy to promote a force that conducts itself appropriately at all times is essential for a successful mission. In addition, the incorporation of human rights principles in training cards furthers the policy of the United Nations to ensure that human rights are part of all aspects of a PSO. The training cards include a Code of Conduct and a set of principles entitled “We Are United Nations Peacekeepers.”19 These cards provide human rights standards, rules for engaging the local population and rules involving internal discipline.20 Because PSOs by their very nature are dynamic, bringing together personnel from different countries with varying degrees of experience into an unstable environment, the universal nature of human rights can serve as a basis for common action among a diverse law enforcement contingent. These training cards help promote human rights concepts as playing a fundamental and cross-cutting role in PSOs. 3. Applicable Human Rights in PSOs The foundation for applying human rights derives from both international and domestic law. The United Nations references several sources in applying human rights standards to PSOs: 21 Universal Declaration of Human Rights (UDHR, while not a treaty, but a General Assembly resolution, most provisions are considered binding as a matter of customary international law); International Covenant on Civil and Political Rights (ICCPR);22 International Covenant on

19 Ten Rules Code of Personal Conduct for Blue Helmets (Feb. 2007), available at http://www.genderandpeacekeeping.org/resources/5_UN_Codes_of_Conduct.pdf. 20 See Appendices A and B to this chapter to read the Code of Conduct and the Principles for “We are Peacekeepers” and The Code of Conduct for Law Enforcement Officials, GA Res. 34/169 (Dec. 17, 1979). 21 Human Rights Standards and Practice for the Police, United Nations 63 (2004). The text of these treaties may be obtained by contacting: Office of the United Nations High Commissioner for Human Rights, Palais des Nations, 8–14 avenue de la Paix, CH1211 Geneva 10, Switzerland (Tel +4122 917 9159); additionally they are available on line through a variety of sources. 22 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]. There are two optional protocols to the ICCPR, as well: Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 302 (entered into force Mar. 23, 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights (aiming at the abolition of the death penalty), adopted by the UN General Assembly

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Economic, Social and Cultural Rights (ICESCR);23 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);24 Convention on the Elimination of All Forms of Racial Discrimination (CERD);25 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its Optional Protocol;26 Convention on the Rights of the Child (CRC) and its two Optional Protocols.27 Other references include: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;28 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;29 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Declaration on the Protection of All Persons from Enforced Disappearance; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions; Guidelines on the Role of Prosecutors; Declaration on the Elimination of Violence against Women; UN Standard Minimum Rules for Noncustodial Measures (The Tokyo Rules); UN Standard Minimum Rules for the on Dec. 15, 1989, GA Res. 128, UN GAOR 44th Sess., Supp. No. 49, at 207, UN Doc. A/44/824 (1989) (entered into force July 11, 1991), reprinted in 29 I.L.M. 1464 (1990). 23 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force, Jan. 3, 1976) [hereinafter ICESCR]. 24 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]. 25 Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter CERD]. 26 Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46, entered into force Sept. 3, 1981. Optional Protocol to the Convention on the Elimination of Discrimination against Women, GA Res. 54/4, annex, 54 UN GAOR Supp. (No. 49) at 5, UN Doc. A/54/49 (Vol. I) (2000), entered into force Dec. 22, 2000 [hereinafter CEDAW]. 27 Convention on the Rights of the Child, GA Res. 44/25, annex, 44 UN GAOR Supp. (No. 49), at 167, UN Doc. A/44/49 (1989), entered into force Sept. 2 1990. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, G.A. Res. 54/263, Annex I, 54 UN GAOR Supp. (No. 49), at 7, UN Doc. A/54/49, Vol. III (2000), entered into force Feb. 12, 2002. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, GA Res. 54/263, Annex II, 54 UN GAOR Supp. (No. 49), at 6, UN Doc. A/54/49, Vol. III (2000), entered into force Jan. 18, 2002 [hereinafter CERD]. 28 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, GA Res. 45/158, annex, 45 UN GAOR Supp. (No. 49A), at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003. 29 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Aug. 27 to Sept. 7, 1990, available at http://www.unhchr.ch/html/menu3/b/h_comp43.htm.

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Administration of Juvenile Justice (The Beijing Rules); UN Rules of the Protection of Juveniles Deprived of their Liberty; and Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice.30 The most broadly recognized and applicable ones, however, are the UDHR, CAT, ICCPR and ICESCR. A PSO law enforcement capability that adheres to human rights is not only good policy but is also a legal obligation31 in those countries that are party to the above treaties and/or who should be expected to apply them, consistent with customary international law. Law enforcement needs to have a solid understanding of human rights obligations to uphold and train individuals on these standards. 4. Relationship Between Law Enforcement and Human Rights Components Human rights components perform a wide range of functions and provide an integral part of a PSO.32 They report on human rights violations; work to prevent future abuses; assist to investigate and verify past violations; promote and protect civil, cultural, economic, political and social rights; conduct capacity-building initiatives with local government and non-governmenatal organizations (NGOs); assist relevant accountability and reconciliation processes; collaborate with developmental and relief organizations; provide advice and guidance on human rights to PSO components; work with displaced persons; and integrate human rights with the demobilization of combatants. Human rights components of the United Nations fall under the authority of the Special Representative of the Secretary-General (SRSG). In November 2002, an agreement between the Department of Peacekeeping Operations (DPKO) and the Office for the High Commission on Human Rights (OHCHR) set out the relationship between human rights components and PSOs.33 This joint memorandum between the DPKO and OHCHR established how human rights activities would function in a PSO. The substance of this agreement addresses recruitment, OHCHR participation in planning and establishment of human rights components of PSOs, status of human rights components and training responsibilities on human rights for those assigned to a PSO.34 30 Handbook on the United Nations Multidimensional Peacekeeping Operations, supra note 14, at 3. 31 COLETTE RAUSCH, COMBATING SERIOUS CRIMES IN POSTCONFLICT SOCIETIES: A HANDBOOK FOR POLICYMAKERS AND PRACTITIONErs 75 (2006). 32 Handbook on the United Nations Multidimensional Peacekeeping Operations, supra note 14, at 105. 33 Id., at 2. 34 Memorandum of Understanding Between the Office of the High Commissioner

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a.

Role of Human Rights Components

Human rights components receive their mandate from Security Council resolutions or through the General Assembly in order to ensure human rights are properly addressed by the UN mission and receive operational guidance from the SRSG while also reporting to both DPKO and OHCHR.35 They must engage humanitarian and development partners, support the peace process, support accountability for violations of international crimes and promote sensitization and training.36 They must promote human rights both internally within the UN mission and externally. Internally, they must work with PSO field operations to include: international police, military personnel, political advisers and rule of law advisers. These components must promote human rights within the UN system, through the OHCHR, based on human rights treaties and UN human rights procedures. Finally, human rights are promoted external to the PSO, with efforts directed towards host country government authorities, human rights institutions, and civil society and NGOs.37 In certain circumstances, the work of police may overlap with UN human rights components. In these cases, both police and the human rights component can benefit from close coordination.38 b. A Beneficial Relationship Because human rights are a central activity to the United Nations, UNPOL should forge a close relationship with the human rights component of each mission. This relationship can help in identifying vulnerable populations, enhancing the capacity of the local justice sector and developing programs to train on human rights issues and information sharing. An example is Angola where human rights components worked with various UN staffs to train on human rights and gave this training to the local community and NGOs.39 Early involvement and collaboration with human rights components in police missions of a PSO can pay great dividends. Police can learn the unique human rights issues involved in their mission and can use this understanding to make their mission a success for purposes of observation, advising, training and becoming sensitive to the challenges facing the population they are supporting.40 for Human Rights and the Department of Peace-Keeping Operations (Nov. 1999), available at http://www.unhchr.ch/html/menu2/4/mou_dpko.htmp. 35 Handbook on the United Nations Multidimensional Peacekeeping Operations, supra note 14, at 2. 36 Id. 37 Id. 38 Id. 39 Id. 40 Id.

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In the DRC human rights officers worked to locate mass graves with the help of forensic experts to document conflict-related human rights abuses to be used for future accountability mechanisms.41 In other areas, including East Timor and Sierra Leone, human rights officers worked to establish truth commissions. In addition the human rights officers in Sierra Leone produced books for the local police to help in guiding their conduct during elections and to raise awareness on war-related security violence.42 In the UN Mission to Ethiopia and Eritrea (UNMEE), human rights officers designed a book for use by UN forces so that they could better understand the post-conflict issues affecting children, including HIV/AIDS, sexual abuse, child soldiers and landmines.43 5. Principles for Policing Within the Human Rights Mandate Law enforcement requirements in a PSO can vary depending on the mission, though a central theme remains constant—to build a functioning law enforcement capability that operates competently and in accordance with human rights standards. In some missions, the mandate is limited to advising and monitoring, while in others, UN law enforcement may be training or even actively involved in policing tasks themselves, such as conducting investigations or community policing under executive authority. Despite varying missions, law enforcement agents in a PSO must be well versed in the application of human rights standards. Depending on the mission, for example, expertise in training on human rights or specialized ability to understand particular issues such as trafficking in persons may be crucial. Yet in other instances, law enforcement personnel operating in an executive mission would need to understand how to personally implement rules relating to use of force, due process, and human rights concerns.44 The principles of democratic policing can be of particular use in guiding law enforcement agents in their missions, whether this is restricted to observing and reporting or it holds executive authority. The UN Human Rights Standards and Practice for Police enumerate principles that can guide police forces in adhering to human rights standards as expressed in international law.45 Principles of Democratic Policing: Representative Policing: Representative policing ensures that police personnel sufficiently represent the community they serve. This is 41

Id. at 4. Id. 43 Id. at 9. 44 Id. at 1. 45 RAUSCH, supra note 31, at 75. See also C. DE ROVER, TO SERVE AND PROTECT: HUMAN RIGHTS AND HUMANITARIAN LAW FOR POLICE AND SECURITY FORCES (1998). 42

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accomplished in part through efforts to recruit minority groups and women through fair and nondiscriminatory recruitment policies. This form of policing is also based on human rights for all peoples being protected, promoted, and respected. Responsive Policing: Responsive policing ensures that police are responsive to public needs and expectations. This is accomplished through preventing and detecting crime and maintaining public order through lawful and human means. Police must also understand the needs and expectations of the public they serve; and that police actions are responsive to public opinion and wishes. Accountable Policing: Accountable policing envisions police activities that are accountable to the law, as well as to individuals and institutions in the state. Politically, the police are accountable to police and citizen liaison groups and to the public through the democratic and political institutions of government. Economically, the police are accountable for the way they use resources allocated to them.46 Establishing the police as part of the community and serving the citizens, while also having structures in place for reporting human rights violations committed by police helps to build trust and foster a police force that will be used by the citizens. Integrating the principles of representative, responsive and accountable policing can further this aim.47 6. Setting the Scene for Success: The Right People With the Right Training Deploying competent law enforcement capabilities that uphold human rights is a critical factor for a PSO to establish rule of law in a society,48 but that can be a hard thing to do. First, it is important to recall that the UN Charter envisions a standing military force to maintain international peace and security and uphold its key responsibilities. As this standing military force has never materialized, each PSO becomes a massive exercise in recruiting eligible UN personnel from willing countries. While sending police forces into a PSO is politically more acceptable for donor countries than deploying the military, the United Nations has had difficulty recruiting the number of UNPOL authorized by the Security Council. This is due in part to operational concerns. Unlike the military, which is often in a state of reserve, police are actively filling domestic law enforcement requirements in their home country.49 Depleting often times 46 47 48 49

Id. Id. Id. at 74. The Brahimi Report, supra note 3, at 20.

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short-staffed police forces is not in the interest of most police chiefs and politicians, not to mention pulling out their best and brightest to fulfill UN requests for a PSO.50 As a result, military forces find themselves serving in a law enforcement role. The concept of using the military as a police force instead of deploying law enforcement officials can be challenging from a human rights and an operational perspective. Militaries are primarily trained to kill and destroy, so training them to take appropriate law enforcement action in response to situations in a PSO is a tall order, even with significant training time. This dilemma is summed up by a quote from US Army General Wesley Clark: “Experience in peace operations has proven that good soldiers, no matter how well equipped, trained and led, cannot fully perform police duties among local populations.”51 As the military looks to avoid law-enforcement-related missions, UNPOL forces are being looked to as the primary source for police activities in a PSO. Accordingly, the United Nations finds itself having to call around in a rather piecemeal approach to fill slots for a mission that is invariably short-staffed. This ad hoc approach results in a police component of a PSO with multiple countries (sometimes over 40 countries contributing law enforcement agents) represented with varying degrees of experience. 52 As a result, a significant amount of time is absorbed in the field forging a standardized and unified team composed of police from numerous countries, combined with vetting police to ensure that countries sent the right people with the right training. The United Nations sometimes finds itself having to make difficult decisions to send deployed personnel back home when unqualified individuals are sent, as this can undermine the credibility and the ultimate success of a mission. Even though more needs to be done on the part of the United Nations and donor countries, the United Nations has established minimum requirements for law enforcement personnel to be deployed. The requirements relate to having competencies in the following activities, summarized with the acronym SMART: Supporting human rights; Monitoring the performance of local law enforcement; Advising indigenous police; Reporting on the situation; and Training local police officers.53 Previously, the primary duty of UNPOL was to monitor and report on human rights violations and rule of law standards. This mandate expanded to co-locating UN law enforcement with indigenous police forces, training local police forces, supporting international military forces in confiscating illegal weapons, 50

ROBERT M. PERITO, WHERE IS THE LONE RANGER WHEN WE NEED HIM? AMERSEARCH FOR A POSTCONFLICT STABILITY FORCE 92 (2004). 51 Jeffery Smith, Fired On, Marines Kill Gunman in Kosovo, WASH. POST, June 26, 1999, A17. 52 The Brahimi Report, supra note 3, at 20. See also generally ROBERT B. OAKLEY, MICHAEL J. DZIEDZIC & ELIOT M. GOLDBERG EDS., POLICING THE NEW WORLD DISORDER: PEACE OPERATIONS AND PUBLIC SECURITY (1998). 53 PERITO, supra note 50, at 88. ICA’S

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participating in operations to return displaced persons and assisting in the election process to support free and fair elections. The expansion continued, taking a historic step in 1999, when the Untied Nations granted full executive authority to UNPOL in Kosovo and in East Timor. This grant of executive authority changed the general rule that UNPOL provided support to local law enforcement but would not replace them.54 Once a country elects to send police to participate in a PSO, the UN policy is to require adequate training by the donor nation to meet UN standards and be fully qualified to perform assigned duties. To assist, the United Nations has provided numerous publications, including Selection Standards and Training Guidelines for United Nations Civilian Police, Human Rights Standards and Practice for Police and course outlines to train police. It is no surprise that even with some guidance, the variance in experience is wide. Training in only the SMART concept assumes that police will be unarmed and not carry out executive missions. The training provided by host nations is invariably too simplistic, and does not include an emphasis on cultural, social, legal, political and personal issues that are essential for ensuring a force understands and adheres to human rights standards.55 In 1992, the UN Transitional Authority in Cambodia (UNTAC) had no real requirements for police participation. Many police were returned home, or given training by the United Nations in Cambodia. Nonetheless, there were human rights problems. The UN Protection Force in Bosnia and Herzegovina (UNPROFOR) responded to the problems encountered in Cambodia by establishing baseline requirements for deploying law enforcement to PSOs, which included: a minimum of five years police experience; the ability to drive a four-wheel vehicle; and the ability to speak and write the working language of the mission (English). Many of the law enforcement personnel failed even these simple requirements.56 To analyze this problem and help remedy it, the Lester B. Pearson International Peacekeeping Training Center in Canada conducted a seminar on CIVPOL qualifications in 1996. The seminar produced a list of criteria for future CIVPOL forces: • • • • • •

54 55 56

has citizenship in the sending country (for jurisdiction purposes); is a sworn member of the police force; possesses between five and preferably eight years of active community policing experience; has the ability to meet UN health standards; maintains a valid 4 × 4 driving license; possesses speaking and writing ability in their native language and the mission language; Id. at 89. Id. at 94. Id.

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has competence in the use of firearms; and possesses impeccable personal and professional integrity.57

The United Nations also developed job descriptions to target the types of police desired for specific areas that further helped to match the right person with the right job. 58 These efforts produced higher quality police who were aligned with appropriate jobs, resulting in better performance and bringing greater stability to the UN police force and the host nation, and greater likelihood that human rights would be observed and be promoted.59 C. TRAINING LAW ENFORCEMENT AGENTS IN HUMAN RIGHTS Human rights training is now an accepted part of any training curriculum for law enforcement agents deploying to a UN mission. Even countries that may not have the most impressive human rights records understand its importance for a PSO. Proper training before and during deployment plays a critical role for law enforcement agents to properly observe, report, advise and conduct themselves in accordance with international standards. Human rights training must reflect UN policy. It should be cross-cutting and should not be conducted as a separate topic or a “mere ‘add-on’ to the ‘real’ policing skills . . . [r]ather, every aspect of policing, from stops and searches, making arrests, conducting interrogations and securing the crime scene, should include human rights principles and practices.”60 Human rights concepts must be at the center of all law enforcement training both at the domestic and international levels. For this to occur, nations, international organizations, and NGOs need to devote more attention towards improving the training of law enforcement personnel prior to deployment in a PSO. The seminal report on PSOs— the Brahimi Report—was clear in its assessment that the training of personnel deployed in peace operations needed to improve.61 1. Methods of Training Training in this area may vary but generally includes presentations and lectures, panel discussions, round-table discussions, working groups, case-stud57

Id. Id. 59 Id. 60 William G. O’Neill, Police Reform and Human Rights, A HURIST Document at 4–5 (July 20, 2004), available at http://www.undp.org/governance/docs/HR_Pub_Police Reform&HR.pdf. 61 The Brahimi Report, supra note 3. 58

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ies, problem solving/brainstorming, scenarios, simulations and role playing, distance learning, as well as the rarely used but very effective field exercises.62 2. Basis for Human Rights Training In addition to UN policy, the basis for training on human rights is derived from the same human rights treaties. As noted earlier, trainers look to the UN Charter and the UDHR along with the specific international treaties, including ICCPR,63 ICESCR,64 CAT,65 CERD,66 CEDAW67 and CRC.68 Specifically, Article 10 of the CAT requires each state party to train their law enforcement personnel on the prohibition of torture.69 Another important aspect of human rights training for law enforcement includes international humanitarian law (IHL).70 IHL is the lex specialis applicable during armed conflict; however a baseline of human rights law is always applicable. It is important that law enforcement personnel understand IHL because they may be called upon in a PSO to investigate IHL violations in order to assist in ending impunity or in the event that the level of violence increases, and the mission slides towards armed conflict.71

62 LAURIE R. BLANK & GREGORY P. NOONE, LAW OF WAR TRAINING: RESOURCES FOR MILITARY AND CIVILIAN LEADERS (Forthcoming). See also Professional Training Series No. 5: Human Rights and Law Enforcement (A Manual on Human Rights Training for the Police) 10–11 (Feb. 28, 2007), available at http://www.ohchr.org/english/about/publications/docs/PTS5_En.pdf. United Nations High Commissioner for Human Rights, Center for Human Rights, Geneva, developed the “Professional Training Series” of handbooks and manuals for the training of target audiences that influence human rights at the domestic level. The training materials are useful for any human rights training for law enforcement, judges, prosecutors, lawyers and corrections officials and can be found at http://www.ohchr.org/english/about/publications/training.htm. 63 ICCPR, supra note 22. 64 IESCR, supra note 23. 65 CAT, supra note 24. 66 CERD, supra note 25. 67 CEDAW, supra note 27. 68 CRC, supra note 28. 69 CAT, supra note 25, at art. 10. 70 The “law of armed conflict” and the “law of war” are synonymous terms encompassing the laws and customs of war based upon both the Geneva and Hague Conventions and customary international law. The term “international humanitarian law” is also often used interchangeably with the law of armed conflict and the law of war, but it generally refers to a broader category of laws and principles encompassing not only the traditional laws of armed conflict, including war crimes, but also laws related to genocide and crimes against humanity. See BLANK & NOONE, supra note 62. 71 UN Secretary-General’s Bulletin, Observance by United Nations forces of international humanitarian law, ST/SGB/1999/13 (Aug. 6, 1999).

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Human rights training may also be impacted by the domestic or municipal laws of each nation and any regional agreements that a nation may be required to adhere to as well. Some examples are: the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights (ACHPR).72 3. UN Training The UN human rights training of personnel prior to deployment extends to all levels of the mission—from senior mission leaders to the most junior member of the PSO.73 The United Natins has two easily available methods. First, it has a library of prepared training modules focused on core areas. These Standardized Generic Training Modules (SGTMs) are readily available and may be used by UN training teams or may be adapted by nations who want to provide pre-deployment (or regular) training in order to better prepare their personnel for deployment in a PSO. Their purpose is to provide the essential information required for those participating in a PSO. Included among the core topics is an SGTM entitled “Human Rights in Peacekeeping.”74 This “describes concepts, principles and norms of human rights and their application in the peacekeeping context.”75 It is designed for two separate sessions, with the first being a lecture with one-third of the time designated for questions and answers, and the second session consists of small group discussions of a scenario culminating in a plenary discussion. The United Nations has also developed a 72 European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended through Nov. 1998) (ECHR), Nov. 4, 1950, 213 U.N.T.S. 221. The American Convention on Human Rights (ACHR), Nov. 22, 1969, 1144 U.N.T.S. 123; reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser. L/V/I.4 rev. 7 at 23 (2000). The African Charter on Human and Peoples’ Rights (ACHPR) (“Banjul Charter”), June 26, 1981, OAU Doc. CAB/LEG/67/3 Rev. 5; reprinted in 21 I.L.M. 59 (1982). 73 For example, as part of the executive training for the mission’s senior management team is a civilian police scenario that improves the understanding of the law enforcement component and also reinforces human rights concepts. See the UN DPKO Integrated Training Service’s Senior Mission Leaders Course “UN Police Module” (Materials provided to the authors by the UN DPKO). 74 Some of the other core topics are: Peacekeepers’ Introduction to the UN; Structure of UN PSO; Legal Framework for UN PSO; Code of Conduct; Cultural Awareness; Child Protection; Prevention of Sexual Exploitation and Abuse; and Gender Equality in Peacekeeping. See Standardized Generic Training Modules for United Nations Peacekeepers (Feb 22, 2007), available at http://www.un.org/depts/dpko/training/ sgtm/main.htm. 75 SGTM 08, supra note 6, at 1.

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“Train the Trainers” curriculum for UNPOL so that select law enforcement personnel on a PSO may act as a trainer within the PSO.76 The training is designed to ready UNPOL officers so that they may train (or retrain) the local law enforcement personnel. A critical component of the local training effort is human rights. The second method of training is accomplished through the UN Institute for Training and Research Program of Correspondence Instruction (UNITAR POCI).77 UNITAR offers 18 courses, over half of which are geared towards PSOs, including one specifically for UNPOL. The UNITAR courses are selfpaced and designed for individual enrolment, but they are also valuable resources for trainers of deploying law enforcement personnel.78 Training from external sources such as the United Nations is critical for nations that do not have any existing programs, especially those with a small budget. External training may provide instruction in PSO and human rights and thereby eliminate the need for a costly internal program. For other countries, external training can at least serve as an interim option. Governments can also arrange for foreign instructors or units to come to them to provide training to groups prior to deployment. The US Defense Institute for International Legal Studies (DIILS), for example, provides an average of 65 training sessions for more than 2,000 participants in 40 countries each year focusing on human rights and the rule of law.79 Since its inception more than 15 years ago, DIILS has trained more than 27,000 military and civilian personnel (many of whom preparing for service in UN missions) in one 135 countries around the world.80 Another method of external training involves sending law enforcement personnel to attend one of many courses offered in a small number of countries. Courses designed for UNPOL participants are offered at the following sites and include:81 76 The UN curriculum was developed with the assistance of Peacekeeping Training Centers from the United Kingdom, Norway, Germany, Russia and Singapore. See http://www.un.org/Depts/dpko/training/. 77 Available at www.unitarpoci.org. 78 UNITAR charges a course enrollment fee for their distance learning program, and their materials are available in print, on CD or for download. See www.unitarpoci.org. 79 BLANK & NOONE, supra note 62. 80 Id. DIILS also offers resident PSO courses. See http://www.dsca.osd.mil/DIILS for more information about DIILS. 81 There were reports in 2002 that the Academy of the Chinese People’s Armed Police Force (ACPAPF) in Langfang, China would be the site of the “largest training center in Asia” for civilian police on UN missions. See Langfang Homes to Asia’s Largest UN Police Training Center, X INHUA N EWS A GENCY, Aug. 19, 2002, available at http://www.china.org.cn/english/2002/Aug/39878.htm. See also China to Build Asia’s Largest UN Police Training Center, PEOPLE’S DAILY ONLINE, Aug. 20, 2002, available at http://english.people.com.cn/200208/20/print20020820_101732.html. In October of 2004, UN Secretary-General Kofi Annan visited the 14,000-squaremeter training center compound at Langfang, which was completed in 2003 for the purpose of training civilian police for UN peacekeeping missions. Activities of the

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Centrex Central Police Training and Development Authority (United Kingdom): Regional Civilian Police Train the Trainers Course;82 Chilean Peacekeeping Training Course (CECOPAC) (Chile): UN Police Course;83 The Danish National Police College (DNPC) (Denmark): International Police Basic Course (IPBC);84 The Kofi Annan International Peacekeeping Training Center (KAIPTC) (Ghana): Civil Police Foundations Course;85 Police Academy Baden-Wuertemberg (Germany): Basic Police Officers Course, and the European Police Mission in Bosnia and Herzegovina;86 Russian Police Peacekeeping Training Center (Russia): UN Civilian Police Training Course;87 The Swedish Armed Forces International Center (SWDINT) (Sweden): UN Police Commander Course (UNPCC), UN Police Officers Course (UNPOC) and the International Police Development Course (IPDC).88

The curriculum of each of these law enforcement training programs emphasizes human rights as well as international criminal justice standards. Still other countries like Switzerland and New Zealand offer training for troops that will be serving with their own national troops in peacekeeping operations.89 The Southern African Development Community (SADC) also offers their Training for Peace (TfP) for law enforcement personnel with over half the curriculum geared towards human rights.90 This program was initiated by, and still presently sponsored by Norway.91 The Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights does not provide training for UNPOL personnel but does provide for law enforcement training.92

Secretary-General in China, 9–13 October 2004, available at http://www.un.org/ News/Press/docs/2004/sgt2421.doc.htm. In a press conference on May 30, 2006, at the Permanent Mission of the People’s Republic of China to the United Nations the training center was again mentioned, available at http://www.china-un.org/eng/fyrth/t255751. htm. However, our continued research has failed to find specific training information regarding this entity. 82 Available at http://www.centrex.police.uk/. 83 Available at http://www.cecopac.cl/. 84 Available at http://www.politi.dk. 85 Available at http://www.kaiptc.org. 86 Available at http://www.akademie-der-polizei-bw.de/. 87 Available at http://www.ptc.h10.ru. The PTC training combines UN SGTMs and Russian presentations and exercises. 88 Available at http://www.swedint.mil.se/index.php?lang=eng. 89 BLANK & NOONE, supra note 62. 90 Available at http://www.trainingforpeace.org/background/bg.htm. 91 Id. 92 Available at http://www.osce.org/odihr/.

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4. Domestic Training by Countries All nations conduct some pre-deployment training of law enforcement personnel to a PSO. However, the level varies greatly and often is encumbered by time restrictions, financial constraints and/or domestic policies and politics. The aforementioned training programs in Denmark, Chile, Sweden, etc., obviously greatly benefit their nations’ law enforcement personnel prior to deployment. But these countries are the only ones dedicating resources in order to conduct this important training at a sustained level of proficiency in established training centers. In contrast, the US Department of State has hired a contractor to recruit, select, equip, and train US civilian police prior to deployment.93 The United States paid the private company DynCorp over US$211 million between 1996 and 2001 for this contract.94 “DynCorp provides only approximately ten days of training before handing them over to the UN”95 Most of the training conducted is focused “on screening and personal skills testing.”96 In a recent course, DynCorp’s sub-contractor provided the law enforcement personnel with approximately 133 hours of training prior to deployment.97 This consisted of one hour for human rights, one hour for trafficking in persons and one hour for rule of law. There was however eight hours for sexual harassment training indicating the importance of that issue and accompanying laws in the United States.98 The remainder of the training continues to be primarily focused on screening, weapons and operational training. D. EFFECTIVENSS OF TRAINING While it is always difficult to assess whether training programs are effective, the key benchmark is whether they result in fewer, or ideally no, human rights abuses. While the United Nations does provide model training programs, 93 Fact Sheet: The United States and International Civilian Policing, U.S. Department of State, Bureau for International Narcotics and Law Enforcement Affairs, (May 18, 2005) at http://www.state.gov/p/inl/rls/fs/47799.htm. 94 Rachel Bronson, When Soldiers Become Cops, FOREIGN AFF., at 122 (Nov.–Dec. 2002). This dollar amount obviously does not reflect the money paid to DynCorp for its contract work in this field regarding Afghanistan and Iraq. 95 Id. 96 Robert M. Schoenhaus, Training for Peace and Humanitarian Relief Operations: Advancing Best Practices, United States Institute of Peace Peaceworks No. 43, at 27 (Apr. 2002). 97 Interview on file with authors (Jan. 2007). 98 This may also reflect lawsuits filed against DynCorp for the sexual misconduct of its personnel. See Andrew Higgins, As it Wields Power Abroad, U.S. Outsources Law and Order Work, WALL ST. J., Feb. 2, 2004, at A1.

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more than 70 individual contributing states are responsible for training their own personnel, and accordingly, the effectiveness and level of training may vary.99 In addition, UNPOL and military members serve under different rules and disciplinary regimes, which can complicate both training and accountability.100 Also, many countries continue to train using the 1995 UN guidelines, which assume that UNPOL will be unarmed, rather than training them in missions where they may have executive authority and will be armed, such as Kosovo and East Timor.101 1. Misconduct As a result of these and many other challenges, and despite the myriad training and enforcement efforts to date, there have been significant incidents of misconduct by international personnel participating in PSOs. These have occurred in Bosnia-Herzegovina (BiH), Burundi, Côte d’Ivoire, Haiti, Kosovo, Liberia, and perhaps most notably, in the DRC.102 Sexual exploitation and abuse alone have occurred in BiH, Kosovo, Cambodia, East Timor, West Africa and the DROC.103 While more recent PSOs have benefited from some lessons of those earlier in time, unfortunately, history has repeated itself in certain operations and the United Nations has not been able to adequately ensure that international personnel will comply with UN human rights standards and training. A few illustrative examples are provided below. 2. Case Studies a.

Balkans

During the mid-1990s, the influx of international personnel responding to the conflict in the Balkans resulted in an increase in prostitution, brothels and trafficking in women, especially in BiH. UN personnel were implicated in involvement with trafficked women and in prostitution, requiring the United Nations to take action. In certain instances, this resulted in disciplinary measures, including repatriation of individuals, but more broadly required the Untied

99

PERITO, supra note 50, at 93. Comprehensive review of the whole question of peacekeeping operations in all their aspects, UN GAOR, 59th Sess., Agenda Item 77, UN Doc. A/59/710, at 13–15 (Mar. 24, 2005) [hereinafter Sexual Abuse Report]. 101 PERITO, supra note 50, at 93. 102 RAUSCH, supra note 31, at 152. 103 Sexual Abuse Report, supra note 100, at 7. 100

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Nations to augment education and training on trafficking and sexual abuses. Kosovo also saw an increase in trafficking in women and prostitution as international peacekeepers flooded in.104 To address this, and perhaps learning from the BiH experience, the UNMIK police created a code of conduct and an internal investigative unit. The police commissioner also enforced a strict disciplinary regime from the beginning of the operation, which included repatriation where appropriate.105 b. Sierra Leone West Africa and MONUC had perhaps the most significant allegations of sexual abuse. Following allegations, raised by Human Rights Watch, of sexual violence committed by personnel assigned to UNAMSIL, which included the rape of a 12-year old girl by a Guinean-contingent member and the gang rape of a woman by Ukrainian-contingent members,106 the UN Security Council in 2002, in Resolution 1436, encouraged UNAMSIL to continue its programs for acts of sexual exploitation and abuse, and also called on states concerned to take “necessary measures to bring to justice their own nationals responsible for such crimes.”107 Appropriate responses by donor nations comprise a key element to better ensure accountability. This is discussed more fully in the next section. In addition, on October 15, 2003, the Secretary-General also promulgated a comprehensive set of mandatory rules prohibiting sexual exploitation and abuse.108 c.

Democratic Republic of the Congo

Despite the increased focus and prohibition on such abuse, in early 2004, allegations of sexual exploitation and abuse began to hit the media involving the MONUC in the DRC. In the region of Bunia alone, there were 72 allegations of sexual exploitation and abuse that were investigated by the UN Office of Internal Oversight Services between June 2004 and September 2004—of which eight were corroborated.109 The United Nations dispatched a DPKO/Office 104

RAUSCH, supra note 31, at 152. Id. 106 Irin-News, Our Bodies—Their Battle Ground: Gender-based Violence in Conflict Zones, IRIN I N-D EPTH (2007), available at http://www.irinnews.org/InDepthID=20&ReportId=62822. 107 SC Res. 1436 (Sept. 24, 2002). 108 Sexual Abuse Report, supra note 100, at 7. 109 Sixteenth report of the Secretary-General on the United Nations Mission in the Democratic Republic of the Congo, at 15, UN Doc. S/2004/1034 (Dec. 31, 2004). 105

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of Human Resources team to MONUC to examine the specific allegations brought against military and civilian personnel in other areas of the mission as well, initiated an awareness campaign in the mission and developed measures to provide medical and psychosocial assistance to the victims of abuse.110 As a result of the actions, MONUC staff members were placed on suspension, and at least one international civilian staff member was repatriated home for criminal trial on charges of rape, sexual aggression, corruption of female minors and possession of pornographic pictures of female minors.111 3. The United Nations Responds on Sexual Exploitation and Abuse Following the allegations of abuse in the DRC, the Secretary-General announced an across-the-board “zero tolerance” policy for sexual exploitation and abuse, and the UN Headquarters established an interdepartmental task force to coordinate actions and responses to allegations of sexual exploitation and abuse committed by personnel involved in peacekeeping missions, sought measures to prevent such abuse, and developed a program to handle long-term policy issues.112 In July, 2004, the Secretary-General further requested that the Permanent Representative of Jordan, Prince Zeid Ra’ad Zeid Al-Hussein, serve as his adviser in addressing sexual exploitation and abuse committed by all categories of personnel in peacekeeping contexts.113 Given the number of alleged abuses, the Secretary-General commissioned Prince Zeid to issue a report in March 2005 exploring the allegations and recommending ways to ensure accountability.114 In the cover letter by the Secretary-General to Prince Zeid’s report, he acknowledged that UN personnel had engaged in “unconscionable conduct” and that it was clear that previous measures to prevent sexual exploitation and abuse were “manifestly inadequate.”115 The report concluded that sexual exploitation and abuse were widespread in peacekeeping operations and that the United Nation’s efforts to combat the abuse were not adequate.116 The report identifies as a key problem the fact that different rules and disciplinary procedures apply for military personnel and UNPOL and recommends that all personnel be bound by the same mandatory prohibitions set out by the Secretary-General in 2003. 117 It also made additional recommendations for how to strengthen 110 111 112 113 114 115 116 117

Id. at 15–16. Id. at 16. Id. Id. RAUSCH, supra note 31, at 153. Sexual Abuse Report, supra note 100, at 1. Id. at 9. See also, RAUSCH, supra note 31, at 153. Id. at 10, 13–14.

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accountability through improved investigations, using qualified personnel in sex crimes and crimes against children, and the establishment of memoranda of understanding between contributing nations and the United Nations on investigations. 118 It further advocated greater transparency, including the idea of holding courts martial on site in areas where abuse has occurred, victim assistance and increased criminal prosecution for offenders.119 The United Nations continued its efforts in 2006 and prepared a comprehensive report on sexual exploitation and sexual abuse in May,120 and in October, the Secretary-General commissioned a group of legal experts to consider options for strengthening the policy of zero tolerance for abuse.121 This legal expert group considered whether it was possible to standardize the binding obligations on all UN personnel and concluded that it did not.122 However, it concluded that it was possible and necessary to standardize the conduct cards that all personnel carry.123 While it is true that the vast majority of international personnel engaged in PSO comply with UN and other international human rights standards, there are some who abuse their positions of authority.124 When this occurs, it is essential that the perpetrators are held accountable in transparent procedures in order to maintain the credibility and integrity of the peace operation as a whole.125 Some of these mechanisms are set forth in the following section. E.

ENFORCEMENT AND DISCIPLINARY MECHANISMS

To better ensure that UN personnel comply with human rights standards guidelines, and associated training, a robust program of enforcement and disciplinary mechanisms must be in place. The United Nations established such a 118

Id. at 13–16. Id. at 16–31. 120 Comprehensive report prepared pursuant to General Assembly resolution 59/726 on sexual exploitation and sexual abuse, including policy development, implementation and full justification of proposed capacity on personnel conduct issues, UN GAOR, 60th Sess., Agenda Item 136, UN Doc. A/60/862 (2006). 121 Secretary-General Appoints Legal Expert Group Aimed at Strengthening Peacekeeping Zero Tolerance Policy on Sexual Exploitation, UN Doc. SG/A/1023, PKO/148, DPKO (2006), available at http://www.un/org/News/Press/docs/2006/sga1023/ doc/htm. 122 Making the standards contained in the Secretary-General’s bulletin binding on contingent members and standardizing the norms of conduct so that they are applicable to all categories of peacekeeping personnel, UN GAOR, 61st Sess., Agenda item 33, UN Doc. A/61/645 (2006). 123 Id. 124 RAUSCH, supra note 31, at 153. 125 Id. 119

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program through its various bulletins, guidance and directives. This section provides a detailed description of the current directives and policies that ensure a fair and independent investigation is initiated and that effective disciplinary measures are taken. 1. UN Police Officers and Military Observers The United Nations developed a series of directives to ensure that allegations of serious or other misconduct by its personnel engaged in peacekeeping or other field missions are conducted in a consistent, thorough and effective manner. When allegations of misconduct arise regarding police officers and military observers, the applicable directive is the “Directive for Disciplinary Matters Involving Civilian Police Officers and Military Observers” 126 (Disciplinary Directive for Civilian Police Officers and Military Observers). When human rights violations rise to the level where possible disciplinary action is needed, the rules applied for misconduct are followed. a.

Serious Misconduct

For police officers and military observers cases of “serious misconduct” is defined as: [a]ny act, omission, or negligence, including criminal acts, that is a violation of mission standard operating procedures, directives, or any other applicable rules, regulations or administrative instructions, that results in or is likely to result in serious damage or injury to an individual or to the mission. Serious misconduct includes, but is not limited to: — Sexual abuse and exploitation of any individual, particularly children; — Harassment, including sexual harassment; — Abuse of authority; — Excessive use of force; — Unlawful discharge of firearms; — Breach of confidentiality; — Abuse of United Nations privileges and immunities; — Conduct prejudicial to good order and discipline; 126 Directives for Disciplinary Matters Involving Civilian Police Officers and Military Observers, UN Docs. DPKO/CPD/DDCPO/2003/001 and DPKO/MD/03/00994 (2003) available at http://www.peacewomen.org/un/pkwatch/discipline/CivpolandUNMOs Directives.pdf.

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— — — — — — —

Driving while intoxicated or other grossly negligent driving; Intoxicated while on duty or in public on repeated occasions; Repeatedly absent from duty without permission; Use, possession or distribution of illegal narcotics; Embezzlement or other financial malfeasance; Willful disobedience of a lawful order; Unlawful acts (e.g. theft, fraud, smuggling, bribery) on or off United Nations premises, with or without the involvement of United Nations vehicles and whether or not the individual was officially on duty at the time of the offence.127

When allegations of serious misconduct arise against police officers or military observers, the Head of Mission is to be notified immediately and must initiate a preliminary investigation.128 This is to take place, including a determination on administrative action to be taken, before the individual is permitted to leave the mission or is repatriated home.129 The preliminary investigation, when possible, must be conducted by officials with relevant expertise in the type of misconduct being investigated and “in accordance with internationally recognized principles of due process and fairness.”130 It should also be conducted with respect to confidentiality, and unauthorized disclosure can result in disciplinary measures against the investigating team.131 Interviews must be conducted in the preferred language of the individual, and minors shall only be interviewed in the presence of an adult of their choice.132 Evidence collected during the preliminary investigation must be logged in, with a description of how and where it was collected, and placed in a secure location.133 At the conclusion of the preliminary investigation, a report is prepared that contains findings of fact134 and all of the evidence, statements and other relevant records.135 If the preliminary investigation indicates that serious misconduct may have occurred, the Head of Mission must report to UN Headquarters, which then must notify the national authorities of the country concerned, and the Head of Mission must convene a Board of Inquiry.136 The latter should begin within 48 to 72 hours after the preliminary investigation is completed and is designed to establish the facts of the case, deter127 128 129 130

Id. at 2–3. Id. at 4. Id. Id. at Annex B: Guidelines for Preliminary Investigations, at 14 hereinafter

Annex B]. 131 132 133 134 135 136

Id. at Annex B, at 15. Id. at Annex B, at 16. Id. at Annex B, at 20–21. Id. at Annex B, at 22–23. Id. at 5. Id.

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mine cause and responsibility of the incident, and make recommendations for appropriate administrative action, including repatriation as appropriate. 137 The Board of Inquiry is not a judicial process and does not consider questions of legal liability; however, it may assist the participating state in its own investigation of the event in accordance with national disciplinary proceedings.138 It is composed of at least three impartial, senior officials who serve in their individual capacities and are appointed by the Head of Mission with consideration to gender and geographic representation.139 The Board’s final report, including its recommendations, are reviewed by the Head of Mission in consultation with any appropriate personnel, such as the Mission Legal Officer or Medical Adviser prior to a determination of the action to be taken.140 The report is forwarded to the UN Headquarters in New York, including the decision of the Head of Mission and a determination of measures that will be taken to implement the decision. The Head of Mission also must notify the commanders or other supervisors charged with maintaining discipline so that any disciplinary measures decided upon are imposed.141 UN administrative and disciplinary actions may include removal from command position, deployment to another position, removal of UN personnel benefits, suspension of leave or time off, recovery of mission subsistence allowance in cases of financial loss to the United Nations, repatriation, or written censure or reprimand, which may include a recommendation that the individual not be eligible for future assignment with the United Nations.142 Additionally, the individual may be subject to national disciplinary proceedings, and accordingly, the report of the misconduct and action that was taken must be forwarded to UN Headquarters so that they may notify the Permanent Mission concerned.143 If an individual departs the mission without authorization, the members state will be required to return him/her to the mission to facilitate the disciplinary process. Conversely, if his/her continued presence at the mission is harmful to staff morale, then he/she should be repatriated as quickly as possible.144 b. Minor Misconduct For civilian police officers and military observers cases of “minor misconduct” is defined as: “[a]ny act, omission, or negligence, including criminal acts, that is a violation of mission standard operating procedures (SOPs), direc137 138 139 140 141 142 143 144

Id. Id. Id. Id. Id. at 6. Id. Id. Id. at 7.

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tives, or any other applicable rules, regulations or administrative instructions, but which does not result in or is not likely to result in major damage or injury to any individual or the mission.”145 Examples include improper uniform appearance, neglect in performance of duty, public intoxication or intoxication while on duty, negligent driving, malingering and absence from duty without permission. 146 Minor misconduct committed by police officers and military observers is handled by their commanders or other supervisors per the ordinary rules, mission directives and other administrative procedures.147 2. Military Members of National Contingents When allegations of misconduct arise regarding military members of national contingents, the applicable directive is the Directive for Disciplinary Matters Involving Military Members of National Contingents148 (Disciplinary Directive for Military Members). This lays out similar procedures as set forth in the previous section regarding the disciplinary procedures for police officers and military observers. a.

Serious Misconduct

For military members of national contingents, the definition of “serious misconduct” is the same for police officers and military observers. 149 The procedures for conducting a preliminary investigation and a board of inquiry are also the same with a few minor exceptions on notification. In the case of military members of national contingents, if a board of inquiry is conducted, this does not rule out any measures that the national contingent commander may take on an interim basis or the conduct of a national investigation in accordance with that nation’s rules and procedures.150 b. Minor Misconduct For military members of national contingents, acts of “minor misconduct” are defined similarly; however, they are handled differently. While police and 145

Id. at 3. Id. 147 Id. at 2. 148 Directives for Disciplinary Matters Involving Military Members of National Contingents, UN Doc. DPKO/MD/03/00993 (2003), available at http://www.peacewomen.org/u/pkwatch/discipline/MilitaryDirectives.pdf. 149 Id. at 2. 150 Id. at 5. 146

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military observer cases are handled by their commanders or other supervisors within the UN system,151 for those military members of national contingents, the responsibility for taking action normally falls to the national contingent commander, as stipulated in national military laws and guidelines, and in conformity with mission directives and other administrative procedures.152 c.

Legal Status

One key area of distinction between police officers, military observers and the military members of national contingents is in the legal status they retain while serving in the UN peacekeeping or other field operation and are charged with a criminal offense. Military members of national contingents are subject to the exclusive jurisdiction of their participating state for any criminal offense that they commit within the mission.153 They are immune, however, for all acts performed by them in their official capacity.154 These military members of national contingents are subject to civil disputes or claims in the host nation that are not related to their official functions.155 Police and military observers enjoy a slightly different legal status and benefit from the status of “experts of performing missions” for the United Nations, which provides immunity for any official acts they perform.156 This privilege derives from the 1946 Convention on the Privileges and Immunities of the United Nations.157 Apart from this, which the SecretaryGeneral can and must waive if immunity would “impede the course of justice,” police officers and military observers are subject to the jurisdiction of the host country or territory for the criminal offenses they commit as well as the civil disputes or claims that are not related to their official duties.158 3. Sexual Harassment or Sexual Exploitation While sexual abuse is a violation of human rights, sexual harassment and exploitation are also taught in the human rights curriculum. The United Nations has issued the same directive applicable to police officers, military observers 151 Directives for Disciplinary Matters Involving Civilian Police Officers and Military Contingents, supra note 126, at 2. 152 Directives for Disciplinary Matters Involving Military Members of National Contingents, supra note 148, at 2. 153 Id. at 3. 154 Id. at 4. 155 Id. 156 Directives for Directive for Disciplinary Matters Involving Civilian Police Officers and Military Contingents, supra note 126, at 4. 157 Id. 158 Id.

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and military members of national contingents, which is the Directive on Sexual Harassment in United Nations Peacekeeping and Other Field Missions 159 (Directive on Sexual Harassment). The UN authorities on sexual harassment derive from Article 8 of the UN Charter, stating that “[t]he United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.”160 It is in this vein that the UN continues to foster a workplace free of harassment or intimidation. 161 The UN Personal Code of Conduct for Blue Helmets and other training seeks to prevent field personnel from engaging in behavior that would be considered sexual harassment, such as deliberate and unsolicited physical conduct, comments and sexual innuendoes or unwelcome compliments.162 Field mission personnel are expected to understand and respect local culture and customs to ensure that they avoid behavior that could be construed as sexual harassment.163 When allegations of sexual harassment arise, there are both informal methods of resolution, including counseling or mediation, and a formal method of resolution that involves the filing of a written complaint, an investigation and the possibility of sanctions. 164 Individuals who have engaged in sexual harassment may be subject to repatriation and/or criminal charges depending upon the circumstances.165 In the event that criminal charges are appropriate, the procedures for criminal action laid out in Sections E.1 and E.2 with respect to civilian police, military observers and military members of national contingents would be followed. 4. Public Information Allegations regarding human rights related misconduct brought against UN personnel can undermine an otherwise successful mission. This poses a serious public information and image problem for the United Nations.166 When

159 Directive on Sexual Harassment in United Nations Peacekeeping and Other Field Missions, UN Docs. DPKO/MD/03/00999, and DPKO/CPD/DSHCPO/2003/002 (2003). 160 Id. at 2. See also UN Charter art. 8. 161 Id. at 2. 162 Id. at 3. 163 Id. 164 Id. at 5–9 and Annex A (which provides complete guidelines for investigations of sexual harassment complaints). 165 Id. at 8. 166 Public Information Guidelines for Allegations of Misconduct Committed by Personnel of UN Peacekeeping and Other Field Missions, UN Docs. DPKO/MD/03/00996 and DPKO/CPD/DPIG/2003/001 (2003), available at http://www.peacewomen.org/ un/pkwatch/discipline/PublicInformationGuidelines.pdf.

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such allegations are made, there is generally widespread media coverage.167 The United Nations has developed a public information strategy that seeks to convey a message of “zero tolerance” for abuse, promotes transparency in providing information to victims and families, attempts to dispel rumors with fact and encourages accurate reporting.168 While UN spokespeople cannot comment on details of pending investigations, they are encouraged to lay out steps that have been taken in an investigation, provide details on the applicable legal jurisdiction and administrative procedures available to take action in the event of misconduct and demonstrate the importance that the United Nations attaches to seeing that justice is served.169 F.

RECOMMENDATIONS

The United Nations continues to follow through on the goal of integrating human rights concepts across all fields. Law enforcement personnel must not only follow human rights standards, but should also promote them, depending on the PSO mandate, in a variety of ways, including: reporting, investigating and verifying violations; promoting and protecting civil, cultural, economic, political and social rights; promoting rule of law; assisting accountability and reconciliation mechanisms to address impunity; collaborating with the international community; conducting human rights training; addressing human rights concerns in conflict environments such as trafficking in persons, child soldiers and displaced persons; identifying ways to reintegrate former combatants into society. This chapter has outlined many of these efforts, though there is still room for improvement. One suggestion put forth to improve UNPOL is to create a standing UN Police Force.170 However, short of this ideal situation, the international community must continue to advance the role of human rights for law enforcement within a PSO. In order to better achieve this goal the following recommendations are proposed: 1.

2.

167 168 169 170

In the absence of a standing force, the United Nations must continue to strive towards establishing a pool of officers trained and physically capable of performing PSOs in accordance with international human rights standards. Human rights training should be cross-cutting and should not be conducted as a separate topic. “Every aspect of policing, from stops and

Id. at 2. Id. Id. at 3–4. PERITO, supra note 50.

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searches, making arrests, conducting interrogations and securing the crime scene, should include human rights principles and practices.”171 3. For each respective mission, police must be trained in the local criminal procedures, applicable municipal or local human rights laws, and respective complaint procedures of the PSO host nation. 4. Regional organizations should augment member state and UN training when possible. 5. A national point of contact must be available to ensure and verify that police identif ied for a UN mission meet human rights standards. 172 Additionally, the same, or another point of contact, must be available to ensure appropriate follow-up when disciplinary measures are initiated. 6. Specific attention must be paid to the particular need of women during a PSO. This would include understanding of trafficked women, local culture and violence against women and sexual abuse. The United Nations should immediately implement all of the recommendations from Prince Zeid’s report on accountability for sexual exploitation and abuse, as endorsed by the General Assembly and Legal Experts group of 2006. 7. Training for all PSO personnel on trafficking in persons must include a discussion of its relationship to organized crime, which also negatively impacts the mission’s success.173 8. Agreements with host nations and those agreements brokered between factions in conflict must include requirements to adhere to human rights norms.174 9. An adequate level of training both upon entry and continued training opportunities throughout the mission in order to reflect on progress must be ensured. It is inevitable that personnel will arrive on mission with less than ideal training; therefore, it is imperative that an individual is identified on the mission staff who is prepared to provide the SGTM curriculum to all law enforcement personnel. 10. The DPKO must update and broaden the SGTM to integrate human rights into all facets of the PSO training.175 171

O’Neill, supra note 60, at 4–5. Amnesty International Report, 15-Point Program for Implementing Human Rights in International Peace-keeping Operations, at Recommendation 8 (Dec. 2006), available at http://web.amnesty.org/pages/aboutai-recs-peace-eng. 173 UN Interregional Crime and Justice Research Institute, Trafficking in Human Beings and Peace-Support Operations. Pre-deployment/In-service Training Program for International Law-enforcement Personnel. Trainer’s Guide 2 (2006), available at http://www.childtrafficking.com. 174 Id. at Recommendation 3. 175 Final Report of the 12th Annual Conference of the International Association of Peacekeeping Training Centers (IAPTC), at 24. The conference was held October 172

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11. It must be ensured that the social composition of the police force adequately reflects that of society.176 12. Police units must have the ability conduct internal investigations regarding alleged abuse by police.

17–20, 2006, at Chile’s Joint Center for Peace Operations (CECOPAC). The report is available at http://www.iaptc.org/IAPTC%20Summary%202006.doc. 176 RAUSCH, supra note 31, at 24.

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Appendix A The Code of Conduct, which is directed towards military personnel provides: 1. Dress, think, talk, act and behave in a manner befitting the dignity of a disciplined, caring, considerate, mature, respected, and trusted soldier, displaying the highest integrity and impartiality. Have pride in your position as a peacekeeper and do not abuse or misuse your authority. 2. Respect the law of the land of the host country, their local culture, traditions, customs and practices. 3. Treat the inhabitants of the host country with respect, courtesy and consideration. You are there as a guest to help them and in so doing will be welcomed with admiration. Neither solicit or accept any material reward, honor or gift. 4. Do not indulge in immoral acts of sexual physical or psychological abuse or exploitation of the local population or UN staff, especially women and children. 5. Respect and regard the human rights of all. Support and aid the infirm, sick and weak. Do not act in revenge or with malice, in particular when dealing with prisoners, detainees or people in your custody. 6. Properly care for and account for all UN money, vehicles, equipment and property assigned to you and do not trade or barter with them to seek personal benefits. 7. Show military courtesy and pay appropriate compliments to all members of the mission, including other UN contingents regardless of their creed gender, rank or origin. 8. Show respect for and promote the environment, including the flora and fauna of the host country. 9. Do not engage in excessive consumption of alcohol or traffic in drugs. 10. Exercise the utmost discretion in handling confidential information and matters of official business which can put lives into danger or soil the image of the United Nations. “WE ARE UNITED NATIONS PEACEKEEPERS” which is directed towards all peacekeepers, both civilian and military embodies much of the Code of Conduct and provides the following:

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We will always: – – – – – – – – – – – – – –

Conduct ourselves in a professional and disciplined manner, at all times; Dedicate ourselves to achieving the goals of the United Nations; Understand the mandate and the mission and comply with their provisions; Respect the environment of the host country; Respect local customs and practices through awareness and respect for the culture, religion, traditions and gender issues; Treat the inhabitants of the host country with respect, courtesy and consideration; Act with impartiality, integrity and tact; Support and aid the infirm, sick, and weak; Obey our United Nations superiors and respect the chain of command; Respect all other peace-keeping members of the mission regardless of status, rank, ethnic or national origin, race, gender, or creed; Support and encourage proper conduct among our fellow peace-keepers; Maintain proper dress and personal department at all times; Properly account for all money and property assigned to us as members of the mission; and Care for all UN equipment placed in our charge.

We will never: –

– – – – – –

– – – – – – –

Bring discredit upon the United Nations, or our nations through improper personal conduct failure to perform our duties or abuse of our positions as peace-keepers; Take any action that might jeopardize the mission; Abuse alcohol, use or traffic in drugs; Make unauthorized communications to external agencies, including unauthorized press statements; Improperly disclose or use information gained through our employment; Use unnecessary violence or threaten anyone in custody; Commit any act that could result in physical, sexual or psychological harm or suffering to members of the local population, especially women and children; Become involved in sexual liaisons which could affect our impartiality, or the well-being of others; Be abusive or uncivil to any member of the public; Willfully damage or misuse any UN property or equipment; Use a vehicle improperly or without authorization; Collect unauthorized souvenirs; Participate in any illegal activities, corrupt or improper practices; or Attempt to use our positions for personal advantage, to make false claims or accept benefits to which we are not entitled.

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We realize that the consequences of failure to act within these guidelines may: – – –

Erode confidence and trust in the United Nations; Jeopardize the achievement of the mission; and Jeopardize our status and security as peacekeepers

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Appendix B The Code of Conduct for Law Enforcement Officials.177 Article 1 Law enforcement officials shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. Commentary: (a) The term “law enforcement officials,” includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention. (b) In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services. (c) Service to the community is intended to include particularly the rendition of services of assistance to those members of the community who by reason of personal, economic, social or other emergencies are in need of immediate aid. (d) This provision is intended to cover not only all violent, predatory and harmful acts, but extends to the full range of prohibitions under penal statutes. It extends to conduct by persons not capable of incurring criminal liability. Article 2 In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons. Commentary: (a) The human rights in question are identified and protected by national and international law. Among the relevant international instruments are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected 177 The Code of Conduct for Law Enforcement Officials, GA Res. 34/169 (Dec. 17, 1979), available at http://www.unhchr.ch/html/menu3/b/h_comp42.htm. See also Council of Europe Resolution 690, EUR. PARL. ASS., (1979) on the Declaration on the Police adopted May 8, 1979, available at http://www.coe.int/t/e/human_rights/police/5._ reference_documents/b._Resolution_690_(1979)_on_Decl_police.asp.

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to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention on the Prevention and Punishment of the Crime of Genocide, the Standard Minimum Rules for the Treatment of Prisoners and the Vienna Convention on Consular Relations. (b) National commentaries to this provision should indicate regional or national provisions identifying and protecting these rights. Article 3 Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. Commentary: (a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used. (b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved. (c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities. Article 4 Matters of a confidential nature in the possession of law enforcement officials shall be kept confidential, unless the performance of duty or the needs of justice strictly require otherwise.

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Commentary: By the nature of their duties, law enforcement officials obtain information which may relate to private lives or be potentially harmful to the interests, and especially the reputation, of others. Great care should be exercised in safeguarding and using such information, which should be disclosed only in the performance of duty or to serve the needs of justice. Any disclosure of such information for other purposes is wholly improper. Article 5 No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment. Commentary: (a) This prohibition derives from the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly, according to which: “[Such an act is] an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights [and other international human rights instruments].” (b) The Declaration defines torture as follows: “. . . torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.” (c) The term “cruel, inhuman or degrading treatment or punishment” has not been defined by the General Assembly but should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.

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Article 6 Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. Commentary: (a) “Medical attention,” which refers to services rendered by any medical personnel, including certified medical practitioners and paramedics, shall be secured when needed or requested. (b) While the medical personnel are likely to be attached to the law enforcement operation, law enforcement officials must take into account the judgment of such personnel when they recommend providing the person in custody with appropriate treatment through, or in consultation with, medical personnel from outside the law enforcement operation. (c) It is understood that law enforcement officials shall also secure medical attention for victims of violations of law or of accidents occurring in the course of violations of law. Article 7 Law enforcement officials shall not commit any act of corruption. They shall also rigorously oppose and combat all such acts. Commentary: (a) Any act of corruption, in the same way as any other abuse of authority, is incompatible with the profession of law enforcement officials. The law must be enforced fully with respect to any law enforcement official who commits an act of corruption, as Governments cannot expect to enforce the law among their citizens if they cannot, or will not, enforce the law against their own agents and within their agencies. (b) While the definition of corruption must be subject to national law, it should be understood to encompass the commission or omission of an act in the performance of or in connection with one’s duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful receipt of these once the act has been committed or omitted. (c) The expression “act of corruption” referred to above should be understood to encompass attempted corruption.

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Article 8 Law enforcement officials shall respect the law and the present Code. They shall also, to the best of their capability, prevent and rigorously oppose any violations of them. Law enforcement officials who have reason to believe that a violation of the present Code has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power. Commentary: (a) This Code shall be observed whenever it has been incorporated into national legislation or practice. If legislation or practice contains stricter provisions than those of the present Code, those stricter provisions shall be observed. (b) The article seeks to preserve the balance between the need for internal discipline of the agency on which public safety is largely dependent, on the one hand, and the need for dealing with violations of basic human rights, on the other. Law enforcement officials shall report violations within the chain of command and take other lawful action outside the chain of command only when no other remedies are available or effective. It is understood that law enforcement officials shall not suffer administrative or other penalties because they have reported that a violation of this Code has occurred or is about to occur. (c) The term “appropriate authorities or organs vested with reviewing or remedial power” refers to any authority or organ existing under national law, whether internal to the law enforcement agency or independent thereof, with statutory, customary or other power to review grievances and complaints arising out of violations within the purview of this Code. (d) In some countries, the mass media may be regarded as performing complaint review functions similar to those described in subparagraph (c) above. Law enforcement officials may, therefore, be justified if, as a last resort and in accordance with the laws and customs of their own countries and with the provisions of article 4 of the present Code, they bring violations to the attention of public opinion through the mass media. (e) Law enforcement officials who comply with the provisions of this Code deserve the respect, the full support and the co-operation of the community and of the law enforcement agency in which they serve, as well as the law enforcement profession.

CHAPTER 15 THE NATO POLICY ON HUMAN TRAFFICKING: OBLIGATION TO PREVENT, OBLIGATION TO REPRESS Roberta Arnold*

A. INTRODUCTION According to data collected by the United Nations’ Mission in Kosovo (UNMIK), in 2004, there were approximately 200 brothels suspected of involvement in the illegal trafficking of human beings.1 As a consequence, the United Nations entrusted operators in the field, in particular the Trafficking and Prostitution Unity of UNMIK’s Police (TPIU), to make a list of clubs, restaurants and other suspected places to be constantly updated and distributed to all UN personnel as “off limits areas.”2 Victims of trafficking prevalently come from countries like Moldova, Romania and Ukraine3 and, in a minor percentage, from Bulgaria, Albania, Kosovo and Russia. The majority reaches Kosovo via Serbia, after having been carefully selected in tailor-made “markets” located in Belgrade and other Serbian towns. According to many witness reports, many girls get raped and brutalized in their enslavement process. The price may vary, for a young girl, between 750.- and 2500.- Euro. It will be then the victims’ debt to repay their “purchasers,” by devolving them of all the earnings made with their enforced prostitution.4 According to recent estimates by the North * PhD (Bern), LLM (Nottingham), former legal adviser at the Swiss Department of Defense, Laws of Armed Conflict Section; Specialist Officer within the Swiss Military Justice, candidate investigating magistrate. 1 The definition of human trafficking is provided by Elizabeth Rennie, Trafficking in Human Beings Reduction Strategies for Law Enforcement in Peace Support Operations, Chapter 17 of this book. 2 As a result of TPIU investigations, numerous establishments have been identified as accommodating trafficked women. As of April 2003, 203 establishments were listed as off limits and forbidden to all international staff in Kosovo. See First Annual Report of RCP (Regional Clearing Point) on victims of trafficking in South Eastern Europe, at 140 (2003). 3 UNMIK, Combating Human Trafficking in Kosovo, Strategy and Commitment, May 2004, at 3 (May 2004). 4 Id. 351

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Atlantic Treaty Organization (NATO), this trade generates some seven billion Euros a year for the criminals engaged in it. Somewhere between 400,000 and 800,000 people, mostly women and children, are engaged in the trafficking of human beings, and nearly 130 countries are involved in this trade. It seems that southeast Europe, where NATO is engaged both politically and militarily, is one of the areas where this activity is primarily concentrated.5 Many girls get recruited with false promises about the prospective of a well-paid job, a marriage or an invitation to go abroad, or even, at times, with force (kidnappings). Very often the recruiters are acquaintances or relatives who exploit their knowledge of the girls’ financial and social situations, by tricking them with the false promises of a better life abroad. This type of trade, in fact, flourishes in particular in economically depressed areas, characterized by major gaps between different social classes. Consequently, fervent activity can be found in countries trying to reemerge from the ruins of an armed conflict. Those who used to enrich themselves with the illegal trade of weapons and other goods during the conflict are normally those leading the trafficking business in post-conflict scenarios. The “clientele” and the “goods” may have changed, not the traders. It has been ascertained that human trafficking tends to flourish in post-conflict areas where peacekeeping troops or personnel working for international organizations (IO) are present. Although it is less likely that such personnel are directly involved in the trafficking, on the other hand, as potential “clients” of the victims of trafficking, on the basis of the economics rule according to which the offer depends on the request, it has been recognized that they may become part of the problem by soliciting this type of activity. It is a matter of fact that peacekeeping theaters are fertile zones for this type of trade, also due to the fact that military and international personnel are often forced to stay away from home for protracted periods, in a predominantly male environment, with very few opportunities to establish human relationships with the local population. For instance, many experts point to the locations and names of the bars as evidence that traffickers do not only target, but also respond to the demand of international peacekeepers. In the US sector in Kosovo, there were establishments on the UN Trafficking and Prostitution Investigation Unit’s off-limits list, with names such as “Malibu Club,” “Monroe Club” and “Spaghetti.” In the French sector, there were clubs named “Café Sale” and “Café Rendezvo.” 6 This fact, combined with the urgent economic 5

NATO Speech: NATO’s anti-trafficking coordinator explains priorities NATO HQ (May 7, 2007), available at http://www.nato.int/docu/speech/2007/s070507a.html (last visited June 1, 2007). 6 See Sarah E. Mendelson, Barracks and Brothels, Peacekeepers and Human Trafficking in The Balkas, at 10 (2005), available at http://www.ceu.hu/polsci/Illicit_TradeCEU/Week10-Mendelson.pdf (last visited June 1, 2007). See also the documentary video by Karin Jurschick & Anke Schäfer, The Peacekeepers and the Women (Germany, 2003), available at http://www.wmm.com/filmcatalog/pages/c651.shtml.

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needs of the local population of peace support operations’ receiving states, is a good incentive for the development of human trafficking. Therefore, in 2004, several non-governmental organizations (NGOs) launched the alarm. Amnesty International (AI),7 for instance, drafted a report addressing the responsibility of troops involved in peace support operations (PSOs). 8 In the Democratic Republic of Congo (DRC) the United Nations opened investigations following to the alleged involvement of its personnel in the sexual exploitation of women and under-aged girls.9 According to the UN Department of Peacekeeping Operations (DPKO), between January 1, 2004, and November 21, 2006, the United Nations investigated allegations of sexual exploitation and abuse involving 319 peacekeeping personnel in all missions, resulting in the dismissal of 18 civilians and the repatriation of 17 police and 144 military personnel.10 For the same reason Wayne Hayde, Policy Analyst for DPKO, told the UN Chronicle that because of numerous cases of peacekeepers engaging in sexual exploitation, an “anti-prostitution campaign” would take place in 2007. He further said that “this is “going against the grain” to a certain degree, because prostitution is legal in many troop-contributing countries, and would require a “cultural shift” on the part of these peacekeepers.”11 Analogously, the Organization for Security and Cooperation in Europe (OSCE) and NATO decided to address the problem by introducing legislative measures and, in particular, a “zero-tolerance” policy.12 The Alliance, like the 7

AI, Kosovo (Serbia & Montenegro): So Does It Mean that We Have the Rights? Protecting the Human Rights of Women and Girls Trafficked for Forced Prostitution in Kosovo, at 1 (2004), at http://web.amnesty.org/library/print/ENGEUR700102004. 8 PSO is a term used in this chapter in the sense of an umbrella definition for all types of peace operations (peacekeeping, peace enforcement, peace-building, robust peacekeeping, etc.). 9 Kate Holt, DR Congo’s Shameful Sex Secret, BBC NEWS, June 3, 2004, available at http://news.bbc.co.uk/2/hi/africa/3769469.stm (last visited June 1, 2007); Colum Lynch, U.N. Says Its Workers Abuse Women in Congo, WASH. POST Nov. 27, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/A15363-2004Nov26.html (last visited June 1, 2007); UN News Center, Peacekeepers’ Sexual Abuse of Local girls Continuing in DR of Congo, UN Finds, Jan. 7, 2005, available at http://www0.un.org/apps/ news/story.asp?NewsID=12990&Cr=democratic&Cr1=congo (last visited June 1, 2007). 10 See John Hagen, Fighting Sexual Exploitation and Abuse by UN Peacekeepers, UN C HRON. O NLINE ED. (2006), available at http://www.un.org/Pubs/chronicle/ 2006/webArticles/121306_unp.htm (last visited June 1, 2007). 11 Id. 12 Id.: Mr. Annan reiterated his “zero-tolerance” policy toward sexual abuse, saying that UN staff members who commit such acts are being fired, and uniformed peacekeeping personnel are being sent home and barred from future service in the United Nations. He also urged senior leaders to endorse the “Statement of Commitment on Eliminating Sexual Exploitation and Abuse by UN and Non-UN Personnel,” which spells out ten concrete steps to achieving that goal,

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United Nations, recognized that the involvement of peacekeeping troops in this kind of activity is detrimental not only for the receiving state’s population, whose human rights are obviously disregarded, but also, and in particular for the image and the security of both the PSO and its personnel. The aim of this chapter is to illustrate the content of the NATO Policy on Combating Human Trafficking and its annexes (hereinafter the NATO Policy)13 and explain its impact on PSOs. The fact that such an important military organization decided to tackle the phenomenon indicates its gravity. However, NATO has no supranational authority. It is therefore important to assess the effectiveness of its policy at the national level and its implementation by NATO’s member states and allies, at the strategic and tactical level, particularly in the field. Although the core obligations under the NATO Policy are to prevent and to repress, it will be shown that the second obligation is much more difficult to implement, due to both legal and political reasons. With regard to the obligation to prevent, it will be illustrated that traditional military structures and, in particular, the observance of the chain of command, may lead to difficulties in reporting and leading to the arrest of those suspected of involvement in trafficking.14 At the same time, even military justice authorities may have difficulties in investigating reported cases, since often those suspected are simply dismissed and sent back to their sending state, with no possibility for the host state, or even the sending state, to open criminal proceedings against them. Finally, difficulties in tracking down and arresting those suspected may be linked to the training of members of international police forces or the military police of the troop contributing nations (TCN). This chapter will try to provide some guidelines and explain how the phenomenon of human trafficking may be addressed by the military and why this should be one of their priorities. Most authors tend to “sell” the topic by portraying it from the perspective of the victims. However, from the point of view of a military officer, in order to change the culture and mentality of military personnel deployed in PSOs, a better approach is to illustrate the dangers and threats to the mission hidden behind this crime. Women and children are the primary victims of human trafficking, including incorporating UN standards on sexual exploitation and abuse in induction materials and training courses for UN personnel, and preventing perpetrators from being hired for UN activities. 13 NATO Policy on Combating Trafficking in Human Beings, June 29, 2004, available at http://www.nato.int/docu/comm/2004/06-istanbul/docu-traffic.htm (last visited June 1, 2007). Appendix 1: NATO Guidelines on combating trafficking in human beings for military forces and civilian personnel deployed in NATO-led operations. Appendix 2: NATO Guidance for the development of training and educational programmes to support the policy on combating the trafficking in human beings. Appendix 3: Guidelines for NATO staff on preventing the promotion and facilitation of trafficking in human beings. 14 See Mendelson, supra note 6, at 24 and 28.

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but peacekeepers as potential customers may also become the secondary victims of the traders. In the author’s view, to explain to military personnel that human trafficking may pose a threat to them and to their mission may be more effective than trying to convince them that it constitutes a grave human rights breach of those ladies who may have comforted them during a night out on leave in a PSO. Although many peacekeepers may be well motivated and guided by high and honest moral values, it should be recalled that, in reality, many of them are mainly attracted by the good and tax-free wages promised to peacekeepers. Therefore, in order to explain why a zero-tolerance policy in this regard was required and, correctly so, adopted by NATO, this chapter will be structured as follows. After this brief introduction, the first part will explain the content of the NATO Policy on Human Trafficking15 and explain its character from a legal perspective. Section B will illustrate how the NATO Policy may be binding on peacekeeping troops, which do not belong directly to NATO but which act under the aegis of their sending state. Section C will discuss implementation of NATO’s Policy at the domestic level. The situation will be illustrated with the case of Switzerland. Section D will provide some practical tools for those engaged in the field, whereas Section E will draw the conclusions. B. THE NATO POLICY ON COMBATING TRAFFICKING IN HUMAN BEINGS In the context of NATO’s Policy, trafficking means: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat of use of force or other forms of coercion, of abduction, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.16 This definition is based on Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.17 The impact of human trafficking on PSOs, and the need to implement the NATO 15 16 17

Supra note 13. Id. See Annex 1 to NATO’s Policy, supra note 13, para. 5.

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Policy on Human Trafficking, was discussed on March 3–4, 2005, in Helsinki at a Euro-Atlantic Partnership Council Seminar organized by the Finnish ministries of Defense and Foreign Affairs on “Avoiding Military involvement in trafficking in human beings: best practices from the field,” which was attended by the author in her capacity as representative of the Swiss Defense Department. The seminar highlighted the fact that human trafficking is not simply a violation of the human rights of women, but it is, more importantly for the sending states and IOs, a serious threat to PSOs. The discussions focused on very practical aspects. In particular, the seminar highlighted four main reasons for releasing and enforcing the NATO Policy. 1. Four Good Reasons for the Release and Enforcement of the NATO Policy The NATO Policy recognizes that trafficking in human beings is a crime that: constitutes a serious abuse of human rights, especially affecting women and children. It is a transnational problem, requiring concerted multilateral action if it is to be defeated. Trafficking in human beings, affects countries of origin, countries of transit and countries of destination. This modern day slave trade fuels corruption and organised crime. It has the potential to weaken and destabilise fragile governments and runs counter to the goals of NATO-led efforts especially in South Eastern Europe.18 Therefore, human trafficking is certainly a crime that needs to be tackled by NATO, not only because it constitutes a serious human rights abuse, but also because, by virtue of it being a crime, it may run counter to the interest of NATO’s PSOs. In particular it may: 1. 2. 3. 4.

18

damage the image of its missions and the credibility of the troops deployed; pose a threat to the security of its missions; pose a threat to the security of its individual peacekeepers; and possibly subject military personnel of the sending state to prosecution by the host state.

NATO Policy, supra note 13, para. 1.

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Damage to the Image of the Mission and the Credibility of the Troops Deployed

PSOs are always a topic cherished by the media. Therefore, it is easily imaginable that allegations of involvement of PSO troops in human trafficking would catch the media’s attention, with the likelihood of serious repercussions at the political level, such as the decision, by some sending states, to withdraw their troops and deny renewed support to NATO in future PSOs. Thus, serious consequences are imaginable, particularly at the domestic level. For example in small countries like Switzerland, there are constant debates on the necessity to maintain a military force, viewed by some as being extremely expensive and superfluous, particularly in light of the fact that, in case of an attack, the Swiss armed forces on their own would not be able to defend the national territory. Therefore, political parties supportive of a military structure, after the end of the Cold War, had to find new arguments, like NATO, to justify its maintenance. The current trend is to argue that nowadays threats are no longer posed by traditional conflicts of a symmetric nature, but rather by phenomena like terrorism and big waves of (illegal) immigration. Consequently, a major argument is that troops should be maintained and deployed abroad, in PSOs, in order to prevent the outbreak or reinsurgence of conflicts, with consequent flows of refugees.19 The idea, therefore, is to use the military to solve the problems of these countries at the roots. This view, however, is highly criticized by several parties, which believe that the country should not invest money to send its own forces abroad to solve problems foreign thereto.20 In this climate the rumor that Swiss peacekeepers may be involved in human trafficking while deployed abroad would have an extremely negative and detrimental impact. The probable outcome would be a discussion within the Parliament to cut the budget for peacekeeping operations, with serious consequences both at domestic and international level for the military. Moreover, a very well-known motto is that every PSO or military operation needs “to win the hearts and minds” of the local population in order to be successful. The fact that peacekeepers, whose aim is to bring peace and security and to help restore war torn societies, by introducing the rule of law and the respect of human rights, may be viewed as being corrupted or engaged in illegal activities like the trafficking of human beings would certainly have a negative impact on the local population. 19 See Swiss Defense Department’s Strategic Paper on Switzerland’s military participation to PSO, released on Feb. 7, 2007, available at http://www.vbs.admin.ch/internet/vbs/de/home/aktuell/strategie_pso.ContentPar.0006.DownloadFile.tmp/Strategiepapier_ PSO_d.pdf (last visited June 1, 2007). 20 Among these is the Social Party. See the paper for their media conference of May 27, 2005, available at http://www.friedensrat.ch/images/wehrpflicht.medienmappe.sps.pdf (last visited June 1, 2007).

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b. A Threat to the Security of the Mission Human trafficking is generally in the hands of criminal organizations also engaged in the illegal trade of arms, drugs and documents.21 Human trafficking in the Balkans, for instance, is a means to finance the illegal trade of arms. In particular a report by the International Organization for Migration (IOM) indicated that in 2004, in Kosovo, human trafficking was “the third source of income after arms and drugs for the Kosovar-Albanian maf ia network.” 22 Therefore, a peacekeeper who attends brothels considered to be off limits by NATO, will indirectly, through payment for the services received, finance other illegal activities that, like the trade of arms, may be detrimental to the mission.23 In particular, as observed by NATO’s Assistant Secretary-General for Defense Policy and Planning, human trafficking: “is potentially de-stabilizing of nations and so it works against our interests in building stability and security in countries throughout the world, but particularly in Europe. There are also risks that illegal funds on this scale are potential sources of income for terrorism.”24 As reported by countertrafficking expert and former UK metropolitan police chief inspector Paul Holmes, human trafficking provides “ready cashevery day a percentage of the money is being used to buy off the compliance of corrupt officials,”25 meaning that ultimately, PSO personnel exploiting trafficked women unwittingly support those who try to jeopardize their mission by attempting to destabilize security in the theater of operation. c.

A Threat to the Security of Individual Peacekeepers

Another reason justifying a zero-tolerance policy is the threat posed by red light districts to the security of the individual peacekeeper. Soldiers attending 21 On this problem, see also Stefano Failla, Migration and Border Management in Kosovo 1999–2005 in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW 212 (Roberta Arnold & Alexander Knoops eds., 2006). See also Mendelson, supra, note 6, at 14 et seq. “the UN Office on Drugs and Crime (UNODOC) reports a link between those who traffic in persons and those who traffic in drugs. UNODOC has identified a “surge” of criminal activity during conflicts and in post-conflict areas.” 22 IOM Counter-Tracking Service, Changing Patterns and Trends of Trafficking in Persons Within, To and Through the Balkan Region, at 67 (May 2004). 23 See NATO Policy, supra note 13: “Trafficking in human beings, affects countries of origin, countries of transit and countries of destination. This modern day slave trade fuels corruption and organised crime. It has the potential to weaken and destabilise fragile governments and runs counter to the goals of NATO-led efforts especially in South Eastern Europe.” 24 NATO Speech, supra note 5. 25 See Mendelson, supra note 6, at 17.

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areas suspected of involvement in human trafficking become a very easy and vulnerable target: there is a higher threat of being killed, kidnapped, threatened or blackmailed. With regard to the Balkans, it shall be recalled that many Kosovar expatriates can now be found in most EU countries. There have been cases reported of soldiers who have been blackmailed by local people with relatives in the sending state of the blackmailed peacekeeper. Threats have included reporting to family members about the conduct of the soldier. Another security risk, which should not be underestimated, is related to health, since in the areas of operations like Kosovo, there are no structures to control, for example, the diffusion of diseases like HIV. d. Possible Prosecution Under the Host State’s Jurisdiction As discussed by Ulf Häussler,26 pursuant to Status of Forces Agreements (SOFAs), peacekeeping personnel deployed abroad are generally immune from prosecution by the host state’s judicial authorities. For instance, with regard to UNMIK and Kosovo Force (KFOR) personnel, Article 2 of Regulation 2000/47 on the Status, Privileges and immunities of KFOR and UNMIK and their personnel in Kosovo27 provides that: 2.1. KFOR, its property, funds and assets shall be immune from any legal process. 2.2 All KFOR personnel shall respect the laws applicable in the territory of Kosovo and regulations issued by the Special Representative of the Secretary-General insofar as they do not conflict with the fulfilment of the mandate given to KFOR under Security Council resolution 1244 (1999). 2.3 Locally recruited KFOR personnel shall be immune from legal process in respect of words spoken or written and acts performed by them in carrying out tasks exclusively related to their services to KFOR. 2.4 KFOR personnel other than those covered under section 2.3 above shall be: immune from jurisdiction before courts in Kosovo in respect of any administrative, civil or criminal act committed by them in the territory of Kosovo. Such personnel shall be subject to the exclusive jurisdiction of their respective sending States; and immune from any form of arrest or detention other than by persons acting on behalf of their respective sending States. If erroneously detained, they shall be immediately turned over to KFOR authorities.

26

See Chapter 4 of this book. Enacted on Aug. 18, 2000, available at http://www.unmikonline.org/regulations/2000/reg47-00.htm (last visited May 26, 2007). 27

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Interestingly, paragraph 2.2 provides that KFOR personnel shall respect the laws applicable in Kosovo, including its Provisional Criminal Code.28 Its breach may also give rise to prosecution, even though the proceedings would be led by the peacekeeper’s national judicial authorities. The fact that it is normally the sending state that retains jurisdiction over the soldier, is restated in Article 2(a) of NATO’s SOFA of June 19, 1951,29 which provides that: “The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State.” With specific reference to human trafficking, KFOR’s Statement on Prostitution and Human Trafficking provides that: –

–

–

–

KFOR is a force of 18000 soldiers and individuals may choose to break the law. All of KFOR has been informed of the law, however, military procedures are in place to process any violation of any law by KFOR soldiers. These activities are a betrayal of each soldiers’ trust and is not compatible with his goal of building a better place for all the people of Kosovo, regardless of race, ethnicity, religion, or gender. KFOR SOP 1300 prohibits the use of prostitutes and brothels within KFOR’s Area of Operations, and establishes a uniform policy to prevent KFOR soldiers from engaging in such activities. According to respective national laws, Troop Contributing Nations (TCN) have enacted regulations to prohibit the use of prostitutes and brothels in the Kosovo Area of Operations. If breaking the rules, the soldier will be turned over to his national authorities for investigation and possible prosecution.

Therefore, KFOR soldier found in breach of these rules will be turned over to their national authorities for investigation and possible prosecution. It is not to be forgotten, however, that in some cases there may be concurrent jurisdiction with the receiving state. In this regard, Article 3(a) and (b) of the NATO SOFA states that:

28

UNMIK Regulation 2003/25 of July 6, 2003, art. 139 (in force since 2004), available at http://www.unmikonline.org/regulations/2003/RE2003_25_criminal_code.pdf (last visited May 26, 2007). On their entry into force, see UN News Center, Kosovo: New Criminal Codes Come into Force in UN-Administered Province, Apr. 6, 2004, available at http://www.un.org/apps/news/storyAr.asp?NewsID=10321&Cr=Kosovo&Cr1= (last visited May 26, 2007). 29 Available at http://www.nato.int/docu/basictxt/b510619a.htm (last visited May 26, 2007).

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The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent; ii. offences arising out of any act or omission done in the performance of official l duty. In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction.

Therefore, pursuant to NATO’s SOFA, it may be argued that the sending state will retain jurisdiction only with regard to acts or omissions done “in the performance of official duty.” Engagement in human trafficking, both as an aware “customer” or, even worse, as a “trader,” is unlikely to be construed as an act or omission done in the performance of official duty, meaning that the receiving/host state may claim jurisdiction. In these cases a request for waiver of immunity will be placed, and the decision will have to be taken by the national contingent’s commander. The risk of the peacekeeper is to face prosecution according to local legislation. This is illustrated by Article 6 of Regulation 2000/47 on the Status, Privileges and immunities of KFOR and UNMIK and their personnel in Kosovo,30 pursuant to which: 6.1 The immunity from legal process of KFOR and UNMIK personnel and KFOR contractors is in the interests of KFOR and UNMIK and not for the benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any UNMIK personnel in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interest of UNMIK. In relation to personnel of the Institution-building and Reconstruction components, any waiver of immunity shall be carried out in consultation with the heads of those components. 6.2 Requests to waive jurisdiction over KFOR personnel shall be referred to the respective commander of the national element of such personnel for consideration. 6.3 Requests to waive the immunities of KFOR contractors set forth in section 4 of the present regulation shall be referred to the respective commander of the national element with which the KFOR contractor has contracted.

30 Enacted on Aug. 18, 2000, available at http://www.unmikonline.org/regulations/2000/reg47-00.htm (last visited May 26, 2007).

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In this regard, the NATO SOFA, in Article 9 specifies that: 1.

Whenever a member of a force or civilian component of a dependent is prosecuted under the jurisdiction of a receiving State he shall be entitled: a. to a prompt and speedy trial; b. to be informed, in advance of trial, of the specific charge or charges made against him; c. to be confronted with the witnesses against him; d. to have compulsory process for obtaining witnesses in his favour, if they are within the jurisdiction of the receiving State; e. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving State; f. if he considers it necessary, to have the services of a competent interpreter; and g. to communicate with a representative of the Government of the sending State and when the rules of the court permit, to have such a representative present at his trial.

It is therefore important to keep in mind that a peacekeeper engaged in such conduct may face prosecution by the receiving state’s competent authorities, where legislation may be stricter. For instance, pursuant to the Provisional Criminal Code of Kosovo, negligent conduct with regard to human trafficking is punishable:31 (1) Whoever engages in trafficking in persons shall be punished by imprisonment of two to twelve years. (2) When the offence provided for in paragraph 1 of the present article is committed against a person under the age of 18 years, the perpetrator shall be punished by imprisonment of three to fifteen years. . . . (4) Whoever negligently facilitates the commission of trafficking in persons shall be punished by imprisonment of six months to five years. (5) Whoever uses or procures the sexual services of a person with the knowledge that such person is a victim of trafficking shall be punished by imprisonment of three months to five years. (6) When the offence provided for in paragraph 5 of the present article is committed against a person under the age of 18 years, the perpetrator shall be punished by imprisonment of two to ten years. (7) When the offence provided for in the present article is committed by an official person in the exercise of his or her duties, the perpetrator shall be punished by . . . imprisonment of two to seven years in the 31

UNMIK Regulation 2003/25, supra note 28.

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case of the offence provided for in paragraphs 4 or 5 or by imprisonment of five to twelve years, in the case of the offence provided for in paragraph 6. Likewise, the Criminal Code of Bosnia and Herzegovina (BiH),32 in its chapter “Crimes Against Humanity and Values Protected by International Law,” Article 186 also provides for the criminal offense of trafficking in persons, which follows the core definition of the UN Protocol. According to it: (1) Whoever takes part in the recruitment, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to obtain the consent of a person having control over another person, for the purpose of exploitation, shall be punished by imprisonment for a term between one and ten years. (2) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article against a juvenile, shall be punished by imprisonment for a term not less than five years. (3) Whoever organizes a group of people with an aim of perpetrating the criminal offence referred to in paragraphs 1 and 2 of this Article, shall be punished by imprisonment for a term not less than ten years or longterm imprisonment. (4) Whoever acting out of negligence facilitates the perpetration of the criminal offence referred to in paragraphs 1 through 3 of this Article, shall be punished by imprisonment for a term between six months and five years. (5) “Exploitation” referred to in paragraph 1 of this Article includes, in particular, exploiting other persons by way of prostitution or of other forms of sexual exploitation, forced labour or services, slavery or slavery-like practices, serving under coercion or removal of organs for the purpose of transplantation. This is particularly so when perpetrating a criminal offense against a child or juvenile and organizing or directing a group of people with the aim of perpetrating the criminal offense of trafficking.33 Since engagement in human trafficking may be seen as a serious threat to the credibility of a PSO, it is also possible that, in the ultimate interest of the 32 Available at http://iccnow.org/documents/criminal-code-of-bih.pdf (last visited May 26, 2007). 33 See Valerie Wahl, Trafficking in Human Beings for the Purpose of Sexual Exploitation—Legal Challenges in the Fight Against Mmodern Slavery in Crisis Regions: A Case Study of Bosnia and Herzegovina, in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS 231(Roberta Arnold & Alexander Knoops eds., 2006).

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mission, the commander of the national element may decide to waive the peacekeeper’s immunity upon the receiving state’s request. 2. The Nature of the Policy The NATO Policy on Combating Human Trafficking was adopted at the Istanbul Summit of June 29, 2004. NATO recognized that trafficking in human beings is a serious abuse of human rights, especially affecting women and children. As a transnational problem, fueling corruption and organized crime, it can destabilize fragile governments and runs counter to the goals of NATO-led efforts especially in southeastern Europe. Accordingly, NATO recognized that a zero-tolerance policy, combined with education and training, is required. The NATO Policy aims to reinforce efforts by NATO and individual nations to prevent and combat trafficking. Accordingly, NATO and non-NATO TCNs (i.e., those participating in the Partnership for Peace program, PfP) have to develop and implement various measures in order to discourage the demand by their military and civilian personnel that fosters all forms of exploitation of persons. In fact, the NATO Policy per se has no legal binding effect on individual peacekeepers.34 Pursuant to it, NATO’s member states and its allies shall adopt measures to translate the policy into legally binding measures. In particular, the NATO Policy provides that: In order to ensure maximum effectiveness of the present policy, NATO nations commit themselves to ensure full national implementation of this policy. Non-NATO Troop contributing nations are expected to take similar steps upon joining a NATO-led operation. NATO personnel serving at NATO Headquarters and its Agencies as well as those taking part in NATO led operations should continue to conduct themselves with regard to the highest professional standards and with respect to national as well as international law.35 This is further highlighted in Annex I to the NATO Policy, according to which: This guidance is aimed at highlighting the general principles and activities that participating nations are expected to request from their nationals. It is not exhaustive and will require, as appropriate, specif ic implementing actions by individual nations and forces to be fully effective. This includes, where necessary, ratifying/acceding to/approving 34 See R. Arnold, NATO und Peacekeeping: neue Direktive zur Bekämpfung des Menschenhandels, 7/8 ASMZ 48–49 (2005); 35 NATO Policy, supra note note 13.

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the “UN Protocol to Prevent, Suppress and Punish Traff icking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime” and implementing its requirements, as well as ensuring implementation of the present guidelines. For the same reason, Mr. John Colston was appointed by the NATO SecretaryGeneral as the first Senior Coordinator for NATO’s efforts to combat trafficking in human beings. His role is to strengthen the Alliance’s zero-tolerance policy on trafficking in human beings.36 He will be the point of contact for NATO’s policy and will be responsible for monitoring its implementation. In particular he will receive annual reports submitted voluntarily by member and partner countries, and report regularly to the North Atlantic Council, NATO’s principal decision-making body, and the Euro-Atlantic Partnership Council on the progress of its implementation. Other responsibilities will include liaison with national authorities, IOs and NGOs. 3. Obligations Imposed by the NATO Policy Pursuant to the NATO Policy, NATO members and its allies shall agree, among others: 1.

2.

3.

36

to review national legislation and report on national efforts to meet obligations associated with the UN Convention against Transnational Organized and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the so-called Palermo Protocol);37 that all personnel taking part in NATO-led operations should receive appropriate training to make them aware of the problem of trafficking and how this modern day slave trade impacts on human rights, stability and security; in the conduct of operations, to continue efforts, within their competence and respective mandates, to provide support to responsible authorities in the host country in their efforts to combat trafficking in human beings;

NATO News, NATO’s Anti-Trafficking Coordinator Explains Priorities, May 9, 2007, available at http://www.nato.int/docu/update/2007/05-may/e0509b.html (last visited May 26, 2007). 37 The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Palermo Protocol) was adopted on November 15, 2000, and entered into force on December 25, 2003. It laid the first legal foundations for international action against trafficking; all NATO members are signatories to it.

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4.

to incorporate contractual provisions that prohibit contractors from engaging in trafficking in human beings or facilitating it and impose penalties on contractors who fail to fulfil their obligations in this regard.

These obligations are better specified in the annexes to the NATO Policy. In particular Annex I clarifies that troop contributing nations are required to: organise specific training modules preparing their forces and accompanying civilian elements and contractors for PSO. Such modules may include training on the issue of trafficking in human beings and legal consequences stemming from the violation of anti-trafficking laws, as well as training on the means to support, within their competence and mandate, the efforts of responsible authorities in the host nation to combat trafficking in human beings. Similar modules may also be developed by PfP Training Centres and included, as appropriate, in their training curricula.38 They shall moreover: a.

b.

review, if necessary their existing criminal legislation, including the enforcement of such legislation, to ensure that members of the forces— as well as civilian elements—who engage in trafficking in human beings, or facilitate it, are liable to appropriate prosecution and punishment; provide details of their national legislation and national efforts to combat trafficking;39

With regard to planning and conduct, they shall also: a.

b. c. d.

e.

38 39

conduct specific pre-deployment training on criminal issues including those related to trafficking in human beings and the means to combat it; conduct timely investigation and prosecution of cases of misconduct by members of their forces or civilian elements, including contractors; develop specific mechanisms for reporting crimes, including those related to trafficking in human beings; in accordance with national legislation, create and disseminate policies explicitly protecting whistleblowers who come forward with evidence of crimes, including trafficking in human beings, and in accordance with national legislation, retain records of misconduct by individuals, including, those related to trafficking in human beings, for use in recruitment, vetting and deployment. See NATO Policy, supra note 13, Annex I, para. 10. Id., para. 11.

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C. IMPLEMENTATION OF NATO’S POLICY AT THE DOMESTIC LEVEL 1. Adoption of Legislative Measures As already mentioned, NATO has no criminal authority over personnel provided by TCNs to a particular PSO. It is for this reason that TCNs must ensure the adoption of domestic legislative measures, allowing for the prosecution of personnel engaged in this type of illegal activities. 2. Introduction of Appropriate Training As observed by NATO’s Assistant Secretary-General for Defense Policy and Planning, it is important that NATO’s military commanders: “ensure that everybody understands what needs to be done, that everybody is putting in place the right procedures, the right training modules and so on, in order to ensure that service personnel are as well prepared as possible.”40 In this regard NATO is introducing training modules at NATO’s school in Oberammergau, Germany, and at NATO’s Defense College in Rome. However, training is primarily a national responsibility; it is the duty of all NATO member states and the allies to adopt adequate measures in this regard. 3. Support to Local Authorities NATO’s Policy calls for the necessity to provide support to local and international police authorities (e.g., UNMIK Police in Kosovo) in the repression of organized crime.41 Therefore, it is crucial to provide specific training to the military police, and military personnel in charge of checkpoints, in order to help them identify elements signaling suspect trafficking of human beings. Moreover, it is important to provide training on how to collect evidence that may be used in court.42 The Helsinki Seminar highlighted the importance of standard operating procedures (SOP), indicating the procedure to be adopted in the event of human trafficking.43 In this regard, civil military coordinators (CIMIC) are very important, since they are contacted by military personnel suspecting to 40

NATO Speech, supra note 5. See NATO Policy, supra note 13, para. 5e. 42 In this regard, see Kwai Hong Ip, PSOs: Establishing the Rule of Law Through Security and Law Enforcement Operations, in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS 33 (Roberta Arnold & Alexander Knoops eds., 2006). 43 See, e.g., KFOR’s SOP 1300. 41

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have met victims of human trafficking. It will then be the duty of the CIMIC to contact the competent local civil authorities, who will then take up the case and open investigations.44 Coordination with civilian authorities is very important. A good example is provided by Kosovo and the cooperation between KFOR and UNMIK police. For instance KFOR employs specialized military/special police forces to form multinational support units (MSU), which often cooperate with UNMIK police in the fight against organized crime.45 UNMIK police have rather large powers to enforce countertrafficking measures. For instance, UNMIK Regulation No. 2001/446 allows for the confiscation of property and the closure of establishments suspected of involvement in human trafficking. Section 6 in particular47 provides that: 6.1. Property used in or resulting from the commission of trafficking in persons or other criminal acts under the present regulation may be confiscated in accordance with the applicable law. The personal property of the victims of trafficking shall not be confiscated wherever it can be immediately identified by the law enforcement officer as such. 6.2. Where there are grounds for suspicion that an establishment, operating legally or illegally, is involved in, or is knowingly associated with trafficking in persons or other criminal acts under the present regulation, an investigating judge may, upon the recommendation of the public prosecutor, issue an order for the closing of such establishment. 6.3. A reparation fund for victims of trafficking shall be established by administrative direction and shall be authorised to receive funds from, inter alia, the confiscation of property pursuant to section 6.1. Likewise, UNMIK Regulation 2005/4 introduces “measures aimed at improving the border controls primarily directed at combating organized crime operations and human trafficking”48 and formalizing the procedure so far adopted by UNMIK police. 44 In this regard, however, it should be kept in mind that domestic rules of engagement (ROE) may set important limits for units deployed in support of local police forces. Domestic ROEs, in fact, may vary considerably and this is an issue to be considered in multinational PSO contingents. 45 See Ip, supra note 42. 46 Available at http://www.unmikonline.org/regulations/2001/reg04-01.html (last visited May 26, 2007). 47 This was adopted on January 12, 2001. See John Cerone, The Human Rights Framework Applicable to Trafficking, in Persons and Its Incorporation into UNMIK Regulation 2001/4 in 7 INTERNATIONAL PEACEKEEPING: THE YEARBOOK OF INTERNATIONAL PEACE OPERATIONS (Michael Bothe & Boris Kondoch eds., 2002). 48 Paragraph 23.3 of the regulation states that a person shall not be denied entry if he/she provides reasonable evidence of being a victim of trafficking. On this matter,

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In BiH, instead, until the withdrawal of the UN mission at the end of 2002, the identification of victims of trafficking was mainly undertaken by the International Police Task Force (IPTF). Within IPFT a Special Trafficking Operation Program (STOP) was constituted, which was composed of 50 international police officers and approximately 150 police officers from BiH, which were exclusively responsible for tackling the problem of human trafficking all over the country. BiH law enforcement units are now assisted by the European Union Police Mission (EUPM), the followers of IPTF.49 4. Adoption of Contractual Provisions Prohibiting PSO Personnel from Engaging in Trafficking NATO’s Policy aims at tackling the problem of human trafficking by (1) fighting directly the traffickers, in cooperation with the police and (2) adopting measures aimed at preventing the attendance of red light districts by its personnel. The fight against this type of illegal activity is complicated by its close nexus with prostitution, a conduct that, as such, is not considered illegal in TCNs. Due to the difficulties in distinguishing between the two situations, NATO decided to adopt a zero-tolerance policy towards any conduct involved in activities related to the sex industry, be these legal or illegal. Although it may be dangerous to relate prostitution with human trafficking, as pointed out by Elizabeth Rennie in her chapter,50 since prostitution may be legal in some TCNs and, therefore, its association with the crime of human trafficking may ultimately confuse the soldiers, the extension of the zero-tolerance policy to prostitution, too, is due to the fact that very often the soldier in the field may be unable to identify a victim of trafficking from a person freely working as a prostitute. For this very same reason Valerie Wahl suggested that: “military missions or forces should also take into consideration the introduction of a system of legalized and controlled sexual services within their mission in order to channel and control the demand of their mission staff.”51 Alternatives may be the granting of regular leaves of a minimum of two weeks in order to allow the as well as the problem of border control, see Stefano Failla, Migration and Border Management in Kosovo 1999–2005 in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS 212 (Roberta Arnold & Alexander Knoops eds., 2006). 49 RCP, supra note 2, at 120–21. On the duties and status of EUPM, see the EU Council Decision concerning the conclusion of the Agreement between the European Union and Bosnia and Herzegovina (BiH) on the activities of the European Union Police Mission (EUPM) in BiH, Sept. 17, 2002, Doc. 11988/02, available at http://www. eupm.org/Documents/4.2.EUPM%20SOFA%20legislative%20act.pdf (last visited May 26, 2007). 50 Chapter 17 of this book. 51 Wahl, supra note 33, at 245.

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peacekeeper to rejoin his/her family and go back to his/her home country. This approach, for instance, is adopted by the Swiss armed forces. Likewise, the German armed forces provide for regular leaves.52 The zero-tolerance policy, in fact, also applies to periods of leave, when troops have the chance to pass a couple of days outside the theater of operations. For instance, with regard to Kosovo, KFOR personnel are prohibited from attending not only specific areas in Kosovo, but also in bordering countries like Macedonia (FYROM), Greece and Albania.53 To facilitate this task, UNMIK’s police and KFOR made a list of the already mentioned off limits areas for their own personnel.54 Mere attendance of these areas has disciplinary consequences. The easiest way to implement this practice is for the commanders of the individual contingents to release orders aimed at limiting the freedom of movement of their soldiers. The breach of an order, in fact, constitutes a crime according to all domestic military codes, thereby constituting a deterrent for military personnel.55 Similarly, EUPM has also set up its own off-limits lists with regard to its mission in BiH,56 which is regularly updated. Another, perhaps more efficient, method of prevention, however, is the adoption of contractual provisions enabling the sending state to immediately terminate a contract with a peacekeeper in the event of serious suspicion of involvement in human trafficking, both as a customer or, even worse, as a trader. Serious suspicion should be sufficient, since already the risk that the host state’s local population may have the impression that peacekeepers are engaged in these serious human rights violations may jeopardize the credibility and therefore the success of the whole PSO. The possibility of immediately terminating the contract should always be foreseen in the contracts of employment. It has, in fact, to be kept in mind that contracts with PSO personnel are normally signed for a limited period of time, generally six months. In these cases, if there is no clause allowing for immediate termination and repatriation, the risk is that the peacekeeper may be repatriated, but that he will continue to receive his wages, since the deadline for termination of the contract will have not expired yet. For instance, if a peacekeeper signs a contract from January to June, and he is suspected of misconduct in April, depending on the deadlines foreseen by domestic contract law, the risk is that the regular deadline for termination may expire 52

Jurschick & Schäfer, supra note 6. See KFOR SOP 1300. 54 See Mendelson, supra note 6, at 11. 55 A problem in this regard, however, is whether so-called subcontractors, by private law enforcement agencies, are subject to the same provisions of military personnel. 56 See US Department of Defense Inspector General, Efforts to Combat Trafficking in Persons—Phase II, Bosnia & Herzegovina, at 2 (Dec. 8, 2003), available at http://www.dodig.osd.mil/fo/foia/HT-Phase_II.pdf (last visited June 1, 2007): “As members of SFOR and KFOR, contractor employees are forbidden from patronizing establishments designated by the United Nations or the European Union Police Mission as off-limits because of illegal prostitution and human trafficking concerns.” 53

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long after the end of the peacekeeper’s mission. At the same time, however, this measure shall be accompanied by reference of the case to the criminal authorities, as it may happen that a peacekeeper is repatriated with no legal consequence other than the termination of the contract. In particular the NCC (national contingent commander) should at least inform the military investigative authorities. Valerie Wahl, a legal advisor with the EUPM in BiH, suggests in this regard the adoption of the following measures, too: enforcing the severity of disciplinary sanctions within missions, strengthening the decision-taking mechanisms within the mission disciplinary systems by further delegation of power from the sending state to the mission management, obligatory briefings of mission staff, change of the legal status of the private companies that are supporting international missions or forces and that are acting beyond the law in the mission areas.57 5. The Example of Switzerland Switzerland has long been engaged in the promotion of human rights and in raising awareness on gender issues. For this reason, an office on Gender Streaming and Peacekeeping Operations was established within the Directorate for Security Policy of the Swiss Department of Defense (DoD). Its task was to engage in several activities aimed at raising awareness among the Swiss armed forces, in particular those foreseen for deployment abroad, on gender issues, including human trafficking. Special briefings have been organized in particular at the Swiss DoD’s competence center for PSOs, called SWISSINT, with focused training sessions for members of the Swisscoy58 and those to be deployed to BiH. In October 2004 the “gender issues dossier” was delegated to the Laws of Armed Conflict Section of the Swiss DoD, which is entrusted with the training of all the members of the Swiss armed forces on international humanitarian law, human rights law and operational law. Training sessions have been regularly organized, in both German and English, for those to be deployed, with the particular aim of implementing NATO’s zero-tolerance policy with regard to human trafficking. The personal experience of the author, who was also entrusted with the teaching of these training modules, is that when military personnel are confronted for the first time with the topic of human trafficking, embarrassment and a little bit of incredulity may be sensed. The first reaction of prospective peacekeepers is to ask what human trafficking has to do with them. Often they do not see the subtle dangers related to this phenomenon, and they may also 57 58

Wahl, supra note 33, at 245. The peacekeeping mission in Kosovo.

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not be aware of the fact that in many red light districts, particularly in areas with a high concentration of military forces, this may be an issue. Once it even occurred to the author, who was conducting research on the implementation of the NATO Policy in Kosovo, to talk on the phone with a Greek peacekeeper (rank and role unknown), who did not even know what human trafficking is! In order to be able to be connected with the competent authorities dealing with human trafficking, the author had to explain to him what human trafficking is. Training, therefore, is of crucial importance. But it is even more important to explain to the military that nobody is intending to accuse them of being potential perpetrators. As observed by Elizabeth Rennie, for soldiers, especially those coming from countries where prostitution is not an offense, it may be difficult to understand the difference between prostitution and human trafficking. It therefore needs to be explained that in most receiving states, the criminal organizations that used to be in charge of the smuggling of weapons during the armed conflict, and that still pose a threat to the PSO in the area, are still in place and leading the illegal trade of human beings, which is then used to make profits to purchase weapons again, thereby posing a renewed threat to the PSO. It also needs to be clarified that human trafficking is a serious human rights violation of the victims and that peacekeepers have a high responsibility: they are never on leave and, therefore, a high moral attitude is always expected from them in order to maintain the credibility of the operation. During training sessions, particular attention has also always been drawn to the fact that in most theaters of operation, health control is very poor and that attendance in red light districts may also affect them negatively in this sense. Last but not the least, peacekeepers who, in breach of the order not to attend certain areas, nonetheless decide to attend them on their own, face the risk of being attacked or blackmailed. Training within the Swiss military, therefore, has primarily focused on the fact that trafficking is both a threat for the victims, whose human rights have been breached, and the potential “customers,” who risk not only criminal prosecution but even worse, getting infected with some disease or falling into the hands of criminal gangs. These training sessions, which normally last two hours, have always had a positive outcome, with soldiers being thankful for having been made aware of the risks potentially related to the desire to spend a nice “night out” in areas defined as “off limits” areas. In this regard, much debate has arisen as to whether the off-limits lists produced by EUPM and UNMIK should be distributed to the soldiers. One argument is that unless the soldiers know which clubs and bars are considered to be off limits, they cannot observe the NATO Policy. A counterargument often used by the commanders, however, is that these lists may be an incentive for the soldiers to go and look for these places. A preferred solution is to grant them very limited leave permits. Should the peacekeepers be authorized to leave the military camp, they should always perform patrols in couples, in order to be able to control each other. But, as said, the primary way to avoid problems

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related to human trafficking is to forbid the peacekeepers from leaving their military compounds and provide them with sufficient holidays to travel back home. For instance, taking all leaves in one block is not allowed. The underlying idea is that the soldiers should be able to have sufficient breaks during the deployment, which is normally contracted for a maximum of six months. The problem of misconduct and termination of the contract has been faced recently. It is now possible to dismiss a soldier on the basis of serious misconduct. Until this new clause was introduced into the employment contracts, the major problem was that soldiers were not refrained from misbehaving since dismissal meant the possibility to be repatriated and to continue earning the salaries foreseen for the deployment. Soldiers are advised of the possible criminal consequences of misconduct. With regard to human trafficking, there are different provisions of the Swiss Military Criminal Code (SMCC),59 which may be invoked: • • • • •

Breach of service regulations (Article 72 SMCC); Order refusal (Article 61 SMCC); Incitement to sexual exploitation (Article 153 SMCC); Rape (Article 154 SMCC); and Sexual intercourse with children (Article 156 SMCC).

As said, the NATO Policy has no legally binding character and needs to be implemented. The easiest was is for the national contingent’s commander to give an order restating the provisions of the NATO Policy. The breach of this order will automatically constitute an offense. Additionally, the peacekeeper may also face prosecution under the Swiss Criminal Code,60 if he/she has been engaged in the enforcement of prostitution or human trafficking, pursuant to Articles 195 and 196. In this regard, a leading judgment was made by the Cantonal Criminal Tribunal of Canton Ticino on January 14, 2005, which established that trafficking may be committed also with regard to a single victim. The debate arose as to whether the meaning of human trafficking, which in German is “Menschenhandel” and in Italian is “tratta di esseri umani,” that is, in the plural form, could also cover one person. The case dealt with a Hungarian girl who had been trafficked into Switzerland. The Court concluded that it could, and the perpetrators were sentenced pursuant to Article 196(1) of the Swiss Criminal Code.61 The sentence, however, was relatively 59

SR 231.0, available at http://www.admin.ch/ch/f/rs/c321_0.html in French. SR 311.0, available at http://www.admin.ch/ch/f/rs/c311_0.html in French. 61 Ref. No. 72.2004.136, Corte delle assise correzionali di Bellinzona, 14.1.2005, Judgment, available at http://www.sentenze.ti.ch/cgi-bin/nph-omniscgi?OmnisPlatform= WINDOWS&WebServerUrl=www.sentenze.ti.ch&WebServerScript=/cgi-bin/nph-omniscgi&OmnisLibrary=JURISWEB&OmnisClass=rtFindinfoWebHtmlService&OmnisServer =JURISWEB,193.246.183.14:6000&Parametername=WWWTI&Schema=TI_WEB&Sourc 60

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lenient, considering that the three perpetrators received between 13 and 16 months imprisonment. In this view, considering what has been said previously, prosecution of a peacekeeper by the receiving state may be much stricter. During training sessions, awareness is also raised to the fact that, theoretically, the receiving state may request waiver of immunity, with the risk that the peacekeeper may face much higher charges. As said, however, the NATO Policy on Human Trafficking does not only require prevention, but repression. Repression is understood in Switzerland as meaning that alleged cases of human trafficking by Swiss members of the armed forces should be prosecuted. Due to its neutrality, however; Switzerland is not allowed to engage in Chapter VII operations. 62 This means that law enforcement is also a task beyond the competences of Swiss peacekeepers, including the military police, should the suspicion involve a non-Swiss national. This means that if Swiss peacekeepers face a situation alleging a case of human trafficking, they should refer it to their commander, who will then refer it to the competent authorities. D. PRACTICAL TOOLS FOR LAW ENFORCEMENT AGENTS IN THE FIELD 1. General Tools What should a soldier do, when faced with the suspect of a case of human trafficking? The following checklist may be used: 1. 2. 3. 4. 5.

Inform your superior, Assess the situation, Act (with help of language assistant), Ask for identity papers (illegality is a sign for trafficking in human beings!), Separate possible victims from trafficker(s),

e=&Aufruf=getMarkupDocument&cSprache=ITA&nF30_KEY=59762&nX40_KEY=2024 72&nTrefferzeile=2&Template=results/document_ita.fiw (last visited on May 26, 2005). The Court, in particular, refused to label the situation as incitement to prostitution. 62 See art. 66 (a)(2) of the Swiss Military Law (Loi fédérale sur l’armée et l’administration militaire, SR 510.10, available at http://www.admin.ch/ch/f/rs/510_10/ index.html ): “La participation à des actions de combat destinées à imposer la paix est exclue.” This follows from Article 66, according to which the PSO must be mandated by either the UN or the OSCE, and it shall be compatible with Switzerland’s principles and politics : “Les engagements pour la promotion de la paix peuvent être ordonnés sur la base d’un mandat de l’ONU ou de l’OSCE. Ils doivent être conformes aux principes de la politique extérieure et de sécurité de la Suisse.”

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Call for help from law enforcement agencies, Guard the possible evidence.

The military is based on the chain of command. During training sessions for prospective peacekeepers to be deployed to Kosovo and BiH, when referring to the possible use of so-called “green lines” to call NGOs or specialized agencies dealing with human trafficking,63 it has often been observed that this is not allowed, due to the chain of command. The issue of the chain of command may become crucial in those cases where a PSO soldier may have to report illegal conduct of the member of another TCN to the mission.64 In all events, even though to make an anonymous call informing such agencies about a suspected case of trafficking is unlikely to be construed as a breach of service regulations, the alternative is to inform the superior, or, as mentioned previously, the CIMIC, who will then be authorized to refer the case to the competent civilian authorities. 2. Assessment of the Situation at Checkpoints The assessment of the situation may be of particular importance for soldiers at checkpoints. As mentioned, victims of trafficking are normally smuggled by means of transportation such as minibuses or vans. It is for this reason that UNMIK adopted specific legislation concerning border controls. Important elements that may be considered and assessed by soldiers at checkpoints, therefore, are whether: 1. 2. 3. 4. 5.

6. 7.

The driver is the only one speaking English (or Bosnian, etc) and/or poses himself as a mediator. The driver is the only one owning a mobile phone. The driver has money, receipts and telephone numbers. The driver holds the passports of the travelers. If so, this is suspicious. The driver is properly dressed or distinguishes himself in clothing or haircut from the other travelers. Traffickers often have a Western rather than an Eastern look. The driver is the only one traveling without luggage. The driver has a different nationality than the rest of the group.

All these elements should ring a bell and, as such, should be highlighted in training courses for military personnel. They should also be instructed about 63

See, for example, the International Organization for Migration or, in BiH, LARA and La Strada. 64 On this problem, see Mendelson, supra note 6, at 55 et seq., reporting about the case of the Russian military contingent in Kosovo and trafficking.

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what to do next. In particular, if a smuggler is found, he/she should be isolated as soon as possible from the rest of the group, or otherwise he/she may instruct the smuggled people about what to say or do. Preferably, the other members of the group should be separated in order to avoid them matching their stories to each other. Attention should also be paid to the fact that, when arrested, suspects try to throw away incriminating material (hide phone numbers in narrow openings in the floor or chair seats, or throw items out of the vehicle). Moreover, military units engaged in cooperation with local police units should look for the following evidentiary elements when arresting individual suspected of human trafficking: 1.

2.

3.

4.

Foreign prints on packaging or foreign money: these may reveal a part of the trip, particularly Russian cash receipts, German packaging and Czech small change. These items should be seized. Prepared cargo can point to the involvement of the driver. In some cases, special spaces were discovered in lorries used to hide and smuggle people. In some cases, smugglers “physically” marked the smuggled persons. This occurs in particular when the “cargo” has different end destinations. Sometimes the smuggler may write a number with a marker on the hands or palms of the victims, or make them wear bracelets in different colors. A tachograph may give information about the distance covered and suggest whether long journeys have been undertaken, indicating a possible case of trafficking.

3. Other Indicators that Trafficking in Persons Might Be Taking Place Very often the military police of national contingents are not engaged in investigations into local crime such as human trafficking. Nevertheless, as shown by the example of the cooperation between KFOR and UNMIK, there may be cases where special military units may have to deal with investigations conducted by the police. In this regard, therefore, where NATO troops may be called to implement the duty to “repress” human trafficking by providing support to the local police authorities, the following elements should also be considered. Human trafficking is usually evidenced by:65 • •

employees who are allowed to leave the premises only with their patrons; private rooms that are provided for one-on-one services between employee and patron;

65

List taken from the USFK Pamphlet, discussed in Section D.4.

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• • • • • •

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bar owners or other authority figures monitoring and regulating contact with the employees; employees appearing not have the personal freedom to leave the club without permission or not having access to their passports or other personal items, barred windows, locked doors, electronic surveillance; entrance limited to certain ethnic groups; women never seen leaving the premises unless escorted; violent acts committed against female employees—beating or pushing on the grounds that warm hospitality was not provided to patrons; extortion—taking a part of the money earned from prostitution; victim having very little or no “pocket money”; non-payment of wages—monthly wages not paid or business owner allegedly “safe-keeping” the wages; employees forced to engage in prostitution; victims living at the same premises as the brothel or work site, or driven between quarters and “work” by a guard; victims kept under surveillance when taken to a doctor, hospital or clinic for treatment; pimp/trafficker acting as a translator.

4. Use of Pocket Cards Pocket cards may also be very useful for peacekeepers in the field. For instance, the US Forces Korea (USFK) launched a campaign against human trafficking and prostitution that included the release of a “USKF Awareness Pamphlet for Combating Trafficking in Persons and Prostitution.” This pamphlet briefly explains the notion of trafficking, meaning modern slavery stemming from greed of perpetrator, economic hardship, destabilizing forces such as criminal activity, economic hardship, government corruption, social disruption, political instability, natural disaster and armed conflict. It then moves on explaining that trafficking is the third largest criminal activity in the world, following illegal drug and arms sales and that each year an estimated 600,000–800,000 men, women and children are trafficked across international borders. A brief description of the conduct of victims is provided, namely that they are typically forced to engage in criminal activity, which makes it impossible for them to turn to the authorities for help, and that traffickers gain further control of their victims by isolating them and breaking off their ties with the outside world. Moreover, victims are often moved around among a circuit of workplace brothels and coached on what to say to officials. The pamphlets also contains a brief description of the criminal and administrative sanctions that a soldier may face if found guilty of engagement in human trafficking and highlight the extraterritorial applicability of the domestic law of the sending state. This raises the awareness of the peacekeeper that the peacekeeping theater is not a free zone where he/she may misconduct without the

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risk of facing legal consequences. In this regard, it is very important that superiors at all levels immediately report alleged suspects to the competent authorities and that in case of repatriation the case is referred to the military or civilian judicial authorities of the sending state. In this regard, for instance, the USFK pamphlet also highlights the responsibilities of commanders in this regard. 66 The command policy is restated (zero-tolerance policy) and, finally, together with pictures indicating off-limits areas and establishments (civilian pharmacies and drug stores, barber shops, steam Turkish baths, medical/dental clinics except when referred by US medical treatment facilities, gambling houses, open bodies of water (brothels may be found on ships), glass houses (in the shape of the window shops of Amsterdam), the Internet address of the Web site where an updated list of off-limits area is available is provided.67 The pamphlet ends with indicators that trafficking in persons and/or prostitution might be taking place and provides hotlines that may be called to report. The provision of this kind of pamphlets is certainly a good tool to raise awareness among all PSO personnel, allowing them to prevent, at least, the development of the phenomenon of trafficking and, possibly, also its repression. E.

CONCLUSIONS

With the adoption of the Policy to Combat Human Trafficking NATO has made it clear that this phenomenon is a problem to be addressed by the military and that the mentality according to which the “boys will always be boys” and that a little “entertainment” will permit the soldiers to better perform their military duties is old and outdated. Peacekeepers nowadays have several options, including the possibility of rejoining their families and friends twice during deployment. Missions normally last for a maximum of six months, which also allows them stress relief. The ban on human trafficking is not to be perceived as a moral crusade: it has nothing to do with the free exercise of prostitution.

66

Reference is made to Title 10 of the US Code, Sections 3583, 5947 and 8583, “Requirement of Exemplary Conduct,” dated November 18, 1997, according to which commanders are responsible to show in themselves a good example of virtue, honor, patriotism and subordination. They shall be vigilant in inspecting the conduct of all persons who are placed under their command, and they shall further guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the relevant Military Department all persons who are guilty of them. Moreover, they shall take all necessary and proper measures, under the laws, regulations and customs of the relevant Military Department, to promote and safeguard the morale, the physical well-being and the general welfare of the officers and enlisted persons under their command or charge. 67 See also https://www-eusa-1.korea.army.mil.

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It is a crime, due to which individuals, including men68 and children, are forced to sell their bodies for no money, under duress. But apart from the gravity inherent in the fact that it constitutes a human rights violation, it is also a very serious threat to the security of both the PSO and its personnel. It may jeopardize the credibility of the PSO: the peacekeepers shall not become part of the problem, they are there to fight the problem and help states devastated by armed conflicts to rebuild and to function in abidance of human rights. A PSO can only work by “Winning the hearts and minds of the population.” A PSO known to hide members alleged of misconduct will lose the hearts and minds of the local population and, therefore, expose itself to threats. At the same time, negative feedback to the capitals of the TCNs will automatically lead to negative imaging in the media and consequent loss of support by the political institutions. Human trafficking is in the hands of those criminal organizations that are also smuggling of weapons and arms, which permits the reemerging of internal violence. To finance human trafficking as “customers” of the victims automatically runs counter to the objectives of the PSO. Finally, the safety of the individual peacekeepers themselves will be jeopardized, due to the fact that victims of trafficking are not subject to health control and that they may be used to drag individual peacekeepers into “traps” in order to blackmail them with the revelation of their misconduct to their relatives back at home, or, even worse, to extort money from them or keep them as hostages.

68 See IOM, Counter-Trafficking Service, Changing Patterns and Trends of Trafficking in Persons in the Balkan Region, at 8 (July 2004): “During 2003, Moldovan and Macedonian newspapers revealed the story of two Moldovan men who had been trafficked in FYROM. The two men were travelling illegally to work in Greece, but were sold to a Macedonian woman. They were forced to work without pay on construction sites during the day and as male prostitutes at night, and they were beaten and starved to submission. One man was in his early twenties and the other in his mid-forties. The two eventually managed to return to Moldova, where they approached the police and the story was published. One of the men was placed in a psychiatric hospital. This is the first reported case of male trafficking for prostitution so far.”

CHAPTER 16 TRAFFICKING IN HUMAN BEINGS—REDUCTION STRATEGIES FOR LAW ENFORCEMENT IN PEACE SUPPORT OPERATIONS Elizabeth Rennie*

A. INTRODUCTION Peace support operations (PSOs) around the world now cover a wide range of activities very different from those handled by their predecessors. Now they frequently provide multidimensional support to governments in need of policing and legal guidance instead of simply monitoring ceasefires or peace agreements. Law enforcement and prosecution are integral components of rebuilding or reestablishing the rule of law, and their inclusion has been shown to assist in stabilizing and rebuilding local societies and thereby helping restore peace. Every PSO is unique in light of the context that led to its creation and the specifics of its individual mandate. Often in such a setting the international community is the primary law enforcement authority in the area. Sometimes, it is the only one. It is not uncommon for the rule of law infrastructure to be destroyed or heavily compromised before the arrival of the PSO. Existing structures are often very weak, and in some instances, there is a history of human rights abuses and corruption. As a result, they will be the subject of great distrust or hostility. Furthermore, even if the law enforcement component of the PSO is welcome, prior to its arrival, it is probable that organized criminal activity will have already gained a stronghold in the local community especially if the economic and social infrastructure is in total disarray. Trafficking in persons is a difficult and complex crime that is very hard to investigate and prosecute because of its clandestine nature. Trafficking has been described as “dynamic and adaptable” and “constantly changing in order to

* At the time of drafting this article, Elizabeth Rennie was employed as an International Prosecutor with the United Nations Interim Administration in Kosovo (UNMIK) and in September 2007 will be an Advanced LL.M. student at Leiden University, in The Netherlands. This article reflects the personal views of the author and not those of the United Nations or UNMIK. 381

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defeat efforts by law enforcement to prevent it.” As well, “[t]he responses to the problems are also rapidly evolving” as “[w]e learn daily about new ways of preventing, investigating and controlling the crime of trafficking and about more effective ways of protecting and assisting the victims of this crime.”1 This chapter seeks to set out the minimum law enforcement strategies necessary for successful investigations in this area while recognizing the unique challenges associated with investigating such crimes in a PSO. After starting with a well-known definition of trafficking in persons and addressing some common areas of confusion, it then discusses some of the root causes and dynamics of trafficking in persons. The chapter then seeks to provide some practical suggestions for investigations including the appropriate identification and handling of victims and witnesses including children. Those suggestions specifically consider the handling of such investigations in a PSO with a brief mention also made to the issue of investigating peacekeepers as alleged perpetrators—an area which, although dealt with at length in other chapters of this book, cannot be ignored. B. DEFINITION OF TRAFFICKING AND COMMON MISCONCEPTIONS While a universally accepted definition of trafficking does not exist, according to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the UN Convention against Transnational Organized Crime2 trafficking in persons means: the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of authority or of the giving or receiving of payments of benefits 1 UN OFFICE ON DRUGS AND CRIME, TOOLKIT TO COMBAT TRAFFICKING IN PERSONS, at ix (New York, 2006) [hereinafter Toolkit]. This publication like most of those referred to are available online. This particular publication is available at the UNODC Web site, www.unodc.org/unodc/en/trafficking_human_beings.html, and summarizes a number of “conceptual, legislative and organizational tools” used around the world and has a list of useful Web sites. An effort has been made to focus on online resources as many personnel in PSOs do not have access to traditional libraries but most have access to the Internet. 2 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime, GA Res. 55/25, Annex II (Nov. 15, 2000), available at http://www. ohchr.org/english/law/protocol.traffic.htm. This came into force on December 25, 2003 [hereinafter Palermo Protocol]. The United Nations Convention against Transnational Organized Crime, General Assembly Resolution 55/25, Annex I (Nov. 15, 2000) came into force on September 29, 2003.

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to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.3 Confusion often exists as to the difference between trafficking in persons and the smuggling of migrants. The definition of smuggling in the Protocol against the Smuggling of Migrants by Land, Sea and Air (another supplement to the UN Convention against Transnational Organized Crime), unlike the above definition of trafficking, does not require an improper form of recruitment and does not require an exploitative purpose.4 In some cases both crimes may, however, exist. While they are separate crimes, “they represent overlapping crime problems.”5 In fact it is often difficult to determine whether a victim was trafficked or smuggled. Confusion often exists within the police as to the distinction between trafficking and prostitution. The above definition for trafficking in persons does not specifically require that sexual services be a component to the crime. While it is one purpose for which the offense may be committed, other purposes may be behind the crime including but not limited to forced labor or the trade in organs and body parts. The consent of the victim is irrelevant if the victim is a child and is irrelevant if it was given under duress or was impossible. Often the victim has been deceived and/or threatened. Even initial consent can be subsequently vitiated. While the aforementioned definition of trafficking in persons deals with transnational offenses involving an organized criminal group within the meaning of the Organized Crime Convention, trafficking in persons need not occur only across borders. For example, trafficking in persons may involve movements of persons from and through borders (originating and transit states) until they arrive at their destination. On the other hand, however, victims of trafficking may stay within the destination state permanently or temporarily and often may be moved within the state. It is for that reason that careful attention should also be drawn to what has been termed internal trafficking as well. C. THE CAUSES AND DYNAMICS OF TRAFFICKING IN PERSONS The root causes of trafficking in persons are complex and vary to some extent. The issue is often thought of from an economic point of view where 3

Palermo Protocol, supra note 2, art. 3(a). Protocol against the Smuggling of Migrants by Land, Sea and Air, GA Res. 55/25, Annex III (Nov. 15, 2000), art. 3 (a). This came into force on January 28, 2004. 5 Toolkit, supra note 1, at xiv. 4

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those who traffic persons use their victims as a supply source and exploit their vulnerabilities in order to meet an existing demand. The crime tends to net very high profits with relatively low risks to the trafficker. Circumstances on the ground including poverty, corruption, the limited capacity or commitment of immigration and law enforcement to control movements across borders; and a lack of understanding of the phenomenon also facilitates the entrenchment of this type of crime. Some victims leave their country willingly in order to find employment and are then deceived, and other victims are kidnapped or sold from the outset. As well, “gender-based discrimination makes women and girls disproportionately vulnerable to trafficking.”6 Men, however, can be victims as well. The traffickers themselves may fall into a couple of categories. For example, the crime may be carried out by a series of small, loosely connected organizations recruiting and selling victims from one to another as they move from the state of origin to a state of destination, or it may be carried out by large and sophisticated criminal organizations operating at every stage of the process. In either scenario, few groups limit their criminal activities to trafficking in persons; other forms of trafficking or other crimes are almost always occurring.7 D. THE DIFFICULTIES IN INVESTIGATING TRAFFICKING IN PERSONS CASES AND THE EXTRA CHALLENGES AFFILIATED WITH A PSO Trying to investigate such crimes in a PSO is more challenging because of common surrounding circumstances in the host state including a loss of material, institutional and human capacity; the absence of or an inadequate legal framework; an insecure environment; human rights violations and a culture of impunity; threats to judicial independence and impartiality; distrust of existing structures and sometimes even a lack of rule of law culture.8 This chapter seeks to highlight some of the unique challenges to law enforcement in PSOs when it comes to trafficking in human beings, outlines some tools that may assist law enforcement and concludes with a list of resources on the Internet that may prove useful for law enforcement purposes. Special attention is also given to child victims and recent allegations of sexual exploitation and abuse by personnel deployed in peace support operations. As noted above, many PSOs now include a rule of law component that provides for the establishment or reestablishment of the investigatory, prosecutorial, adjudicatory abilities within the host state. Such capacity-building may 6

Id. at xviii. Id. at xix. 8 UN Department of Peacekeeping Operations, Primer for Justice Components in Multidimensional Peace Operations: Strengthening the Rule of Law, at 3–4 (New York, Dec. 2006). 7

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enable the host state to investigate and prosecute all persons, including peacekeeping personnel, in accordance with international standards for human rights and due process. The difficulty, however, is that a fully functioning police and legal system is not a short-term exercise. As well, it is not the norm that law enforcement in PSOs has an executive mandate. Every PSO is unique. As a result, even if the law enforcement component does not have an executive mandate, it is hoped that a number of the ideas discussed in this chapter may be of assistance especially to the local law enforcement with whom they work. While it is very difficult to obtain reliable data on the extent of trafficking in human beings,9 it is known that those who do traffic human beings often flourish in an environment where one would find a PSO. Traffickers can easily identify and locate persons in a desperate state in such locations and exploit them or bring in others from outside the country with impunity because of nonexistent or weak enforcement regimes. Further, those who perpetrate or enable these individuals or groups to do so also perceive areas where PSOs are set up as potential sources of demand because of the large influx of foreign workers who are often paid wages that are considered to be high in comparison to that earned by their local counterparts. Challenges associated with trafficking in human beings in a PSO are numerous. Police are working in a post-conflict environment where the social infrastructure is either gone or is affected by the history of the particular conflict. The absence of a social infrastructure and high unemployment and poverty permit corruption and other criminal activity to flourish. There may be an absence of effective law enforcement, prosecution and judicial mechanisms as well as a culture of impunity and disrespect for rule of law. An absence or lack of laws to assist in law enforcement and to protect vulnerable victims and witnesses will also compromise investigations. Depending upon the reasons that led to the creation of the PSO at that particular location, there is the potential for a fear of those who wield authority (whether criminal or political) and a high distrust of the police and judicial institutions and consequent unwillingness for persons to come forward. PSOs are frequently limited in their mandate, and not all will have executive powers. As well, law enforcement staff connected to a PSO will have little or no familiarity of the conditions on the ground and in a sense are outsiders. Their ability to effectively investigate and prosecute such activities is often compromised because they cannot speak the local language(s), they are unable to effectively participate in undercover operations and are not fully aware of cultural sensitivities including, for example, social stigmas that preclude the reporting of sexual offenses or local preferences for justice to be exacted with9

UN Office on Drugs and Crime, Trafficking in Persons: Global Patterns April 2006, at 9, 33 (Vienna, 2006), due to the hidden nature of the crime, the lack of global statistical reporting and, for example, the attention given to sexual exploitation over other forms of human trafficking.

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out recourse to the police or the courts. Lastly, it cannot be forgotten that the presence of the PSO may create an additional demand for sexual services with some personnel possibly committing crimes. This chapter assumes that the police and justice components of a particular PSO have executive authority during the PSO with the ultimate goal of transferring the skills and then the authority to local counterparts after a period of transition. Such an arrangement maximizes the ability to effectively investigate and prosecute those who engage in the trafficking of humans especially in an environment where the police and legal structures have been compromised. Any other arrangement would be temporary and cannot guarantee the sustainability of earlier efforts. In that regard, local understanding of the issue and engagement is critical to the success of any effort to tackle the problem. The challenge for law enforcement in a PSO is to come up with effective responses to the problem. In that regard, this author agrees with the assessment of the Toolkit that effective responses “call for collaborative, multi-agency, long-term, coordinated, strategic and well-planned action. Planning for action must be based on a sound assessment of the problem and of the existing capacity to respond. It must be supported by a local willingness of the various groups and agencies involved to cooperate with each other and with others at the international level.”10 As a result, for the purposes of this chapter it is not easy to speak about law enforcement issues to the exclusion of other agencies. A first step in a PSO is to carefully assess whether there is a crime of trafficking in human beings within the laws of the host state. Because the crime often encompasses an international aspect with the crossing of borders, an appreciation of the relevant legislation in surrounding states and at the international level will also be important. While the adequacy of local laws is not normally an area for which law enforcement is responsible, the absence of good criminal laws to combat the issue both directly and indirectly from a number of fronts will seriously affect the ability to successfully investigate and prosecute such cases. If such provisions do exist, then the provisions should be reviewed to determine if they meet minimum legal standards and if they meet regional and international standards. If such a review reveals gaps in the law or highlights deficiencies, there is no obstacle to the law enforcement urging other rule of law components of the peace support operation to ensure that necessary law reform is completed as soon as possible. It should be emphasized, however, that such a review should not focus just on whether the offense of trafficking in persons exists and its sufficiency. Very simply, it has to be asked whether necessary legal offenses and legal procedures exist in order to effectively combat the traff icking of human beings. Consideration should be made as to whether all needed provisions exist and/or are sufficient to combat this difficult crime. For example, are related offenses 10

Toolkit, supra note 1, at 11.

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prosecutable? Are the necessary procedures to protect victims (including child victims) and other vulnerable witnesses in place? Victims are frequently the subject of threats and sexual abuse. Their travel documents and other forms of identification are also often forged and/or withheld. Does the law consider such conduct as criminal? Are there appropriate provisions for the prosecution of those who threaten or intimidate such victims? Does the applicable criminal procedure maximize the ability to obtain evidence while minimizing the possibility of additional trauma to the victim? Does the law negate or limit questioning into the sexual history or background of the victim? Are appropriate legal mechanisms in place to allow for witness testimony by CCTV or videoconferencing? And are appropriate legal mechanisms in place for mutual legal assistance and other forms of international legal cooperation? Although it is not the scope of this chapter, such a legislative review ought not to focus solely on the criminal law. Immigration laws, labor laws and employment laws should also be reviewed. Frequently people are brought into the country with false employment contracts and registration of entrants into the host State may assist in tracking their movements and the movements of those who traffic them. The UN Office on Drugs and Crime (UNODC) can assist in efforts to bring domestic legislation up to international standards.11 Depending upon the capacity of the law enforcement component to the PSO and the local law enforcement (if any), serious consideration should be given to the creation of a specialized police unit that works closely with a small group of prosecutors and judges who have been trained in the area of trafficking in persons and who have training and expertise in the interview of vulnerable witnesses including children. Such an approach may be prudent at least at the beginning of the PSO so that limited resources can be properly allocated and so that focused attention may be given to certain high-profile cases in order to maximize the possibility of a successful investigation and maximize the possibility of other victims coming forward. That group of experts may then be available to later train others and act as points of reference for their counterparts. E.

THE REQUIRED SPECIAL HANDLING OF VICTIMS AND WITNESSES OF TRAFFICKING

Careful identification of victims and witnesses is a critical component to any law enforcement activity in this area. Identification is not always easy to determine who is a victim and who is an alleged perpetrator. While the victim may be an excellent witness, experience has shown that victims may possibly be subject to additional trauma and/or danger that can come with that responsibility. Reactive investigations usually require the involve11

Id. at 4.

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ment of the victim in the criminal proceedings. Wherever possible, serious consideration should be made towards proactive investigations instead of reactive investigations. Sometimes, too much reliance is placed on victims and other vulnerable witnesses when other investigative measures may have avoided their participation in the trial. With the use of intelligence-based resources, the police may be able to participate in undercover operations or be able to conduct surveillance that will help make the case without the need for the cooperation of the victim. Evidence of the use of simulated purchases by undercover officers, telephone intercepts and the use of cooperative witness evidence and parallel financial investigations may be sufficient to prove the crime on their own. Whether the investigation is reactive or proactive, the position of the victim must be respected and must always be considered. Those concerns should start at the outset of the investigation and end long after the end of the criminal proceedings. The protection of the victims and other possibly vulnerable witnesses should be foremost. Care should be made to minimize any further trauma through as few interviews as possible done only by those who have received specialized training in interviewing vulnerable witnesses. In cases where witnesses are needed, creative use of available legal provisions and available technology may assist in protecting the witness and may assist the witness in the provision of his or her testimony. Use of closed-circuit television and videoconferencing will assist in preventing the defendant’s associates from determining the witness’s identity and minimize the chance of intimidation. Protective measures should be introduced to ensure that the victim’s personal details and that the victim’s evidence does not get into the media or the public domain. Despite the use of such techniques, there will be cases where victim/witness protection will be needed in order to avoid efforts to exact revenge or retaliation upon the victim. The police should be aware of the continued need for counseling, medical treatment and other resources that could allow the victim/witness to successfully reintegrate back into society and avoid becoming a victim again. In short, investigators should make sure that appropriate victim witness assistance mechanisms are in place. Formal and clear protocols and memorandums of understanding, however, must be created that clearly set out the roles and responsibilities of the various agencies that provide assistance to victims and witnesses and how that work relates to the work of the police and the judiciary. Such groundwork will facilitate their respective roles and responsibilities while maximizing the possibility of a successful investigation and/or prosecution. For example, who interviews the victim/witness? When and under what circumstances? Who is responsible for providing safe houses for vulnerable victims and/or witnesses? Who decides on the issue of a victim’s repatriation and under what circumstances? Who provides counseling and other needed support to the victim/witness? If a non-governmental organization provides the support to the victim, does it have secure facilities that are adequately resourced? Special care should also be made so as to not treat the victim as a crimi-

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nal. The applicable law should provide victims of trafficking with a defense to illegal entry or prostitution charges, and the applicable law should limit the evidential use of trafficking victim’s prior sexual activity. Whether the investigation is proactive or reactive, additional investigative approaches may assist the investigation. For example, following the money linked to trafficking activity may also be an effective technique as profits appear to be the ultimate goal of many traffickers. Often businesses are set up in order to shield trafficking activities. A shroud of apparent legitimacy may conceal clients, victims and specific trafficking transactions as well as those who really profit from the enterprise. While post-conflict environments tend to be more cash-based with limited formal documentation, investigators can still look for large sums of money or property that is beyond the means of its owner. It is not uncommon, for example, for traffickers to frequently move and change the name of a hotel or cafe and to reopen it after it has been closed down by the police with a new owner on paper who is not the one receiving the bulk of the profits. In addition to possible criminal, civil or administrative sanctions against businesses as well as persons, consideration should be made regarding the forfeiture and closure of such businesses and the confiscation of proceeds of crime. Criminalizing the proceeds of trafficking (as well as other crimes) can be an effective tool to the police in combating the crime. If the applicable law in the PSO does not have the necessary tools and resources for such investigations, law enforcement should ensure that they are found. Although it may require the allocation of funding, additional legislative amendments and training of police officers, the tools will also be invaluable in the battle against other related crimes including organized crime, which is one of the biggest threats to fragile states trying to rebuild after a conflict. While this chapter focuses on trafficking in persons, it is also prudent to remind the reader that this crime is usually associated with a variety of other criminal offenses at different stages of the trafficking process. As a result, the investigation should also focus on whether those crimes can be proven as well. Examples include organized crime, kidnapping, unlawful confinement, sexual assault, threatening and intimidation. Consideration of those associated criminal activities may ensure that those involved are properly held to account. In that regard, “[t]he prosecution of accused individuals for additional or overlapping offences may also be useful in demonstrating to courts, the seriousness of a particular trafficking operation. In some instances, for example, evidence relating to certain aspects of the trafficking operation . . . may only be fully revealed by bringing additional charges before the court.”12 Another tool in the arsenal is the effort to stop corruption among persons in authority including immigration and other border officials, the police, prosecutors and the judiciary. Without their assistance trafficking in persons becomes

12

Id. at 35.

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much more difficult. As most forms of trafficking will involve movement of persons across borders, close working relationships or partnerships between law enforcement and immigration officials on both sides of the border will also be invaluable. Without that coordination, law enforcement will miss critical evidence and will not be able to reach all available victims or be able to accurately assess the severity of the crime. In that regard, there are a growing number of bilateral, regional and global agreements on how to tackle transnational crime and improved vehicles for mutual legal assistance and extradition are very welcome. The sharing of intelligence and the creation of cross-border and boundary networks and points of contact between the police and the judiciary will also be very helpful in investigating cases where organized criminal networks cross borders and boundaries. Public education is also useful in that, in addition to trying to prevent persons from becoming victims in the first place, it may educate others to see the indications of the crime and, if they see it, it may persuade some victims to come forward In the end, there needs to be a sound assessment of the problem and an existing capacity to respond.13 For example, there may be little or no cooperation between government agencies and the criminal justice system. Such a situation must be changed. Once that has been done, efforts can be made to improve that capacity through the allocation of resources, the establishment of networks and cooperative arrangements and, if necessary, legislative amendments. Once that assessment has been done, however, there is a necessity to review the existing techniques to combat trafficking in persons so that law enforcement strategies can be improved and can be adapted to counter any new techniques used by the perpetrators to overcome successful law enforcement techniques. F.

SPECIAL PROBLEMS RELATED TO THE TRAFFICKING OF CHILDREN

Sadly, children (persons under 18 years of age) are often the victims of those who traffic in human beings. For the purposes of this chapter, a child is defined as any person under the age of 18 as per the definition found in the Palermo Protocol.14 Many countries however, do allow persons under the age of 18 cer13 National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons. This practical handbook “on how to design and implement sustainable mechanisms and structures to combat human trafficking and support victims” can be found at http://www.osce.org/documents/odihr/2004/05/2903_en.pdf. Reference may also be made to the Organization for Security and Cooperation in Europe: Action Plan to Combat Trafficking in Human Beings found in OSCE Permanent Council Decision No. 557/Rev.1, at http://www.osce.org/documents/pc/2005/07/15594_en.pdf. 14 Palermo Protocol, supra note 2, art. 3(d) It should be noted, however that Article 3.1 of the UN Convention on the Rights of the Child says “below the age of

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tain additional rights and use terms such as minor adolescent or juvenile. Like trafficking in human beings, there is no universally accepted definition for child trafficking. In general, however, according to the Palermo Protocol, child trafficking takes the definition of trafficking in persons above and notes that “[t]he recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve the means” set forth within the definition of trafficking in persons.15 In other words, trafficking in children requires exploitation, but not necessarily exploitation for a sexual purpose. For example, persons that exploit children for the purposes of organized begging, stealing or pick pocketing, domestic servitude and organ transplants may meet the definition of a child trafficker. While the clandestine nature of trafficking makes it is very difficult to quantify the extent of trafficking and the precise methods used by perpetrators, trafficking in children as a precise category should be highlighted because children are perhaps the most vulnerable of the vulnerable. In fact, it is not always easy to identify a child or whether the child is a victim of trafficking. From a policing point of view, the patterns of recruitment and exploitation of children may also be quite different than those traditionally used for adults. One example is the rise in unaccompanied minors who enter a country and then disappear. Additional protective measures should be used with children. Statements should only be taken from children by those trained in doing such and, preferably, should only be done once in as child friendly a setting as possible. The taking of such evidence requires special skills and training so as to ensure that the child is not retraumatized and that his or her statements are not the product of suggestion. In the end, the best interests of the child must be the primary consideration. Recently, Mike Dottridge with Terres des hommes and UNICEF noted that most techniques used to prevent child trafficking in South Eastern Europe are limited in that they focus on child trafficking but often ignore the complex set of factors behind the problem. In that regard, the report advocates efforts to improve the performance of child protection services beyond those directly

eighteen years unless under the law applicable to the child, majority is attained earlier,” available at http://www.unhchr.ch/html/menu3/b/k2crc.htm. 15 Palermo Protocol, supra note 2. 16 UNICEF, Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe (2006) [prepared by Mike Dottridge in collaboration with UNICEF Regional Office for CEE/CIS], available at www.childtrafficking.org/eng/publication.html, at 9.

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related to child trafficking.16 G. ALLEGATIONS AGAINST THOSE WORKING WITHIN PSOS In recent years, concerns have arisen with allegations of sexual exploitation and abuse by PSO personnel upon those whom they had come to protect. The society in which they are placed is often traumatized and vulnerable. And, “if the rule of law means anything at all, it means that no one, including peacekeepers, is above the law.”17 As noted above, the creation of a PSO generally comes with the influx of a large number of foreign workers. Some of those workers engage in criminal activity including sexually exploitative behavior that may, for example, seek the services of victims of trafficking. There is no doubt that these people negatively affect the credibility of the United Nations and the specific PSO and may jeopardize its ability to fulfill its mandate. Such behavior also denigrates the many others who have made significant contributions to the operation. Again while actual statistical evidence remains limited, the revelation of a number of incidents in the Democratic Republic of Congo in 2004 caused great consternation in the public and in the United Nations. Those revelations resulted in the first comprehensive review of the issue by Prince Zeid Ra’ad Zeid AlHussein, Permanent Representative of Jordan.18 A number of recommendations accompanied that review in an effort to reduce the problem and in an effort to reduce the level of impunity. Some of those recommendations have been implemented and additional strategies are being developed. At present, there is a zero-tolerance policy within the United Nations for such behavior, but real difficulties have to be overcome before there can be an effective investigation and prosecution. Such victims may be reluctant to disclose what occurred and give a statement given the power imbalance between the assailant and the victim. The assailant may, for example be seen as a savior if he is part of the military contingent that participated in bringing an end to a conflict before the creation of the PSO. As well, such a victim may no longer trust any police officer or other member of a PSO because of the breach of trust associated with the criminal act. Questions as to whether an alleged perpetrator is immune are not easy to answer and, even if the immunity is waived, the responsible authority for the investigation is sometimes unclear. 17 Report of the Secretary-General to the Security Council on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616, para. 33 (Aug. 3, 2004). 18 Letter dated March 24, 2005, from the Secretary-General to the president of the General Assembly attaching “A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations,” UN Doc. A/59/710, para. 2 (Mar. 24, 2005) [hereinafter Zeid Report].

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In addition to training all persons in the PSO about trafficking in human beings before and after their arrival in the host state, all military and local personnel should also be clearly trained that they are obligated to comply with local laws (including criminal law) as well as codes of conduct applicable to the operation. All personnel should also be aware of the Secretary-General’s rules prohibiting sexual exploitation and abuse.19 While at present those rules are mandatory only for all UN staff, efforts are under way to expand their applicability—see, for example, comments in a report prepared by the group of legal experts that was appointed at upon the recommendation of the Zeid Report.20 Despite the existence of those rules and the obligation upon all personnel to comply with the local law, some personnel erroneously believe that they are immune from this behavior. Their immunity is purely functional in that it only attaches to work done in furtherance of their duties. Additionally, that immunity can be waived depending under which category of personnel they may fall. Different rules and procedures will apply to the civilian component, the military component and a civilian police component of a particular PSO and should be carefully followed. Extensive efforts are currently being made to continue to prevent such conduct and to fill in existing impunity gaps. It is recommended in the Experts Report that it should not be presumed that because a PSO exists in a post-conflict area, jurisdiction cannot be exercised by the host state for the purposes of a criminal prosecution. If, however, the host state is unable to exercise criminal jurisdiction, it may be that other states will be able to assist the host state in ensuring that such a capability exists. Where law enforcement in a PSO has the authority to handle such investigations, it is suggested that care should be taken to ensure that any other administrative investigations do not negatively affect any viable criminal investigations irrespective as to whether the PSO has an executive mandate. Law enforcement personnel who engage in such investigations should never be from the same nation as the alleged perpetrator(s) so as to ensure transparency and in order to avoid potential conflicts of interest. Law enforcement should be aware that such investigations sometimes become well known in the mission and the press because of their sensitive nature. Confidentiality and pro-

19 UN Doc. ST/SGB/2003/13 (Aug. 16, 2006). The definition of sexual exploitation in those rules is quite broad. Section 1 defines sexual exploitation “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another” and sexual abuse as “actual or threatened physical intrusion of a sexual nature, whether by force or under unequal coercive conditions.” 20 Ensuring the accountability of UN staff and experts on a mission with respect to criminal acts committed in peacekeeping missions. UN Doc. A/60/980 (Aug. 16, 2006) [hereinafter Experts Report].

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tective measures for the victims are critical to protecting the victim from potential intimidation and further trauma and may lessen the likelihood of an attempt by the alleged perpetrator to flee the jurisdiction. Extreme care should be taken in handling such allegations because the victim may be in a very difficult situation if efforts are made by others to keep the victim from cooperating with the police. These investigations are also more difficult when the suspect attempts to flee the jurisdiction in order to avoid prosecution or is repatriated by the sending state. Repatriation may occur for a number of reasons (including concerns that the suspect’s conduct may embarrass his or her home country), but protocols should be in place to maximize the protection of victims and/or witnesses and minimize the risk that the suspect is removed from the jurisdiction while the case is being investigated or prosecuted. If there is no ability and/or authority to investigate and prosecute such cases in the PSO; and if there is no way to prevent repatriation before the completion of the investigation, if possible, agreements should be made that require that the sending state continue the investigation and/or prosecution at home. Lastly, any investigations of UN personnel should be done in close cooperation with the Office of Legal Affairs, the Office of Internal Oversight and, if there is one, the Conduct and Discipline Unit in the PSO. Any investigation of military personnel should also be done in conjunction with those offices and their equivalent within the military structure. H. TOOLS FOR SUCCESSFUL INVESTIGATIONS 1. General Tools In addition to the suggestions noted above, important foundational tools for successful investigations in this complex area include: 1. A clear understanding of the crime of trafficking in human beings; 2. The use of a human rights and victim-centered approach; 3. A clear understanding of the cultural norms and the context in which the PSO is located. For example, in some places a woman’s admission that sexual activity occurred is accompanied by a heavy social stigma including shame; 4. An assessment of the nature of the problem in the host state and the allocation of necessary resources to combat the problem; 5. The existence of a legislative framework conducive to combating the issue from all sides and its creative use; 6. Law enforcement with the capacity to effectively investigate such crimes—a change in thinking may be required especially when law enforcement do not understand the crime or do not think it is a concern in the host state. In a PSO, the skills of the international police

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will also need to be addressed—many will not have had to investigate such crimes and some will come from countries that may have the rule of law, but may not recognize it as a crime; 7. A cadre of police, prosecutors and, if possible, judges trained in the area and trained in taking statements from vulnerable witnesses and children; 8. An effective victim witness assistance program that has effective support measures (with the existence of safe houses for those who testify) and, if necessary, a witness protection program; 9. Periodic reassessment to improve existing law enforcement techniques and to identify and combat new methods used by those who engage in this criminal activity; 10. A recognition that domestic efforts may still not be enough and that regional initiatives will also be needed if only because of the comparative advantages or disadvantages of various locations within the region to the human trafficker; and 11. A multidisciplinary approach to the issue of trafficking that does not rely only on law enforcement and that demands local engagement is paramount especially so that the efforts can continue after the end of the peace support operation. 2. Quick Resource List The Internet contains a vast array of resources related to the issue of trafficking in human beings. A good starting point is to be found with organizations that deal specifically with this area including the United Nations, UN Office on Drugs and Crime, the Council of Europe, International Organization for Migration. Many of these sites contain links to international and national laws relevant to the subject. Bibliographies are often found in attached resources. Two bibliographies that may be of use are: 1.

United Nations Interregional Crime and Justice Research Institute (UNICRI) THB Bibliography, at www.unicri.it/. This is a periodically updated bibliography that provides a number of links to articles available on the Internet including user manuals containing useful checklists and reports written about different regions of the world which may be particularly relevant to the specific location of where a PSO is to be established. This Web site also contains an “international legal repository” with links to various international and regional treaties and links to other legal databases dealing with trafficking in persons. Finally this Web site also contains links to a number of relevant institutions/organizations dealing with trafficking in human beings and the sexual exploitation of minors.

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2.

R EBECCA S URTEES & S LAVICA S TOJKOVIC , A NNOTATED G UIDE TO INTERNET-BASED COUNTER TRAFFICKING RESOURCES (INTERNATIONAL ORGANIZATION FOR MIGRATION) (2004). A short list of useful toolkits and guides for law enforcement include the following: ANTI-SLAVERY INTERNATIONAL, PROTOCOL FOR IDENTIFICATION AND ASSISTANCE OF TRAFFICKED PERSONS AND TRAINING KIT (London, 2005). MIKE DOTTRIDGE, REFERENCE GUIDE ON PROTECTING THE RIGHTS OF CHILD VICTIMS OF TRAFFICKING IN EUROPE (Geneva, United Nations Children’s Fund (UNICEF), 2006). RESOURCE BOOK FOR LAW ENFORCEMENT OFFICERS ON GOOD PRACTICES IN COMBATING CHILD TRAFFICKING (VIENNA, INTERNATIONAL ORGANIZATION FOR MIGRATION (IOM), 2006)—an excellent resource specifically designed for law enforcement officers with practical experience working in this field. It is a compilation of identified good practices and includes the issues of identification and age assessment, investigative methods, interview techniques and cooperation between law enforcement authorities and NGOs/social service providers. UNICEF, LET’S TALK, DEVELOPING EEFFECTIVE COMMUNICATION WITH CHILD VICTIMS OF ABUSE AND HUMAN TRAFFICKING (2003). UNICEF, REFERENCE GUIDE ON PROTECTING THE OF TRAFFICKING IN EUROPE (GENEVA, 2006).

RIGHTS OF CHILD VICTIMS

UN D EPARTMENT OF P EACEKEEPING O PERATIONS: B EST P RACTICES U NIT , HUMAN TRAFFICKING RESOURCE PACKAGE. STOP ABUSE. (NEW YORK, UNITED NATIONS) (2004)—a trafficking resource manual that sets out the policy of the Department of Peacekeeping Operations and its approach to the issue in missions. An attached CD-ROM provides background reference material including international conventions, training guides and model legislation. UN DEVELOPMENT PROGRAM, ANTI-TRAFFICKING TRAINERS’ MANUALS (2007). UN DEVELOPMENT PROGRAM, BEST PRACTICE LAW ENFORCEMENT MANUAL FIGHTING AGAINST TRAFFICKING OF HUMAN BEINGS (UNDP, 2003).

FOR

UNOCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN Doc. E/2002/68/Add.1 (2002). UN OFFICE ON DRUGS AND CRIME, TOOLKIT TO COMBAT TRAFFICKING IN PERSONS (Vienna, 2006)—special reference may be made to the training tools for law enforcement and the judiciary on page 68. UN OFFICE ON DRUGS AND CRIME, TRAFFICKING IN PERSONS: GLOBAL PATTERNS (Vienna, 2006). MIKE DOTTRIDGE, TERRES DES HOMMES AND UNICEF REGIONAL OFFICE FOR

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CEE/CIS, ACTION TO PREVENT CHILD TRAFFICKING IN SOUTH EASTERN EUROPE A PRELIMINARY ASSESSMENT (UNICEF, 2006). I.

CONCLUSIONS

Although, it is this author’s opinion that only a multidimensional approach to the issue of trafficking in persons will succeed in trying to curb this serious crime, this chapter separated the issues for law enforcement in a PSO. By doing so, it listed the minimal tools that law enforcement needs and has provided practical suggestions including some unique for PSOs. The chapter, which is directed towards those who may already be in or are en route to a PSO also provided a short list of Internet resources that may assist those on the ground as the internet may be the only readily available resource at their disposal.

CHAPTER 17 THE ROLE OF THE INTERNATIONAL CRIMINAL COURT IN THE PROSECUTION OF PEACEKEEPERS FOR SEXUAL OFFENSES Noëlle Quénivet*

A. INTRODUCTION The last few years have tainted the lustrous shine that UN peacekeeping operations reached straight after the end of the Cold War. Major drawbacks, especially on the African continent, indicated that the United Nations has not always been able to cope with the situation on the ground. Yet, the United Nations regained its glow when it started to administer in a more successful fashion territories such as Bosnia-Herzegovina, East Timor and Kosovo. Unfortunately, a further blow came as newspapers unraveled the participation of peacekeepers in human trafficking on the territory of the former Yugoslavia as well as in sexual offenses in West Africa and the Democratic Republic of Congo (DRC). The fact that those who were sent to protect civilians who had survived war turned into perpetrators shocked the international community. As a result, the United Nations expressed its strong rejection of such practice and propagated a zero-tolerance policy towards sexual encounters between peacekeepers and the local population. The policy simply bans any type of sexual encounters, thereby not distinguishing between consensual, poverty-driven and violent sexual activities. At the same time, calls for the prosecution of peacekeepers became ever resonant. However, because the UN policy espouses a narrow human rights approach and does not take into consideration the jurisprudence of international criminal tribunals, its principles cannot readily be applied to the realm of international or national criminal law. An additional flaw is that due to the different status of personnel involved in peace support operations (PSOs), the United Nations cannot craft a unique legal solution applicable to all staff members. A remedy to circumvent this problematic issue would be to haul peacekeepers, whichever function and sta* Noëlle Quénivet is a Senior Lecturer at the University of the West of England. She holds a LL.M. from the University of Nottingham (UK) and a Ph.D. from the University of Essex (UK). 399

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tus they hold, before international criminal tribunals.1 This contribution focuses on the International Criminal Court (ICC) inasmuch as its Statute represents the normative yardstick of international criminal law. A further valid reason for harking upon such a solution is that sexual crimes are often poorly prosecuted in national jurisdictions while the international criminal tribunals are a vivid testimony to the fact that sexual offenses are crimes that must and can be prosecuted. Nevertheless, serious hurdles exist with regards to prosecuting peacekeepers before international criminal tribunals. This chapter analyzes how it is feasible to put on trial personnel engaged in PSOs before the ICC. The first section peruses the scope and extent of sexual activities of peacekeepers. The second section distinguishes the different types of personnel present in PSOs, while the third contemplates whether violations of the zero-tolerance policy of the United Nations are properly investigated and prosecuted. The fourth section scrutinizes the zero-tolerance policy of the United Nations in the light of the jurisprudence of the international criminal tribunals with regards to gender crime. The fifth section focuses on the possibility of holding peacekeeping personnel accountable before the ICC, taking into consideration procedural and material impediments. Finally, in light of the aforementioned issues the chapter recommends a particular procedure that includes the ICC so as to efficiently tackle sexual crimes committed by peacekeepers. B. SCOPE AND EXTENT OF SEXUAL ACTIVITIES OF PEACEKEEPERS In the past decades numerous reports have surfaced depicting the ugly face of PSOs, that of men and women who are sent to help but end up harming the population. While the first accounts of violations, especially of sexual nature, emerged in a sporadic fashion through articles published by journalists, it was unclear whether these reflected a broader pattern of behavior or were simply of an anecdotal nature. Violations were documented in Eritrea,2 Bosnia and

1 As Zwanenburg remarks “[a]n ICC court could possibly fill part of [the] lacuna [of having no common criminal justice system] by providing for a uniform international criminal law regime.” Marten Zwanenburg, The Statute for an International Criminal Court and the United States: Peacekeepers under Fire?, 10 E UR. J. I NT’L L. 124–25 (1999) [hereinafter ICC and US]. 2 Three Danish soldiers were charged with having sex with a 13-year-old girl. An Italian soldier was involved in a further sexual abuse case. An Irish soldier was disciplined for making pornographic videos. Elise Barth, The United Nations Mission in Eritrea/Ethiopia: Gender(ed) Effects, in GENDER ASPECTS OF CONFLICT INTERVENTIONS: INTENDED AND UNINTENDED CONSEQUENCES 13–14 (Louise Olsson, Inger Skjelsbæk, Elise Fredrikke Barth & Karen Hostens eds., 2004).

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Herzegovina, Cambodia,3 the DRC,4 Haiti,5 Liberia,6 East Timor,7 Kosovo,8 Guinea,9 Mozambique,10 Sierra Leone11 and Somalia.12 In order to understand fully the scale of the problem, states whose contingents were incriminated in those crimes as well as the United Nations commissioned a series of reports. After severe allegations against Canadian troops in Somalia, the government issued a report, upon which the Airborne Regime connected to the incidents was disbanded.13 A report written by the US military after the rape of a 12-year-old girl in Kosovo revealed that the conduct took place in the midst of wanton violence and aggression against the Kosovan people. It further uncovered that similar crimes had occurred during another operation in Haiti.14 An enquiry into allegations of sexual abuses by French sol3 It is alleged that Bulgarian peacekeepers were involved in prostitution rings in Cambodia. BARBARA BEDONT, INTERNATIONAL CRIMINAL JUSTICE: IMPLICATIONS FOR PEACEKEEPING, CANADIAN DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE (2001). 4 South African troops allegedly raped a 12-year-old Congolese girl. Kate Holt & Sarah Hughes, South African Troops Raped Kids in DRC, PRETORIA NEWS, July 12, 2004. 5 Refugees International, Haiti: Sexual Exploitation by Peacekeepers Likely to Be a Problem, RI BULLETIN, Mar. 7, 2005. BEDONT, supra note 3. 6 United Nations High Commissioner for Refugees (UNHCR) & Save the Children-UK, Note for Implementing and Operational Partners on Sexual Violence and Exploitation: The Experience of Refugee Children in Guinea, Liberia, and Sierra Leone: Based on Initial Findings and Recommendations from Assessment Mission 22 October–30 November 2001 (Feb. 27, 2002) [hereinafter UNHCR/ Save the Children (UK) Report]. 7 Reuters, UN Peacekeepers in Timor Face Possible Sex Charges, Aug. 3, 2001. 8 A US peacekeeper raped and murdered a 12-year-old Kosovan-Albanian girl in January 2000. Results of the 15–6 Investigation Unit Climate and State of Discipline within the 3rd Battalion, 504th Parachute Infantry Regime, Task Force Falcon, Kosovo Force (Feb. 24, 2000). 9 UNHCR/ Save the Children (UK) Report, supra note 6. 10 Personnel engaged in the UN mission to Mozambique were extensively involved in child prostitution and trafficking networks. UN Secretary-General, Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children, UN Doc. A/51/306 (Aug. 26, 1996). 11 UNHCR/ Save the Children (UK) Report, supra note 6. Human Rights Watch, Sexual Violence in the Sierra Leone Conflict (Feb. 26, 2001). 12 It was alleged that Italian troops bound a woman to a truck and raped her with a gun. BEDONT, supra note 3. 13 Canada, Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy: The Lessons of the Somalia Affair, Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa: Public Works and Government Services Canada-Publishing, June 1997) available at www.dnd.ca/somalia/somaliae.htm (last visited Jan. 14, 2007). 14 Results of the 15–6 Investigation Unit Climate and State of Discipline within the 3rd Battalion, supra note 8.

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diers in the Ivory Coast was likewise opened by the French authorities.15 Although the United Nations had been aware that members of PSOs were incriminated in sexual crimes, there was initially no or little reaction except for the classical defense of “boys will be boys” and a prevailing culture dismissing such activities as an inevitable by-product of military masculinities.16 It is all the more remarkable, as the Machel Report on the impact of armed conflict on children issued in 1996 pointed out, that the increase in sexual activities, and more particularly child prostitution; was concomitant to the arrival of peacekeeping forces.17 The link between the presence of staff members involved in PSOs and the growth in sexual activities was also evidenced by the rise in prostitution in Cambodia.18 The first official report drawn up by the United Nations was a study conducted by Save the Children Fund-United Kingdom in collaboration with the UN High Commissioner for Refugees in 2002. The document, which later became known as the “food for sex” scandal, exposed widespread sexual exploitation and abuse by UN personnel serving in PSOs in Liberia, Sierra Leone and Guinea. The UN Office of Internal Oversight Services (OIOS) undertook its own investigations but could not substantiate most of the findings of the initial investigation.19 The second attempt by the United Nations to unravel the extent of violations of a sexual nature was the OIOS report following the media attention paid to allegations of sexual abuses in the DRC.20 In March

15 Sandra K. Miller, Accountability for the Conduct of U.N.-Mandated Forces under International Human Rights Law: A Case Study Concerning Sexual Abuse of the U.N. Mission in the Democratic Republic of Congo (MONUC), in PRACTICE AND POLICIES OF M ODERN P EACE S UPPORT O PERATIONS UNDER I NTERNATIONAL L AW, AT 266 n.18 (Roberta Arnold & Geert-Jan Alexander Knoops ed., 2006). 16 Colum Lynch, U.N. Faces More Accusations of Sexual Misconduct, WASH. POST, Mar. 13, 2005. 17 Report of the Expert of the Secretary-General, Graca Machel, Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children, UN Doc. A/51/306 (Aug. 26, 1996). See also GRACA MACHEL, THE IMPACT OF WAR ON CHILDREN: A REVIEW OF PROGRESS SINCE THE 1996 UNITED NATIONS REPORT ON THE IMPACT OF ARMED CONFLICT ON CHILDREN (2001). 18 BRIDGET BYRNE, RACHEL MARCUS & TANYA POWER-STEVENS, GENDER, CONFLICT, AND D EVELOPMENT: V OLUME I I, C ASE S TUDIES: C AMBODIA, R WANDA , K OSOVO , A LGERIA, SOMALIA, GUATEMALA AND ERITREA 12 (1996). 19 The Secretary-General, Report of the Secretary-General on the Activities of the Office of Internal Oversight Services: Investigation into Sexual Exploitation of Refugees by Aid Workers in West Africa, Supp. (No. 1), UN Doc. A/57/1 (Oct. 11, 2002) [hereinafter OIOS Report on West Africa]. 20 The Secretary-General, Investigation by the Office of Internal Oversight Services into Allegations of Sexual Exploitation and Abuse in the United Nations Organization Mission in the Democratic Republic of the Congo, delivered to the General Assembly, UN Doc. A/59/661 (Jan. 5, 2005) [hereinafter OIOS Report on the DRC].

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2005, the OIOS released a report disclosing that crimes of a sexual nature were widespread in that particular mission.21 In the meantime the United Nations had commissioned a comprehensive report on the issue, which was drafted under the pen of Prince Zeid. It not only presented to the General Assembly a general picture of sexual abuses cases in PSOs but also recommended an array of measures to curb the problem.22 C. DIFFERENT TYPES OF PEACEKEEPERS One of the points underlined by the Zeid Report was that different standards and laws were applicable to PSO personnel. The result was a lack of transparency and the ensuring impression that perpetrators were not held accountable. UN PSOs usually have a civilian, a military and a civilian police component. Five categories of peacekeepers can be distinguished: UN officials, experts on mission (UN civilian police and UN military observers), UN volunteers, individual contractors and consultants, and military and civilian police members of national contingents. Accordingly different disciplinary rules and procedures apply. UN officials are bound by the Staff Regulations and Rules,23 which are complemented by the Secretary-General bulletins and more particularly the Secretary-General’s 2003 bulletin entitled “Special Measures for Protection from Sexual Exploitation and Sexual Abuse.”24 These Staff Rules are a condition of employment for UN staff and, hence, the United Nations can discipline these individuals for failing to comply with them. Any arrangement between the United Nations and other entities or individuals must contain a provision stating that the latter agrees to abide by UN rules and regulations. Should the partner fail to comply with the rule, the arranged agreement can, in pursuance of the UN Staff Rules and Regulations, be terminated. The Sixth Committee of the General Assembly drafted in August 2006 a convention on criminal con-

21 The Secretary-General, Seventeenth Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, UN Doc. S/2005/167 (Mar. 15, 2005). 22 The Secretary-General, A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations, delivered to the General Assembly, UN Doc. A/59/710 (Mar. 24, 2005) [hereinafter Zeid Report]. 23 UN Secretariat, Secretary-General’s Bulletin, Staff Rules: Staff Regulations of the United Nations and Staff Rules 100.1 to 112.8, UN Doc. ST/SGB/2002/1 (Jan. 1, 2002), amended by UN Doc. ST/SGB/2003/1 (Jan. 1, 2003), UN Doc. ST/SGB/2004/1 (Jan. 1, 2004) and UN Doc. ST/SGB/2005/1 (Jan. 1, 2005). 24 UN Secretariat, Secretary-General’s Bulletin, Special Measures for Protection from Sexual Exploitation and Sexual Abuse, UN Doc. ST/SGB/2003/13 (Oct. 9, 2003) [hereinafter 2003 Bulletin].

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duct by UN peacekeeping officials that would apply to UN officials.25 The convention will be reviewed by a committee of experts.26 According to the Model SOFA (Status of Forces Agreement),27 UN civilian police and UN military observers are considered as experts on mission, that is, UN agents and not UN officials. Such individuals are governed by specific regulations28 that, however, do not include any reference to sexual offenses. Nonetheless, the comprehensive report submitted by Prince Zeid to the SecretaryGeneral in March 2005 notes that while the Department of Peacekeeping Operations (DPKO) has started applying the rules enshrined in the 2003 Bulletin for UN civilian police, it has not yet done so for military observers.29 Besides, experts on mission are bound to comply with local laws as far as their private behavior is concerned.30 Likewise for UN officials, the convention drawn up by the Sixth Committee on criminal conduct by UN peacekeeping officials should apply to UN experts.31 UN volunteers are not regarded as UN, staff but they are bound by the UN Volunteer Conditions of Service and Rules of Conduct,32 which are similar to the aforementioned UN Staff Regulations and Rules. At the moment, the regulations are being revised so that UN volunteers’ behavior is governed by the 2003 Bulletin.33 The aforementioned draft convention on the criminal account25 The Secretary-General, Ensuring the Accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committee in Peacekeeping Operations, UN Doc. A/60/980 (Aug. 16, 2006), Annex III [hereinafter Draft Convention on Criminal Accountability]. 26 The Secretary-General, Comprehensive Review of the Whole Question of Peacekeeping Operations in all their Aspects, Report of the Sixth Committee, UN Doc. A/61/450 (Nov. 10, 2006). 27 The Secretary-General, Comprehensive Review of the Whole Question of Peacekeeping Operations in all Their Aspects: Model Status-of-Forces Agreement for PeaceKeeping Operations, UN Doc. A/45/594, at 26 (Oct. 9, 1990) [hereinafter Model SOFA]. 28 UN Secretariat, Secretary-General’s Bulletin, Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, UN Doc. ST/SGB/2002/9 (June 18, 2002) [hereinafter Regulations for Experts on Mission]. 29 Zeid Report, supra note 22, at 21. 30 Regulations for Experts on Mission, supra note 28, Regulation 2(j). 31 Draft Convention on Criminal Accountability, supra note 25. See also The Secretary-General, Ensuring the Accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committee in Peacekeeping Operations, UN Doc. A/60/980, at 7 (Aug. 16, 2006) [hereinafter Accountability of UN Staff and Experts]. 32 UN Volunteers Handbook 8, available at www.unvolunteers.org/volunteers/safety/unvh.pdf (last visited Jan. 18, 2007). 33 See Special Political and Decolonization Committee, Fourth Committee, Comprehensive Review of the Whole Question of Peacekeeping Operations in all Their Aspects, delivered to the General Assembly, UN Doc. A/59/472/Add.2 (Apr. 18, 2005) [hereinafter Fourth Committee April 2005 Report]. The recommendations were approved

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ability of UN officials and experts on mission should also apply to them.34 Individual contractors and consultants are not bound by any rules and regulations issued by the United Nations. Their service contract does not contain any provision relating to sexual activities per se. Nonetheless, Condition 2 of their service contract may be apposite inasmuch as it spells out that “during their period of service for the United Nations, [they] shall refrain from any conduct that would adversely reflect on the United Nations and shall not engage in any activity that is incompatible with the discharge of their duties within the Organization.”35 The United Nations can do nothing more than terminate the contract should the individual engage in forbidden sexual activities.36 These conditions of service are under review by the Fourth Committee.37 Progress has been made in the Sixth Committee inasmuch as it recommends applying the draft convention on the criminal accountability of UN officials to contractors.38 The fifth and last category of individuals taking part in PSOs is military and civilian police members of national contingents. The Model SOFA grants the troop-contributing state exclusive jurisdiction over such members when crimes are committed on the territory of the host state.39 A memorandum of understanding is signed between the United Nations and the troop-contributing state setting out the terms and conditions governing the contribution in terms of personnel and equipment. The United Nations promulgated two general sets of rules of conduct, Ten Rules: Code of Personal Conduct for Blue Helmets40 and We Are the United Nations Peacekeepers,41 which bear some relby the General Assembly. GA Res. 59/300, UN Doc. A/RES/59/300 (June 30, 2005). 34 Draft Convention on Criminal Accountability, supra note 25, art. 1(d). 35 Under-Secretary-General for Management, Administrative Instruction: Consultants and Individual Contractors, UN Doc. ST/AI/1999/7 (Aug. 25, 1999). Annex A sets out the model contract form and conditions of service for consultants, while Annex B is relevant for individual contractors. 36 Id., Condition 9. 37 Fourth Committee April 2005 Report, supra note 33. 38 Draft Convention on Criminal Accountability, supra note 25, art. 1(d). See also Accountability of UN Staff and Experts, supra note 31, at 7. 39 Model SOFA, supra note 27. 40 Rule 4 prohibits the indulgence in “immoral acts of sexual, physical, or psychological abuse or exploitation of the local population or U.N. staff, especially women and children.” U.N. Department of Peacekeeping Operations, Ten Rules: Code of Personal Conduct for Blue Helmets, available at www.genderandpeacekeeping.org/resources/5_ UN_Codes_of_Conduct.pdf (last visited Jan. 24, 2007). 41 It explains that the peacekeepers should never “commit any act that could result in physical, sexual or psychological harm or suffering to members of the local population, especially women and children” and never “become involved in sexual liaisons which could affect our impartiality or the well-being of others.” U.N. Dep’t of Peacekeeping Operations, We Are United Nations Peacekeepers, available at www.un.org/depts/dpko/training/tes_publications/books/peacekeeping_training/pocket_car ds/un_in.pdf (last visited Jan. 24, 2007).

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evance to sexual activities. These rules are part of the guidelines for troop-contributing nations, which are listed in the memorandum of understanding. Although the guidelines are mission specific and not legally binding, the Zeid Report notes that in practice the Ten Rules and the We Are the United Nations Peacekeepers documents have been accepted by troop-contributing states.42 As a result, Prince Zeid recommends to formally include these rules in the Model Memorandum of Understanding. The comprehensive report of the United Nations of March 2005 prepared by Prince Zeid stresses that because of the varying status of PSO personnel, it is problematic to apply different legal standards.43 As a consequence the report recommends the creation of a common set of rules. In a follow-up meeting held by the General Assembly Special Committee on Peacekeeping Operations, it was underlined that the General Assembly should sanction the detailed rules enshrined in the Secretary-General’s 2003 Bulletin, entitled “Special Measures for Protection from Sexual Exploitation and Sexual Abuse,”44 as a uniform code of conduct for any personnel involved in PSOs.45 While this seemingly quick and efficient change may appeal, one should not forget that the enforcement of stricter standards contained in the 2003 Bulletin and the potential jurisdictional conflict between UN investigation and the troop-contributing states raises legal concerns.46 Moreover, the new convention on criminal accountability, though unifying the enforcement mechanism and reinforcing the necessity to arraign UN-related personnel, does not purport to establish new rules. Rather it reaffirms that such personnel should abide by local laws. D. POLICIES, INVESTIGATION AND PROSECUTION Remarkably the reaction of the United Nations to the increasing rate of sexual crimes committed by peacekeepers translated into an enhanced number of investigations but not in prosecutions, since the latter fall within the scope of jurisdiction of the host state or the troop-contribution states. In contrast, the system established for national contingents is one based on administrative measures employed by the United Nations, followed up or not by criminal measures.

42

Zeid Report, supra note 22, at 19. Id. at 14–22. 44 2003 Bulletin, supra note 24. 45 Special Committee on Peacekeeping Operations and its Working Group, Report of the Special Committee on Peacekeeping Operations and its Working Group on its 2005, delivered to the General Assembly, UN Doc. A/59/19/Add. 1, at 8 (Apr. 11, 2005) [hereinafter 2005 Special Committee on Peacekeeping Forces Report]. 46 Anthony J. Miller, Legal Aspects of Stopping Sexual Exploitation and Abuse in U.N. Peacekeeping Operations, 39 CORNELL INT’L L.J. 71, 75 (2006). 43

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1. The United Nations The United Nations reacted by issuing a series of policy papers, some mission-specific, others of a more general nature. The Inter-Agency Standing Committee of the United Nations established the Task Force on Protection from Sexual Exploitation and Abuse in Humanitarian Crises, which in July 2003, compiled a series of documents relating to procedures for PSO personnel. It outlined the procedures to follow upon receiving complaints of misconduct, the conduct of an investigation and the required follow-up actions.47 In October of the same year, the Secretary-General’s bulletin entitled “Special Measures for Protection from Sexual Exploitation and Sexual Abuse,” an administrative instruction to UN staff defining appropriate sexual behavior, was produced by the aforementioned task force.48 The 2003 Bulletin only provides for disciplinary measures including summary dismissal, should a PSO member not abide by the rule.49 A series of tools for local communities, such as guidelines, model information sheets on sexual exploitation and abuse, as well as model complaints forms were developed by the task force to implement the bulletin.50 In a second, move the United Nations stepped up the number of inquiries into sexual exploitation and abuse, thus displaying its will to put an end to the problem. For example, “[d]uring 2005, investigations have been completed into allegations of sexual exploitation and abuse involving 296 peacekeeping personnel (the breakdown by category of which is 84 civilians, 21 police and 191 military). So far, 17 civilians, 16 police and 137 military personnel have been dismissed or repatriated.”51 Nevertheless, these inquiries never led to anything more serious than dismissal because the United Nations lacks an internal criminal justice system. Prosecution is left to the host state, but it is often not feasible as UN personnel engaged in PSO enjoy immunities with regards to local laws. As Fleck remarks,52 since UN PSOs are considered as subsidiary organs of the United Nations, their personnel enjoy the status, privileges and immunities of the United Nations as provided for in Article 105 UN Charter and the UN Convention on 47

See Our Bodies—Their Battle Ground: Gender-Based Violence in Conflict Zones, Sept. 24, 2004, available at www.IrinNews.org (last visited Jan. 10, 2007). 48 2003 Bulletin, supra note 24. 49 Id., art. 3.2(a). 50 Women, Peace and Security, Report of the Secretary-General, UN Doc. S/2004/814, at 101 (Oct. 13, 2004). 51 Statement by Under-Secretary-General for Peacekeeping Operations JeanMarie Guéhenno to the Security Council, Remarks on Peacekeeping Procurement and Sexual Exploitation and Abuse by Peacekeepers, Feb. 23, 2006. 52 Dieter Fleck, Securing Status and Protection of Peacekeepers, in PRACTICE AND P OLICIES OF M ODERN P EACE S UPPORT O PERATIONS UNDER I NTERNATIONAL L AW 145 (Roberta Arnold & Geert-Jan Alexander Knoops ed., 2006).

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the Privileges and Immunities of the United Nations53 Further, experts on mission such as the UN civilian police and military observers are by virtue of the Model SOFA54 protected by the Convention on the Privileges and Immunities.55 Immunities are however conferred only for acts undertaken in official capacities. “Many cases of criminal conduct, especially criminal acts of sexual exploitation and abuse, would not, however, be in the performance of functions and immunity could not apply.”56 As the United Nations may feel that due process and human rights standards will not be guaranteed to its personnel when standing trial in national courts, immunities are rarely removed and immunity becomes synonymous with impunity.57 To circumvent this problem, the Sixth Committee recommends that the United Nations consider ad hoc arrangements stipulating that the host state comports with international human rights norms.58 In the instance where immunities are removed, the law of the host country is applicable to peacekeepers, but as they are usually deployed in states without proper legal and judicial system, launching proceedings, especially for sexual offenses, is challenging.59 Moreover the host state authorities are unlikely to haul peacekeepers into local courts because they “may feel too intimidated to exercise jurisdiction over the staff of agencies and organizations, which are providing assistance.”60 As a result, UN personnel do not stand trial in domestic courts. In a third move in August 2006 the Sixth Committee of the General Assembly suggested the adoption of a convention on the criminal accountability of UN officials and experts on mission.61 Although triggered by allegations of sexual misconduct, the application of the convention as well as the recommendations expressed in the parallel report “are not limited to crimes involving sexual exploitation and abuse.” 62 The convention affirms the primary jurisdiction of host states for UN-related personnel. In case the host state cannot fulfill its duties, other states may claim jurisdiction, 63 even on a partial basis, that is, by dividing tasks such as investigation, trial, and imprisonment.64 The draft convention will be reviewed by a group of experts in the first half of 2007. 53 Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 15 [hereinafter Convention on Privileges]. 54 Model SOFA, supra note 27, at 26. 55 Convention on Privileges, supra note 53, art. VI. 56 Accountability of UN Staff and Experts, supra note 31, at 21. 57 Id., at 22. 58 Id., at 44(b). 59 Id. at 14. 60 PAM SPEES, GENDER JUSTICE AND ACCOUNTABILITY IN PEACE SUPPORT OPERATIONS: CLOSING THE GAPS 21 (2004). 61 Draft Convention on Criminal Accountability, supra note 25. 62 Accountability of UN Staff and Experts, supra note 31, at 8. 63 Id. at 44(a). 64 Id. at 40–42.

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2. Prosecution of National Contingents The importance of examining the prosecution of members of national contingents lies in the fact that numerous reports underscored that the great majority of allegations of sexual misconduct are perpetrated by such personnel.65 In PSOs, troop-contributing states jealously guard the sovereignty that they wield over the armed and police forces they have deployed. Military and international civilian police (CIVPOL) personnel are governed by two agreements concluded between their country, the United Nations and the host state. SOFAs are concluded between the United Nations and the state where the PSO takes place while contribution agreements are signed between the United Nations and the troop-contributing states. The aim of SOFAs is to preserve the independent exercise of the function of the personnel participating in PSOs. These standard agreements exempt members of the armed forces from the criminal jurisdiction of the host state. Fleck brushes away all doubts regarding the so-called impunity of peacekeepers, for he maintains that “legal immunities in the receiving state should by no means be misunderstood as offering impunity for any crimes or inhibiting claims in the event of wrongful acts committed by members of mission. Crimes must be brought to national courts of the sending state or to a competent international court.”66 Indeed, members of national contingents are liable to prosecution according to the national criminal law of the troop-contributing state. In other words, the decision to start a lawsuit against a particular individual is left to the discretion of the state even if the United Nations has found that a member of the military personnel has violated UN regulations on sexual abuses. The role of the United Nations is minimized since it has no legal authority to state whether the individual should face trial once repatriated or returned home. Even in the instance where an enquiry into a crime is initiated against a member of a troopcontributing nation, the United Nations has no leverage on the investigation, the procedure or the case itself. As a senior member of the UN Mission in Congo explained to a journalist “the United Nations has no authority to follow through any of the investigations currently made. At most, after a lengthy process, they can repatriate an individual, but they cannot see those cases followed through in the country of origin.”67

65 OIOS Report on the DRC, supra note 20, at 8. See also Statement by UnderSecretary-General for Peacekeeping Operations Jean-Marie Guéhenno to the Security Council, supra note 51. 66 Fleck, supra note 52, at 148. 67 Kate Holt, Abuse by U.N. Troops in DRC May Go Unpunished, LONDON INDEPENDENT, July 12, 2004. See also Alexandra R. Harrington, Victims of Peace: Current Abuse Allegations against U.N. Peacekeepers and the Role of Law in Preventing them in the Future, 12 ILSA J. INT’L & COMP. L. 125, 138–39 (2005).

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Many authors avow that such trials never occur,68 a contention that must be partially rebutted inasmuch as certain states have taken legal action, unfortunately not always successfully, against individuals for crimes executed during PSOs, some of them dealing with sexual offenses.69 Yet, it is true that domestic trials remain fraught with political, social, legal and resource difficulties. First, states that send troops abroad are reluctant to admit that some members of their armed or police forces indulged in prohibited and criminal activities. Such states feel proud to be able to send troops abroad and, hence, any admittance of misconduct among the troops would have a serious negative impact on the national level. Other states view PSOs as a means to make money and are thus least interested in protecting the population or ensuring that their troops behave properly. Second, the legislation of troop-contributing states may not preclude certain sexual activities (such as prostitution), certain crimes70 or the definition/age of consent may be different from what is specified on the international level. 71 Therefore, conduct that might fall within the remit of the activities banned by the 2003 Bulletin may not automatically be penalized on the national plane. Third, the requirement of dual criminality may bar prosecution.72 Although a state’s law may extend to acts performed in another state, it may equally require that the conduct as well be considered as a crime in the state where it was executed. As a result, this requirement may hinder mutual legal assistance in criminal matters, thereby preventing for example the exchange of witnesses’ and victims’ transcripts. Fourth, resources might be scarce on the national level, and conducting a trial that entails the presence of the victim as well as witnesses from another 68 Pallen maintains that none of the US nationals involved in sexual violence such as statutory rape and purchasing women as slaves in Bosnia stood trial. Daniel Pallen, Sexual Slavery in Bosnia: The Negative Externality of the Market of Peace, 13 SWORDS AND PLOUGHSHARES 27, 35 (2003). 69 A US soldier (Army Sergeant Sentenced to Life without Parole for Murder of Girl in Kosovo, CNN, Aug. 1, 2000), a French logistical expert (Emily Wax, Congo’s Desperate ‘One-Dollar U.N. Girls’, WASH. POST, Mar. 21, 2005, at A1), six Moroccan soldiers (UN soldiers arrested in DR Congo, BBC News, Feb. 13, 2005), an Argentinean soldier (The U.N. and the Sex Slave Trade in Bosnia: Isolated Case or Larger Problem in the U.N. System?: Hearing Before the Subcomm. on Int’l Operations and Human Rights of the Comm. on Int’l Relations House of Rep., 107th Cong. (2002), at 53 [hereinafter Hearing House of Representatives]). 70 For example, in the case of Italian soldiers who sexually abused Somali civilians, the Italian military authorities could only discipline and not prosecute them, for the Italian military penal code did not envisage prosecution for such crimes. Natalia Lupi, Report by the Enquiry Commission on the Behaviour of Italian Peace-keeping Troops in Somalia, 1 Y.B. INT’L HUMAN. L. 376 (1998). 71 Accountability of UN Staff and Experts, supra note 31, at 19. 72 Id. at 23.

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country may involve high expenses that certain countries cannot afford. As most of the evidence and witnesses are located in the host state the Sixth Committee’s report of August 2006 underlines the necessity to conduct trials in the host state.73 Fifth, the prosecutorial policy of states may be a factor explaining the differences in the treatment of cases relating to sexual offenses.74 E.

THE ZERO-TOLERANCE POLICY OF THE UNITED NATIONS AND INTERNATIONAL CRIMINAL LAW

The United Nations reacted to allegations of sexual misconduct and the lack of prosecution thereof by issuing a “zero-tolerance policy.” While the majority of reports commissioned by states focused on criminal activities of a sexual nature, those prepared by the United Nations encompassed all types of sexual activities, for the UN zero-tolerance policy rules out a wide spectrum of sexual behaviors ranging from rape to solicitation of adult prostitutes. Since the Zeid Report recommends that the 2003 Bulletin be applicable to all personnel associated with PSOs, a recommendation followed by the General Assembly,75 a thorough examination of its content is warranted. The bulletin is a landmark document, widely supported despite its major flaws in terms of content. Hence one may reasonably question whether it is, indeed, providing a model that can be used for criminal investigation and prosecution purposes. The human rights approach76 espoused by the document cannot be used as a framework for prosecution under international criminal law. While human rights law focuses on state’s responsibility, international criminal law centers on individual liability. As the Sixth Committee of the General Assembly examined in August 2006 how the standards of the bulletin could be criminalized, it acknowledged that “[a]cts of sexual exploitation and abuse, as defined in Secretary-General’s Bulletin [ . . . ], amount to misconduct that should be the subject of an administrative investigation; however, such acts will not necessarily amount to criminal conduct under the laws of a state.”77 Since the report of the Sixth Committee provides that the OIOS while investigating alle73

Id. at 27. Marten Zwanenburg, Compromise or Commitment: Human Rights and International Humanitarian Law Obligations for U.N. Peace Forces, 11 LEIDEN J. INT’L L. 229 (1998). 75 Special Committee on Peacekeeping Operations and its Working Group, Report of the Special Committee on Peacekeeping Operations and its Working Group, delivered to the General Assembly, UN Doc. A/59/19/Rev.1(Supp) (Jan. 1, 2005). 76 This contribution focuses on sexual offenses as crimes and not as violations of international human rights law. 77 Accountability of UN Staff and Experts, supra note 31, at 10. 74

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gations of sexual misconduct must bear in mind that its findings may be used in criminal proceedings, it is crucial to scrutinize how the bulletin relates to national and international criminal law. The great majority of UN reports aimed at sexual activities between peacekeepers and the local population do not distinguish between lawful and proscribed sexual acts. 78 Although inexorably there is an inequitable power differential between local women and PSO personnel, it does not mean that all sexual activities are outlawed according to domestic and/or international criminal law.79 As the OIOS Report on the DRC remarked that while the inspection was being undertaken, sexual activities between peacekeepers and local women continued unabated. This may evidence that personnel engaged in such activities do not consider them as of criminal nature. Indeed, if prostitution is countenanced in their home country as well as in the host state, it is probably difficult for them to see in which regard they are violating law. What is more, the 2003 Bulletin “Special Measures for Protection from Sexual Exploitation and Sexual Abuse” opts for a human rights approach to the issue of sexual offenses.80 The terminology employed pertains to the realm of human rights law and is geared towards protecting human rights rather than establishing individual liability. To confuse these two approaches is detrimental. If one wishes to understand why prosecution, both on the national and international levels, is so poor, it is imperative to offer a detailed comparison between the terms used in the 2003 Bulletin and those in international criminal law. To explore whether peacekeepers can be hauled before the ICC, it is hence of utmost importance to distinguish between different categories of sexual encounters, the crux being in the notion of consent,81 which has been defined in great length and detail by the ad hoc international criminal tribunals. This chapter focuses on three types of sexual activities that may, depending on consent and the circumstances surrounding the event, that is, control over one’s body,82 be or not be viewed as crimes. 78 Remarkably, the 2003 Bulletin adopts a radical feminist approach, for it views sexual encounters as wrong per se because inherently they are the result of a power and wealth differential. See CATHERINE MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 29 (1987); and CATHERINE MACKINNON, ARE WOMEN HUMAN? AND OTHER INTERNATIONAL DIALOGUES 247–58 (2006). 79 This difference is not made by most authors, for example, Miller, supra note 15, at 270–71. 80 2003 Bulletin, supra note 24, at 1. In particular it mentions “universally recognised international legal norms and standards.” See also Miller, supra note 15, at 266–73. 81 Otto rightly pinpoints the dangers of overinclusive definitions of “sexual exploitation” and “sexual abuse” that ban consensual sex. Diane Otto, Making Sense of Zero-Tolerance Policies in Peacekeeping Sexual Economies, in SEXUALITY AND THE LAW FEMINIST ENGAGEMENTS (Vanessa Munro & Carl F. Stychin eds., forthcoming 2007). 82 Valerie Oosterveld, Sexual Slavery and the International Criminal Court: Advancing International Law, 25 MICH. J. INT’L L. 605, 608 (2004).

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1. Rape Straightforward allegations of rapes committed by peacekeepers are rather rare. A plausible reason is that rape is disguised as prostitution. For example, “[girls] claimed that a peacekeeper raped them and then provided them with money or food afterwards to give the appearance of a consensual transaction.”83 In other cases, “payment for sex would be little more than a few biscuits, a plastic sheet, [or] a bar of soap.”84 A further credible reason is that they are referred to as “sexual abuse.” Indeed, the 2003 bulletin condemns “sexual abuse” defined as “actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions.”85 The expression “sexual abuse” is unknown to international criminal law; rather the words “rape” and “sexual violence” are used. 86 Rape was defined in three cases before the International Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) before it found a conventional definition in the ICC Statute. 87 The Furundzija, 88 Akayesu89 and Celebici90 cases introduced three different, albeit related, definitions regarding the technicality of the act.91 The ICC opted for a definition that is closely related to the one expounded in the Furundzija case.92 83 Anna Schotton, A Strategy to Address Sexual Exploitation and Abuse by the United Nations Peacekeeping Personnel, 39 CORNELL INT’L L.J. 97, 101–02 (2006). 84 Scott A. Levin, U.N. Report: Sexual Exploitation of Refugee Children by U.N. Peacekeepers, 19 N.Y.L. SCH. J. HUM. RTS. 833, 835 (2003). 85 2003 Bulletin, supra note 24, at 1. 86 Correctly, the draft convention on the criminal accountability of UN-related personnel speaks of “rape and acts of sexual violence.” Draft Convention on Criminal Accountability, supra note 25, art. 3(2)(c). 87 For a thorough examination, see Rana Lehr-Lehnardt, One Small Step for Women: Female-Friendly Provisions in the Rome Statute of the International Criminal Court, 16 BYU J. PUB. L. 327–336 (2002). 88 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998). 89 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998) [hereinafter Akayesu Judgment]. For a detailed analysis of this case, see Stephanie K. Wood, A Woman Scorned for the ‘Least Condemned’War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda, 13 COLUM. J. GENDER & L. 274, 292–298 (2004). 90 Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment (Feb. 22, 2001) [hereinafter Kunarac Judgment]. 91 NOËLLE QUÉNIVET, SEXUAL OFFENSES IN ARMED CONFLICT AND INTERNATIONAL LAW 6–11 (2005). 92 Preparatory Commission for the International Criminal Court, Addendum: Part II, Finalized Draft Text of the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2, arts. 7(1)(g)(1) and 8(2)(b)(xxii)-1 (Nov. 2, 2000), [hereinafter Elements of Crimes]. The elements of rape are identical for crimes against humanity and war crimes.

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With regard to consent, the definition of sexual violence as expounded by the ICTR as “any act of a sexual nature which is committed on a person under circumstances which are coercive”93 was broadened in the Celebici case, whereby the ICTY explained that rape was a sexual act that was “non-consensual or nonvoluntary.”94 The definition propounded by the elements of crimes for the ICC take a similar stance: “The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.”95 It is clear from the foregoing that the two yardsticks to decide upon the legality of the act are consent and the presence of elements of coercion. Yet, the ICTY went a step further in the Kvocka case, since it embraced the informed consent doctrine as it explained that consent is connected to “a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal.”96 Unfortunately, the ICC Statute did not go as far as the jurisprudence of the ICTY by considering the free will of the person. The issue of consent as an affirmative defense is also governed by Rule 70(a)–(c) of Principles of Evidence in Cases of Sexual Assault in the Rules of Procedure and Evidence, which entrenches a two-prong test.97 First, the Court must establish whether the victim had the legal capacity to give consent. Second the Court must assess the circumstances and determine whether they can be characterized as coercive so as to undermine the victim’s ability to exercise his/her own agency. Thus, the definition of sexual abuse as adopted by the 2003 Bulletin does not comport with the more stringent elements of the crime of rape because it views “actual or threatened physical intrusion of a sexual nature, [ . . . ] under unequal [ . . . ] conditions” as “sexual abuse.” According to the ICC Statute, some force or coercion must be present, and the doctrine of informed choice is not applicable.98 Hence, it is doubtful that the ICC will take legal action against peacekeepers for sexual encounters with local women only on the basis of the wealth and power differential. As a result, the only possibility would be to embrace a broad definition of “coercive environment” and profess that inher93

Akayesu Judgment, supra note 89, at 598. Kunarac Judgment, supra note 90, at 437–38. 95 Elements of Crimes, supra note 92. 96 Prosecutor v. Kvocka, Case No. IT-98-30/1, at 23–108 (Nov. 2, 2001). 97 Rules of Procedure and Evidence of the International Criminal Court, Rules 94–98, Doc. ICC-ASP/1/3 (2002) [hereinafter Rules of Procedure and Evidence]. 98 Several authors militate in favor of the informed consent theory. See Kristen Boon, Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 COLUM. HUM. RTS. L. REV. 625 (2001); Thekla Hansen-Young, Defining Rape: A Means to Achieve Justice in the Special Court of Sierra Leone, 6 CHI. J. INT’L L. 479, 490 (2005–2006). 94

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ently PSOs99 take place in or create a coercive atmosphere. This is however unlikely to be the case. 2. Repeated Rapes Two further concepts, “(en)forced prostitution” and “sexual slavery,” must be probed, as both describe a repetition of sexual activities under coerced circumstances. As the Women’s Caucus for Gender Justice in the ICC notes [w]omen may be forced to submit to serial rape in exchange for their safety or that of others or the means of survival. Even though the women would not, strictly speaking, be prostitutes, they would be forced to engage in an exchange of sex for something of value for one or more men in a dominant position of power. But even where women are free to go home at night or even to escape, the conditions of warfare might nonetheless be so overwhelming and controlling as to render them little more than sex slaves. The decision whether to charge someone with forced prostitution, sexual slavery or serial rape, would depend upon a thorough analysis of the facts in each case from the perspective of the woman.100 a.

Prostitution or Forced Prostitution

Many accounts relating to sexual activities involving PSO personnel speak of soldiers having local girlfriends.101 The first question that might be raised is whether these relationships are genuine or constitute disguised prostitution and, in the case of prostitution, whether it can be categorized as a crime under international law. The example of an Irish soldier stationed in Eritrea who made pornographic videos of his so-called girlfriend, aged 22, reveals the intricacies of such a case.102 Indeed, the woman maintained that she was his girlfriend and

99 In this regard, one must distinguish between PSOs and peace enforcement operations. In the case of the latter, international humanitarian law applies in pursuance of the Secretary-General’s Bulletin, Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13 (Aug. 6, 1999), reprinted in 38 I.L.M. 1656 (1999) a position reinforced by Article 2.3. of the Draft Convention on Criminal Accountability, supra note 25. 100 Women’s Caucus for Gender Justice in the International Criminal Court, Recommendations and Commentary for December 1997 Preparatory Committee, Part III: WC.5.6–12. 101 See Barth, supra note 2, at 9. 102 See id. at 14.

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that he had promised to marry her and take her to Ireland. Socializing with local women is not a crime and should not be considered as such. Nevertheless reports convey the impression that these are only exceptions to the rule, that is, prostitution. Indeed practice shows that one consequence of the presence of a UN mission is the rise in prostitution or the creation of a new market for prostitution. As a result, Higate recommends a pragmatic approach to the zero-tolerance policy embodied in the Code of Conduct because of the “grey area” of prostitution103 that is strictly ruled out by the 2003 Bulletin104 and because one must distinguish between two categories of prostitution. One is known as “survival prostitution” depicting the situation of local vulnerable women turning to prostitution as a means of livelihood,105 and the other “consumerist prostitution,” in which instance “the local women may have had relatively more control over the choice of clients with whom they did ‘business’.”106 One of the main reasons adduced to prohibit any type of sexual encounters is that it is arduous, if not insuperable, to distinguish between legitimate and forced prostitution,107 a crime under international law108 and according to the ICC Statute.109 The crime of enforced prostitution centers on the “conditions of control over a person who is coerced by another to engage in sexual activities.”110 The women engaging in “survival prostitution” are initially will103 P AUL H IGATE, G ENDER AND P EACEKEEPING. C ASE S TUDIES: T HE D EMOCRATIC REPUBLIC OF THE CONGO AND SIERRA LEONE 51 (2004) [hereinafter GENDER AND PEACEKEEPING]. 104 2003 Bulletin, supra note 24, at 1. 105 “[W]ithout access to legitimate work opportunities, women and children may resort to prostitution to survive.” Vanessa L. Kent, Peacekeepers as Perpetrators of Abuse. Examining the U.N.’s Plans to Eliminate and Address Cases of Sexual Exploitation and Abuse in Peacekeeping Operations, 14(2) AFR. SEC. REV. 85, 86 (2005). “Survival sex” is however a misnomer as the main harm is poverty and not sex. Otto, supra note 81. 106 Paul Higate, Men, Masculinities and Peacekeeping in Sub-Saharan Africa, in GENDER AND PEACE-BUILDING IN AFRICA 75 (Kari Karamé ed., 2004) [hereinafter Men and Masculinities]. 107 Report of the Secretary-General on Women, Peace and Security, UN Doc. S/2002/1154, at 45 (Oct. 16, 2002). See also Hearing House of Representatives, supra note 69, at 30: “In Bosnia, the trafficking and forced prostitution is not separate from ‘legitimate’ prostitution; it is all the same operation. Therefore, anyone who is patronizing prostitution in Bosnia is supporting the sex slave trade.” 108 In the famous Batavia case, enforced prostitution was considered a war crime. Netherlands Temporary Court-Martial in Batavia, Trial of Washio Awochi, Judgment, Oct. 25, 1946, in THE UNITED NATIONS WAR CRIMES COMMISSION ED., 13 LAW REPORTS OF TRIALS OF WAR CRIMINALS, Case No. 76, at 122. 109 Rome Statute of the International Criminal Court, July 17, 1998, arts.7 (1)(g)(3), 8(2)(b)(xxii) and 8(2)(e)(vi), 2187 U.N.T.S. 3 Statute [hereinafter ICC Statute]. 110 U.N. Commission on Human Rights, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, UN Doc. E/CN.4/Sub.2/1998/13, at 10 (June 22, 1998).

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ingly consenting to sex, yet poverty and disease drive them into a vicious cycle of dependency. Nevertheless, Otto opines that survival sex “involves a level of agency and negotiation that distinguishes it from sexual offences.”111 In the case of prostitution and especially “consumerist prostitution,” 112 women are considered as agents of their own destiny rather than victims. As Barth notes “[p]erhaps we are unable or unwilling to accept that local women who have relations with foreign soldiers can be anything but victims.” 113 Some authors counterargue that “[t]he acts may appear to increase a woman’s agency and her sense of control over her body as she is choosing to engage in sexual activity for some benefit. Given the distorted power dynamics present in conflict, however, these exploitative circumstances do not involve real choices.”114 The use of the concept of “agency” is of utmost significance because, by utilizing a new conceptual approach to the notion of “consent,” the ICC provisions require assessment into whether the victim exercised his/her agency to the sexual acts or whether consent is negated due to external circumstances.115 If one agrees that the women are their own agents, then sexual activities in the aforementioned form cannot be regarded as a crime under the ICC Statute because the alleged perpetrator can raise consent as a defense. The elements of crime for Article 7(1)(g)(3) aver that the use of force or threat thereof is not necessary; fear of violence, duress, detention, psychological oppression or abuse of power, as well as taking advantage of a coercive environment, can also vitiate consent.116 While it is evident that the position of PSO personnel and of local women is far from equal, it is difficult to consider that peacekeepers are abusing their power and taking advantage of a coercive post-conflict reconstruction environment. However, as paragraph 3 of the elements of crime for Article 7(1)(g)(3) explains, the perpetrator must obtain or expect to obtain monetary or material benefit. Outwardly, this provision can only be used against procurers, for example, local boys and men who arrange sexual encounters between peacekeepers and local women,117 and this cannot readily be applied to peacekeepers involved in sexual encounters with local women. Nonetheless, if peacekeepers are accused of running brothels and child prostitution rings, patronizing prostitutes and traf111

Otto, supra note 81. It must be noted that “it was within the terms of gendered interactions of this kind that peacekeepers described their relationships as bona fide, and therefore within the terms of the U.N. Code of Conduct.” Men and Masculinities, supra note 106, at 75. 113 See Barth, supra note 2, at 16. 114 Sarah W. Spencer, Making Peace: Preventing and Responding to Sexual Exploitation by United Nations Peacekeepers, 16 J. PUBLIC INT’L AFF. 167, 171 (2005). 115 Rules of Procedure and Evidence, supra note 97, Rule 70 (a), (b) and (c). For a discussion, see Kristen Boon, Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 COLUM. HUM. RTS. L. REV. 625 (2001). 116 Elements of Crimes, supra note 92, art. 7(1)(g)(3). 117 OIOS Report on the DRC, supra note 20, at 11. 112

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ficking sex slaves,118 they might well stand trial for enforced prostitution. UN officials are reported to have been actively engaged in organizing human trafficking in Bosnia and forging documents119 to transport women across national borders.120 Only under these circumstances would the sexual activities in which peacekeepers are engaged fit into the definition of enforced prostitution as human trafficking is viewed as a form of enforced prostitution under Article 7(1)(g) of the ICC Statute. Further, it is asserted that the victim may as well expect a certain gain or advantage, thereby allowing for the prosecution of those who abuse “enforced prostitutes.”121 In this case, as in the Kunarac case presented before the ICTY,122 it must be demonstrated that the peacekeeper had knowledge of the circumstances surrounding these women’s activities. b. Prostitution or Sexual Slavery Sexual slavery is an additional type of crime proscribed by international criminal law. It is reported that in Sierra Leone peacekeepers established local women in rented accommodation in the capital and visited them during weekends or other off-duty periods. 123 In Bosnia, it was reported that members of the International Police Task Force had purchased women, whom they clandestinely housed in civilian houses.124 The precedence of the case of the “comfort women,” “a clear case of sexual slavery and a slavery-like practice,”125 vividly illustrate in which manner the military can sexually abuse women when they are “off-duty.” However, again, one must differentiate between sexual slavery and consensual sexual encounters. “Reportedly, teenage girls traveled great distances to arrive to Sierra Leone for the purpose of having sex with peacekeepers for money, supplies, or favors.”126 Higate recounts that in Sierra Leone 118

Hearing House of Representatives, supra note 69. William J. Kole & Aida Cerkez-Robinson, UN Police Accused of Involvement in Prostitution in Bosnia, ASSOC. PRESS, June 28, 2001. 120 Pallen, supra note 68, at 27, 29. 121 Oosterveld, supra note 82, at 645. 122 Kunarac Judgment, supra note 90; Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Appeals Judgment (June 12, 2002) [hereinafter Kunarac Appeals]. 123 GENDER AND PEACEKEEPING, supra note 103, at 43. 124 Hearing House of Representatives, supra note 69, at 28. UN Commission on Human Rights, Report on Violence Against Women, Violence Against Women Perpetrated and/or Condoned by the State During Times of Armed Conflict, UN Doc. E/CN.4/2001/73, at 59 (Jan. 23, 2001). 125 UN Commission on Human Rights, Report on the Mission to the Democratic People’s Republic of Korea, the Republic of Korea and Japan on the Issue of Military Sexual Slavery in Wartime, UN Doc. E/CN.4/1996/53/Add.1, at 137 (Jan. 4, 1996). 126 Scott A. Levin, U.N. Report: Sexual Exploitation of Refugee Children by U.N. Peacekeepers (2003) 19 N.Y.L. SCH. J. HUM. RTS. 833, 835 (2003). 119

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women would see off the men with whom they had relationships once they returned home and would then start the next cycle of relationships with the members of the replacement battalion.127 Unlike enforced prostitution, consent is not a possible defense for sexual slavery because slavery is a jus cogens crime, and as a result, “a person cannot under any circumstances, consent to be enslaved or subject to slavery. Thus it follows that a person accused of slavery cannot raise consent of the victim as a defence.”128 This position was reinforced by the ICTY jurisprudence that clearly spells out that “lack of consent does not have to be proved by the Prosecution as an element of the crime.”129 Both those who detain women as well as those who have sex with women whom they know are detained for sexual purposes can be indicted for sexual slavery. 130 It may be contended that due to the sharp differentials of power between peacekeepers and local women, the relationships are exploitative.131 In addition, as they are of a sexual nature, they may be regarded as constituting sexual slavery. Sexual slavery denotes the situation where a person lacks control over his/her body and personality and his/her physical environment is controlled by another person, usually in the form of captivity or detention. Until now sexual slavery has not been prosecuted as such by an ad hoc international criminal tribunal. Rather, it has been prosecuted under the heading of enslavement, which is described in the ICTY jurisprudence as “the exercise of any or all of the powers attaching to the right of ownership over a person.”132 The ICC Statute defines the term sexual slavery in relation to purchasing, selling, lending or bartering, thereby conveying the impression that some exchange must take place. However, the use of the word “such as” before the enumeration of the aforementioned acts, as well as the second part of the sentence “imposing on [victims] a similar deprivation of liberty” lend more room for interpretation especially in the context of sexual offenses committed by peacekeepers. In particular, criticism leveled against peacekeepers encompasses

127

GENDER AND PEACEKEEPING. supra note 103, at 43. UN Commission on Human Rights, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, Update to the Final Report Submitted by Ms. Gay J. McDougall, UN Doc. E/CN.4/ Sub.2/2000/21, at 51 (June 6, 2000). 129 Kunarac Appeals, supra note 119, at 120. 130 Kunarac Judgment, supra note 90, and Kunarac Appeals, supra note 119. 131 This is the position espoused by the 2003 Bulletin inasmuch as it considers sex work as inherently exploitative, notwithstanding the surrounding circumstances. 2003 Bulletin, supra note 24. This position contradicts the position of the CEDAW Committee, which indicated that it does not consider sex work as inherently exploitative. General Recommendation No. 19, Violence against Women, Committee on the Elimination of Discrimination Against Women (11th Sess., 1992), UN GAOR, 47th Sess., Supp. No. 38, at 1, UN Doc. A/47/38, at 15 (1993). 132 Kunarac Judgment, supra note 90, at 540. 128

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their partaking in human trafficking for sexual purposes in Bosnia.133 It is widely recognized that human trafficking is viewed as a form of enslavement under Article 7(1)(c) the ICC Statute. Nevertheless, the two concepts of “sexual exploitation” as defined in the 2003 Bulletin as “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another”134 and of “sexual slavery” as aforementioned remain distinct. Hence, a peacekeeper accused of sexual exploitation may not automatically stand trial for sexual slavery. This clearly demonstrates that the 2003 Bulletin should not be endorsed as a benchmark for prosecuting peacekeepers in any national or international court. Having regard to the expertise of the international criminal tribunals and the complexity of prosecuting peacekeepers in national fora, the ICC appears to be a suitable court. F.

PROSECUTION OF PEACEKEEPERS BY INTERNATIONAL CRIMINAL TRIBUNALS

While at first glance it seems possible to haul peacekeepers before the ICC, several impediments obstruct this solution.135 First the types of crimes prosecuted by the ICC are confined to the most serious crimes. Second, the principle of complementarity, which is at the core of the ICC Statute, is likely to hamper the jurisdiction of the Court. Last the issue of immunity bestowed upon certain personnel engaged in PSO is scrutinized. 1. Issues Relating to Crimes As the crimes falling within the ambit of the ICC are drawn from a body of outrageous criminal conduct, including war crimes, crimes against humanity and genocide, it is questionable that PSO personnel incriminated in sexual offenses can be prosecuted by the ICC. Moreover, the mandate of the ICC is not to take legal action upon private or random criminal acts that fall within the remit of domestic judicial systems. It is thus a legitimate question to ask to which extent the ICC may play a role in the prosecution of personnel taking part in PSOs.136 133

BEDONT, supra note 3. 2003 Bulletin, supra note 24, at 1. 135 Harrington, supra note 67, at 140. 136 Susan A. Notar, Peacekeepers as Perpetrators: Sexual Exploitation and Abuse of Women and Children in the Democratic Republic of the Congo, 14 AM. U. J. GENDER & SOC. POL’Y & L. 413, 425–26 (2006). 134

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a.

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Genocide

Although rape and other types of sexual offenses are not expressly mentioned in the provisions relating to genocide in the ICTY,137 ICTR138 or ICC139 Statutes, rape has successfully been prosecuted by the ICTR as an act constituting genocide.140 It is hence expected that the ICC prosecutor will endorse this position and charge sexual offenses as an act of genocide all the more as a footnote in the elements of crimes associate sexual crimes to Article 6(b) on genocide by causing serious bodily or mental harm. For the crime of genocide to be completed, the perpetrator must show a dolus specialis, whose threshold is difficult to attain as it entails the intention to destroy an entire group.141 The gravity of the crime makes it improbable that peacekeepers incriminated in sexual offenses be prosecuted under that heading.142 In addition, although genocide is not legally considered as a mass crime, it is only prosecuted when it reaches a certain quantitative dimension. As a consequence, it is unlikely that members of PSOs would held liable under this provision of the ICC Statute. b. Crimes Against Humanity As rape, sexual slavery, enforced prostitution, pregnancy or sterilization and other forms of sexual violence are specifically referred to in Article 7 of the ICC Statute, the actus reus element of the crime is fulfilled. However, it would be difficult to establish the mens rea since the crime requires knowledge of a general widespread or systematic attack on the population.143 Moreover, the proscribed act must be part of an attack that is defined 137

Statute of the International Criminal Tribunal for the former Yugoslavia, SC Res. 827, UN Doc. S/RES/827 (May 25, 1993). 138 Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, UN Doc. S/RES/955 (Nov. 8, 1994). 139 ICC Statute art. 6, supra note 109. 140 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, at 731–33 (Sept. 2, 1998); Prosecutor v. Musema, Case No. ICTR 96-13-T, Judgment, at 933 (Jan. 27, 2000). See Sherrie L. Russell-Brown, Rape as an Act of Genocide, 21 BERKELEY J. INT’L L. 350–373 (2003). 141 ICC Statute art. 6, supra note 109. See also Prosecutor v. Sikirica, Case No. IT-95-8-S, Judgment, at 89 (Sept. 3, 2001). 142 ICC and US, supra note 1, at 133. 143 In pursuance of Article 7 of the ICC Statute, the prosecutor may investigate allegations of sexual offenses if “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” ICC Statute art. 7, supra note 109. See also Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, at 659 (May 7, 1997) [hereinafter Tadic Case 1997].

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as “a course of conduct involving the multiple commission of acts referred to in [Article 7(1)] against any civilian population, pursuant to or in furtherance of a state or organisational policy to commit such attack.”144 Generally, “it is difficult to imagine that a peacekeeping force would have a policy to commit an attack on the civilian population.”145 Zwanenburg claims that this is mainly linked to the fact that command and control structures are often unclear in PSO and that communication lines are rather poor. As a result individuals are unlikely to be aware of the general situation and knowledge may not be easily implied.146 Nevertheless the involvement of peacekeepers in sex trafficking and child prostitution rings that were unraveled in recent accounts suggests that sexual abuses are not confined to one-off events but are part of a broader pattern and conceivably a proof of a policy. One may genuinely question whether a pattern of sexual violence would rise to the level of an unofficial policy. However, the elements of crime clearly specify that the expression “‘policy to commit such attack’ requires that the state or organization actively promote or encourage such an attack against a civilian population.”147 This suggests that condoning or passive behavior from the side of the authority is not sufficient,148 thereby rejecting the jurisprudence of the ad hoc international criminal tribunals inasmuch as the ICTY asserted that “the available case-law seems to indicate that in these cases some sort of explicit or implicit approval or endorsement by Sate or governmental authorities is required, or else that it is necessary for the offence to be clearly encouraged by a general governmental policy or to clearly fit within such a policy.”149 By endorsing the ICC elements of crime, the ICC prosecutor would not be able to point to an official UN policy or plan, even at the field mission level,150 when the United Nations is propagating a zero-tolerance policy and issuing reports, recommendations and policy papers, all banning any sexual contact between peacekeepers and the local population. As a result, one can only hope that the ICC will not feel strictly bound by the elements of crimes and will dismiss this particular expression on the basis that it contradicts contemporary jurisprudence. What is more, it is necessary to appraise whether the attack is either widespread or systematic. The ICTY explained that “a crime may be widespread or committed on a large scale by the ‘cumulative effect of a series of inhumane

144

ICC Statute art. 7(2), supra note 109. ICC and US, supra note 1, at 134. 146 Id. 134–35. 147 Elements of Crimes art. 7, Introduction, point 3, supra note 92. 148 Christina Möller, Sexuelle Gewalt im Krieg, in HUMANITÄRES VÖLKERRECHT. POLITISCHE, RECHTLICHE UND STRAFGERICHTLICHE DIMENSIONEN 297–99 (Jana Hasse, Erwin Müller & Patricia Schneider eds., 2001). 149 Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Judgment, at 552 (Jan. 14, 2000). See also Tadic Case 1997, supra note 143, at 653. 150 Harrington, supra note 67, at 141. 145

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acts or the singular effect of an inhumane act of extraordinary magnitude.’”151 In addition, “patterns of crimes—that is the non-accidental repetition of similar criminal conduct on a regular basis—are a common expression of [a] systematic occurrence.”152 While incidental sexual abuses may not fall within the ambit of the “widespread” or “systematic,” sex trafficking and child prostitution rings may well be, as such acts are a repetition of similar crimes or part of a string of such crimes. c.

War Crimes

In contrast to the ICTY and the ICTR Statutes, rape is specifically mentioned as a war crime in the ICC Statute, both when perpetrated in non-international armed conflict153 and in international armed conflict.154 Notwithstanding this lack, rape has been successfully prosecuted by the ICTY.155 Generally, for a crime to qualify as a war crime it must occur in the context of an armed conflict. The nexus between the act and the armed conflict has been debated at length in the jurisprudence of the ICTY and the ICTR.156 First, it must be proven that there is an armed conflict and second that the violation took place within the framework of the armed conflict. In a lawsuit relating to PSOs, a Court Martial Appeal Court of Canada ascertained that the operation in Somalia that took place in 1992–1993 did not qualify as an armed conflict.157 In this light, it is difficult to envisage how peacekeepers could be hauled before the IICC for war crimes. A strong impediment to the prosecution of peacekeepers under the war crime provision is that Article 8 of the ICC Statute grants the Court jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”158 Although this may on the face of it look like a rise in the jurisdictional threshold, it should be appreciated that this is only “a method used to prevent the Court from being

151 Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Judgment, at 179 (Feb. 26, 2001) [hereinafter Kordic Judgment]. 152 Kunarac Appeals, supra note 119, at 94. 153 ICC Statute art. 8(2)(e)(vi). supra note 109. 154 ICC Statute art. 8(2)(b)(xxii), supra note 109. 155 Prosecutor v. Furundzija, No. IT-95-17/1-T, Judgment, at 172 (Dec. 10, 1998). 156 Kordic Judgment, supra note 151, at 32; Prosecutor v. Blaskic, Case No. IT95-14, Judgment, at 69 (Mar. 3, 2000). 157 Court Martial Appeal Court of Canada, Her Majesty the Queen v. Private D.J. Brocklebank (Apr. 2, 1996). For an analysis of the decision, see Katia Boustany, Brocklebank: A Questionable Decision of the Court Martial Appeal Court of Canada, 1 Y.B. INT’L HUM. L. 371 (1998). 158 ICC Statute, supra note 109.

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overburdened with minor or isolated cases and was specifically derived from the US proposal at Rome to safeguard US soldiers from being indicted for isolated cases of war crimes while serving abroad.”159 Yet, as aforementioned, it would be strenuous to demonstrate that the sexual acts were executed in the framework of a plan or policy. 2. The Principle of Complementarity The principle of complementarity is one of the main hurdles to the involvement of the ICC in the prosecution of sexual offences perpetrated by peacekeepers. Being a treaty based on state sovereignty, Article 17 of the ICC Statute grants national courts primary jurisdiction. As a result, domestic courts retain a prominent role in punishing those alleged to have perpetrated crimes falling within the rationae materiae competence of the ICC. The Court will only take over if the national judicial system is unable or unwilling to take legal action.160 Generally, in pursuance of Article 17 of the ICC Statute, “[i]f national authorities of a state adequately investigate or prosecute, or if they decide on solid grounds not to prosecute, the case will be inadmissible before the Court.” 161 Article 17(2) includes a reference to the intent of the state as well. The principle of complementarity places the burden on states to substantiate that they are prosecuting nationals who committed crimes falling with the scope of the ICC Statute. Only when troop-contributing states do not meaningfully pursue individuals or do not offer a good reason for not doing so can the ICC prosecutor initiate a case. In a similar vein, the ICC could only take over a case implicating a member of the United Nations, a civilian police officer or a military observer if the host state where the crime occurred failed to act against the individual. As it is likely that the host state will be reluctant to go against personnel involved in such missions, it can be said to be “unwilling” in conformity with Article 17 of the ICC Statute. In the specific instance of a host state, in which the entire judicial system has collapsed, the ICC prosecutor would be able to instigate a case in pursuance of Article 17(3), which specifically mentions situations of “total or substantial collapse or unavailability of [the] national judicial system” of the state. 159 Max du Plessis & Stephen Pete, Who Guards the Guards ? The ICC and Serious Crimes Committed by United Nations Peacekeepers in Africa, 13(4) AFR. SEC. REV. 5, 12 (2004). 160 For a thorough discussion, see Mireille Delmas-Marty, Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC, 4 J. INT’L CRIM. JUST. 2, 4–6 (2006). 161 ICC and US, supra note 1, at 130.

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A second impediment attached to the notion of complementarity, which underlies the ICC, is reflected in Article 18, which requires the ICC prosecutor to notify all states parties as well as those that would have jurisdiction if he wishes to start a case before the Court. States are then able, should they wish so, to stop the proceedings and take up the case on the basis of jurisdiction grounded on, for example, the principle of passive or active nationality. To enhance states’ opportunity to take legal action under national law, Article 19 offers certain states the possibility to challenge the Court’s jurisdiction at the admissibility stage. 3. Immunity An additional issue relating to the competence of the court to judge peacekeepers is immunity. No individual is immune from the jurisdiction of the ICC. Even heads of states, who are protected by diplomatic immunity according to the Vienna Convention on Diplomatic Relations,162 can be hauled before the Court according to Article 27. However, as some states perceived the ICC as a threat to peacekeeping operations,163 they successfully lobbied for a Security Council resolution 164 passed in 2002 to grant immunity for one year to peacekeepers from states that had not ratified the ICC Statute. 165 A year later, this immunity was extended by way of a further Security Council resolution.166 Yet, in the wake of the Abu Ghraib prison abuse scandal, a third extension was not granted in 2004. Although it is disputed that the intention of the drafters of Article 16 of the ICC Statute was not to be used to provide immunity to peacekeepers from prosecution, it was nonetheless employed in this fashion. In fact, the Security Council stymied the prosecutor from commencing investigation or prosecution, that is, before the crime was perpetrated, peacekeepers were granted immunity. The question remains whether this mechanism will again be used in the future. It is thus interesting to see that SC Resolution 1593, which referred the situation in Darfur to the ICC, specifically mentions in paragraph 6 that 162 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, arts. 29–31, 500 U.N.T.S. 95. 163 In particular, these resolutions “are a result of concerted opposition by the United States to the jurisdictional regime of the ICC.” Neha Jain, A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court, 16 EUR. J. INT’L L. 239, 240 (2005). 164 SC Res. 1422, UN Doc. S/RES/1422 (July 12, 2002). 165 See Noëlle Quénivet, Who Changed the Road Rules? The ICC and the Security Council Hammering in Conflicting Road Signs, 78(1) DIE FRIEDENS-WARTE. JOURNAL OF INTERNATIONAL PEACE AND ORGANIZATION 29, 35–36 (2003). 166 SC Res. 1487, UN Doc. S/RES/1487 (June 12, 2003).

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individuals from a contributing state that is not a party to the ICC Statute shall be subject to the exclusive jurisdiction of that contributing state. 167 It confirms that certain peacekeepers continue to be protected from the jurisdiction of the ICC. G. USING THE ICC One way to temper the exclusive jurisdictional authority of the troop-contribution state and to employ effectively the ICC is to provide expressly in the SOFA and contribution agreement for secondary jurisdiction by the ICC. This would comport with the Statute of the ICC, inasmuch as the latter imparts that the prosecutor may only institute proceedings when a state is unable or unwilling to do so. A further opportunity to implicate the ICC when peacekeepers are alleged to have perpetrated crimes of a sexual nature is to allow for the investigation to be carried out with the assistance of a member of the ICC investigation team. 1. Secondary Jurisdiction Remarkably, the possibility of granting primary rather than exclusive jurisdiction is already being used in other contexts. First, SOFAs concluded between member states of the North Atlantic Treaty Organization (NATO)168 allow host states to exercise secondary jurisdiction over individuals of a contributing nation when the latter refuses to prosecute the person for the alleged crime. “The grant of such exclusive or primary jurisdiction to the state of nationality is considered important for the successful functioning the force stationed in another country.”169 Nevertheless, it is claimed that the system does not work because the host state is rather reluctant to try those who are viewed as helpers.170 Second, UN officials, UN volunteers, experts on mission, as well as contractors, are compelled to abide by local laws. Primary jurisdiction lies within the host state. In conformity with Article 17 of the ICC Statute and with the principle of primary jurisdiction being granted to host states, it is conceivable that the ICC be included in the process. Nonetheless, as the Sixth Committee of the General Assembly stresses “there are many states that are not party to the Rome Statute of the International Criminal Court and, in the absence of a 167

SC Res. 1593, UN Doc. S/RES/1593 (Mar. 31, 2005). Article VII(3)(a)(ii), Agreement between the Parties to North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 199 U.N.T.S. 67. 169 Jain, supra note 163, at 245. 170 SPEES, supra note 60. 168

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referral by the Security Council under Chapter VII of the Charter of the United Nations, the Court cannot assert jurisdiction if neither the host state nor the state of nationality is a party to the Statute or has accepted the Court’s jurisdiction.”171 Referral by the UN Security Council is improbable, for it has already in the past granted immunity to peacekeepers, and no consensus as to the ICC’s powers over peacekeepers seems to have been formed since then. To curtail these legal impediments, the convention on the criminal accountability of UN officials and experts on mission could include a provision granting the ICC automatic jurisdiction following a negative administrative measure by the United Nations. This jurisdiction-sharing model may work since the body that has secondary jurisdiction is viewed as sufficiently independent and competent to initiate prosecution. While this may be a legally sound proposition, it is likely to be rejected for political reasons, for not all troop-contributing states are parties to the ICC Statute and support its establishment and work. 2. Investigation Investigation is a second area in which the ICC could step in to assist the United Nations, host states as well as troop-contributing states to ensure that inquiries are fair and peacekeeping personnel receive “due process.” The Zeid Report stressed that one of the problems encountered during investigations was the lack or deficiency of the collection of sufficient evidence for a prosecution under the applicable substantive and procedural law.172 a.

The Old Investigation Procedure and Its Criticisms

According to the system that regulated inquiries into sexual abuses prior to September 2005, allegations against UN staff and other civilian personnel are inspected by the head of mission, who decides whether a preliminary investigation is indeed necessary. Based upon this inquiry, if the allegation appears to be substantiated, the case is sent to headquarters for action.173 In cases of allegations made against nationals of troop-contributing states and experts on mission, the head of mission decides whether it is suitable to launch a preliminary investigation. If substantiated, cases are then forwarded to the Board of Inquiry, which, upon recipt, issues recommendations with regards to administrative action. Should the allegations be well founded, the head of mission can recommend repatriation to the Under-Secretary for Peacekeeping

171 172 173

Accountability of UN Staff and Experts, supra note 31, at 71(d). Zeid Report, supra note 22, at 88. 2003 Bulletin, supra note 24, at 7.

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Operations. If the recommendation is approved, the “uniform personnel concerned is notified and the expenses of the repatriation are paid by the relevant Member state.”174 This is an administrative rather than a disciplinary measure. In pursuance of the contribution agreement, the DPKO follows up with member states on whether these individuals stood trial before in national courts. Sadly, head of missions are rarely kept abreast of the progress of investigations of proceedings.175 This system presented numerous flaws regarding investigations: victims and witnesses were not appropriately protected, the coordination between military and civilian police was weak and requirements relating to due process were rarely met. b. The New Investigation Body In April 2005, the recommended establishment of a professional and independent investigative capacity to scrutinize allegations of sexual misconduct was approved.176 The mechanism proposed by the Zeid Report purported to ensure states’ jurisdictional sovereignty while at the same time improving the former mechanism, inasmuch as it should provide that a member of the national contingent incriminated in the alleged crime be implicated in the investigation. It was agreed that this role should be taken upon by the OIOS.177 As a result, in the wake of these reports the DPKO agreed to collaborate with the OIOS to investigate allegations of sexual exploitation and abuse offenses. Since September 2005, the OIOS has been vested with powers to examine sexual abuse allegations. The new system tries to satisfy the requirements set by national jurisdictions of troop-contributing states, yet “not all member states are comfortable with the investigative role given to OIOS by the General Assembly, and have reserved their rights with respect to their uniformed personnel on the ground.”178 It is also unclear how the new mechanism will be able to work in practice. To endow the OIOS with the task of reviewing allegations of sexual abuses perpetrated by members of PSOs is not without intrinsic problems. Indeed, criticism may be leveled against the OIOS for having set in various reports a high evidentiary threshold of substantiation and corroboration.179 For examples, the 174

Id., at 8. BYRNE, MARCUS & POWER-STEVENS, supra note 18, at 23. 176 2005 Special Committee on Peacekeeping Forces Report, supra note 45, at 30. 177 GA Res. 59/300, UN Doc. A/RES/59/300 (June 30, 2005). 178 Statement by Under-Secretary-General for Peacekeeping Operations JeanMarie Guéhenno to the Security Council, supra note 51. 179 Susan A. Notar, Peacekeepers as Perpetrators: Sexual Exploitation and Abuse of Women and Children in the Democratic Republic of the Congo, 14 AM. U. J. GENDER & SOC. POL’Y & L. 413, 418 (2006). 175

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investigation carried out in February 2000 in Bosnia found “no evidence of widespread or systematic involvement in trafficking”180 despite repeated allegations of sexual misconduct of peacekeepers. Another inquiry undertaken in West Africa by the OIOS following the Save the Children/UNHCR Report also concluded that the allegations were unfounded.181 Although countless reasons explain the flaws, several contribute greatly to the fact that the OIOS may not be viewed as an appropriate investigation mechanism. First, victims have to report directly to the peacekeeping mission that inevitably leads to underreporting as victims were reluctant to meet with personnel who are colleagues of those who abused them. In this regard the report recommends that DPKO designate an independent third party that collects such complaints.182 Second, most evidence collected does not comply with the requisite evidence collection techniques and are as a result useless to start a prosecution case. The August 2006 Report of the Sixth Committee clearly spells out that evidence garnered by the investigation body must serve the purpose of commencing or conducting criminal proceedings especially when “the host state has no capacity to undertake a criminal investigation.” 183 To fill the gaps, the 2005 UN Report recommends that modern standards of evidence gathering be used and that investigations comport with the standards of troop-contributing nations,184 while the August 2006 Report supplements that evidence should be “collected in the best possible [ . . . ], that proper chain of custody procedures [be] in place and that the Office acquires a capacity to collect and store forensic evidence.”185 Even though these recommendations are being debated in various fora, they have not yet been embraced by the United Nations as of January 2007. Moreover, the OIOS has not enough power to take legal action or act as a substitute for national justice. In fact, the OIOS reported that while investigating allegations of sexual abuse in the DRC, two contingents either did not supply any information when requested or even disrupted the investigation.186 This illustrates the few powers that the OIOS has in relation to investigation. To grant the OIOS prosecutorial rights would inevitably encroach upon the jurisdictional sovereignty of troop-contributing states that will only reluctantly agree to such a procedure, a factor that explains why such a proposition has not been made in any UN reports.187 180

Hearing House of Representatives, supra note 69, at 22. OIOS Report on West Africa, supra note 19. 182 OIOS Report on the DRC, supra note 20, at 56. 183 Accountability of UN Staff and Experts, supra note 31, at 83. 184 Zeid Report, supra note 22, at 32. 185 Accountability of UN Staff and Experts, supra note 31, at 84(e). 186 OIOS Report on the DRC, supra note 20, at 38. 187 It is feared that many states would simply refuse to take part in PSO and that United Nations missions would not be carried out due to a lack of troops. Spencer, supra note 114, at 178 (2005). 181

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c.

The Possible Role of the ICC in this New Investigation Body

Involving the ICC in the work of the investigation carried out by the OIOS would greatly enhance the overall quality as well as that of the findings. First, such a mechanism would bestow the investigation team with a member of the ICC prosecution team endowed with a wealth of knowledge with regard to sexual crimes. As aforementioned, the ICC Statute contains numerous provisions prohibiting and criminalizing certain sexual activities, and the prosecution office is specifically dedicated to examining cases relating to sexual offenses. In pursuance of Article 54(1)(b) the ICC prosecutor is obliged to investigate crimes of sexual and gender violence. As a result of this official policy, gender specialists were recruited. Particular attention was as well paid during the recruitment process to female staffing, as it can positively assist the investigation process. Second, as aforementioned, evidence gathering is a particularly thorny issue. In the light of the recommendation that in-mission court martial should be allowed to gain access to witnesses and evidence as well as that such remedy be transparent and accountable, it is necessary that the permanent professional investigation mechanism envisaged by the Zeid Report includes a member that is familiar with standard evidence gathering according to international criminal law and specifically relating to gender crimes. A member of the ICC prosecution team could impart useful insights in evidence gathering. Third, including staff members of the ICC in the investigation procedure may lend more transparency and independence. This model would go along the lines of the proposal by the Zeid Report recommending that a permanent investigative body independent of DPKO and peacekeeping missions be established.188 Investigations must take place in a context of trust, which may be encouraged by the presence of an independent person such as a member of the ICC prosecution team. H. CONCLUSION The role played by the ICC in the investigation and prosecution of sexual offenses committed by peacekeepers can only be marginal. While the ICC could potentially be used as an accountability mechanism for such crimes when they reach a certain threshold, the great majority of the cases must be dealt within the framework of national criminal law, be it that of the host state or that of the country of nationality of the perpetrator. To progress in that direction, it is recommend that the United Nations adopt the Draft Convention on Criminal Accountability and open it to ratification to all members of the United Nations. 188

Zeid Report, supra note 22, at 31–32.

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This will unfortunately not solve the issue of the criminal responsibility of members of national contingents who are seemingly still protected via immunities and the lack of will of troop-contributing states to haul members of their own armed forces before national courts. In this regard the United Nations must ensure that it consistently follows up the state of national proceedings and investigation once the United Nations has established that a national of a troop-contributing state indulged in sexual criminal behavior.

FINAL CONCLUSIONS AND REMARKS BY THE EDITOR Peacekeeping has undergone major changes since its creation. Nowadays we can find several types of intervention, ranging from traditional peacekeeping to so-called robust peacekeeping and law enforcement. All these types of measures to reestablish and maintain international peace and security under Chapters VI and VII of the UN Charter were referred to in this book under the umbrella notion of peace support operations (PSOs). The experiences made by most authors in Iraq, Uganda and the Balkans show that often the decisions taken in the capitals, at the headquarters of ministries of defense, are driven by political needs that are difficult to implement in the field. This difficulty is accentuated by the need to act in conformity with domestic and international law. For this reason, the commander deployed to the field will often avail him- or herself of a legal and a political adviser. Neither law nor political science are exact sciences, meaning that the more “heads” are involved in the decision-making process, the more difficult it will be to reach consensus and a univocal position. Moreover, the legal adviser in the field will often have to consider both the theoretical background of the legal framework he or she is called upon to apply, as well as the practical difficulties of the reality. It is for this reason that this handbook was conceived as a means to bring together academics, who have been in strong contact with the military, and lawyers, who are active in the field, be they members of the military, non-governmental organizations (NGO) operators or members of the International Committee of the Red Cross (ICRC), and who are aware of the needs of those working in the field and practitioners. The aim was to entrust the first to find solutions to the problems posed by the latter, taking into account also the experiences made and their suggestions. The outcome is that a sound knowledge of both international and domestic law is needed, in order to be prepared to face the legal problems related to PSOs in the field. On the other hand, however, a crucial element is training of all members of the military in human rights and international humanitarian law (IHL). The higher the level of command, the higher the knowledge should be. It is in fact inconceivable to expect a commander who has never heard the word IHL to be prepared to listen to the suggestions of his/her legal advisers, who will be seen as a troublemakers rather than a “trouble solvers.” Another outcome is that the military cannot always rely on legal advisers. Decisions sometimes need to be made quickly, and it is unthinkable to have a hotline with a legal adviser always ready to intervene. Ultimately, moreover, the responsibility of all decisions lies with the commander. Therefore, as in every field, training is the key element. 433

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Law Enforcement Within the Framework of Peace Support Operations

In order to do so, however, it is important to know what needs to be trained. In this handbook practitioners have illlustrated the problems that may arise during a PSO, providing a means to convey their know-how to future legal advisers. They have also illustrated checklists that may be used, conducts that may be taken and solutions that may be adopted at the tactical level. With regard to the strategic level, the authors have shown that it is always crucial to keep an open line of communication between headquarters and field missions: those at headquarters may have the bigger picture of a PSO in sight, whereas those in the field may focus on more practical and specific problems to be solved. The two pictures need to be brought together, in order to accomplish a mission. For instance, the prosecution of indictees of international crimes may be viewed as a non-military task by some. However, the importance to entrust a PSO with this task is important to achieve the overall goal of stability and, thus, peace building. Likewise, a lower-ranked peacekeeper may not immediately understand the need to avoid certain red light districts and perceive it just as a measure to spoil his leisure time. From a bigger perspective, however, measures aimed at impeding military personnel from attending certain areas, as discussed in Part IV of the book, may have a very strong impact on the achievement of stability in a specific region where peacekeepers are deployed, since enforced prostitution may be a measure to finance the illegal trade in arms by groups who are ruining the achievement of peace building. At the same time, training and the respect of international law are crucial for the image of a peacekeeping mission: as soon as peacekeepers are viewed as possible perpetrators of crimes by the population, there is the risk of losing its “hearts and minds” and, therefore, failing in the accomplishment of the mission. In sum, it may be concluded that every action taken during a PSO needs to have a sound legal basis. International law, however, has increasingly become complicated, with its sub-headings like IHL, ius ad bellum, international criminal law, international operational law. Legal advisers are there to help the commander make the right decision. The right decision, however, can be more easily taken if the members of the military are trained, not only at the tactical level, but also about the basics of international law. By doing so, the application of ROEs will be simplified. At the same time, legal advisers must also be trained to face the problems that may arise in the field. This book hopes to simplify their work and to give those who work at headquarters an opportunity to gain insight into the realities of the field.

Dr. Roberta Arnold Lugano, July 16, 2007

INDEX Abduction 37 (n.28), 41, 139, 148, 151ss., 197, 300, 304, 355, 363, 382 Abetting 16, 68, 111, 202, 307 Abu Ghraib 247, 425 Abuse xxiv, 59, 153, 179, 183, 199, 219, 221, 239, 261 (n.10), 262 (n. 14), 271 (n. 41), 296ss, 316ss, 329ss., 353ss, 363ss, 384, 387, 392, 400ss, 422–429. Accountability 128, 198ss, 206, 208–213, 217ss, 259 (n.3), 318–319, 329ss, 340, 402 (n.15), 404–416, 427, 429 (n. 183), 430 Accused (rights of the) 141–155, 180, 285ss, 295ss, 389 Achille Lauro 14 Acholi 36–37, 48–49 Adjudication (criminal) 142, 258, 266ss, 291ss Afghan National Army (ANA) 98, 100 Afghan National Police (ANP) 98, 100 Afghan Security Forces 98, 101 Afghanistan 4, 8, 13, 18, 61 (n.30), 75, 81 (n.13), 82, 94ss, 244, 250 (n.91), 312 (n.4), 328 (n.94) African Union 54 (n. 3), 269, 281 African Union’s Peace Mission in Spain (AMIS) 268, 270, 281 Agim Murtezil 144 Aiding 16, 68, 111, 202, 307 Akayesu Case 413 Al Amarah 129 Al Jedda Case 201, 229ss., 254 Al Maqil prison 136 Al Muthana 133 Al Qaeda 99 Al Skeini 220, 230, 232, 233, 244, 249, 252, 253 Albania 89, 351, 370 AMIS 261ss, 181 (n.80)

Amnesty 44–45, 190, 194 Amnesty International (AI) 71ss, 252 (n. 100), 276 (n.65), 285 (n.103), 340 (n. 172), 353 Angola 14, 312 (n.7), 318 Anthropology investigation 180ss Apprehension xxiii, 83, 139ss., 151ss, 201, 238, 253, 285 (n. 103) Archaeological work 180ss. Argentine 180–195, 255, 410 (n.69) Argentine Forensic Anthropology Team (EEAF) 179ss Armed attack 3, 5, 7, 13ss, 15 Armed conflict (international) xxi, 6ss., 13ss, 123ss, 423 Armed conflict (non-international) 141, 423 Arms’ trade 82, 352 Arrest warrant xxii, 39ss, 140ss, 305ss. As Sinaiyah prison project 136 Aston Cantlow PCC v. Wallbank 234 aut dedere aut iudicare 263 Baghdad 130, 231, 232, 237 Bala Haradin 144 Balkans 81 (n. 13), 83 (n. 22), 84 (n.24), 88, 95, 148 (n. 45), 175 (n. 81), 202 (n. 26), 250, 272, 313 (n.7), 329ss, 358ss, 433 ballistics 180 Bankovic Case 237 Barajana and Western Sirmium 151 Basra 129ss, 232, 237 Behrami Case 107 (n.4), 230 Bin Laden Osama 144 Binaisa Godfrey Blackmailing 76, 78 Blue boxes 69 Board of Inquiry 334, 335, 336, 427 Bonn Agreement (2001) 95ss Border controls 368, 375

435

436

Law Enforcement Within the Framework of Peace Support Operations

Bosnia and Herzegovina (BiH) xxi, xiii, 29 (n.31), 58 (n. 21), 75, 82ss, 105, 110 (n.18), 111, 118 (n.34), 119, 140 (n.3), 144 (n.22), 148–149, 150 (n. 57), 152, 154 (n. 76), 157ss,163ss, 173ss, 202ss, 236, 268, 272ss, 274, 276 (n. 65), 285 (n.103), 290, 305,306, 327, 329, 363, 369 (n. 49), 370 (n.56), 399, 400, 410 (n. 68), 416 (n.107), 418, 420, 429 Bosnia Genocide Convention case 236 Brahimi Report 312 (n.3, 5), 320 (n.49), 321 (n.52), 323 (n.61) Brazil 185 British forces Divisional Temporary Detention Facility 232 Brothels 89, 329, 351ss, 358ss, 377ss, 417 Bulletin on the Observance by United Nations Forces of International Humanitarian Law, 27, 205 (n. 34), 214 (n. 68, 69, 71), 215 (n. 73), 216 (n. 76), 260 (n.10), 262 (n.14, 16, 17) 324 (n.71), 332 (n.122), 403 (n.23, 24), 415 (n.99) Bunia 269, 281 (n.78), 330 Burial sites 182, 185, 188, 194 Burundi 312(n.4), 329 Cambodia 173, 267, 270ss, 288ss, 312 (n.6), 314, 322, 329, 400, Camp Bondsteel Detention Facility 65 Canadian troops in Somalia 401 Capital punishment 251ss Carabinieri 84 Carl Bildt 160 Carla Del Ponte 149, 172 Caveats (national) 92, 98, 99, 101, 102, 106 (n.2), 107, 117 Ceasefire agreement 36, 55, 60, 67, 90, 264, 268, 272, 281, 381 Celebici Case 413, 414 (n.93), 421 (n. 140) Central Poppy Eradication Force (Afghanistan) 100 Centrex Central Police Training and Development Authority (UK) 327 Cessation of hostilities 79, 83, 283 (n.87)

Chain of command 59, 109, 208, 210, 213, 217, 219, 223, 225, 227, 239, 249, 253, 260, 343, 349, 354, 375 Chapter VI UN Charter: xxi, xxiii, 21 Chapter VII UN Charter xxi, xxiii, 7, 21, 24, 28, 29, 39, 55, 56, 61, 62, 71, 83, 97, 141, 142, 150, 155, 236, 241, 253, 272, 289 (n. 127), 306, 374, 427 Checklist 199, 222, 374, 395, 434 Checkpoints 367, 375ss Child soldiers 267 (n. 24), 319, 339, Chile 182, 185, 190, 194, 327, 328, 341 (n.175) Chilean Peacekeeping Training Course (CECOPAC) civil military coordinators (CIMIC) 367–368, 375 CIVPOL 80, 90, 92, 313 (n. 9), 322, 333 (n. 126), 409 Coalition Provisional Authority (Iraq) 23 (n.2), 130 (n.23), 231, 252 Coalition Provisional Authority (Iraq) 23, 130 (n. 23), 231, 252 Code of Conduct 136, 205, 209, 298, 315ss, 325 (n.74), 330, 338, 342ss, 406, 417 (n.112) Collective security 29 Colombia 182, 183 Combatants 7, 9ss., 46, 125, 126, 204, 317, 339, Command responsibility 62 (n.34), 208, 260, Commissions of inquiry 183, 401 (n.13) Compensation 151, 213, 218, 223 Complaints register 219, 228 Congo 266, 269, 279ss, 313, 330ss, 353, 392, 399ss, 409, Contractors (sub-) 79, 99, 298, 299, 301, 361, 366, 370, 403, 405, 426 Copyright infringement 82 Corruption 76, 79, 100, 102, 297, 331, 348, 356, 364, 377, 381, 384, 385, 389, Côte d’Ivoire (Ivory Coast) 21 (n. 78), 402 Counterfeiting 76, 89 crime (juvenile) 135

Index Crime scene security 106 Crimes against humanity 33, 35, 38ss, 109, 172, 175, 202, 204, 252, 258, 259, 216, 278, 280, 282, 286, 290, 312, 363, 420, 421ss Criminal Code of Bosnia and Herzegovina (BiH) 363 Criminal procedure 112ss, 387 Crisis management 3ss, 27 Croatia 84, 149, 191, 267, 272ss Crop eradication 99ss Custody 113, 118, 136, 141, 144, 146, 147, 152, 172, 185, 187, 202, 216ss, 348, 429, Cyprus 197, 201, 313 (n.9) Damjanovic case 160 Darfur 269ss, 281ss, 425 Dayton Agreement 58, 83, 85, 157, 161, 165, 203, 268, 273, 275, 276 Death penalty 131, 160, 252, 315, Delalic case 201, 239 Democratic Republic of Congo (DRC) 266, 269 (n.32), 279ss, 312, 330ss, 353, 392, 399 Denmark 136, 328 Detainee register 219, 228 Detainees 197ss, 213ss, 219ss, 248, 250, 254, 342 Detention (provisional) 285 Detention 54, 63ss, 70ss, 109, 113ss, 127, 139, 142ss, 197ss, 213ss Direct participation 9 Djukic Djordje 161 Dominic Ongwen 40, 41 DRC Democratic Republic of Congo 185, 266, 268ss, 279, 281, 312, 330ss, 353, 392, 399 Drug trafficking 76, 88, 89, 91, 92, 96, 101 DynCorp 99, 100, 328 East Timor 73, 157, 198, 313, 319, 322, 329, 399, 401 Eastern Slavonia 151 El Mozote burial site 185, 191 El Salvador 185, 186, 191, 314 Electoral process 36, 95, 160, 173, 269, 319, 322

437 EUFOR ARTEMIS 269, 280 (n.78) EUFOR Athea 272, 273ss, 285 EUPM 85, 86, 369ss Europol 76ss Evidence 81, 86, 92, 95, 105ss, 108ss, 112ss, 117ss, 141, 144, 151, 159ss, 172, 174, 176, 179ss, 187, 189, 191ss, 209, 219, 226, 232, 238, 245ss, 259, 280, 284ss, 293, 294, 334, 352, 366ss, 375ss, 387ss, 392, 402, 411ss, 427, 429 Executions (summary) 109, 112, 312, 316 Exhumation 112, 181, 185, 186, 193, 195 Falklands 255 Fauchille doctrine 28 FBI 5 Federal Republic of Yugoslavia 64, 67, 151, 152, 272 (n. 49), 273, 274 (n. 59), 277 (n. 68), 306 Financial Investigation Unit (Kosovo) 92 Firearms (basic rules for the use of) 69, 205 (n. 34), 316, 323, 334, 346, Force (lethal) xxii Force (use of) 3ss, 69, 125ss, 209ss, 275, 282, 283 (n.84), 286 (n. 104), 297, 300, 304, 316, 319, 333, 346, 363, 382, 417 Forensic work 183ss, 190, 191 Freezing of assets 81, 149, 150ss Furundzija Case 210 (n.52), 413, 423 (n.155) FYROM 360, 379 (n. 68) Gaza 10–11 Gendarmerie 84, 117 Genocide 30, 33, 35, 38, 46, 109, 112, 172, 182, 189, 198, 202, 204, 236, 258, 266, 268, 290, 312, 346, 420, 421ss GFAP 83, 158, 160, 166, 171 Gotovina Ante 147 Grandmothers of Plaza de Mayo 181 Guerrilla 16 Gulu 36, 45 Haiti 185, 190, 198, 312, 314, 329, 401 Handover 213, 214, 217ss, 226ss, 230, 252, 285

438

Law Enforcement Within the Framework of Peace Support Operations

Hilmand 96 (n.62, 64), 98 Holbrooke Richard 161 Holy Spirit Mobile Force (Uganda) 36, 37 Host state/nation xxi, 4, 53 (n.2), 54, 202ss, 212, 243, 251, 257 (n.1), 298, 299ss, 318, 320ss, 337, 340, 342, 354, 356, 359ss, 384ss, 393, 405ss, 409ss, 427ss Hostile Act 19ss Hostile Intent 19ss House searching 91 HSMF 36–37 Human rights law 60ss, 107, 114, 144, 153ss, 164, 182ss, 190ss, 200, 202, 205ss, 218, 220, 229ss, 242, 243ss, 246, 251ss, 257, 279ss, 282, 297, 311ss, 324ss, 333ss, 337, 339ss, 358, 364ss, 370ss, 379, 384, 399, 408, 412, Human trafficking 76, 82, 89, 93, 303, 311ss, 351ss, 372ss, 399ss Humanitarian intervention 76 ICC xxiii, 17, 21, 33ss, 286ss, 426ss, ICJ 61 (n.29, 31) ICRC 136, 142, 432, 214, 218, 219 ICTR xxi, 34, 56, 107, 113, 266, 284ss, 413, 421, 423 ICTY 56, 84, 107, 109, 111ss, 140ss, 154ss, 158ss, 171ss, 201, 266, 272ss, 284ss, 293, 306, 413ss Identification 109, 111, 180–183, 188ss, 190, 193, 194, 303, 369, 382, 387, IDF 10ss, 271 Idi Amin Dada 36 IDP 37, 41, 170, 280 IFOR 83, 91, 203, 268, 272, 273, 275, 277, 285 Illegal immigration 357 Ill-treatment 210ss, 218ss, 227ss, 247 Immunity 57, 59, 246, 259ss, 361, 364, 374, 392, 393, 408, 420, 425ss In camera proceedings 284ss, 293 Inhuman or Degrading Treatment 38, 211 Intelligence 4, 9, 60, 80, 81, 84, 86, 91–94, 102, 106, 109, 114ss, 232, 238, 239, 247, 248, 250, 388, 390, INTERFET 127 (n.16), 198

Interim Criminal Procedure Code (2004) of Afghanistan 113 international criminal law 16, 20, 48–49, 195, 201, 202, 262, 400, 409ss, International humanitarian law (IHL), xxi, xxiii, 10, 11, 24–31, 61, 62, 70, 106ss, 116, 140–142, 155, 158, 172–174, 201, 205, 209, 229ss, 246ss, 251, 253–255, 257, 261, 274, 279, 324, 433 internet 154, 378, 384, 395ss Investigation 164, 174, 178, 179, 180–200, 202, 208, 213, 219ss, 227ss, 244ss, 253, 267ss, 273ss, 280, 283, 284, 287, 289, 291, 295, 303, 305, 316, 319, 332ss, 352ss, 368, 376, 378, 382, 387ss, 393ss, 402, 406ss, 411, 426, 427ss IOM 358, 396 IPTF 83ss, 133, 369 Iraq xxiii, xxiv, 23ss, 56, 123ss, 230ss, 244ss, 253ss, 433 Iraqi criminal code 131, 134, 251 Ireland v. UK case 246, 249 ISAF 4, 94ss, Isak Musliu 144 Israel 8, 30, 152 (n.64), 271, 283(n.87) Israeli Supreme Court 6ss. Israeli Wall Case 14 Istanbul Summit of June 29, 2004, 364 Ituri region 269 Ius cogens 29ss Joint operations 119 JSAP 167, 170 Judiciary 64, 119, 133ss, 170ss, 186, 190, 193, 279, 282, 388ss jurisdiction 33, 35, 38ss, 46, 47, 57, 59, 81, 107, 114, 141ss, 153, 155, 159, 172ss, 175, 177, 199, 209, 230ss, 241, 244, 246, 258, 262, 264, 266ss, 304, 323, 337ss, 359ss, 394, 400, 405, 406, 408ss, 420, 423ss Kabul 96–97, 102 Kadi case 254 Kampala 36, 37, 45 (n.97) Kampuchea 267(n.27), 288, 296 Karadzi’c Radovan 150, 175, 290, 306

Index Karzai Hamid 96ss KFOR 54ss, 63ss, 118, 198, 257, 260, 268, 277ss, 360ss, 370 Kidnapping 151, 352ss, 389 Kitgum 36 KLA/UCK 87, 90ss, 118 (n.35), 144 Kony 37, 40ss Kosovo (2004) upheavals, 65, 68 Kosovo, xxi–xxii, 54, 63ss, 74, 82, 87ss, 277ss, 358ss, 370, 381, 399, 401 KPS 69, 90ss Krsmanovic Aleksa 161 Krsti’c Radislav 109ss Krstic case 109 (n.15), 112 Kunarac case 210 (n. 53), 413 (n.90), 414 (n.94), 418, 419 (n. 129, 130, 132), 423 (n.152) Kupreski´c case 422 (n.149) Kuwait 56, 124 Lakwena Alice 36ss. Lebanon 14, 56, 267, 271ss, 273ss, 288ss, 296ss Legal adviser 432ss Limaj Fatmir 111 (n.20), 147 LOAC 125ss, 131, Lockerbie case 28 Loizidou v. Turkey Looting 41, 132 Lord’s Resistance Army (Uganda) LRA xxiii, 33ss, 266 Lukwiya Raska 40, 42 Macedonia 57 (n.12), 91, 268 (n.29), 272 (n.49, 53), 370, 379 (n. 68) Mafia 358 male captus bene detentus 153 Mass graves 109, 112ss, 319 Mato Oput 47 Maysan 132 (n.30), 133 Medical treatment 214ss, 378, 388 Mercenaries 201 Military observers 333ss, 403 Military police 65, 71 (n.70), 84, 90, 116ss, 134ss, 197, 244ss, 303, 354, 367, 374, 376 Milosevic 161 Ministry of Afghan Counter Narcotics 100

439 MINUSTAH 198, 312, 314 Mladi’c Ratko 175 Model training program 328 Money laundering 89 Monseñor Romero 191 MONUC 268ss, 279ss, 331, 402 (n.15), MTA-Kosovo (Military Technical Agreement-Kosovo) 66–68, 278 (n.68) N’djamena Agreement (see Darfur Peace Agreement) 269ss, 282 NAC 275 Nation-building 28, 75, 78, 83, 124, 129ss, 134, NATO 4, 15, 63, 70, 79, 83ss, 90, 99ss, 107, 126 (n.9), 140, 147, 260ss, 272ss, 290, 298, 300ss NATO Policy on Human Trafficking xxiv, 297ss, 351ss NATO ROE 4, 17, 20, 69 (n.64) Nicaragua case 3 (n.1), 15ss Nikolic Case 152 Non-State Actors 13ss, 96, 152ss, 314 NRA 36ss NRM 35, 37 Objectives (military) 7 Obote Milton 36ss Occupation xxiii– xxiv, 8, 23ss, 61, 124ss, 139, 140, 154, 197 (n.1), 199 (n.9), 230ss, 252, Odhiambo Okot 40 Offensive security operations 4–5 Oil Platforms case 18 OIOS 330, 402, 403, 411, 412, 417 (n.117), 428ss Okello Tito 36 Operation Desert Storm 56 Operation Enduring Freedom (Afghanistan) 99ss Operation Enduring Freedom (Iraq) 124 (n.3) Operational detention 54, 63, 67. 70ss Organized crime (transnational) 75, 261, 297ss, 365, 382ss Otti Vincent 40–41 Paulo Muwanga 36

440

Law Enforcement Within the Framework of Peace Support Operations

Pavle Strugar 146 Peace enforcement xxi ss, 5–6, 13, 19, 83, 353 (n.8) Peace Implementation Council (BiH) 158 (n.7), 275 Peace talks 46ss Peace-building 33ss, 43ss, 54ss, 68, 73, 76, 192, 264ss, 313, Peace-keeping 71, 83 (n.22), 343 Peru 182ss Pillaging 41–42 Piracy 76, 89 Pocket cards 377ss Policing 68, 72, 80ss, 90, 101, 125, 132ss, 172, 319ss, 328, 340, 381, 391 President Izetbegovic 161 President Tudjman 161 Pre-trial detention 113 Prince Zeid Ra’ad Zeid Al-Hussein 331, 392 Principle of complementarity 44, 419ss, 424ss, Principle of necessity 207 (n.41), Prisoner of war 38, 126ss, 135, Prisoners (Basic Principles for the Treatment of ) 126, 136, 207, 346, 347 Prohibition of torture 62 (n.34), 210ss, 324 Property xxii, 19ss, 26, 38, 54, 63, 68ss, 212ss, 224ss, 288 (n.121), 343, 361, 368, 389, Prosecutor v. Slavko Dokmanovi´c, 144 (n.26), 151ss Provisional release 145ss PRT (Afghanistan) 98 Psychological assistance 191ss Public order and safety 26 (n.16), 31, 123, 125, 127 (n.12), 129, 201 Quark Fishing case 241 Questioning 143ss, 186, 199, 211ss, 224ss, 246, 264, 387 Quick Impact Projects (Iraq) 137 Rafah case 10–11 Ramush Haradinaj case 145–146 Rape 204, 211, 262 (n.16) Reconciliation 44ss, 84, 173, 202, 263, 265, 277, 299, 306, 339

Recording 185ss, 211, 212, 218ss Red boxes 69 Red light districts 358, 369, 372, 434 Refugees 64, 77, 84, 99, 159, 160, 165, 191, 277, 279ss, 307, 357, 402 Registration of detainees 213ss Release 216, 225, 228, 232, 238, 239, 245, 260, 285, 290, 356, 370, 377 Reparation 71 (n.69), 109ss, 368 Repatriation 262ss, 330, 335, 338, 353, 370, 378, 388, 394, 427, 428 Reprisals 216ss Republika Srspka 64, 67 (n.60), 89, 148, 149, 150, 158, 159, 164, 167, 168, 274 (n.59), 306, Revival of Islamic Heritage Society 81 Rhodesia 56 Rule of law 48, 53 (n.2), 73, 82, 85, 101, 103, 105, 108, 114, 115, 176–177, 202, 206, 209, 211, 277 (n.67), 282, 306, 312, 318, 320–321, 327, 328, 339, 357, 367, 381, 385ss, 392, 395 Rules of the Road (RoR) procedure 157, 159ss, 305, 306 Saddam Hussein 231, 252 Sanctions 148, 149ss Sarajevo 161, 169, 273 Sarajevo’s District Military Court 160 Saramati case 230 Saranwal 113 Search operations 119ss, 141, 181, 192, 198, 281 (n.73) Searching (body) 152, 211, 212, 215, 216, 224, 340, Self-defence (personal) 17 Self-defence (state) 3, 7 (n.17), 13ss, 17, 21 Selmouni v. France 249 September 11th, 13ss, 56, 75, 251, Serbia (see Republika Srpska) Sexual abuse 261 (n.10), 262 (n.14), 319, 329 ss, 337, 340, 353 (n.12), 387, 393 (n.19), 400 (n.2), 401ss, 406, 407, 409, 412ss, 422, 423, 428, 429 Sexual exploitation (see abuse) Sexual harassment (see abuse) Sexual slavery (see abuse)

Index SFOR 83, 84, 140, 147, 152, 202, 268, 272, 273, 277, 285, 370 Sierra Leone 114 (n.30), 155, 173, 267, 270ss, 288ss, 312, 319, 330ss, 401ss, 418 Simic case 10 Site protection 186 Slovenia 147 Smuggling 76ss, 82, 87ss, 91ss, 101, 334, 372, 379, 383 Solomon Islands 203 South Africa 14, 186, 252, 401 Special Tribunal for Lebanon 267, 288ss, 291, 296 Standing operating procedure 53ss, 62, 65, 66, 71, 335, 360, 367 State sovereignty 59 (n.24), 138, 151, 154, 233, 424 Status of Forces Agreement xxii, 53ss, 59, 261ss, 359, 360ss, 404ss, 426 Status of Mission Agreement 259 Stefan Todorovic 202 STOP 369 Sudan 267, 269, 270, 281, 282, 291, 312 Surrender 40, 44ss, 139, 141ss, 145ss, 150, 305 Suspects 141ss Swiss armed forces 370, 371, 372, 374 Swiss military criminal code 373 Swisscoy xxii, 75 Switzerland xxii Taleban/Taliban 4, 13, 18, 95, 99, 100, 101 Taylor Charles 142 Telephone intercepts 115, 132, 388 Ten Rules: Code of Personal Conduct for Blue Helmets 315 (n.19) The Beijing Rules 317 The Tokyo Rules 316 Timor Leste 267, 312 (n.4) Torture 12, 37, 38, 59, 62 (n.34), 153, 189, 207, 209, 210ss, 222, 223, 246ss, 312, 313, 316, 324, 346 Training 65, 80, 85, 100, 102, 118 (n.35), 124, 125ss, 133, 135, 138, 154, 182, 193, 209ss, 221, 260 (n.10), 261, 297, 298, 300, 301, 302ss, 303, 311ss, 354, 364ss, 371ss, 387, 388, 389, 391ss, 433

441 Transfer xxiii, 38, 71, 80, 92, 93, 109, 115, 116, 118, 128, 136, 139, 140, 141ss, 153, 154, 161, 162, 172ss, 186 (n.3), 199, 213, 217ss, 224, 225ss, 231, 232, 237ss, 244, 246, 251ss, 276, 285, 297, 300, 304, 306, 355, 363, 382, 386, 391 Transitional authority 53ss, 70, 72, 73, 257, 261, 264, 270, 282, 290, 292, 322, Travel restrictions 150, 151 Trickery 151ss Truth commission 179, 182, 184ss, 190ss, 319 UAE 232 UÇK Ushtria Çlirimtare e Kosovës (Albanian name of KLA) 64, 66, 67, 87, 90, 91 Uganda National Liberation Front 36 Uganda People’s Democratic Army 36 Uganda xxiii, 33ss, 43ss, 45, 266 (n.23), 268ss, 433 Ugandan People’s Defense Force 40, 41, 46, 47 UK v. Soering case 251–252 UN Model SOFA (Status of Forces Agreement) 57, 58, 61 UN Rules of the Protection of Juveniles Deprived of their Liberty 317 UN Staff Regulations and Rules 404 UN Standardized Generic Training Modules (SGTMs) 312 (n.6), 313 (n.8), 313 (n.11), 325, 340 UN volunteers 403, 404, 426 UNAMIR 268 UNAMSIL 270, 278, 312, 330 UNEF I, 197, 203, 204 (n.31) UNFICYP 201 UNIFIL 271, 283, 288 UNIIIC 291, 292 UNIOSIL 270 UNMEE 319 UNMIBH 166 UNMIH 312 UNMIK 58 (n.20), 63ss, 71ss, 87, 89ss, 92ss, 116, 118 (n. 34, 35), 146, 157, 268, 278ss, 312, 330, 351, 359, 360 (n.28), 361ss, 368, 370, 375

442

Law Enforcement Within the Framework of Peace Support Operations

UNMIL 312 UNMIS 312 UNOCI 202 UNODC 382 (n.1), 387 UNOMSIL 270 UNOMSIL 270 UNOSOM II 201–202 UNPOL 312 (n.4), 313ss, 326ss. 339 UNPROFOR 267, 268, 272, 273, 322 UNTAC 270, 322 UNTAC 270, 322 UNTAES 151 UNTAET 73, 157 UPDA 36 UPDF 40–41, 46–47 Uruzgan 4 US 14, 15, 99, 100, 149, 150, 193, 251, 252, 328, 425 (n.163) USFK 377, 378 Vetevendosje movement 68

Victim Advocacy and Assistance Unit (Kosovo) 93 Vukovar 151, 191 Walking out policy 94 War Crimes 109, 139, 140, 142ss, 146, 154, 157ss, 171ss, 182, 202, 258, 259, 266, 273ss, 290, 305ss, 311, 312, 324 (n.70), 413, 420, 423–424. Wesley Clark 321 Witness protection 118, 174, 195, 257ss, 388, 395 Yoweri Museveni 35ss, 46, 47 Yusuf case 254 Yusuf Lule 36 Zaire 268 Zimbabwe 194