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 t